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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
September 8, 1997
Date of Report
(Date of earliest event reported)
TBA ENTERTAINMENT CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 0-22582 62-1535897
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
402 Heritage Plantation Way
Hickory Valley, Tennessee
(Address of principal executive offices)
38042
(Zip Code)
(901) 764-2300
(Registrant's telephone number, including area code)
Nashville Country Club, Inc.
(Former Name or Former Address, if Changed Since Last Report)
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ITEM 5. OTHER EVENTS
On September 8, 1997, Nashville Country Club, Inc. ("NCCI") changed
its state of incorporation from Tennessee to Delaware effective as of such
date. This change (the "Reincorporation") was accomplished by means of a
merger of NCCI into its wholly owned Delaware subsidiary, TBA Entertainment
Corporation. As a result of the merger, NCCI changed its name to TBA
Entertainment Corporation. The Reincorporation and the name change were
approved by the shareholders of NCCI at NCCI's annual meeting of shareholders
on September 8, 1997.
Upon the effective date of the Reincorporation, each outstanding share
of NCCI Common Stock was automatically converted into one share of TBA
Entertainment Corporation Common Stock and each outstanding NCCI Redeemable
Common Stock Purchase Warrant was automatically converted into one Redeemable
Common Stock Purchase Warrant of TBA Entertainment Corporation. Additionally,
each outstanding share of Series A Convertible Preferred Stock of NCCI was
automatically converted into one share of TBA Entertainment Corporation Series
A Convertible Preferred Stock upon the effective date. All other warrants and
options to purchase NCCI stock have likewise been converted into rights to
purchase the same amount of TBA Entertainment Corporation stock. Each
certificate representing issued and outstanding shares of Common Stock,
Preferred Stock or Redeemable Warrants of NCCI continues to represent the same
number of shares of TBA Entertainment Corporation Common Stock, Preferred Stock
or Redeemable Warrants, respectively. Shareholders or warrantholders of NCCI
are not required to exchange their existing certificates for new certificates.
As a result of the name change, NCCI's listing on the Nasdaq National
Market System will now be under the name TBA Entertainment Corporation, its
Common Stock will now be traded under the symbol TBAE and its Redeemable
Warrants will be traded under the symbol TBAEW.
Pursuant to the merger of NCCI and TBA Entertainment Corporation, the
directors and executive officers of TBA Entertainment Corporation remained the
directors and executive officers of the surviving corporation. NCCI's
business, mailing address, principal executive offices and telephone number
remain unchanged.
Reference is hereby made to the Press Release, dated September 8,
1997, issued by NCCI, which is attached hereto as Exhibit 99.1 and is
incorporated herein by reference.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) FINANCIAL STATEMENTS OF BUSINESSES ACQUIRED.
None required.
(b) RESTATED AND PRO FORMA FINANCIAL INFORMATION
None required.
(c) EXHIBITS.
<TABLE>
<S> <C>
2.1 Agreement and Plan of Merger between Nashville Country Club, Inc. and TBA Entertainment Corporation,
dated September 8, 1997.
3.1 Certificate of Incorporation of TBA Entertainment Corporation, as filed on August 1, 1997, with the
Delaware Secretary of State.
3.2 Bylaws of TBA Entertainment Corporation.
3.3 Articles of Merger of Nashville Country Club, Inc. into TBA Entertainment Corporation, as filed with
the Tennessee Secretary of State on September 8, 1997.
3.4 Certificate of Merger of Nashville Country Club, Inc. into TBA Entertainment Corporation, as filed with
the Delaware Secretary of State on September 8, 1997.
4.1 Specimen Common Stock Certificate of TBA Entertainment Corporation.
4.2 Article IX of the Certificate of Incorporation of TBA Entertainment Corporation (included in Exhibit
3.1).
4.3 Certificate of Designation filed with the Delaware Secretary of State.
99.1 Press Release
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
NCCI has duly caused this Report to be signed on its behalf by the undersigned
hereunto duly authorized.
NASHVILLE COUNTRY CLUB, INC.
Date: September 23, 1997 By: /s/ Thomas J. Weaver III
--------------------------------
Thomas J. Weaver III
Chief Executive Officer
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Description of Document Page
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<S> <C>
2.1 Agreement and Plan of Merger between Nashville Country Club, Inc. and TBA
Entertainment Corporation, dated September 8, 1997.
3.1 Certificate of Incorporation of TBA Entertainment Corporation, as filed on
August 1, 1997, with the Delaware Secretary of State.
3.2 Bylaws of TBA Entertainment Corporation.
3.3 Articles of Merger of Nashville Country Club, Inc. into TBA Entertainment
Corporation, as filed with the Tennessee Secretary of State on September
8, 1997.
3.4 Certificate of Merger of Nashville Country Club, Inc. into TBA
Entertainment Corporation, as filed with the Delaware Secretary of State
on September 8, 1997.
4.1 Specimen Common Stock Certificate.
4.2 Article IX of the Certificate of Incorporation of TBA Entertainment
Corporation (included in Exhibit 3.1).
4.3 Certificate of Designation filed with the Delaware Secretary of State.
99.1 Press Release
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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (the "Merger Agreement"), dated as of
September 8, 1997, by and between Nashville Country Club, Inc., a Tennessee
corporation ("NCCI") and TBA Entertainment Corporation, a Delaware corporation
("TBA").
W I T N E S S E T H:
WHEREAS, NCCI is a corporation duly organized and existing under the
laws of the State of Tennessee, having at the date hereof authorized capital
stock consisting of (a) 20,000,000 shares of common stock, no par value per
share ("NCCI Common Stock"), of which as of September 8, 1997, 8,000,275 shares
were issued and outstanding; and (b) 1,000,000 shares of preferred stock, no
par value per share ("NCCI Preferred Stock"), of which as of September 8, 1997,
334,285 shares were issued and outstanding; and in addition had, as of
September 8, 1997, 5,388,652 shares of NCCI Common Stock reserved for issuance
pursuant to options and pursuant to exercise of outstanding warrants to
purchase NCCI Common Stock; and
WHEREAS, TBA is a corporation duly organized and existing under the
laws of the State of Delaware having at the date hereof authorized capital
stock of (a) 20,000,000 shares of common stock, par value $.001 per share ("TBA
Common Stock"), of which 1,000 shares have been issued to, and are owned by,
NCCI, and (b) 1,000,000 shares of Preferred Stock, par value $.001 per share
("TBA Preferred Stock"), none of which are issued and outstanding;
WHEREAS, NCCI and TBA desire that NCCI merge with and into TBA and
that TBA shall continue as the surviving corporation in such merger upon the
terms and subject to the conditions herein set forth and in accordance with the
laws of the State of Delaware and the laws of the State of Tennessee (the
"Merger"); and
WHEREAS, the Merger is intended to qualify as a "reorganization"
within the meaning of Section 368(a)(1)(F) of the Internal Revenue Code of
1986, as amended;
NOW, THEREFORE, in consideration of the premises and mutual
agreements, provisions and covenants contained herein, and subject to the terms
and conditions hereof, the parties hereto do hereby agree as follows:
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ARTICLE I
PRINCIPAL TERMS OF THE MERGER
Section 1.1. Merger of NCCI into TBA. At the Effective Time of the
Merger (as defined in Section 1.2 hereof), NCCI shall merge with and into TBA
in accordance with the Tennessee Business Corporation Act (the "TBCA") and the
General Corporation Law of the State of Delaware (the "DGCL"). The separate
existence of NCCI shall thereupon cease and TBA shall be the surviving
corporation (hereinafter sometimes referred to as the "Surviving Corporation")
and shall continue its corporate existence under the laws of the State of
Delaware under the name of TBA Entertainment Corporation.
Section 1.2. Effective Time of the Merger. The Merger shall become
effective as of the date and time (the "Effective Time of the Merger") the
following actions are completed: (a) an appropriate certificate of merger is
filed with the Secretary of State of the State of Tennessee in accordance with
the TBCA and (b) an appropriate certificate of merger is filed with the
Secretary of the State of Delaware in accordance with the DGCL.
Section 1.3. Effects of the Merger. At the Effective Time of the
Merger, the Merger shall have the effects specified in the TBCA, the DGCL and
this Merger Agreement.
Section 1.4. Bylaws. At the Effective Time of the Merger, the Bylaws
of TBA as in effect immediately prior to the Effective Time of the Merger shall
become the Bylaws of the Surviving Corporation until duly amended in accordance
with their terms and as provided by the DGCL.
Section 1.5. Directors and Officers. At the Effective Time of the
Merger, the directors and officers of TBA in office at the Effective Time of
the Merger shall become the directors and officers, respectively, of the
Surviving Corporation, each of such directors and officers to hold office,
subject to the applicable provisions of the Certificate of Incorporation and
Bylaws of the Surviving Corporation and the DGCL, until his or her successor is
duly elected or appointed and shall qualify.
ARTICLE II
CERTIFICATE OF INCORPORATION
OF THE SURVIVING CORPORATION
At the Effective Time of the Merger, the Certificate of Incorporation
of the Surviving Corporation shall be the Certificate of Incorporation of TBA.
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ARTICLE III
CONVERSION AND EXCHANGE OF STOCK
Section 3.1. Conversion. At the Effective Time of the Merger, each
of the following transactions shall be deemed to occur simultaneously:
(a) Each share of NCCI Common Stock issued and outstanding, or
held in treasury, immediately prior to the Effective Time of the Merger shall,
by virtue of the Merger and without any action on the part of the holder
thereof, be converted into and become one validly issued, fully paid and
nonassessable share of TBA Common Stock.
(b) Each share of NCCI Preferred Stock issued and outstanding, or
held in treasury, immediately prior to the Effective Time of the Merger shall,
by virtue of the Merger and without any action on the part of the holder
thereof, be converted into and become one validly issued, fully paid and
nonassessable share of TBA Preferred Stock.
(c) Each option to purchase shares of NCCI Common Stock
outstanding immediately prior to the Effective Time of the Merger shall, by
virtue of the Merger and without any action on the part of the holder thereof,
be converted into and become an option to purchase, upon the same terms and
conditions, the number of shares of TBA Common Stock which is equal to the
number of shares of NCCI Common Stock which the optionee would have received
had the optionee exercised such option in full immediately prior to the
Effective Time of the Merger (whether or not such option was then exercisable).
The exercise price per share under each of said options shall be equal to the
exercise price per share thereunder immediately prior to the Effective Time of
the Merger.
(d) Each warrant to purchase shares of NCCI Common Stock
outstanding immediately prior to the Effective Time of the Merger shall, by
virtue of the Merger and without any action on the part of the holder thereof,
be converted into and become a warrant to purchase, upon the same terms and
conditions, the number of shares of TBA Common Stock which is equal to the
number of shares of NCCI Common Stock which the warrant holder would have
received had the warrant holder exercised such warrant in full immediately
prior to the Effective Time of the Merger (whether or not such warrant was then
exercisable). The exercise price per share under each of said warrants shall
be equal to the exercise price per share thereunder immediately prior to the
Effective Time of the Merger.
(e) Each share of TBA Common Stock issued and outstanding
immediately prior to the Effective Time of the Merger and held by NCCI shall be
cancelled without any consideration being issued or paid therefor.
Section 3.2. Exchange. (a) After the Effective Time of the Merger,
each certificate theretofore representing issued and outstanding shares of NCCI
Common Stock shall represent the same number of shares of TBA Common Stock, and
each certificate theretofore representing
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issued and outstanding shares of NCCI Preferred Stock shall represent the same
number of shares of TBA Preferred Stock.
(b) At any time on or after the Effective Time of the Merger, any
holder of certificates theretofore evidencing ownership of shares of NCCI
Common Stock or NCCI Preferred Stock will be entitled, upon surrender of such
certificates to the transfer agent of the Surviving Corporation, to receive in
exchange therefor one or more new stock certificates evidencing ownership of
the number of shares of TBA Common Stock or TBA Preferred Stock, respectively,
into which such NCCI Common Stock or NCCI Preferred Stock shall have been
converted in the Merger. If any certificate representing shares of TBA Common
Stock or TBA Preferred Stock is to be issued in a name other than that in which
the certificate surrendered in exchange therefor is registered, it shall be a
condition of the issuance thereof that the certificate so surrendered shall be
properly endorsed and otherwise in proper form for transfer and that the person
requesting such exchange shall pay to the transfer agent any transfer or other
taxes required by reason of the issuance of a certificate representing shares
of TBA Common Stock in any name other than that of the registered holder of the
certificate surrendered, or otherwise required, or shall establish to the
satisfaction of the transfer agent that such tax has been paid or is not
payable.
ARTICLE IV
EMPLOYEE BENEFIT, INCENTIVE COMPENSATION
AND EMPLOYEE STOCK PURCHASE PLANS
At the Effective Time of the Merger, each employee benefit plan,
incentive compensation plan, employee stock purchase plan and other similar
plans to which NCCI is then a party shall be assumed by, and continue to be the
plan of, the Surviving Corporation. To the extent any employee benefit plan,
incentive compensation plan, employee stock purchase plan or other similar plan
of NCCI or any of its subsidiaries provides for the issuance or purchase of, or
otherwise relates to, NCCI Common Stock, after the Effective Time of the Merger
such plan shall be deemed to provide for the issuance or purchase of, or
otherwise relate to, TBA Common Stock.
ARTICLE V
CONDITIONS
Consummation of the Merger is subject to the satisfaction at or prior
to the Effective Time of the Merger of the following conditions:
Section 5.1. Shareholder Approval. This Merger Agreement and the
Merger shall have been adopted and approved by the affirmative vote of a
majority of the votes cast by all shareholders entitled to vote on the record
date fixed for determining the shareholders of NCCI entitled to vote thereon
(the "Record Date"). This Agreement and the Merger shall also have
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been adopted and approved by NCCI as the holder of all the outstanding shares
of TBA Common Stock prior to the Effective Time of the Merger.
Section 5.2. Third Party Consents. NCCI shall have received all
required consents to and approvals of the Merger.
Section 5.3. Quotation on Nasdaq National Market. The shares of TBA
Common Stock to be issued in the Merger, or reserved for issuance immediately
after the Effective Time of the Merger, and the redeemable warrants to purchase
shares of TBA Common Stock to be issued in the Merger in exchange for
redeemable warrants of NCCI shall have been approved for quotation, subject to
official notice of issuance, on the Nasdaq National Market.
Section 5.4. Opinion as to Tax Matters. NCCI shall have received an
opinion of Winstead Sechrest & Minick P.C., counsel to NCCI, with respect to
the tax consequences of the Merger, in form and substance satisfactory to NCCI.
ARTICLE VI
MISCELLANEOUS
Section 6.1. Amendment. This Merger Agreement may be amended,
modified or supplemented in whole or in part, at any time prior to the
Effective Time of the Merger with the mutual consent of the Boards of Directors
of the parties hereto; provided, however, that the Merger Agreement may not be
amended after it has been adopted by the shareholders of NCCI in any manner
which, in the judgment of the Board of Directors of NCCI, would have a material
adverse effect on the rights of such shareholders or in any manner not
permitted under applicable law.
Section 6.2. Termination. This Merger Agreement may be terminated or
abandoned by the parties hereto at any time prior to the filing of the
certificate of merger notwithstanding approval of this Merger Agreement by the
shareholders of either or both of NCCI or TBA.
Section 6.3. Necessary Actions, etc. If at any date after the
Effective Time of the Merger, the Surviving Corporation shall consider that any
assignments, transfers, deeds or other assurances in law are necessary or
desirable to vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation, title to any property or rights of NCCI, NCCI and its officers and
directors at the Effective Time of the Merger shall execute and deliver such
documents and do all things necessary and proper to vest, perfect or confirm
title to such property or rights in the Surviving Corporation, and the officers
and directors of the Surviving Corporation are fully authorized in the name of
NCCI or otherwise to take any and all such action.
Section 6.4. Counterparts. This Merger Agreement may be executed in
any number of counterparts, each of which shall be considered to be an original
instrument.
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Section 6.5. Descriptive Headings. The descriptive headings are for
convenience of reference only and shall not control or affect the meaning or
construction of any provision of this Merger Agreement.
Section 6.6. Governing Law. This Merger Agreement shall be construed
in accordance with the laws of the State of Tennessee, except to the extent the
laws of the State of Delaware shall mandatorily apply to the Merger.
IN WITNESS WHEREOF, the undersigned officers of each of the parties to
this Merger Agreement, pursuant to authority duly given by their respective
Boards of Directors, have caused this Merger Agreement to be duly executed.
NASHVILLE COUNTRY CLUB, INC.
By: /s/ Thomas J. Weaver III
-------------------------------
Thomas J. Weaver III, President
Attest:
/s/ Lisa Bebee
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TBA ENTERTAINMENT CORPORATION
By: /s/ Thomas J. Weaver III
-------------------------------
Thomas J. Weaver III,
Chief Executive Officer
Attest:
/s/ Lisa Bebee
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CERTIFICATES
The undersigned, Assistant Secretary of TBA Entertainment Corporation,
a Delaware corporation, hereby certifies, pursuant to Section 252(c) of the
General Corporation Law of the State of Delaware, that the foregoing Agreement
and Plan of Merger to which this Certificate is attached, after having been
first duly signed on behalf of TBA Entertainment Corporation, by its Chief
Executive Officer and attested to by its Secretary, was duly submitted to the
sole stockholder of TBA Entertainment Corporation for the purpose of
considering and acting upon said Agreement and Plan of Merger, on the 8th day
of September, 1997, and at said meeting said Agreement and Plan of Merger was
adopted by the sole stockholder of TBA Entertainment Corporation, in accordance
with the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on
the 8th day of September, 1997.
/s/ Randall E. Roberts
---------------------------
Assistant Secretary
The undersigned, Assistant Secretary of Nashville Country Club, Inc.,
a Tennessee corporation, hereby certifies, pursuant to Section 252(c) of the
General Corporation Law of the State of Delaware, that the foregoing Agreement
and Plan of Merger to which this Certificate is attached, after having been
first duly signed on behalf of Nashville Country Club, Inc. by its President
and attested to by its Secretary, was duly submitted to the shareholders of
Nashville Country Club, Inc. at a meeting thereof called for the purpose of
considering and acting upon said Agreement and Plan of Merger, held after due
notice on the 8th day of September, 1997, and that at said meeting said
Agreement and Plan of Merger was adopted by the shareholders of Nashville
Country Club, Inc. in accordance with the Tennessee Business Corporation Act.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on
the 8th day of September, 1997.
/s/ Randall E. Roberts
---------------------------
Assistant Secretary
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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
TBA ENTERTAINMENT CORPORATION
The undersigned natural person, acting as an incorporator of a
corporation under the General Corporation Law of Delaware, hereby adopts the
following Certificate of Incorporation for such corporation:
ARTICLE VII
NAME
The name of the corporation is TBA Entertainment Corporation (the
"Corporation").
ARTICLE VIII
PURPOSE
The purpose for which the Corporation is organized is to engage in any
lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware.
ARTICLE IX
SHARES
The aggregate number of shares which the Corporation has authority to
issue is Twenty Million (20,000,000) shares of Common Stock, par value $.001
per share, and One Million (1,000,000) shares of Preferred Stock, par value
$.001 per share. The Preferred Stock may be issued from time to time in one or
more series. The Board of Directors is hereby authorized, by filing a
certificate (a "Preferred Stock Designation") pursuant to the Delaware General
Corporation Law, to fix or alter from time to time the designation, powers,
preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions of any wholly unissued series of
Preferred Stock, and to establish from time to time the number of shares
constituting such series or any of them; and to increase or decrease the number
of shares of any series subsequent to the issuance of shares of that series,
but not below the number of shares of such series then outstanding. In case
the number of shares of any series shall be decreased in accordance with the
foregoing sentence, the shares constituting such decrease shall resume the
status that they had prior to the adoption of the resolution originally fixing
the number of shares of such series.
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ARTICLE X
DENIAL OF PREEMPTIVE RIGHTS
No stockholder of the corporation or other person shall have any
preemptive right to purchase or subscribe to any shares of any class or any
notes, debentures, options, warrants or other securities, now or hereafter
authorized.
ARTICLE XI
ELECTION OF DIRECTORS; NONCUMULATIVE VOTING
Directors shall be elected by plurality vote. Elections of directors
need not be by written ballot unless the Bylaws of the Corporation shall so
provide. No stockholder of this Corporation shall have the right to cumulate
his votes.
ARTICLE XII
REGISTERED OFFICE AND AGENT
The street address of the initial registered office of the Corporation
is 1013 Centre Road, Wilmington, New Castle County, Delaware 19805, and the
name of its initial registered agent at such address is Corporation Service
Company.
ARTICLE XIII
DIRECTORS
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 constitute the whole Board of Directors shall be fixed by one or more
resolutions adopted by the Board of Directors. Notwithstanding the foregoing
provisions of this Article, each director shall serve until his successor is
duly elected and qualified or until his death, resignation or removal. No
decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director. Any vacancies on the Board of
Directors resulting from death, resignation, disqualification, removal or other
causes and any newly created directorships resulting from any increase in the
number of directors, shall, unless the Board of Directors determines by
resolution that any such vacancies or newly created directorships shall be
filled by the stockholders, except as otherwise provided by law, be filled only
by the affirmative vote of a majority of directors then in office, even though
less than a quorum of the Board of Directors, and not by the stockholders. Any
director elected in accordance with the preceding sentence shall hold office
for the remainder of the full term of the director for which the vacancy was
created or occurred and until such director's successor shall have been elected
and qualified.
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ARTICLE XIV
LIMITATION OF PERSONAL LIABILITY OF DIRECTORS
No director (including any advisory 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.
ARTICLE XV
INDEMNITY
Section 15.1. 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 believe that his conduct was unlawful.
Section 15.2. 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 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 Delaware Court of Chancery or the court in which such action or
suit was brought shall determine upon application that, despite the
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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 Delaware Court of Chancery or such other court shall deem proper.
Section 15.3. 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 to in Sections 1 and 2, 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.
Section 15.4. Any indemnification under Sections 1 and 2 (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 Sections 1 and 2. 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,
if a quorum of disinterested directors so directs, by independent legal counsel
in a written opinion, or (iii) by the stockholders. Notwithstanding the
foregoing, a director, officer, employee or agent of the Corporation shall be
able to contest any determination that the director, officer, employee or agent
has not met the applicable standard of conduct set forth in Sections 1 and 2 by
petitioning a court of appropriate jurisdiction.
Section 15.5. Expenses (including attorneys' fees) incurred by an
officer or director in defending or settling any civil, criminal,
administrative or investigative 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 Article
IX. Such expenses incurred by other employees and agents may be so paid upon
such terms and conditions, if any, as the Board of Directors deems appropriate.
Section 15.6. The indemnification and advancement of expenses
provided by, or granted pursuant to, the other sections of this Article IX
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses 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.
Section 15.7. The Corporation shall have the 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 would have
the power to indemnify him against such liability under the provisions of this
Article IX.
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Section 15.8. For purposes of this Article IX, references to "the
Corporation" shall include, in addition to the Corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
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
Article IX with respect to the Corporation as he would have with respect to
such constituent corporation if its separate existence had continued.
Section 15.9. For purposes of this Article IX, 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 any 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 Corporation" as referred to in
this Article IX.
Section 15.10. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article IX 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 XVI
BYLAWS
The Bylaws of the Corporation may be amended or repealed, or new
Bylaws may be adopted, (i) by the Board of Directors of the Corporation at any
duly held meeting or pursuant to a written consent in lieu of such meeting, or
(ii) by the holders of a majority of the shares represented at any duly held
meeting of stockholders, provided that notice of such proposed action shall
have been contained in the notice of any such meeting, or pursuant to a written
consent signed by the holders of a majority of the outstanding shares entitled
to vote thereon.
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ARTICLE XVII
INCORPORATOR
The name and address of the incorporator is:
Randall E. Roberts
5400 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270-2199
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, does make this certificate, hereby declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly I have hereunto set my hand this the 1st day of August, 1997.
/s/ Randall E. Roberts
---------------------------
Randall E. Roberts
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EXHIBIT 3.2
BYLAWS
OF
TBA ENTERTAINMENT CORPORATION
(THE "CORPORATION")
ARTICLE I.
OFFICES
The Corporation may have such offices, either within or without the
State of Delaware, as the Board of Directors may designate or as the business
of the Corporation may require from time to time.
ARTICLE II.
STOCKHOLDERS
Section 2.1 ANNUAL MEETING.
An annual meeting of the stockholders of the Corporation shall be held
on such date as may be determined by the Board of Directors. The business to
be transacted at such meeting shall be the election of directors and such other
business as shall be properly brought before the meeting.
Section 2.2 SPECIAL MEETINGS.
A special meeting of stockholders shall be held on call of the Chief
Executive Officer, President, the Board of Directors or if the holders of at
least a majority of all the votes entitled to be cast on any issue proposed to
be considered at the proposed special meeting sign, date and deliver to the
Corporation's Secretary one (1) or more written demands for the meeting
describing the purpose or purposes for which such special meeting is to be held.
Only business within the purpose or purposes described in the meeting notice
may be conducted at a special stockholders' meeting.
Section 2.3 PLACE OF MEETINGS.
The Board of Directors may designate any place, either within or
without the State of Delaware, as the place of meeting for any annual meeting
or for any special meeting.
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Section 2.4 NOTICE OF MEETINGS; WAIVER.
(a) NOTICE. Notice of the date, time and place of each
annual and special stockholders' meeting and, in the case of a special meeting,
a description of the purpose or purposes for which the meeting is called, shall
be given no fewer than ten (10) days nor more than sixty (60) days before the
date of the meeting. Such notice shall comply with the requirements of Article
XI of these Bylaws.
(b) WAIVER. A stockholder may waive any notice required
by law, the Certificate of Incorporation or these Bylaws before or after the
date and time stated in such notice. Except as provided in the next sentence,
the waiver must be in writing, be signed by the stockholder entitled to the
notice and be delivered to the Corporation for inclusion in the minutes or
filing with the corporate records. A stockholder's attendance at a meeting, in
person or by proxy: (1) waives objection to lack of notice or defective notice
of the meeting, unless the stockholder at the beginning of the meeting (or
promptly upon his arrival) objects to holding the meeting or transacting
business at the meeting; and (2) waives objection to consideration of a
particular matter at the meeting that is not within the purpose or purposes
described in the meeting notice, unless the stockholder objects to considering
the matter when it is presented.
Section 2.5 RECORD DATE.
The Board of Directors shall fix as the record date for the
determination of stockholders entitled to notice of a stockholders' meeting, to
demand a special meeting, to vote or to take any other action, a date not more
than sixty (60) days before the meeting or action requiring a determination of
stockholders.
A record date fixed for a stockholders' meeting is effective for any
adjournment of such meeting unless the Board of Directors fixes a new record
date, which it must do if the meeting is adjourned to a date more than four (4)
months after the date fixed for the original meeting.
Section 2.6 STOCKHOLDERS' LIST.
After the record date for a meeting has been fixed, and at least ten
(10) days before each meeting of stockholders, the Corporation shall prepare an
alphabetical list of the names of all stockholders who are entitled to notice
of a stockholders' meeting. Such list will be arranged in alphabetical order
and will show the address of and number of shares held by each stockholder.
The stockholders' list will be available for inspection by any stockholder for
a period of at least ten (10) days prior to the meeting, at the Corporation's
principal office or at a place identified in the meeting notice in the city
where the meeting will be held. A stockholder or his agent or attorney is
entitled on written demand to inspect and, subject to the requirements of the
Delaware General Corporation Law (the "Act"), to copy the list, during regular
business hours and at his expense, during the period it is available for
inspection.
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Section 2.7 VOTING GROUPS; QUORUM; ADJOURNMENT.
All shares entitled to vote and be counted together collectively on a
matter at a meeting of stockholders shall be a "voting group". Shares entitled
to vote as a separate voting group may take action on a matter at a meeting
only if a quorum of those shares exists with respect to that matter. Except as
otherwise required by the Act or provided in the Certificate of Incorporation,
a majority of the votes entitled to be cast on a matter by a voting group
constitutes a quorum of that voting group for action on that matter.
Once a share is represented for any purpose at a meeting, it is deemed
present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for that
adjourned meeting.
If a quorum of a voting group shall not be present or represented at
any meeting, the shares entitled to vote thereat shall have power to adjourn
the meeting to a different date, time or place without notice other than
announcement at the meeting of the new time, date or place to which the meeting
is adjourned. At any adjourned meeting at which a quorum of any voting group
shall be present or represented, any business may be transacted by such voting
group which might have been transacted at the meeting as originally called.
Section 2.8 VOTING OF SHARES.
Unless otherwise provided by the Act or the Certificate of
Incorporation, each outstanding share is entitled to one (1) vote on each
matter voted on at a stockholders' meeting.
If a quorum exists, approval of action on a matter (other than the
election of directors) by a voting group entitled to vote thereon is received
if a majority of the votes entitled to be cast within the voting group vote in
favor of the action, unless the Certificate of Incorporation or the Act
requires a greater number of affirmative votes. Unless otherwise provided in
the Certificate of Incorporation, directors are elected by a plurality of the
votes cast by the shares entitled to vote in the election at a meeting at which
a quorum is present.
Section 2.9 PROXIES.
A stockholder may vote his shares in person or by proxy. A
stockholder may appoint a proxy to vote or otherwise act for him by signing an
appointment either personally or by his attorney-in-fact. An appointment of a
proxy is effective when received by the Secretary or other officer or agent
authorized to tabulate votes. An appointment is valid for a period to be
determined by the Act unless another period is expressly provided in the
appointment form. An appointment of a proxy is revocable by the stockholder
unless the appointment form conspicuously states that it is irrevocable and the
appointment is coupled with an interest.
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Section 2.10 ACCEPTANCE OF STOCKHOLDER DOCUMENTS.
If the name signed on a stockholder document (a vote, consent, waiver,
or proxy appointment) corresponds to the name of a stockholder, the
Corporation, if acting in good faith, is entitled to accept such stockholder
document and give it effect as the act of the stockholder. If the name signed
on such stockholder document does not correspond to the name of a stockholder,
the Corporation, if acting in good faith, is nevertheless entitled to accept
such stockholder document and to give it effect as the act of the stockholder
if:
(i) the stockholder is an entity and the name signed
purports to be that of an officer or agent of the entity;
(ii) the name signed purports to be that of a fiduciary
representing the stockholder and, if the Corporation requests,
evidence of fiduciary status acceptable to the Corporation has been
presented with respect to such stockholder document;
(iii) the name signed purports to be that of a receiver or
trustee in bankruptcy of the stockholder and, if the Corporation
requests, evidence of this status acceptable to the Corporation has
been presented with respect to the stockholder document;
(iv) the name signed purports to be that of a pledgee,
beneficial owner or attorney-in-fact of the stockholder and, if the
Corporation requests, evidence acceptable to the Corporation of the
signatory's authority to sign for the stockholder has been presented
with respect to such stockholder document; or
(v) two or more persons are the stockholder as co-tenants
or fiduciaries and the name signed purports to be the name of at least
one (1) of the co-owners and the person signing appears to be acting
on behalf of all the co-owners.
The Corporation is entitled to reject a stockholder document if the
Secretary or other officer or agent authorized to tabulate votes, acting in
good faith, has a reasonable basis for doubt about the validity of the
signature on such stockholder document or about the signatory's authority to
sign for the stockholder.
Section 2.11 ACTION WITHOUT MEETING.
Any action required or permitted to be taken at a meeting of the
stockholders of the Corporation 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. Such consent or consents shall be delivered to the
Corporation at its registered office in Delaware, at its principal place of
business, or to an officer or agent of the Corporation having custody of the
book in which proceedings of stockholders' meetings are recorded.
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Every written consent shall bear the date of signature of each
stockholder who signs the written consent, and no consent shall be effective to
take the corporate action referred to therein unless, within sixty (60) days of
the earliest dated consent delivered in the manner required by this section to
the Corporation, written consents signed by a sufficient number of stockholders
to take action are delivered to the Corporation in the manner required by this
section.
Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given by the Corporation to
those Stockholders who have not consented to the action in writing.
Section 2.12 PRESIDING OFFICER AND SECRETARY.
Meetings of the stockholders shall be presided over by the Chairman,
or if he is not present or if the Corporation shall not have a Chairman, by the
President, or if neither the Chairman nor the President is present, by a
chairman chosen by a majority of the stockholders entitled to vote at such
meeting. The Secretary or, in his absence, an Assistant Secretary shall act as
secretary of every meeting, but if neither the Secretary nor an Assistant
Secretary is present, a majority of the stockholders entitled to vote at such
meeting shall choose any person present to act as secretary of the meeting.
Section 2.13 NOTICE OF NOMINATIONS.
Nominations for the election of directors may be made by the Board of
Directors or a committee appointed by the Board of Directors authorized to make
such nominations or by any stockholder entitled to vote in the election of
directors generally. However, any such stockholder nomination may be made only
if written notice of such nomination has been given, either by personal
delivery or the United States mail, postage prepaid, to the Secretary of the
Corporation not later than (a) with respect to an election to be held at an
annual meeting of stockholders, one hundred twenty (120) days in advance of
such meeting, and (b) with respect to an election to be held at a special
meeting of stockholders for the election of directors called other than by
written request from a stockholder, the close of business on the tenth day
following the date on which notice of such meeting is first given to
stockholders, and (c) in the case of a special meeting of stockholders duly
called upon the written request of a stockholder to fill a vacancy or vacancies
(then existing or proposed to be created by removal at such meeting), within
ten (10) business days of such written request.
In the case of any nomination by a stockholder, each such notice shall
set forth: (a) as to each person whom the stockholder proposes to nominate for
election or re-election as a director, (i) the name, age, business address and
residence address of such person, (ii) the principal occupation or employment
of such person, (iii) the class and number of shares of the Corporation which
are beneficially owned by such person, and (iv) any other information relating
to such person that is required to be disclosed in solicitations of proxies
with respect to nominees
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for election as directors, pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (including without limitation such persons'
written consent to being named in the proxy statement as a nominee and to
serving as a director, if elected); and (b) as to the stockholder giving the
notice (i) the name and address, as they appear on the Corporation's books, of
such stockholder, and (ii) the class and number of shares of the Corporation
which are beneficially owned by such stockholder; and (c) a description of all
arrangements or understandings between the stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder. The President or
chairman of the meeting may refuse to acknowledge the nomination of any person
not made in compliance with the foregoing procedure.
Section 2.14 NOTICE OF NEW BUSINESS.
At an annual meeting of the stockholders only such new business shall
be conducted, and only such proposals shall be acted upon, as shall have been
properly brought before the meeting. To be properly brought before the annual
meeting such new business must be (a) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the Board of Directors,
(b) otherwise properly brought before the meeting by or at the direction of the
Board of Directors, or (c) otherwise properly brought before the meeting by a
stockholder. For a proposal to be properly brought before an annual meeting by
a stockholder, the stockholder must have given timely notice thereof in writing
to the Secretary of the Corporation and the proposal and the stockholder must
comply with Rule l4a-8 under the Securities Exchange Act of 1934. To be
timely, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the Corporation, within the time limits
specified by Rule 14a-8.
A stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before the annual meeting (a) a brief
description of the proposal desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (b) the name
and address, as they appear on the Corporation's books, of the stockholder
proposing such business, (c) the class and number of shares of the Corporation
which are beneficially owned by the stockholder, and (d) any financial interest
of the stockholder in such proposal.
Notwithstanding anything in these Bylaws to the contrary, no business
shall be conducted at an annual meeting except in accordance with the
procedures set forth in this Section 2.14. The President or chairman of the
meeting shall, if the facts warrant, determine and declare to the meeting that
new business or any stockholder proposal was not properly brought before the
meeting in accordance with the provisions of this Section 2.14, and if he
should so determine, he shall so declare to the meeting and any such business
or proposal not properly brought before the meeting shall not be acted upon at
the meeting. This provision shall not prevent the consideration and approval
or disapproval at the annual meeting of reports of officers, directors and
committees, but in connection with such reports no new business shall be acted
upon at such annual meeting unless stated and filed as herein provided.
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Section 2.15 CONDUCT OF MEETINGS.
Meetings of the stockholders generally shall follow accepted rules of
parliamentary procedure subject to the following:
(a) The President or chairman of the meeting shall have
absolute authority over the matters of procedure, and there shall be no appeal
from the ruling of the President or chairman. If, in his absolute discretion,
the President or chairman deems it advisable to dispense with the rules of
parliamentary procedure as to any meeting of stockholders or part thereof, he
shall so state and shall state the rules under which the meeting or appropriate
part thereof shall be conducted.
(b) If disorder should arise which prevents the
continuation of the legitimate business of the meeting, the President or
chairman may quit the chair and announce the adjournment of the meeting; and
upon so doing, the meeting is immediately adjourned.
(c) The President or chairman may ask or require that
anyone not a bona fide stockholder or proxy leave the meeting.
(d) The resolution or motion shall be considered for vote
only if proposed by a stockholder or a duly authorized proxy and seconded by a
stockholder or duly authorized proxy other than the individual who proposed the
resolution or motion.
(e) Except as the President or chairman may permit, no
matter shall be presented to the meeting which has not been submitted for
inclusion in the agenda at least thirty (30) days prior to the meeting.
ARTICLE III.
DIRECTORS
Section 3.1 POWERS AND DUTIES.
All corporate powers shall be exercised by or under the authority of
and the business and affairs of the Corporation managed under the direction of
the Board of Directors.
Section 3.2 NUMBER AND TERM.
(a) NUMBER. The Board of Directors shall consist of no
fewer than one (1) or more than thirteen (13) members. The exact number of
directors, within the minimum and maximum, or the range for the size of the
Board, or whether the size of the Board shall be fixed or variable-range may be
fixed, changed or determined from time to time by the Board of Directors.
(b) TERM. Directors shall be elected at the first annual
stockholders' meeting and at each annual meeting thereafter. The terms of the
initial directors shall expire at the first stockholders' meeting at which
directors are elected. The terms of all other directors expire at the next
annual stockholders' meeting following their election. Despite the expiration
of a
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director's term, he shall continue to serve until his successor is elected and
qualifies or until there is a decrease in the number of directors.
Section 3.3 MEETINGS: NOTICE.
The Board of Directors may hold regular and special meetings either
within or without the State of Delaware. The Board of Directors may permit any
or all directors to participate in a regular or special meeting by, or conduct
the meeting through the use of, any means of communication by which all
directors participating may simultaneously hear each other during the meeting.
A director participating in a meeting by this means is deemed to be present in
person at the meeting.
(a) REGULAR MEETINGS. Unless the Certificate of
Incorporation otherwise provides, regular meetings of the Board of Directors
may be held without notice of the date, time, place or purpose of the meeting.
(b) SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman, the President or any two (2)
directors. Notice of such meetings shall comply with the requirements of
Article XI of these Bylaws.
(c) ADJOURNED MEETINGS. Notice of an adjourned meeting
need not be given if the time and place to which the meeting is adjourned are
fixed at the meeting at which the adjournment is taken, and if the period of
adjournment does not exceed one (1) month in any one (1) adjournment.
(d) WAIVER OF NOTICE. A director may waive any required
notice before or after the date and time stated in the notice. Except as
provided in the next sentence, the waiver must be in writing, signed by the
director and filed with the minutes or corporate records. A director's
attendance at or participation in a meeting waives any required notice to him
of such meeting unless the director at the beginning of the meeting (or
promptly upon his arrival) objects to holding the meeting or transacting
business at the meeting and does not thereafter vote for or assent to action
taken at the meeting.
Section 3.4 QUORUM.
Unless the Certificate of Incorporation requires a greater number, a
quorum of the Board of Directors consists of a majority of the fixed number of
directors if the Corporation has a fixed board size or a majority of the number
of directors prescribed, or if no number is prescribed, the number in office
immediately before the meeting begins, if the Corporation has a variable range
board.
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Section 3.5 VOTING.
If a quorum is present when a vote is taken, the affirmative vote of a
majority of directors present is the act of the Board of Directors, unless the
Certificate of Incorporation or these Bylaws require the vote of a greater
number of directors. A director who is present at a meeting of the Board of
Directors when corporate action is taken is deemed to have assented to such
action unless:
(i) he objects at the beginning of the meeting (or
promptly upon his arrival) to holding the meeting or transacting
business at the meeting;
(ii) his dissent or abstention from the action taken is
entered in the minutes of the meeting; or
(iii) he delivers written notice of his dissent or
abstention to the presiding officer of the meeting before its
adjournment or to the Corporation immediately after adjournment of the
meeting. The right of dissent or abstention is not available to a
director who votes in favor of the action taken.
Section 3.6 ACTION WITHOUT MEETING.
Any action required or permitted to be taken at a meeting of the Board
of Directors or of any committee thereof may be taken without a meeting if a
consent in writing, setting forth the action so taken, is signed by all the
members of the Board of Directors or committee, as the case may be. Such
consent shall have the same force and effect as a unanimous vote at a meeting.
Subject to applicable notice provisions and unless otherwise restricted by the
Certificate of Incorporation, members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in and hold a
meeting by means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other,
and participation in such meeting shall constitute presence in person at such
meeting, except where a person's participation is for the express purpose of
objecting to the transaction of any business on the ground that the meeting is
not lawfully called or convened.
Section 3.7 COMPENSATION.
Directors and members of any committee created by the Board of
Directors shall be entitled to such reasonable compensation for their services
as directors and members of such committee as shall be fixed from time to time
by the Board, and shall also be entitled to reimbursement for any reasonable
expenses incurred in attending meetings of the Board or of any such committee
meetings. Any director receiving such compensation shall not be barred from
serving the Corporation in any other capacity and receiving reasonable
compensation for such other services.
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Section 3.8 RESIGNATION.
A director may resign at any time by delivering written notice to the
Board of Directors, the Chairman or President, or to the Corporation. A
resignation is effective when the notice is delivered unless the notice
specifies a later effective date.
Section 3.9 VACANCIES.
Unless the Certificate of Incorporation otherwise provides, if a
vacancy occurs on the Board of Directors, including a vacancy resulting from an
increase in the number of directors or a vacancy resulting from the removal of
a director with or without cause, either the stockholders or the Board of
Directors may fill such vacancy. If the directors remaining in office
constitute fewer than a quorum of the Board of Directors, they may fill such
vacancy by the affirmative vote of a majority of all the directors remaining in
office. If the vacant office was held by a director elected by a voting group
of stockholders, only the holders of shares of that voting group shall be
entitled to vote to fill the vacancy if it is filled by the stockholders.
Section 3.10 REMOVAL OF DIRECTORS.
The stockholders may remove one (1) or more directors with or without
cause unless the Certificate of Incorporation provides that directors may be
removed only for cause. If a director is elected by a voting group of
stockholders, only the stockholders of that voting group may participate in the
vote to remove him without cause. If cumulative voting is authorized, a
director may not be removed if the number of votes sufficient to elect him
under cumulative voting is voted against his removal. If cumulative voting is
not authorized, a director may be removed only if the number of votes cast to
remove him exceeds the number of votes cast not to remove him. A director may
be removed by the stockholders or directors only at a meeting called for the
purpose of removing him, and the meeting notice must state that the purpose, or
one (1) of the purposes, of the meeting is removal of directors.
ARTICLE IV.
COMMITTEES
Unless the Certificate of Incorporation otherwise provides, the Board
of Directors may create one (1) or more committees, each consisting of one (1)
or more members. All members of committees of the Board of Directors which
exercise powers of the Board of Directors must be members of the Board of
Directors and serve at the pleasure of the Board of Directors.
The creation of a committee and appointment of a member or members to
it must be approved by the greater of (i) a majority of all directors in office
when the action is taken or (ii) the number of directors required by the
Certificate of Incorporation or these Bylaws to take action.
Unless otherwise provided in the Act, to the extent specified by the
Board of Directors or in the Certificate of Incorporation, each committee may
exercise the authority of the Board of Directors. All such committees and
their members shall be governed by the same statutory
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requirements regarding meetings, action without meetings, notice and waiver of
notice, quorum and voting requirements as are applicable to the Board of
Directors and its members.
ARTICLE V.
OFFICERS
Section 5.1 NUMBER.
The officers of the Corporation shall be a Chairman, a Chief Executive
Officer, a President, a Secretary and such other officers as may be from time
to time appointed by the Board of Directors or by the Chairman with the Board
of Directors' approval. One person may simultaneously hold more than one
office.
Section 5.2 APPOINTMENT.
The principal officers shall be appointed annually by the Board of
Directors at the first meeting of the Board following the annual meeting of the
stockholders, or as soon thereafter as is conveniently possible. Each officer
shall serve at the pleasure of the Board of Directors and until his successor
shall have been appointed, or until his death, resignation or removal.
Section 5.3 RESIGNATION AND REMOVAL.
An officer may resign at any time by delivering notice to the
Corporation. Such resignation is effective when such notice is delivered
unless such notice specifies a later effective date. An officer's resignation
does not affect the Corporation's contract rights, if any, with the officer.
The Board of Directors may remove any officer at any time with or
without cause, but such removal shall not prejudice the contract rights, if
any, of the person so removed.
Section 5.4 VACANCIES.
Any vacancy in an office from any cause may be filled for the
unexpired portion of the term by the Board of Directors.
Section 5.5 DUTIES.
(a) CHAIRMAN. The Chairman shall preside at all meetings
of the stockholders and the Board of Directors, and shall see that all orders
and resolutions of the Board of Directors are carried into effect.
(b) CHIEF EXECUTIVE OFFICER. The Chief Executive
Officer shall be the Chief Executive Officer of the Corporation and shall have
general supervision over the active management of the business of the
Corporation. He shall have the general powers and duties of
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supervision and management usually vested in the office of the Chief Executive
Officer of a corporation and shall perform such other duties as the Board of
Directors may from time to time prescribe.
(c) PRESIDENT. The President shall have the general
powers and duties of supervision and management usually vested in the office of
the President of a corporation and shall perform such other duties as the Board
of Directors may from time to time prescribe.
(d) VICE PRESIDENT. The Vice President or Vice
Presidents (if any) shall be active executive officers of the Corporation,
shall assist the Chairman, the Chief Executive Officer and the President in the
active management of the business, and shall perform such other duties as the
Board of Directors may from time to time prescribe.
(e) SECRETARY AND ASSISTANT SECRETARY. The Secretary or
Assistant Secretary shall attend all meetings of the Board of Directors and all
meetings of the stockholders and shall prepare and record all votes and all
minutes of all such meetings in a book to be kept for that purpose; he shall
perform like duties for any committee when required. The Secretary or
Assistant Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and of the Board of Directors when required, and unless
directed otherwise by the Board of Directors, shall keep a stock record
containing the names of all persons who are stockholders of the Corporation,
showing their place of residence and the number of shares held by them
respectively. The Secretary or Assistant Secretary shall have the
responsibility of authenticating records of the Corporation. The Secretary or
Assistant Secretary shall perform such other duties as may be prescribed from
time to time by the Board of Directors.
(f) CHIEF FINANCIAL OFFICER/TREASURER. The Chief
Financial Officer/Treasurer shall have the custody of the Corporation's funds
and securities, shall keep or cause to be kept full and accurate account of
receipts and disbursements in books belonging to the Corporation, and shall
deposit or cause to be deposited all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors. The Chief Financial Officer/Treasurer
shall disburse or cause to be disbursed the funds of the Corporation as
required in the ordinary course of business or as may be ordered by the Board,
taking proper vouchers for such disbursements, and shall render to the
Chairman, the Chief Executive Officer, the President and directors at the
regular meetings of the Board, or whenever they may require it, an account of
all of his transactions as Chief Financial Officer/Treasurer and the financial
condition of the Corporation. He shall perform such other duties as may be
incident to his office or as prescribed from time to time by the Board of
Directors. The Chief Financial Officer/Treasurer shall give the Corporation a
bond, if required by the Board of Directors, in a 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.
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<PAGE> 13
(g) OTHER OFFICERS. Other officers appointed by the
Board of Directors shall exercise such powers and perform such duties as may be
delegated to them.
(h) DELEGATION OF DUTIES. In case of the absence or
disability of any officer of the Corporation or of any person authorized to act
in his place, the Board of Directors may from time to time delegate the powers
and duties of such officer to any officer, or any director, or any other person
whom it may select, during such period of absence or disability.
Section 5.6 INDEMNIFICATION, ADVANCEMENT OF EXPENSES AND
INSURANCE.
(a) INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The
Corporation shall indemnify and advance expenses to each director and officer
of the Corporation, or any person who may have served at the request of the
Corporation's Board of Directors or its Chief Executive Officer as a director
or officer of another corporation (and, in either case, his heirs, executors
and administrators), to the full extent allowed by the laws of the State of
Delaware, both as now in effect and as hereafter adopted. The Corporation may
indemnify and advance expenses to any employee or agent of the Corporation who
is not a director or officer (and his heirs, executors and administrators) to
the same extent as to a director or officer, if the Board of Directors
determines that to do so is in the best interests of the Corporation.
(b) NON-EXCLUSIVITY OF RIGHTS. The indemnification and
advancement of expenses provisions of subsection (a) of this Section 5.6 shall
not be exclusive of any other right which any person (and his heirs, executors
and administrators) may have or hereafter acquire under any statute, provision
of the Certificate of Incorporation, provision of these Bylaws, resolution
adopted by the stockholders, resolution adopted by the Board of Directors,
agreement, insurance, purchased by the Corporation or otherwise, both as to
action in his official capacity and as to action in another capacity.
(c) INSURANCE. The Corporation may maintain insurance,
at its expense, to protect itself and any individual who is or was a director,
officer, employee or agent of the Corporation, or who, while a director,
officer, employee or agent of the Corporation, is or was serving at the request
of the Corporation's Board of Directors or its Chief Executive Officer as a
director, officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan 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 this Article or the Act.
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<PAGE> 14
ARTICLE VI.
SHARES OF STOCK
Section 6.1 SHARES WITH OR WITHOUT CERTIFICATES.
The Board of Directors may authorize that some or all of the shares of
any or all of the Corporation's classes or series of stock be evidenced by a
certificate or certificates of stock. The Board of Directors may also
authorize the issue of some or all of the shares of any or all of the
Corporation's classes or series of stock without certificates. The rights and
obligations of stockholders with the same class and/or series of stock shall be
identical whether or not their shares are represented by certificates.
(a) SHARES WITH CERTIFICATES. If the Board of Directors
chooses to issue shares of stock evidenced by a certificate or certificates,
each individual certificate shall include the following on its face: (i) the
Corporation's name, (ii) the fact that the Corporation is organized under the
laws of the State of Delaware, (iii) the name of the person to whom the
certificate is issued, (iv) the number of shares represented thereby, (v) the
class of shares and the designation of the series, if any, which the
certificate represents, and (vi) such other information as applicable law may
require or as may be lawful.
If the Corporation is authorized to issue different classes of shares
or different series within a class, the designations, relative rights,
preferences and limitations determined for each series (and the authority of
the Board of Directors to determine variations for future series) shall be
summarized on the front or back of each certificate. Alternatively, each
certificate shall state on its front or back that the Corporation will furnish
the stockholder this information in writing, without charge, upon request.
Each certificate of stock issued by the Corporation shall be signed
(either manually or in facsimile) by the Chairman, the Chief Executive Officer,
the President or a Vice President, and by the Secretary, an Assistant
Secretary, the Treasurer or an Assistant Treasurer. If the person who signed a
certificate no longer holds office when the certificate is issued, the
certificate is nonetheless valid.
(b) SHARES WITHOUT CERTIFICATES. If the Board of
Directors chooses to issue shares of stock without certificates, the
Corporation, if required by the Act, shall, within a reasonable time after the
issue or transfer of shares without certificates, send the stockholder a
written statement of the information required on certificates by Section 6.1(a)
of these Bylaws and any other information required by the Act.
Section 6.2 SUBSCRIPTIONS FOR SHARES.
Subscriptions for shares of the Corporation shall be valid only if
they are in writing. Unless the subscription agreement provides otherwise,
subscriptions for shares, regardless of the time when they are made, shall be
paid in full at such time, or in such installments and at such periods, as
shall be determined by the Board of Directors. All calls for payment on
subscriptions
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<PAGE> 15
shall be uniform as to all shares of the same class or of the same series,
unless the subscription agreement specifies otherwise.
Section 6.3 TRANSFERS.
Transfers of shares of the capital stock of the Corporation shall be
made only on the books of the Corporation by (i) the holder of record thereof,
(ii) by his legal representative, who, upon request of the Corporation, shall
furnish proper evidence of authority to transfer, or (iii) his attorney,
authorized by a power of attorney duly executed and filed with the Secretary of
the Corporation or a duly appointed transfer agent. Such transfers shall be
made only upon surrender, if applicable, of the certificate or certificates for
such shares properly endorsed and with all taxes thereon paid.
Section 6.4 LOST, DESTROYED OR STOLEN CERTIFICATES.
No certificate for shares of stock of the Corporation shall be issued
in place of any certificate alleged to have been lost, destroyed or stolen
except on production of evidence, satisfactory to the Board of Directors, of
such loss, destruction or theft, and, if the Board of Directors so requires,
upon the furnishing of an indemnity bond in such amount and with such terms and
such surety as the Board of Directors may in its discretion require.
ARTICLE VII.
CORPORATE ACTIONS
Section 7.1 CONTRACTS.
Unless otherwise required by the Board of Directors, the Chairman, the
Chief Executive Officer, the President or any Vice President shall execute
contracts or other instruments on behalf of and in the name of the Corporation.
The Board of Directors may from time to time authorize any other officer,
assistant officer or agent to enter into any contract or execute any instrument
in the name of and on behalf of the Corporation as it may deem appropriate, and
such authority may be general or confined to specific instances.
Section 7.2 LOANS.
No loans shall be contracted on behalf of the Corporation and no
evidence of indebtedness shall be issued in its name unless authorized by the
Chairman, the Chief Executive Officer, the President, the Chief Financial
Officer/Treasurer or the Board of Directors. Such authority may be general or
confined to specific instances.
Section 7.3 CHECKS, DRAFTS, ETC.
Unless otherwise required by the Board of Directors, all checks,
drafts, bills of exchange and other negotiable instruments of the Corporation
shall be signed by either the Chairman, the Chief Executive Officer, the
President, the Chief Financial Officer/Treasurer, a Vice President or such
other officer, assistant officer
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<PAGE> 16
or agent of the Corporation as may be authorized so to do by the Board of
Directors. Such authority may be general or confined to specific business,
and, if so directed by the Board, the signatures of two or more such officers
may be required.
Section 7.4 DEPOSITS.
All funds of the Company not otherwise employed shall be deposited
from time to time to the credit of the Corporation in such banks or other
depositories as the authorized officers or Board of Directors may authorize.
Section 7.5 VOTING SECURITIES HELD BY THE CORPORATION.
Unless otherwise required by the Board of Directors, the Chairman, the
Chief Executive Officer or the President shall have full power and authority on
behalf of the Corporation to attend any meeting of security holders, or to take
action on written consent as a security holder, of other corporations in which
the Corporation may hold securities. In connection therewith the Chairman, the
Chief Executive Officer or the President shall possess and may exercise any and
all rights and powers incident to the ownership of such securities which the
Corporation possesses. The Board of Directors may, from time to time, confer
like powers upon any other person or persons.
Section 7.6 DIVIDENDS.
The Board of Directors may, from time to time, declare, and the
Corporation may pay, dividends on its outstanding shares of capital stock in
the manner and upon the terms and conditions provided by applicable law. The
record date for the determination of stockholders entitled to receive the
payment of any dividend shall be determined by the Board of Directors, but
which in any event shall not be less than ten (10) days prior to the date of
such payment.
ARTICLE VIII.
FISCAL YEAR
The fiscal year of the Corporation shall be determined by the Board of
Directors, and in the absence of such determination, shall be the calendar
year.
ARTICLE IX.
CORPORATE SEAL
The Corporation shall have a corporate seal as determined by the Board
of Directors.
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<PAGE> 17
ARTICLE X.
AMENDMENT OF BY-LAWS
These Bylaws may be altered, amended, repealed or restated, and new
Bylaws may be adopted, at any meeting of the stockholders by the affirmative
vote of a majority of the stock represented at such meeting, or by the
affirmative vote of a majority of the members of the Board of Directors who are
present at any regular or special meeting.
ARTICLE XI.
NOTICE
Unless otherwise provided for in these Bylaws, any notice required
shall be in writing except that oral notice is effective if it is reasonable
under the circumstances and not prohibited by the Certificate of Incorporation
or these Bylaws. Notice may be communicated in person; by telephone,
telegraph, teletype or other form of wire or wireless communication; or by mail
or private carrier. If these forms of personal notice are impracticable,
notice may be communicated by a newspaper of general circulation in the area
where published; or by radio, television or other form of public broadcast
communication. Written notice to a domestic or foreign corporation authorized
to transact business in Delaware may be addressed to its registered agent at
its registered office or to the corporation or its secretary at its principal
office as shown in its most recent annual report or, in the case of a foreign
corporation that has not yet delivered an annual report, in its application for
a certificate of authority.
Written notice to stockholders, if in a comprehensible form, is
effective when mailed, if mailed postpaid and correctly addressed to the
stockholder's address shown in the Corporation's current record of
stockholders. Except as provided above, written notice, if in a comprehensible
form, is effective at the earliest of the following: (a) when received, (b)
five (5) days after its deposit in the United States mail, if mailed correctly
addressed and with first class postage affixed thereon; (c) on the date shown
on the return receipt, if sent by registered or certified mail, return receipt
requested, and the receipt is signed by or on behalf of the addressee; or (d)
twenty (20) days after its deposit in the United States mail, as evidenced by
the postmark if mailed correctly addressed, and with other than first class,
registered or certified postage affixed. Oral notice is effective when
communicated if communicated in a comprehensible manner.
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<PAGE> 1
EXHIBIT 3.3
ARTICLES OF MERGER
OF
NASHVILLE COUNTRY CLUB, INC.
INTO
TBA ENTERTAINMENT CORPORATION
The undersigned corporation, organized and existing under and by
virtue of the Tennessee Business Corporation Act, does hereby certify:
FIRST: That an Agreement and Plan of Merger among Nashville Country
Club, Inc., a Tennessee corporation, and TBA Entertainment Corporation, a
Delaware corporation, has been approved, adopted, certified, executed and
acknowledged by Nashville Country Club, Inc. in accordance with the
requirements of Section 48-21-104 of the Tennessee Business Corporation Act.
SECOND: The Agreement and Plan of Merger is attached hereto as
Exhibit A.
THIRD: The Agreement and Plan of Merger was approved in accordance
with the Tennessee Business Corporation Act by the affirmative vote of a
majority of the votes entitled to vote on the matter.
FOURTH: The Agreement and Plan of Merger was approved in accordance
with the requirements of the Delaware General Corporation Law by the written
consent of Nashville Country Club, Inc., the sole shareholder of TBA
Entertainment Corporation.
IN WITNESS WHEREOF, the undersigned authorized officer of Nashville
Country Club, Inc. has executed these Articles of Merger on behalf of Nashville
Country Club, Inc. this 8th day of September, 1997.
NASHVILLE COUNTRY CLUB, INC.
By: /s/ Thomas J. Weaver III
------------------------------
Thomas J. Weaver III,
Chief Executive Officer
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<PAGE> 1
EXHIBIT 3.4
CERTIFICATE OF MERGER
OF
NASHVILLE COUNTRY CLUB, INC.
INTO
TBA ENTERTAINMENT CORPORATION
The undersigned corporation, organized and existing under and by
virtue of the Delaware General Corporation Law, does hereby certify:
FIRST: That an Agreement and Plan of Merger among Nashville Country
Club, Inc., a Tennessee corporation, and TBA Entertainment Corporation, a
Delaware corporation, has been approved, adopted, certified, executed and
acknowledged by each of Nashville Country Club, Inc. and TBA Entertainment
Corporation in accordance with the requirements of Section 252 of the Delaware
General Corporation Law.
SECOND: The surviving corporation is TBA Entertainment Corporation, a
Delaware corporation.
THIRD: The certificate of incorporation of TBA Entertainment
Corporation shall be the certificate of incorporation of the surviving
corporation.
FOURTH: The executed Agreement and Plan of Merger are on file at the
office of TBA Entertainment Corporation located at 402 Heritage Plantation Way,
Hickory Valley, Tennessee 38042.
FIFTH: A copy of the Agreement and Plan of Merger will be furnished
by TBA Entertainment Corporation, on request and without cost, to any
stockholder of TBA Entertainment Corporation or Nashville Country Club, Inc.
SIXTH: The authorized capital stock of Nashville Country Club, Inc.
is 20,000,000 shares of common stock, no par value, and 1,000,000 shares of
preferred stock, no par value.
IN WITNESS WHEREOF, TBA Entertainment Corporation has caused this
Certificate of Merger to be signed by Thomas J. Weaver III, its authorized
officer, this 8th day of September, 1997.
TBA ENTERTAINMENT CORPORATION
By: /s/ Thomas J. Weaver III
------------------------------
Thomas J. Weaver III,
Chief Executive Officer
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<PAGE> 1
EXHIBIT 4.1
[FORM OF SPECIMEN COMMON STOCK CERTIFICATE]
[FRONT OF CERTIFICATE]
TBA ENTERTAINMENT CORPORATION
NUMBER_____ SHARES______
INCORPORATED UNDER THE LAWS SEE REVERSE FOR
OF THE STATE OF DELAWARE CERTAIN DEFINITIONS
CUSIP 872173 10 9
This Certifies that ________________________ is the owner of
________________________ fully paid and nonassessable shares of common stock,
par value $.001 per share of TBA Entertainment Corporation (the "Corporation"),
a Delaware corporation. The shares represented by this certificate are
transferable only on the stock transfer books of the Corporation by the holder
of record hereof, or by his duly authorized attorney or legal representative
upon the surrender of this certificate properly endorsed. This certificate is
not valid until countersigned and registered by the Corporation's transfer
agent and registrar.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be executed
by the facsimile signature of its duly authorized officers:
Dated:
- --------------------------- ---------------------------
Frank McKinnie Weaver, Sr. Thomas J. Weaver III
Secretary Chief Executive Officer
COUNTERSIGNED AND REGISTERED:
AMERICAN STOCK TRANSFER & TRUST COMPANY (New York, New York)
Transfer Agent and Registrar
By:
---------------------------
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<PAGE> 2
[REVERSE OF CERTIFICATE]
TBA ENTERTAINMENT CORPORATION
The shares represented by this certificate are issued subject to all
the provisions of the certificate of incorporation and bylaws of TBA
Entertainment Corporation (the "Corporation") as from time to time amended
(copies of which are on file at the principal executive offices of the
Corporation), to all of which the holder by acceptance hereof assents.
The Corporation will furnish to any shareholder upon request and
without charge a full statement of the powers, designations, preferences and
relative, participating, optional or other special rights of each authorized
class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights, to the extent that the same
have been fixed, and of the authority of the board of directors to designate
the same with respect to other series. Such request may be made to the
Corporation or to its transfer agent and registrar.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in common
UNIF GIFT - [Cust.] Custodian [Minor] under Uniform Gifts to Minors Act [State]
MIN ACT
</TABLE>
Additional abbreviations may also be used though not in the above list.
For value received, ________ hereby sell, assign and transfer unto
__________ (please insert social security or other identifying number of
assignee) ________________ shares of the Common Stock evidenced by this
Certificate, and do hereby irrevocably constitute and appoint __________
Attorney to transfer the said shares on the books of the Corporation with full
power of substitution.
Dated ,19
-------- ----
- -------------------------------------------
Signature
- -------------------------------------------
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THIS CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
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<PAGE> 1
EXHIBIT 4.3
CERTIFICATE OF DESIGNATION
OF
SERIES A CONVERTIBLE PREFERRED STOCK
OF
TBA ENTERTAINMENT CORPORATION
(Pursuant to Section 151 of the Delaware General Corporation Law)
TBA Entertainment Corporation, a corporation organized and existing
under the General Corporation Law of the State of Delaware (hereinafter called
the "Corporation"), hereby certifies that the following resolution was adopted
by the Board of Directors of the Corporation as required by Section 151 of the
General Corporation Law:
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors of this Corporation (hereinafter called the "Board of
Directors" or the "Board") in accordance with the provisions of the Certificate
of Incorporation, the Board of Directors hereby creates a series of Preferred
Stock, par value $.001 per share, of the Corporation and hereby states the
designation and number of shares, and fixes the relative rights, preferences,
and limitations thereof as follows:
Series A Convertible Preferred Stock:
A. Number and Designation. This series of preferred stock shall
be known and designated as Series A Convertible Preferred
Stock (the "Series A Preferred Stock"), and shall consist of
557,143 shares, par value $.001 per share.
B. Rights, Preferences and Characteristics. The Series A
Preferred Stock shall have the rights, preferences and
characteristics as set forth below:
(1) Dividends. The holders of the Series A Preferred
Stock shall not have any preference on the payment of
dividends and shall participate in all dividends on a
parity basis with the Common Stock to be calculated
based upon the total shares of Series A Preferred
Stock outstanding as a percentage of the total shares
of Common Stock and Preferred Stock outstanding as
of such dividend declaration date.
(2) Voting Rights. Except as may be otherwise provided
in this designation of the Series A Preferred Stock
or by law, the Series A Preferred Stock shall have no
voting rights.
(3) Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary and
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<PAGE> 2
after payment in full of all amounts due and owing to
creditors, if any, the holders of the shares of
Series A Preferred Stock shall first be entitled,
before any distribution or payment is made upon any
stock ranking on liquidation junior to the Series A
Preferred Stock, to be paid an amount equal to $.03
per share, such amount payable with respect to one
share of Series A Preferred Stock being sometimes
referred to as the "Series A Liquidation Preference
Payment" and with respect to all shares of Series A
Preferred Stock being sometimes referred to as the
"Series A Liquidation Preference Payments." If upon
such liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the
assets to be distributed among the holders of the
Series A Preferred Stock shall be insufficient to
permit payment in full to the holders of Series A
Preferred Stock of the Series A Liquidation
Preference Payments, then the entire assets of the
Corporation to be so distributed shall be distributed
ratably among the holders of Series A Preferred
Stock. After such distribution of the Series A
Liquidation Preference Payments to the holders of
each outstanding share of Series A Preferred Stock,
the holders of Series A Preferred Stock shall
participate ratably without preference with the
holders of all other shares of capital stock of the
Corporation in any future distribution of the
remaining assets of the Corporation.
The sale, conveyance or disposition of all or
substantially all of the assets of this Corporation
or a merger, consolidation or share exchange of the
Corporation into or with any other corporation or
corporations or the effectuation by this Corporation
of another transaction or series of related
transactions, in each case in which more than 50% of
the voting power of this Corporation is disposed of,
shall be deemed to be a liquidation, dissolution or
winding up of the Corporation within the meaning of
this Section B(3).
In case outstanding shares of Series A
Preferred Stock shall be subdivided into a greater
number of shares of Series A Preferred Stock, the
Series A Liquidation Preference Payment in effect
immediately prior to each such subdivision shall,
simultaneously with the effectiveness of such
subdivision, be proportionately reduced, and,
conversely in the case outstanding shares of Series A
Preferred Stock shall be combined into a smaller
number of shares of Series A Preferred Stock, the
Series A Liquidation Preference Payment in effect
immediately prior to each such combination, shall
simultaneously with the effectiveness of such
combination, be proportionately increased.
Written notice of any such liquidation,
dissolution or winding up, stating a payment due and
the place where said payment shall be made shall be
delivered in person, mailed by certified or
registered mail, return receipt requested, or sent by
telecopier or telex, not less than 10 days prior
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<PAGE> 3
to the payment date stated therein, to the holders of
record of Series A Preferred Stock, such notice to be
addressed to each such holder at its address as shown
by the records of the Corporation.
(4) Conversion. Holders of the Series A Preferred Stock
shall have conversion rights as follows (the
"Conversion Rights"):
(a) Right to Convert. Each share of Series A
Preferred Stock shall be convertible, at the
office of the Corporation or any transfer
agent for such stock, into one fully paid and
nonassessable share of Common Stock, at the
option of the holder thereof, (i) at any time
during the five-year period following the
date on which the shares of Series A
Preferred Stock are first issued (the
"Original Issue Date") in the event that the
Corporation has after-tax net income
(determined according to generally accepting
accounting principles applied on a consistent
basis) for any fiscal year equal to or in
excess of Five Hundred Thousand Dollars
($500,000) or (ii) at any time after the
Original Issue Date, in the event that Eighty
Percent (80%) or more of the Common Stock is
acquired by an entity or individual not
previously affiliated with the Corporation,
and the shares of Common Stock have traded at
an average bid price per share of $7.50 or
more during the preceding ninety (90)
business days, or the acquisition price per
share for the Common Stock is $7.50 or more.
(b) Automatic Conversion. Each share of Series A
Preferred Stock shall automatically be
converted into shares of Common Stock
immediately upon the consummation of a
transaction meeting the requirements set
forth in Section B(4)(a)(ii) above.
All holders of record of shares of Series A
Preferred Stock will be given at least 30
days' prior written notice of the date fixed
and the place designated for automatic
conversion of all such shares of Series A
Preferred Stock pursuant to this Section
B(4). On or before the date fixed for
conversion, each holder of shares of Series A
Preferred Stock shall surrender his or its
certificate or certificates for all such
shares to the Corporation at the place
designed in such notice, and shall thereafter
receive certificates for the number of shares
of Common Stock to which such holder is
entitled pursuant to this Section B(4). On
the date fixed for conversion, all rights
with respect to the Series A Preferred Stock
so converted, including the rights, if any,
to receive notices and vote, will terminate,
except only the rights of the holders
thereof, upon surrender of their certificate
or certificates therefor, to receive
certificates for the number of shares of
Common Stock into which such Series A
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<PAGE> 4
Preferred Stock has been converted (and cash
with respect to any fraction of a share as
provided in Section B(4)(i). If so required
by the Corporation, certificates surrendered
for conversion shall be endorsed or
accompanied by written instrument or
instruments of transfer, in form satisfactory
to the Corporation, duly authorized in
writing. As soon as practicable after the
date of such automatic conversion and the
surrender of the certificate or certificates
for Series A Preferred Stock, the Corporation
shall cause to be issued and delivered to
such holder, or on his or its written order,
a certificate or certificates for the number
of full shares of Common Stock issuable on
such conversion in accordance with the
provisions hereof and cash as provided in
Section B(4)(i) in respect of any fraction of
a share of Common Stock otherwise issuable
upon such conversion.
All certificates evidencing shares of Series
A Preferred Stock which are required to be
surrendered for conversion in accordance with
the provisions hereof shall, from and after
the date such certificates are so required to
be surrendered, be deemed to have been
retired and cancelled and the shares of
Series A Preferred Stock represented thereby
converted into Common Stock for all purposes,
notwithstanding the failure of the holder or
holders thereof to surrender such
certificates on or prior to such date. The
Corporation may thereafter take such
appropriate action as may be necessary to
reduce the authorized Series A Preferred
Stock accordingly.
(c) Mechanics of Conversion. Before any holder
of Series A Preferred Stock shall be entitled
to convert such shares into shares of Common
Stock, he shall surrender the certificate or
certificates therefor, duly endorsed, at the
office of the Corporation or of any transfer
agent for the Series A Preferred Stock, and
shall give written notice to the Corporation
at such office that he elects to convert the
same and shall state therein the name or
names in which he wishes the certificate or
certificates for shares of Common Stock to be
issued. If required by the Corporation,
certificates surrendered for conversion shall
be endorsed or accompanied by a written
instrument or instruments of transfer, in
form satisfactory to the Corporation, duly
executed by the registered holder or his or
its attorney duly authorized in writing. The
Corporation shall, as soon as practicable
thereafter, issue and deliver at such office
to such holder of Series A Preferred Stock, a
certificate or certificates for the number of
shares of Common Stock to which he shall be
entitled as aforesaid. Such conversion shall
be deemed to have been made immediately prior
to the close
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<PAGE> 5
of business on the date of surrender of the
shares of Series A Preferred Stock to be
converted, and the person or persons entitled
to receive the shares of Common Stock
issuable upon such conversion shall be
treated for all purposes at the record holder
or holders of such shares of Common Stock on
such date.
(d) Adjustments to Conversion Price for Stock
Dividends and for Combination or Subdivision
of Common Stock. In the event that this
Corporation at any time or from time to time
after the Original Issue Date shall declare
or pay, without consideration, any dividend
on the Common Stock payable in Common Stock
or in any right to acquire Common Stock for
no consideration, or shall effect a
subdivision of the outstanding shares of
Common Stock into a greater number of shares
of Common Stock (by stock split,
reclassification or otherwise than by payment
of a dividend in Common Stock or in any right
to acquire Common Stock), or in the event the
outstanding shares of Common Stock shall be
combined or consolidated, by reclassification
or otherwise, into a smaller number of shares
of Common Stock, then the number of shares
into which each share of Series A Preferred
Stock is convertible shall, concurrently with
the effectiveness of such event, be
proportionately decreased or increased, as
appropriate. In the event that this
Corporation shall declare or pay, without
consideration, any dividend on the Common
Stock payable in any right to acquire Common
Stock for no consideration, then the
Corporation shall be deemed to have made a
dividend payable in Common Stock in an amount
of shares equal to the maximum number of
shares issuable upon exercise of such rights
to acquire Common Stock.
(e) Adjustments for Reclassification and
Reorganization. If the Common Stock issuable
upon conversion of the Series A Preferred
Stock shall be changed into the same or a
different number of shares of any other class
or classes of stock, whether by capital
reorganization, reclassification or otherwise
(other than a subdivision or combination of
shares provided for in Section B(4)(c) above
or a merger or other reorganization referred
to in Section B(3) above), the number of
shares into which each share of Series A
Preferred Stock is convertible shall,
concurrently with the effectiveness of such
reorganization or reclassification, be
proportionately adjusted so that the Series A
Preferred Stock shall be convertible into, in
lieu of the number of shares of Common Stock
which the holders would otherwise have been
entitled to receive, a number of shares of
such other class or classes of stock
equivalent to the number of shares of Common
Stock that would
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<PAGE> 6
have been subject to receipt by the holders
upon conversion of the Series A Preferred
Stock immediately before that change.
(f) No Impairment. The Corporation will not, by
amendment of its Certificate of Incorporation
or through any reorganization, transfer of
assets, consolidation, merger, dissolution,
issue or sale of securities or any other
voluntary action, avoid or seek to avoid the
observance or performance of any of the terms
to be observed or performed hereunder by the
Corporation, but will at all times in good
faith assist in the carrying out of all the
provisions of this Section and in the taking
of all such action as may be necessary or
appropriate in order to protect the
Conversion Rights of the holders of the
Series A Preferred Stock against impairment.
(g) Issue Taxes. The Corporation shall pay any
and all issue and other taxes 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;
provided, however, that the Corporation shall
not be obligated to pay any transfer taxes
resulting from any transfer request by any
holder in connection with any such
conversion.
(h) Reservation of Stock Issuable Upon
Conversion. The Corporation shall at all
times while the Series A Preferred Stock is
outstanding reserve and keep available out of
its authorized but unissued shares of Common
Stock, solely for the purpose of effecting
the conversion of the shares of the Series A
Preferred Stock, such number of its shares of
Common Stock as shall from time to time be
sufficient to effect the conversion of all
outstanding shares of the Series A Preferred
Stock, and, if at any time the number of
authorized but unissued shares of Common
Stock shall not be sufficient to effect the
conversion of all then outstanding shares of
the Series A Preferred Stock, the Corporation
will take such corporate action as may, in
the opinion of its counsel, be necessary to
increase its authorized but unissued shares
of Common Stock to such number of shares as
shall be sufficient for such purpose.
(i) Fractional Shares. No fractional share shall
be issued upon the conversion of any share or
shares of Series A Preferred Stock. All
shares of Common Stock (including fractions
thereof) issuable upon conversion of more
than one share of Series A Preferred Stock by
a holder thereof shall be aggregated for
purposes of determining whether the
conversion would result in the issuance of
any fractional share. If, after the
aforementioned aggregation, the conversion
would result in the issuance of a fraction of
a share of
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<PAGE> 7
Common Stock, the Corporation shall, in lieu
of issuing any fractional shares, pay the
holder otherwise entitled to such fraction a
sum in cash equal to the fair market value of
such fraction on the date of conversion.
(j) Notices. Any notice required by the
provisions of this Section B to be given to
the holders of shares of Series A Preferred
Stock shall be deemed given if deposited in
the United States mail, postage prepaid, and
addressed to each holder of record at his
address appearing on the books of the
Corporation.
(k) Surrendered Series A Preferred Stock. All
shares of Series A Preferred Stock that are
surrendered for conversion as herein provided
shall no longer be deemed to be outstanding
immediately prior to the close of business on
the date of surrender, and all rights with
respect to such shares, including the rights,
if any, to receive notices and to vote, shall
immediately cease and terminate, except only
the right of the holders thereof to receive
shares of Common Stock in exchange therefor.
Any shares of Series A Preferred Stock so
converted shall be retired and canceled and
shall not be reissued, and the Corporation
may from time to time take such appropriate
action as may be necessary to reduce the
authorized Series A Preferred Stock
accordingly.
IN WITNESS WHEREOF, this Certificate of Designation is executed on
behalf of the Corporation by its Chairman of the Board and attested by its
Assistant Secretary this 5th day of September, 1997.
/s/ Thomas J. Weaver III
---------------------------
Thomas J. Weaver III,
Chairman of the Board
Attest:
/s/ Randall E. Roberts
- -----------------------
Randall E. Roberts,
Assistant Secretary
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<PAGE> 1
EXHIBIT 99.1
PRESS RELEASE
NASHVILLE COUNTRY CLUB SHAREHOLDERS APPROVE NAME CHANGE TO TBA ENTERTAINMENT
CORP.
NASHVILLE, Tenn.--(BUSINESS WIRE)--September 8, 1997--Nashville Country Club,
Inc. (NASDAQ NM:NCCI), a diversified entertainment company with offices in
Nashville, Los Angeles and New York, today announced that its shareholders had
approved the company's previously proposed name change to TBA Entertainment
Corporation, Inc. The company's stock, which is listed on the Nasdaq National
Market, will begin trading Tuesday, September 9, under the symbol, "TBAE."
"The name change reflects our broader entertainment focus," said Thomas Jackson
Weaver III, chief executive officer. "In the past 18 months, we've grown from
$3 million to approximately $60 million in assets and have developed a fully
integrated entertainment and resort corporation with operations stretching from
coast to coast. We expect to continue to grow both internally from
improvements in and expansion of existing operations and externally, through
acquisitions.
"We have experienced explosive growth in our Resort division, where we have
grown our guest accommodations to more than 2,200, announced a $75 million
expansion at our Colorado facility and construction of a $10 million hotel at
our Nashville facility. With the acquisition in August of a controlling
interest in Avalon West Coast, a group of related entities that produce
concerts and manage merchandising for entertainment and sporting events, our
Entertainment division assumed a leadership role in concert production. This
complemented our April merger with Avalon Entertainment Group and made our
Entertainment division one of the largest producers of live entertainment
events in the U.S., producing an average of 700 events annually. Plans
currently are under way to construct $14 million in amphitheater facilities on
the West Coast.
"In August, we completed a $9.1 million equity placement managed by Rauscher
Pierce Refsnes, Inc., who recently initiated coverage of TBAE with a buy
recommendation.
"We will retain Nashville Country Club as the marquee under which the company
will continue to develop country music-related entertainment projects.
However, we believe that the name TBA Entertainment Corporation is a better
name for the public holding company under which the Company will carry its
portfolio of entertainment assets," Weaver concluded.
TBA Entertainment Corp., headquartered in Nashville, Tenn., is a diversified
entertainment and resort corporation that operates resort hotels and
amphitheaters and is a national producer and merchandiser of live music and
sporting events.
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