<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 23, 1996
REGISTRATION STATEMENT NO. 33-63765
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
PAXSON COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
---------------------
<TABLE>
<S> <C> <C>
DELAWARE 4832 59-3212788
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
---------------------
SEE TABLE OF ADDITIONAL REGISTRANTS
---------------------
601 CLEARWATER PARK ROAD
WEST PALM BEACH, FLORIDA 33401
(407) 659-4122
(Address, including zip code, and telephone number, including area code,
of registrants' principal executive offices)
ANTHONY L. MORRISON, ESQ.
SECRETARY, VICE PRESIDENT AND GENERAL COUNSEL
PAXSON COMMUNICATIONS CORPORATION
601 CLEARWATER PARK ROAD
WEST PALM BEACH, FLORIDA 33401
(407) 659-4122
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPY TO:
MICHAEL L. JAMIESON, ESQ.
HOLLAND & KNIGHT
400 NORTH ASHLEY DRIVE, SUITE 2300
TAMPA, FLORIDA 33602
(813) 227-8500
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after this Registration Statement becomes effective.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------
PROPOSED
PROPOSED MAXIMUM
AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER SECURITY(1) PRICE(1) FEE
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
11 5/8% Senior Subordinated
Notes due 2002............. $230,000,000 100% $230,000,000 $79,311
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Guarantees of Senior Subordi-
nated Notes due 2002....... -- -- -- --(2)
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</TABLE>
(1) Estimated pursuant to Rule 457 solely for the purposes of calculating the
registration fee.
(2) Pursuant to Rule 457 (n) no registration fee is payable with respect to the
Guarantees.
---------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
TABLE OF ADDITIONAL REGISTRANTS
<TABLE>
<CAPTION>
STATE OR PRIMARY
OTHER STANDARD I.R.S.
JURISDICTION OF INDUSTRIAL EMPLOYER
INCORPORATION/ CLASSIFICATION IDENTIFICATION
NAME ORGANIZATION NUMBER NUMBER
- ------------------------------------------------------------------------- --------------- -------------- --------------
<S> <C> <C> <C>
PAXSON COMMUNICATIONS OF FLORIDA, INC.................................... Florida 4832.1 59-3212231
PAXSON COMMUNICATIONS LP, INC............................................ Florida 4832.1 59-3212236
PAXSON COMMUNICATIONS MANAGEMENT COMPANY................................. Florida 4832.1 59-3212233
PAXSON COMMUNICATIONS MARKETING, INC..................................... Florida 4832.1 59-3212234
PAXSON COMMUNICATIONS NETWORKS, INC...................................... Florida 4832.1 59-3212235
EXCEL MARKETING ENTERPRISES, INC......................................... Florida 7313 59-2907133
PAXSON OUTDOOR, INC...................................................... Florida 7312 59-3202387
PAXSON NETWORKS, INC..................................................... Florida 4832.1 59-3212238
PAXSON COMMUNICATIONS TELEVISION, INC.................................... Florida 4832.1 59-3283729
PAXSON BROADCASTING OF JACKSONVILLE, LIMITED
PARTNERSHIP............................................................ Florida 4832 59-3075827
PAXSON BROADCASTING OF MIAMI, LIMITED PARTNERSHIP........................ Florida 4832 59-3095656
PAXSON BROADCASTING OF ORLANDO, LIMITED PARTNERSHIP...................... Florida 4832 59-3095659
PAXSON BROADCASTING OF TAMPA, LIMITED PARTNERSHIP........................ Florida 4832 59-3075825
PAXSON TAMPA LICENSE LIMITED PARTNERSHIP................................. Florida 4832 59-3291861
PAXSON JACKSONVILLE LICENSE LIMITED PARTNERSHIP.......................... Florida 4832 59-3291869
PAXSON MIAMI LICENSE LIMITED PARTNERSHIP................................. Florida 4832 59-3291871
PAXSON ORLANDO LICENSE LIMITED PARTNERSHIP............................... Florida 4832 59-3291865
PAXSON COMMUNICATIONS OF ATLANTA-14, INC................................. Florida 4833 59-3235962
PAXSON ATLANTA LICENSE, INC.............................................. Florida 4833 59-3291854
PAXSON COMMUNICATIONS OF BOSTON-60, INC.................................. Florida 4833 59-3283737
PAXSON BOSTON LICENSE, INC............................................... Florida 4833 59-3283741
PAXSON COMMUNICATIONS OF DALLAS-68, INC.................................. Florida 4833 59-3283742
PAXSON DALLAS LICENSE, INC............................................... Florida 4833 59-3283743
PAXSON COMMUNICATIONS OF NEW LONDON-26, INC.............................. Florida 4833 59-3283739
PAXSON NEW LONDON LICENSE, INC........................................... Florida 4833 59-3283736
PAXSON COMMUNICATIONS OF PHILADELPHIA-61, INC............................ Florida 4833 59-3283731
PAXSON PHILADELPHIA LICENSE, INC......................................... Florida 4833 59-3283730
PAXSON COMMUNICATIONS OF MIAMI-35, INC................................... Florida 4833 65-0471066
PAXSON COMMUNICATIONS OF SAN JOSE-65, INC................................ Florida 4833 59-3283735
PAXSON SAN JOSE LICENSE, INC............................................. Florida 4833 59-3283733
PAXSON COMMUNICATIONS OF TAMPA-66, INC................................... Florida 4833 59-3227558
PAXSON COMMUNICATIONS OF WEST PALM BEACH-25, INC......................... Florida 4833 59-3236008
PAXSON WEST PALM BEACH LICENSE, INC...................................... Florida 4833 59-3291836
PAXSON COMMUNICATIONS OF LOS ANGELES-30, INC............................. Florida 4833 59-3295991
PAXSON LOS ANGELES LICENSE, INC.......................................... Florida 4833 59-3295992
PAXSON COMMUNICATIONS OF MINNEAPOLIS-41, INC............................. Florida 4833 59-3295983
PAXSON COMMUNICATIONS OF ST. LOUIS-13, INC............................... Florida 4833 59-3295985
PAXSON MINNEAPOLIS LICENSE, INC.......................................... Florida 4833 59-3295988
PAXSON COMMUNICATIONS OF COOKEVILLE, INC................................. Florida 4833 62-1593701
PAXSON COOKEVILLE LICENSE, INC........................................... Florida 4833 59-3348143
PAXSON COMMUNICATIONS OF FT. PIERCE-34, INC.............................. Florida 4833 65-0587768
PAXSON COMMUNICATIONS OF ORLANDO-56, INC................................. Florida 4833 59-3297996
PAXSON COMMUNICATIONS OF HOUSTON-49, INC................................. Florida 4833 76-0461679
PAXSON HOUSTON LICENSE, INC.............................................. Florida 4833 76-0461475
INFOMALL TV NETWORK, INC................................................. Delaware 4833 59-3298735
PAXSON ST. LOUIS LICENSE, INC............................................ Florida 4833 *
INFOMALL CABLE NETWORK, INC.............................................. Delaware 4841 59-3319718
PAXSON COMMUNICATIONS OF CLEVELAND-67, INC............................... Florida 4833 59-3319725
PAXSON COMMUNICATIONS OF WASHINGTON-60, INC.............................. Florida 4833 59-3319720
PAXSON WASHINGTON LICENSE, INC........................................... Florida 4833 59-3319719
PAXSON COMMUNICATIONS OF PHOENIX-13, INC................................. Florida 4833 *
PAXSON PHOENIX LICENSE, INC.............................................. Florida 4833 *
INFOMALL LOS ANGELES, INC................................................ Florida 4833 *
PAXSON COMMUNICATIONS OF MILWAUKEE-55, INC............................... Florida 4833 65-0625874
PAXSON COMMUNICATIONS OF DENVER-59, INC.................................. Florida 4833 65-0603895
PAXSON COMMUNICATIONS OF NEW YORK-43, INC................................ Florida 4833 65-0611723
PAXSON NEW YORK LICENSE, INC............................................. Florida 4833 65-0611721
PAXSON COMMUNICATIONS OF AKRON-23, INC................................... Florida 4833 65-0611718
PAXSON AKRON LICENSE, INC................................................ Florida 4833 65-0611729
PAXSON COMMUNICATIONS OF DAYTON-26, INC.................................. Florida 4833 31-1446001
</TABLE>
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* Applied for.
<PAGE> 3
PAXSON COMMUNICATIONS CORPORATION
AND
ADDITIONAL REGISTRANTS
---------------------
CROSS REFERENCE SHEET SHOWING LOCATION IN THE PROSPECTUS OF INFORMATION
REQUIRED BY ITEMS OF FORM S-4
<TABLE>
<CAPTION>
FORM S-4 ITEM NUMBER AND CAPTION
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<C> <S> <C>
1. Forepart of the Registration Statement and Outside Front
Cover Page of Prospectus................................. Forepart of the Registration
Statement and Outside Front
Cover Page
2. Inside Front and Outside Back Cover Pages of
Prospectus............................................... Inside Front Cover Page;
Available Information;
Outside Back Cover Page
3. Risk Factors, Ratio of Earnings to Fixed Charges and
Other Information........................................ Prospectus Summary; Risk
Factors; Selected Historical
and Pro Forma Financial Data
4. Terms of the Transaction................................. Prospectus Summary; The
Exchange Offer; Description
of the Notes; Certain Federal
Income Tax Considerations
5. Pro Forma Financial Information.......................... Selected Historical and Pro
Forma Financial Data
6. Material Contracts With the Company Being Acquired....... N/A
7. Additional Information Required for Reoffering by Persons
and Parties Deemed to be Underwriters.................... Plan of Distribution
8. Interests of Named Experts and Counsel................... Legal Opinions; Experts
9. Disclosure of Commission Position on Indemnification of
Securities Act Liabilities............................... N/A
10. Information with Respect to S-3 Registrants.............. N/A
11. Incorporation of Certain Information by Reference........ N/A
12. Information with Respect to S-2 or S-3 Registrant........ N/A
13. Incorporation of Certain Information by Reference........ N/A
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
FORM S-4 ITEM NUMBER AND CAPTION
---------------------------------------------------------
<C> <S> <C>
14. Information with Respect to Registrants other than S-3 or
S-2 Registrants.......................................... Outside Front Cover Page;
Available Information;
Prospectus Summary; Risk
Factors; The Company;
Capitalization; Pro Forma
Financial Information;
Selected Historical and Pro
Forma Financial Data;
Management's Discussion and
Analysis of Financial
Condition and Results of
Operations; Business;
Management; Certain
Transactions
15. Information with Respect to S-3 Companies................ N/A
16. Information with Respect to S-2 or S-3 Companies......... N/A
17. Information with Respect to Companies Other than S-2 or
S-3 Companies............................................ N/A
18. Information if Proxies, Consents or Authorizations are to
be Solicited............................................. N/A
19. Information if Proxies, Consents or Authorizations are
not to be Solicited, or in an Exchange Offer............. Prospectus Summary;
Management; Certain
Transactions
</TABLE>
<PAGE> 5
PROSPECTUS
PAXSON COMMUNICATIONS CORPORATION
OFFER TO EXCHANGE ITS 11 5/8% SENIOR SUBORDINATED NOTES DUE 2002,
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT, FOR ANY AND ALL OF ITS
OUTSTANDING 11 5/8% SENIOR SUBORDINATED NOTES DUE 2002
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M. NEW YORK CITY TIME
ON FEBRUARY 23, 1996, UNLESS EXTENDED
---------------------
Paxson Communications Corporation, a Delaware corporation (the "Company"),
hereby offers to exchange (the "Exchange Offer") up to $230,000,000 in aggregate
principal amount of the Company's new 11 5/8% Senior Subordinated Notes due 2002
(the "New Notes"), for $230,000,000 in aggregate principal amount of the
Company's outstanding 11 5/8% Senior Subordinated Notes due 2002 (the "Original
Notes"). The Original Notes and the New Notes are sometimes referred to herein
collectively as the "Notes."
The terms of the New Notes are substantially identical in all respects
(including principal amount, interest rate and maturity) to the terms of the
Original Notes for which they may be exchanged pursuant to this Exchange Offer,
except that the New Notes will be freely transferable by holders thereof (other
than as provided in the next paragraph) and issued free of any covenant
restricting transfer absent registration. The New Notes will evidence the same
debt as the Original Notes and contain terms which are substantially identical
to the terms of the Original Notes for which they are to be exchanged. For a
complete description of the terms of the New Notes, see "Description of the
Notes". There will be no cash proceeds to the Company from the Exchange Offer.
The Original Notes were sold on September 28, 1995, in a transaction not
registered under the Securities Act of 1933, as amended (the "Securities Act"),
in reliance upon an exemption provided in the Securities Act. Accordingly, the
Original Notes may not be offered, resold or otherwise pledged, hypothecated or
transferred in the United States unless registered under the Securities Act or
unless an exemption from the registration requirements of the Securities Act is
available. The New Notes are being offered to satisfy the obligations of the
Company under the Registration Rights Agreement relating to the Original Notes.
See "The Exchange Offer -- Purpose and Effect of the Exchange Offer." Each
holder receiving New Notes, other than a broker-dealer, will represent that the
holder is not engaging in or intending to engage in a distribution of such New
Notes. New Notes issued pursuant to the Exchange Offer in exchange for the
Original Notes may be offered for resale, resold or otherwise transferred by the
holders thereof (other than any holder that is an affiliate of the Company
within the meaning of Rule 405 under the Securities Act), without compliance
with the registration and prospectus delivery requirements of the Securities
Act, provided that such New Notes are acquired in the ordinary course of such
holders' business and such holders have no arrangement or understanding with any
person to participate in the distribution of such New Notes. Each broker-dealer
that receives New Notes for its own account pursuant to the Exchange Offer must
acknowledge that it will deliver a prospectus in connection with any resale of
such New Notes. The Letter of Transmittal states that by acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act. See "The Exchange
Offer -- Purpose and Effect of the Exchange Offer" and "Plan of Distribution."
Broker-dealers may use this Prospectus, as amended or supplemented, in
connection with resales of the New Notes received in exchange for the Original
Notes where such Original Notes were acquired by such broker-dealer as a result
of market making activities or other such trading.
The Notes constitute securities for which there is no established trading
market. Any Original Notes not tendered and accepted in the Exchange Offer will
remain outstanding. The Company intends, to the extent practicable, to list the
New Notes on a securities exchange. To the extent that any original Notes are
tendered and accepted in the Exchange Offer, a holder's ability to sell
untendered Original Notes could be adversely affected. No assurances can be
given as to the liquidity of the trading market for either the Original Notes or
the New Notes.
The Exchange Offer is not conditioned on any minimum aggregate principal
amount of Original Notes being tendered for exchange. The Exchange Offer will
expire at 5:00 P.M., New York time, on February 23, 1996, unless extended (the
"Expiration Date"). The date of acceptance for exchange of the Original Notes
will be the first business day following the Expiration Date. Original Notes
tendered pursuant to the Exchange Offer may be withdrawn at any time prior to
the Expiration Date, otherwise, such tenders are irrevocable. The Company will
pay all expenses incident to the Exchange Offer.
Interest on the New Notes shall accrue from the last April 1 or October 1
(an "Interest Payment Date") on which interest was paid on the Original Notes so
surrendered, or, if no interest has been paid on such original Notes, from
September 28, 1995. If a Change of Control (as defined under "Description of the
Notes -- Certain Definitions") occurs, there can be no assurance that the
Company will have, or will have access to, sufficient funds to enable it to
repurchase the Notes. See "Description of the Notes -- Change of Control Offer."
HOLDERS OF ORIGINAL NOTES SHOULD CAREFULLY CONSIDER THE MATTERS SET FORTH
UNDER "RISK FACTORS" ON PAGE 12.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE
---------------------
THE DATE OF THIS PROSPECTUS IS JANUARY 24, 1996
<PAGE> 6
CERTAIN DEFINITIONS AND MARKET AND INDUSTRY DATA
The terms "EBITDA," "broadcast cash flow" and "Adjusted EBITDA" are
referred to in various places in this Prospectus. EBITDA is defined as net
income (loss) before (i) extraordinary item and cumulative effect of a change in
accounting principle, (ii) benefit (provision) for income taxes, (iii) other
income (expenses), net, (iv) interest expense, net, (v) depreciation and
amortization, (vi) option plan compensation, and (vii) non-recurring items
including terminated operations; less scheduled broadcast rights payments.
Broadcast cash flow is defined as income (loss) from operations plus non-cash
expenses and non-broadcasting operating results, less scheduled broadcast rights
payments and non-cash revenues. Although EBITDA and broadcast cash flow are not
measures of performance under generally accepted accounting principles ("GAAP"),
the terms are widely used in the broadcast industry as a measure of a
broadcasting company's ability to service or incur debt. Neither EBITDA nor
broadcast cash flow should be considered in isolation or as a substitute for net
income, cash flows from operating activities and other income or cash flow
statement data prepared in accordance with GAAP, or as a measure of
profitability or liquidity. "Adjusted EBITDA" is defined as EBITDA for the
period less (i) operating profit for the Infomall TV Network segment for such
period plus (ii) four times such segment's operating profit for the most
recently completed quarter prior to the measuring date and thus annualizes
certain aspects of the Company's operating results. Adjusted EBITDA is not a
measure of performance under GAAP and should not be considered in isolation. It
is being shown to provide an understanding of calculations required under
certain covenants contained in the indenture governing the Notes.
The term "time brokerage agreement" (also known in the broadcast industry
as a "local marketing agreement"), generally refers to an agreement under which
a radio or television programmer agrees to purchase from a broadcast station
licensee substantially all of the broadcast time on a station, provides
programming and sells advertising during the purchased time, receives all the
revenue derived from advertising, pays the expenses, and performs other
functions, with the licensee retaining responsibility for ultimate control of
the station in accordance with FCC policies. Time brokerage agreements are more
fully described in "Business -- Federal Regulation of Broadcasting." The term
"joint sales agreement" refers to an agreement under which a broadcast station
agrees to provide the sales and marketing services for another broadcast station
while the owner of such broadcast station provides the programming for such
other broadcast station.
Unless otherwise indicated herein, all market rankings, audience ratings
and audience rankings have been derived for the indicated radio station or group
of radio stations from surveys of the indicated demographic group listening
Monday-Sunday, 6:00 a.m. to 12:00 midnight, as reported by Arbitron, Radio
Market Report, The Arbitron Company ("Arbitron"). Unless otherwise indicated,
audience share data is expressed as the "local" average quarter-hour share for
each indicated radio station. A radio station's "local" audience share is
derived by comparing the radio station's average quarter-hour share to the total
average quarter-hour share for all radio stations listed as inside the Metro
Survey Area by Arbitron. Average quarter-hour share is a percentage of the
estimated number of persons who listen to a given radio station for a minimum of
five minutes within a quarter-hour compared to the total number of persons who
listen to radio in the market within such quarter-hour. The most recent Arbitron
survey utilized in this Prospectus is Summer 1995.
Market radio advertising revenue, revenue share data and revenue rankings
for radio stations have been obtained from Miller, Kaplan Market Revenue Report,
a monthly publication of Miller, Kaplan, Arase & Co., Certified Public
Accountants ("Miller Kaplan"); provided, however, that market radio advertising
revenue, revenue share data, and revenue rankings for the Company's radio
stations in the Cookeville, Tennessee area have been estimated by the Company
without the benefit of any independent investigation or confirmation, as no
published data on that survey area is available from Miller Kaplan. Arbitron and
Miller Kaplan both compile their audience share, revenue share, revenue ranking
and other statistical data under procedures and methodologies that are
described, and that have the limitations provided, in their respective reports
or guides. All such information provided herein is subject to those limitations.
This Prospectus reflects the most recent published data from Arbitron and Miller
Kaplan unless otherwise indicated. The Company does not assume responsibility
for the accuracy or completeness of such published data.
All television station audience rating data in this Prospectus has been
obtained from the Nielsen Station Index Viewers and Profile for November 1995.
All market rank and television household data has been obtained from U.S.
Television Household Estimates for January 1995, as prepared by A.C. Nielsen Co.
("Nielsen") for each designated market area ("DMA"). In addition, revenue data
for the West Palm Beach television market has been obtained from the local
office of Ernst & Young LLP. The Company does not assume responsibility for the
accuracy or completeness of such published data.
i
<PAGE> 7
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-4 with respect to the New Notes
being offered hereby (including all exhibits and amendments thereto, the
"Registration Statement"). This Prospectus, which constitutes a part of the
Registration Statement, does not contain all the information set forth in the
Registration Statement and the exhibits and schedules thereto, certain portions
of which have been omitted pursuant to the rules and regulations of the
Commission. For further information with respect to the Company and the
securities offered hereby, reference is made to the Registration Statement and
to the exhibits filed therewith. Statements made in this Prospectus as to the
contents of any contract or other document referred to are not necessarily
complete, and where applicable reference is made to the copy of such contract or
other document filed as an exhibit to the Registration Statement, each such
statement is qualified by such reference.
The Company is currently subject to the periodic reporting requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith is required to file reports and other information with the
Commission. Such reports, the Registration Statement and other information may
be inspected and copied, at prescribed rates, at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, at the regional offices of the Commission located
at Seven World Trade Center, New York, New York 10048, and at 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Copies of such material may also be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549 at prescribed rates.
Furthermore, so long as the Notes are outstanding, during any period in
which the Company is not subject to Section 13 or 15(d) of the Exchange Act, the
Company has agreed to (i) file with the Commission to the extent permitted, and
distribute to holders of the Notes, reports, information and documents specified
in Section 13 and 15(d) of the Exchange Act and (ii) make available, upon
request, to any holder of the Notes, the information required pursuant to Rule
144A(d)(4) under the Exchange Act. Any such request should be directed to the
Secretary of the Company at 601 Clearwater Park Road, West Palm Beach, FL 33401
(telephone number: (407) 659-4122).
ii
<PAGE> 8
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by reference to, and
should be read in conjunction with, the more detailed information and financial
statements contained elsewhere in this Prospectus. Except as otherwise indicated
by the context, references in this Prospectus to the "Company" include Paxson
Communications Corporation and its direct and indirect wholly-owned
subsidiaries. Capitalized terms used without definition in the following summary
are defined elsewhere in this Prospectus.
THE COMPANY
Paxson Communications Corporation ("Paxson Communications" or the
"Company") is a publicly-held, diversified media company that operates in the
radio broadcasting, radio network and network-affiliated television broadcasting
businesses. In addition, in January 1995, the Company introduced its Infomall TV
Network ("IN TV"), a national network of owned, operated and affiliated
television stations dedicated to infomercial programming. The Company was
founded in 1991 by Lowell W. "Bud" Paxson, the creator, co-founder and president
emeritus of Home Shopping Network, Inc. The Company's principal executive
offices are located at 601 Clearwater Park Road, West Palm Beach, Florida 33401
and its telephone number is (407) 659-4122.
RADIO BROADCASTING AND NETWORKS
Paxson Communications owns and operates 18 radio stations (9 FM and 9 AM
stations), with more radio stations in Florida than any other broadcaster. The
Company operates FM and AM duopolies serving Florida's four most populous cities
(Miami, Tampa, Orlando and Jacksonville) as well as an AM/FM combination in
Cookeville, Tennessee. The Company also has joint sales agreements with an FM
station in Jacksonville and an AM station in Miami. The Company's radio stations
employ broadly diversified programming formats, including News, Talk, Sports,
Country, Soft Adult Contemporary, Smooth Jazz, Album Oriented Rock, Modern Rock
and Alternative Rock. The Company also operates seven radio networks, primarily
in the southeastern United States, that provide daily statewide news segments,
sports programming, and satellite distribution of play-by-play broadcasts of
professional and collegiate sports teams to approximately 389 affiliated radio
stations. In addition, the Company controls 67 billboard locations in the Tampa
and Orlando markets that support the Company's radio station operations. The
Company's radio stations, radio networks and billboard properties are
collectively referred to herein as "Paxson Radio."
The Company's radio broadcasting strategy is to improve the operating
results of its existing and newly acquired stations by employing the extensive
operating experience of the Company's management team. The Company believes that
the geographic proximity of its FM and AM duopolies throughout Florida permits
it to realize synergistic revenue opportunities and significant cost
efficiencies. The Company paid an aggregate purchase price of approximately
$65.1 million for its 16 Florida radio stations. The Company believes that its
radio properties are well positioned in attractive markets, and the Company
hopes to continue to improve cash flow through the integration of recent duopoly
acquisitions and enhanced station performance.
NETWORK-AFFILIATED TELEVISION
Paxson Communications owns and operates an ABC-TV affiliate, WPBF-TV, in
the West Palm Beach market. In August 1995, the Company entered into a time
brokerage agreement under which it provides programming and markets commercial
time for a second television station, WTVX-TV (a combined United Paramount
network and Warner Brothers network affiliate), also in the West Palm Beach
market and subsequently were granted an option to purchase the station. The
Company's two network-affiliated television stations collectively comprise
"Paxson Television."
The Company acquired WPBF-TV in July 1994 for approximately $32.5 million.
Shortly thereafter, the Company installed its management team, began the
implementation of cost rationalization measures and revamped the station's
programming (including the improvement of its local news coverage). The Company
believes that by operating two stations within a market, it will be able to
centralize certain aspects of their operations, thereby eliminating duplicative
operating and marketing functions and expenses, in addition to realizing
increased revenue opportunities.
1
<PAGE> 9
INFOMALL TV NETWORK
In January 1995, Paxson Communications established its infomercial
television network, the Infomall TV Network. The Company has assembled 15 owned
or operated stations dedicated to IN TV programming and has entered into
agreements with respect to 11 additional television stations in nine additional
markets to be owned or operated by the Company as IN TV stations. The Company
also has affiliation agreements with four independently owned and operated
television stations. After giving effect to the Acquisitions (as defined
herein), the Company estimates that its owned, operated or affiliated IN TV
stations will reach approximately 14.3 million cable households and be in 20 of
the 30 largest U.S. television markets. The Company believes that it will also
reach a significant number of additional broadcast households that do not
receive cable. The Company believes the Infomall TV Network comprises the only
group of television stations in the United States that currently offers
infomercial advertisers both significant national and regional distribution
capability and inventory availability during popular morning, daytime and prime
time viewing hours.
An infomercial is an advertisement, usually one half-hour in length and
often produced in an entertainment format, that is paid for by the advertiser on
the basis of air-time and the approximate number of households receiving the
broadcast signal or cable system feed. The Company believes that the infomercial
industry has grown rapidly during the past several years. The Company believes
infomercial advertising revenue will continue to increase as more advertisers
realize the benefits and effectiveness associated with long-form paid
programming. Infomercials allow consumer product and service companies to
provide specific product information, present a product demonstration, build
brand awareness and entertain existing and prospective customers in a
cost-effective manner. Moreover, as infomercial scheduling information and
promotional support (through radio, television and print advertising as well as
other media) become more available, the Company believes that the viewing
population will further increase.
The stations acquired by the Company and converted to IN TV stations were
typically non-network-affiliated stations in or near major markets with marginal
operating results that could be acquired at a relatively low cost compared to
more profitable network-affiliated stations. Certain of the Company's stations
are licensed to communities on the "fringe" (or outside the center) of major
television markets, but within such markets' designated market areas ("DMA").
These stations extend their broadcast reach to a significant part of such
metropolitan areas' cable systems via "must carry" requirements. Once a station
is owned or operated by the Company, the Company replaces the previous
programming with infomercial programming. The Company's infomercial programming
format allows it to substantially reduce operating expenses through standardized
engineering and operating systems, resulting in lower costs when compared to
traditional television broadcasters. Furthermore, the Company has entered into
one year agreements with several leading infomercial advertising agencies,
stipulating a predetermined rate per half-hour per 100,000 cable households
reached. To date, the Company's owned or operated IN TV stations have
contributed to broadcast cash flow shortly after the commencement of operations
by the Company.
The Company has paid an aggregate of $98 million (including capital
expenditures through the date hereof) for its owned or operated IN TV stations,
with an additional $94 million committed for the acquisition of proposed IN TV
stations and capital expenditures relating to those and the Recent Acquisitions
(as defined herein). The Company intends to continue to evaluate the acquisition
of, or affiliation with, independent television stations to further extend its
broadcast and "must carry" cable reach, a strategy that it believes will
increase its national distribution system for infomercial programming. The
Company also intends to implement a targeted marketing program that will
demonstrate to advertisers the benefits and effectiveness of the infomercial
format. The Company believes that its captive and affiliated stations represent
a national infomercial distribution infrastructure that would be difficult and
expensive to replicate due to the significantly increased demand and prices for
the limited number of non-network affiliated stations in major television
markets (i.e., top 30 in size).
2
<PAGE> 10
MARKET OVERVIEW
PAXSON RADIO
<TABLE>
<CAPTION>
COMMENCEMENT
NATIONAL RADIO OF
RADIO MARKET MARKET RANK STATION FORMAT OPERATIONS OWNERSHIP
-------------- --------- ----------------- ------------ ---------------
<S> <C> <C> <C> <C> <C>
Miami, FL.......................................... 11 WLVE-FM Smooth Jazz 4/93 Owned
WZTA-FM AOR 4/92 Owned
WINZ-AM News/Sports 4/92 Owned
WFTL-AM Talk/Sports 6/95 Owned
Tampa, FL.......................................... 21 WHPT-FM Rock AC 11/91 Owned
WSJT-FM Smooth Jazz 7/95 Owned
WHNZ-AM News/Sports 11/91 Owned
WNZE-AM Sports 8/94 Owned
Orlando, FL........................................ 35 WMGF-FM Soft AC 6/92 Owned
WJRR-FM Modern Rock 7/92 Owned
WWNZ-AM News 4/92 Owned
WWZN-AM Sports 12/94 Owned
Jacksonville, FL................................... 50 WROO-FM Young Country 9/91 Owned
WPLA-FM Alternative Rock 6/92 Owned
WNZS-AM Sports 5/93 Owned
WZNZ-AM News 6/92 Owned
Cookeville, TN..................................... -- WGSQ-FM Country 4/94 Owned
WPTN-AM Talk 4/94 Owned
</TABLE>
<TABLE>
<CAPTION>
COMMENCEMENT
AFFILIATE OF
RADIO NETWORK STATIONS FORMAT OPERATIONS OWNERSHIP
--------- ----------------- ------------ ---------------
<S> <C> <C> <C> <C> <C>
Alabama Radio Network.............................................. 74 News 1/95 Owned
Florida Radio Network.............................................. 57 News 3/93 Owned
Tennessee Radio Network............................................ 79 News 4/94 Owned
University of Florida Sports Network............................... 55 Sports 4/94 Owned
Miami Sports Network............................................... 22 Sports 4/95 Owned
Penn State Sports Network.......................................... 52 Sports 4/94 Owned
Virginia Tech Sports Network....................................... 50 Sports 4/94 Owned
</TABLE>
<TABLE>
<CAPTION>
COMMENCEMENT
PAXSON TELEVISION NATIONAL TV NETWORK OF
TV MARKET MARKET RANK STATION AFFILIATION OPERATIONS OWNERSHIP
-------------- --------- ----------------- ------------ ---------------
<S> <C> <C> <C> <C> <C>
West Palm Beach, FL................................ 45 WPBF-TV ABC 7/94 Owned
WTVX-TV Warner/UPN 8/95 Time Brokerage
</TABLE>
<TABLE>
<CAPTION>
COMMENCEMENT
INFOMALL TV NETWORK NATIONAL TV CABLE OF
TV MARKET MARKET RANK STATION HOMES (000'S) OPERATIONS OWNERSHIP
-------------- --------- ----------------- ------------ ---------------
<S> <C> <C> <C> <C> <C>
Owned or Operated
Los Angeles, CA.................................... 2 KZKI-TV 1,905 5/95 Owned
Philadelphia, PA................................... 4 WTGI-TV 1,431 2/95 Owned
San Francisco, CA.................................. 5 KLXV-TV 794 6/95 Owned
Boston, MA......................................... 6 WGOT-TV 828 5/95 Owned
Washington, D.C. .................................. 7 WYVN-TV -- 4/96 Owned
Atlanta, GA........................................ 10 WTLK-TV 891 4/94 Owned
Houston, TX........................................ 11 KTFH-TV 766 3/95 Owned
Cleveland, OH...................................... 13 WOAC-TV 336 10/95 Time Brokerage
Tampa, FL.......................................... 15 WFCT-TV 784 8/94 Time Brokerage
Miami, FL.......................................... 16 WCTD-TV 866 4/94 Time Brokerage
Denver, CO......................................... 18 KUBD-TV 433 8/95 Time Brokerage
Orlando, FL........................................ 22 WIRB-TV 482 12/94 Time Brokerage
Hartford, CT....................................... 26 WTWS-TV 718 3/95 Owned
Raleigh, NC........................................ 32 WRMY-TV -- 6/96 Time Brokerage
Dayton, OH......................................... 53 WTJC-TV 310 10/95 Time Brokerage
The Proposed Acquisitions
New York, NY....................................... 1 WHAI-TV 691 3/96 Owned
Dallas, TX......................................... 8 Channel -- 12/96 Owned
68
Atlanta, GA........................................ 10 WNGM-TV 176 4/96 Time Brokerage
Phoenix, AZ........................................ 19 KWBF-TV 23 3/96 Time Brokerage
St. Louis, MO...................................... 20 WCEE-TV 227 1/96 Time Brokerage
Milwaukee, WI...................................... 29 WHKE-TV 235 12/96 Time Brokerage
Akron, OH.......................................... -- WAKC-TV 560 3/96 Owned
Grand Rapids, MI................................... 38 WJUE-TV -- 6/96 Time Brokerage
West Palm Beach, FL................................ 45 WHBI-TV -- 3/96 Time Brokerage
Albany, NY......................................... 52 WOCD-TV 285 5/96 Time Brokerage
San Juan, P.R...................................... -- WSJN-TV 285 2/96 Owned
Affiliates
Sacramento, CA..................................... 21 KCMY-TV 630 7/95 Affiliate
Indianapolis, IN................................... 24 WIIB-TV 401 1/96 Affiliate
Norfolk, VA........................................ 40 WJCB-TV 348 8/95 Affiliate
Fresno, CA......................................... 57 KGMC-TV 179 1/96 Affiliate
</TABLE>
3
<PAGE> 11
CERTAIN EVENTS
On September 28, 1995, the Company completed the sale (the "Private
Offering") of the Original Notes. The Private Offering was a component of the
Transactions (as defined herein) that includes the consummation of the
Acquisitions (as defined herein), and the replacement of the Company's
previously existing credit facilities with the "New Credit Facility" (as defined
herein). The gross proceeds of approximately $227.3 million from the sale of the
Original Notes were or will be used to retire the three credit facilities of the
Company outstanding at the time of the Private Offering, fund a part of the cost
of the Acquisitions and expected capital expenditures related thereto and pay
the fees and expenses of the Private Offering and the New Credit Facility.
The Company has entered into agreements and time brokerage arrangements
pursuant to which it will own or operate 11 additional television stations as IN
TV stations (the "Proposed Acquisitions"). Since August 15, 1995 the Company has
completed transactions resulting in it owning or operating six additional
television stations (one of which, WIRB-TV, was previously operated by the
Company under a time brokerage agreement) (the "Recent Acquisitions" and with
the Proposed Acquisitions collectively, the "Acquisitions"). A list of the
Acquisitions is set forth below. See "The Acquisitions."
<TABLE>
<CAPTION>
ANTICIPATED PRICE
MARKET(A) CLOSING STATION AFFILIATION ($000'S)(B)
- --------------------------------------------------- ----------- -------- ----------- -----------
<S> <C> <C> <C> <C>
Proposed Acquisitions
New York, NY....................................... 3/96 WHAI-TV IN TV $23,000
Channel
Dallas, TX(c)...................................... 12/96 68 IN TV 5,700
Atlanta, GA(c)..................................... 4/96 WNGM-TV IN TV 2,900
Phoenix, AZ........................................ 3/96 KWBF-TV IN TV 3,000
St. Louis, MO...................................... 1/96 WCEE-TV IN TV 5,300
Milwaukee, WI...................................... 12/96 WHKE-TV IN TV 4,300
Akron, OH.......................................... 3/96 WAKC-TV IN TV 19,200
Grand Rapids, MI................................... 6/96 WJUE-TV IN TV 5,200
West Palm Beach, FL................................ 3/96 WHBI-TV IN TV 7,000
Albany, NY......................................... 5/96 WOCD-TV IN TV 3,500
San Juan, PR(e).................................... 2/96 WSJN-TV IN TV 4,500
-----------
$83,600
===========
Recent Acquisitions
Washington, D.C.(d)................................ 10/95 WYVN-TV IN TV $ 2,950
Denver, CO......................................... 8/95 KUBD-TV IN TV 7,500
Orlando, FL........................................ 8/95 WIRB-TV IN TV 5,000
Dayton, OH......................................... 10/95 WTJC-TV IN TV 6,000
Cleveland, OH...................................... 10/95 WOAC-TV IN TV 8,000
Raleigh, NC........................................ 1/96 WRMY-TV IN TV 4,900
-----------
$34,350
===========
</TABLE>
- ---------------
(a) Each station is licensed by the FCC to serve a specific community within the
listed DMA, which may differ from the listed market.
(b) Acquisition costs include expected capital expenditures.
(c) Pending construction.
(d) Station not currently on air.
(e) WSJN-TV's signal will be satellite simulcast on WKPV-TV and WJWN-TV,
stations in the San Juan, P.R. area the Company is also acquiring.
The Company is making the Acquisitions primarily to further expand the
reach of its Infomall TV Network and to enhance its national presence. The
Company financed the Denver and Orlando acquisitions with borrowings under one
of the Company's credit facilities that existed prior to the Private Offering.
The Company financed the Dayton, Cleveland, Raleigh and Washington D.C.
acquisitions with proceeds from the Private Offering. In connection with the
Company's business strategy, the Company used proceeds of the Private Offering
to pay off its then existing credit facilities, which it has replaced with a new
$100 million credit facility (the "New Credit Facility"). The consummation of
the Private Offering, the Acquisitions and borrowings under the New Credit
Facility are collectively referred to herein as the "Transactions."
The Company intends to continue to evaluate transactions with independent
television stations that may further expand the Infomall TV Network. In
addition, the Company will selectively consider future radio,
4
<PAGE> 12
network-affiliated television and other media acquisition and disposition
opportunities complementary to its businesses. In October 1995, the Company
executed a letter of intent concerning a proposed acquisition by it of a
majority interest in Shop at Home, Inc. ("Shop at Home"), a company primarily
engaged in the home shopping telemarketing business. As a result of proposed
changes to federal telecommunications laws that would have posed difficulties to
the Company in realizing the full expected benefits of the proposed transaction
and the Company's due diligence, the Company chose not to further pursue the
transaction. The Company does not intend to further pursue the acquisition or
establishment of a home shopping television marketing business at this time,
although it may, in connection with both media acquisitions and other business
opportunities to further exploit its media properties and management expertise,
consider acquiring or establishing a home shopping television marketing business
in the future.
OWNERSHIP AND MANAGEMENT
Mr. Paxson, the Company's principal stockholder, has been involved in the
broadcasting industry for over 40 years and has been associated with over 125
FCC licenses. He has been at the forefront of several innovative broadcasting
concepts over the last decade, including his leadership role in the creation and
early growth of electronic retailing as the creator and co-founder of Home
Shopping Network, Inc. and Silver King Communications, Inc. Under Mr. Paxson's
direction, the Company was one of the first radio broadcasters to capitalize on
changes in federal regulations permitting radio market duopolies. As the Company
has grown, Mr. Paxson has assembled an experienced team of seasoned radio and
television executives to implement the Company's operating strategies and to
expand the Infomall TV Network, including several former owner/ operators of
radio and television properties. Mr. Paxson has made net equity investments in
the Company totaling in excess of $33 million. In November 1994, the Company's
Class A Common Stock became publicly-held through its merger with The American
Network Group, Inc. ("ANG") and is currently listed on the American Stock
Exchange under the ticker symbol PXN.
THE EXCHANGE OFFER
Purpose of the Exchange
Offer......................... $230,000,000 of the Original Notes were sold in
the Private Offering by the Company on
September 28, 1995 to Wood Gundy Inc. and Smith
Barney Inc. (the "Initial Purchasers"). The
holders of Original Notes and New Notes are
collectively referred to herein as the
"Holders." In connection therewith, the Company
executed and delivered, for the benefit of the
Holders of the Original Notes, an Exchange
Offer Registration Rights Agreement dated
September 28, 1995 (the "Registration Rights
Agreement"), which is filed as an exhibit to
the Registration Statement of which this
Prospectus is a part, providing for, among
other things, the Exchange Offer so that the
New Notes will be freely transferable by the
Holders thereof without registration or any
prospectus delivery requirements under the
Securities Act, except that a "dealer" or any
of its "affiliates" as such terms are defined
under the Securities Act, who exchanges
Original Notes held for its own account ( a
"Restricted Holder") will be required to
deliver copies of this Prospectus in connection
with any resale of the New Notes issued in
exchange for such Original Notes (the
"Prospectus Delivery Requirement"). See "The
Exchange Offer -- Purpose and Effect of the
Exchange Offer" and "Plan of Distribution."
The Exchange Offer............ The Company is offering to exchange pursuant to
the Exchange Offer up to $230,000,000 aggregate
principal amount of the New Notes for up to
$230,000,000 aggregate principal amount of the
Original Notes. The Original Notes and the New
Notes are collectively referred to herein as
the "Notes." The terms of the
5
<PAGE> 13
New Notes are substantially identical in all
respects (including principal amount, interest
rate and maturity) to the terms of the Original
Notes for which they may be exchanged pursuant
to the Exchange Offer, except that the New
Notes are freely transferable by Holders
thereof (other than as provided herein), and
are not subject to any covenant restricting
transfer absent registration under the
Securities Act. See "The Exchange
Offer -- Terms of the Exchange" and "The
Exchange Offer -- Procedures for Tendering."
The Exchange Offer is not conditioned upon any
minimum aggregate principal amount of Original
Notes being tendered for exchange.
Expiration Date............... The Exchange Offer will expire at 5:00 p.m.,
New York City time on February 23, 1996, unless
extended (the "Expiration Date").
Conditions of the Exchange
Offer......................... The Company's obligations to consummate the
Exchange Offer are subject to certain
conditions. See "The Exchange
Offer -- Conditions to the Exchange Offer." The
Company reserves the right to terminate or
amend the Exchange Offer at any time prior to
the Expiration Date upon the occurrence of any
such conditions.
Withdrawal Rights............. Tenders may be withdrawn at any time prior to
the Expiration Date; otherwise, all tenders
will be irrevocable.
Procedures for Tendering
Notes......................... See "The Exchange Offer -- Procedures for
Tendering."
Federal Income Tax
Consequences.................. The exchange of Original Notes for New Notes
should not be a taxable exchange for federal
income tax purposes. See "Certain Federal
Income Tax Considerations."
Effect on Holders of the
Original Notes................ As a result of the making of, and upon
acceptance for exchange of all validly tendered
Original Notes pursuant to the terms of this
Exchange Offer, the Company will have fulfilled
its obligations contained in the Registration
Rights Agreement and, accordingly, there will
be no increase in the interest rate on the
Original Notes pursuant to the applicable terms
of the Registration Rights Agreement due to the
Exchange Offer. Holders of the Original Notes
who do not tender their Original Notes will be
entitled to all the rights and limitations
applicable thereto under the Indenture, dated
as of September 28, 1995, among the Company and
The Bank of New York, as trustee (the
"Trustee"), relating to the Original Notes and
the New Notes (the "Indenture"), except for any
rights under the Indenture or the Registration
Rights Agreement, which by their terms,
terminate or cease to have further effect as a
result of the making of, and the acceptance for
exchange of all validly tendered Original Notes
pursuant to, the Exchange Offer. All untendered
Original Notes will continue to be subject to
the restrictions on transfer provided for in
the Original Notes and in the Indenture. To the
extent that Original Notes are tendered and
accepted in the Exchange Offer, the trading
market for untendered Original Notes could be
adversely affected.
Use of Proceeds............... There will be no cash proceeds to the Company
from the exchange pursuant to the Exchange
Offer.
6
<PAGE> 14
THE NEW NOTES
The Exchange Offer applies to the $230,000,000 principal amount of the
Original Notes outstanding as of the date hereof. The form and the terms of the
New Notes will be identical in all material respects to the form and the terms
of the Original Notes except that the New Notes will have been registered under
the Securities Act and, therefore, will not contain legends restricting the
transfer thereof. The New Notes evidence the same debt as the Original Notes
exchanged for the New Notes and will be entitled to the benefits of the same
Indenture under which the Original Notes were issued. See "Description of the
Notes." Certain capitalized terms listed below are defined under the caption
"Description of the Notes -- Certain Definitions."
Issuer........................ Paxson Communications Corporation.
Securities Offered............ $230,000,000 principal amount of 11 5/8% Senior
Subordinated Notes due 2002 (the "Notes").
Maturity Date................. October 1, 2002.
Interest Rate................. The Notes will bear interest at a rate of
11 5/8% per annum.
Interest Payment Dates........ Interest will accrue from the last April 1 to
October 1 on which interest was paid on the
Original Notes, or if no interest has been paid
on such Original Notes, from September 28,
1995.
Ranking....................... The Notes will be general unsecured obligations
of the Company subordinate in right of payment
to all existing and future Senior Indebtedness
of the Company and senior in right of payment
to all subordinated indebtedness of the
Company. At September 30, 1995 after giving pro
forma effect to the Transactions, the Company
and the Guarantors would have had approximately
$32.9 million of Senior Indebtedness
outstanding.
Guarantees.................... The Notes will be fully and unconditionally
guaranteed, on a senior subordinated basis as
to the payment of principal, premium, if any,
and interest, jointly and severally (the
"Guarantees"), by all of the direct and
indirect subsidiaries of the Company (the
"Guarantors"). The Guarantees will be
subordinated to all Senior Indebtedness of the
respective Guarantors.
Mandatory Redemption.......... There will be no mandatory redemption
requirements with respect to the Notes.
Optional Redemption........... The Notes will be redeemable at the option of
the Company, in whole or in part, at any time
on or after October 1, 1999 at the redemption
prices set forth herein, together with accrued
and unpaid interest to the redemption date. In
addition, the Company, at its option, may
redeem in the aggregate up to 25% of the
original principal amount of Notes at any time
prior to October 1, 1998, at a redemption price
equal to 110% of the principal amount thereof
plus accrued interest to the redemption date
with the Net Proceeds of one or more Public
Equity Offerings or Major Asset Sales;
provided, however, that at least $172,500,000
aggregate principal amount of Notes remains
outstanding and that such redemption occurs
within 90 days following the closing of any
such Public Equity Offering or Major Asset
Sale.
Change of Control............. In the event of a Change of Control, the
Company will be required to make an offer to
purchase all outstanding Notes at a price equal
7
<PAGE> 15
to 101% of the principal amount thereof plus
accrued and unpaid interest to the date of
repurchase. See "Description of the Notes --
Change of Control Offer." There can be no
assurance that the Company will have sufficient
funds or will be contractually permitted by
outstanding Senior Indebtedness to pay the
required purchase price for all Notes tendered
by holders upon a Change of Control.
Certain Covenants............. The Indenture will contain covenants for the
benefit of the holders of the Notes that, among
other things, restrict the ability of the
Company and its Restricted Subsidiaries (as
defined herein) to: (i) incur additional
Indebtedness; (ii) pay dividends and make
distributions; (iii) issue stock of
subsidiaries; (iv) make certain investments;
(v) repurchase stock; (vi) create liens; (vii)
enter into transactions with affiliates; (viii)
enter into sale and leaseback transactions;
(ix) merge or consolidate the Company or the
Guarantors; and (x) transfer and sell assets.
These covenants are subject to a number of
important exceptions. See "Description of the
Notes -- Certain Covenants."
RISK FACTORS
Prospective purchasers of the Notes should consider carefully the
information set forth under the caption "Risk Factors," and all other
information set forth in this Prospectus, in evaluating the Company, the New
Notes and exchanging the Original Notes for the New Notes.
8
<PAGE> 16
SUMMARY HISTORICAL AND PRO FORMA FINANCIAL DATA
The following summary historical and pro forma financial data, insofar as
it relates to each of the four years ended December 31, 1994, has been derived
from Company prepared financial information and should be read in conjunction
with the audited financial statements, including the consolidated balance sheets
at December 31, 1993 and 1994 and the related consolidated statements of
operations for each of the years in the three year period ended December 31,
1994 and the notes thereto appearing elsewhere in this Prospectus. The summary
historical and pro forma financial data as of and for the nine months ended
September 30, 1994 and 1995 has been derived from unaudited financial statements
also appearing herein but which, in the opinion of management, include all
adjustments, consisting only of normal recurring adjustments, necessary for a
fair presentation of the results for the unaudited interim periods. Results for
the nine months ended September 30, 1995 are not necessarily indicative of
results that may be expected for the entire year. The summary financial
information should be read in conjunction with the information contained in the
Company's consolidated financial statements and the notes thereto, "Management's
Discussion and Analysis of Financial Condition and Results of Operations," "Pro
Forma Financial Information" and "Selected Historical and Pro Forma Financial
Data" included elsewhere herein.
The following unaudited summary pro forma statement of operations data and
other data give effect to, among other things, the Transactions, as if they had
occurred on January 1, 1994. The following unaudited summary pro forma balance
sheet data give effect to, among other things, the Transactions, as if they had
occurred on September 30, 1995. The Transactions and certain management
assumptions and adjustments are described in the accompanying notes hereto. The
pro forma information should be read in conjunction with the Company's
consolidated financial statements and the notes thereto, as of December 31, 1994
and for the three years then ended, appearing elsewhere in this Prospectus. This
pro forma information is not necessarily indicative of the Company's actual or
future operating results or financial position.
9
<PAGE> 17
SUMMARY HISTORICAL AND PRO FORMA FINANCIAL DATA
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
NINE MONTHS ENDED SEPTEMBER 30,
YEAR ENDED DECEMBER 31,
---------------------------------------------------- -------------------------------
PRO FORMA PRO FORMA
1991 1992 1993 1994 1994(A) 1994 1995 1995(A)
------- -------- -------- -------- --------- -------- -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Total gross revenue............... $ 830 $ 17,062 $ 32,062 $ 62,067 $ 94,762 $ 39,841 $ 71,524 $ 83,251
Operating expenses, excluding
depreciation, amortization and
option plan compensation........ 1,719 17,922 28,872 51,225 80,002 32,813 58,978 67,108
Option plan compensation(b)....... -- -- -- -- -- -- 9,809 9,809
Depreciation and amortization..... 497 5,977 9,351 12,404 25,604 8,558 13,079 19,203
------- -------- -------- -------- --------- -------- -------- ---------
Loss from operations.............. (1,386) (6,837) (6,161) (1,562) (10,844 ) (1,530) (10,342) (12,869 )
Interest expense, net(c).......... (52) (1,262) (2,052) (4,875) (31,280 ) (3,191) (7,853) (23,460 )
Other income (expense), net....... 10 134 221 (5) (211 ) 162 (46) (136 )
Benefit (provision) for income
taxes........................... -- -- (2,960) 1,680 1,680 1,769 960 960
Extraordinary item and cumulative
effect of a change in accounting
principle(d).................... -- 110 (457) -- -- (10,626)
------- -------- -------- -------- -------- --------
Net loss.......................... (1,428) (7,855) (11,409) (4,762) (2,790) (27,907)
Dividends and accretion on
preferred stock and common stock
warrants(e)..................... -- -- (151) (3,386) (2,407) (9,121)
------- -------- -------- -------- -------- --------
Net loss attributable to common
stock and common stock
equivalents..................... $(1,428) $ (7,855) $(11,560) $ (8,148) $ (5,197) $(37,028)
======= ======== ======== ======== ======== ========
OTHER DATA:
EBITDA(f)......................... $ (796) $ (162) $ 4,522 $ 11,644 $ 15,466 $ 7,221 $ 13,187 $ 16,718
Capital expenditures(g)........... 60 1,273 1,963 5,917 5,917 4,604 18,864 18,864
</TABLE>
<TABLE>
<CAPTION>
PRO FORMA
TWELVE MONTHS
ENDED
SEPTEMBER 30,
1995(A)
-------------
<S> <C>
Adjusted EBITDA(h).................................................................................. $28,215
Ratio of Adjusted EBITDA to interest expense, net................................................... 1.20x
Ratio of total debt to Adjusted EBITDA.............................................................. 9.23
Ratio of net debt to Adjusted EBITDA(i)............................................................. 9.04
</TABLE>
<TABLE>
<CAPTION>
AS OF SEPTEMBER 30,
1995
-----------------------
ACTUAL PRO FORMA(A)
-------- ------------
<S> <C> <C>
BALANCE SHEET DATA:
Cash and cash equivalents.................................................................. $ 57,945 $ 5,241
Net working capital........................................................................ 66,418 14,913
Total assets............................................................................... 283,929 312,729
Total debt................................................................................. 231,509 260,309
Redeemable preferred stock and Class A and B common stock warrants......................... 53,000 53,000
</TABLE>
(see footnotes on the following page)
10
<PAGE> 18
NOTES TO SUMMARY HISTORICAL AND PRO FORMA FINANCIAL DATA
(a) Pro forma statement of operations and other data for the year ended
December 31, 1994 and the nine months ended September 30, 1995 give effect to:
(i) the consummation of the Offering; (ii) the execution of the New Credit
Facility; (iii) the 1994/1995 Acquisitions (as defined in "The Acquisitions")
using the prior operators' unaudited financial information except for the year
ended December 31, 1994 for the Boston, Philadelphia, Houston and Los Angeles IN
TV stations and West Palm Beach (WTVX-TV) which are derived from audited
financial statements included elsewhere herein; (iv) the Acquisitions; and (v)
the elimination of certain terminated operations, as if such events included in
(i) through (v) had occurred on January 1, 1994. For purposes of the statement
of operations and other data, the results of operations of the San Francisco IN
TV station was not included because the prior operator's financial information
is not available, and the results of the New York, Akron, Washington, D.C.,
Dallas, Raleigh, Albany, West Palm Beach (WHBI-TV), Grand Rapids, San Juan and
Phoenix IN TV stations were not included because the prior operators' financial
information is not relevant to the future operations of such stations by the
Company. However, interest, depreciation and amortization expense has been
increased for each period to reflect preliminary purchase price allocations for
all stations included in the Acquisitions. The pro forma balance sheet data give
effect to, among other things, the Transactions as if the Transactions had
occurred on September 30, 1995.
(b) Option plan compensation represents a non-cash charge associated with
the granting of common stock options to employees under the Company's Stock
Incentive Plan. See "Management's Discussion and Analysis of Financial Condition
and Results of Operations -- Results of Operations" and "Management -- Stock
Incentive Plan."
(c) Interest expense, net is equal to total interest expense less interest
income.
(d) Extraordinary item and cumulative effect of a change in accounting
principle reflects a gain of $109,540 in 1992 as a result of a change in the
method of calculating depreciation and an extraordinary loss of $457,147 in 1993
associated with the write-off of capitalized financing costs on debt retired in
conjunction with the Company's reorganization on December 15, 1993. The nine
months ended September 30, 1995 reflects an extraordinary loss on the write-off
of previously capitalized financing costs of $10.6 million.
(e) Dividends and accretion on preferred stock and common stock warrants
represent the Senior Preferred Stock (15% dividend rate), redeemable Class A and
B common stock warrants and Junior Preferred Stock (12% dividend rate). Such
capital stock is mandatorily redeemable and certain issues have accretion
provisions. See "Description of the Capital Stock."
(f) EBITDA is defined as net income (loss) before (i) extraordinary item and
cumulative effect of a change in accounting principle, (ii) benefit (provision)
for income taxes, (iii) other income (expense), net, (iv) interest expense, net,
(v) depreciation and amortization, (vi) option plan compensation and (vii)
non-recurring items including terminated operations; less scheduled broadcast
rights payments.
(g) Includes all capital expenditures including expenditures associated with
the upgrade and conversion of acquired television stations to the IN TV format.
Pro forma capital expenditures exclude $23 million associated with the
Acquisitions which will be funded from the proceeds of the Offering and
borrowings under the New Credit Facility.
(h) Adjusted EBITDA for the pro forma twelve months ended September 30, 1995
is defined as EBITDA for such period less (i) segment operating profit for the
Infomall TV Network for such period plus (ii) four times segment operating
profit for the Infomall TV Network for the quarter ended September 30, 1995. For
purposes of this calculation, the results of operations of the San Francisco IN
TV station was not included because the prior operator's financial information
is not available, and the results of the New York, Akron, Washington D.C.,
Dallas, Raleigh, Albany, Grand Rapids, San Juan and Phoenix IN TV stations were
not included because the prior operators' financial information is not relevant
to the future operations of such stations by the Company. Adjusted EBITDA is
calculated on a basis consistent with calculations under the Indenture.
(i) Net debt is total debt less cash and cash equivalents.
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RISK FACTORS
Prospective investors should consider carefully the following risk factors
in addition to the other information set forth in this Prospectus before making
an investment in the Notes.
HIGH LEVEL OF INDEBTEDNESS; ABILITY TO SERVICE INDEBTEDNESS, NET LOSSES
After giving effect to the Transactions, the Company will be highly
leveraged. At September 30, 1995, on a pro forma basis, after giving effect to
the Transactions, the Company would have had $260 million of total debt in
addition to $53 million of redeemable preferred stock and common stock warrants.
In addition, subject to the restrictions in the Indenture and the New Credit
Facility, the Company may incur additional indebtedness from time to time to
finance acquisitions or capital expenditures or for other purposes. The Company
has incurred net losses in each of its fiscal years since inception. Net losses
for the fiscal years ended December 31, 1992, December 31, 1993, and December
31, 1994 were $7.9 million, $11.4 million, $4.8 million, respectively, and for
the nine-month period ended September 30, 1995 was $27.9 million. Earnings were
inadequate to cover fixed charges by approximately $1.4 million, $8.0 million,
$8.0 million, $6.4 million, $4.6 million and $18.2 million, for the years ended
December 31, 1991, December 31, 1992, December 31, 1993, December 31, 1994 and
for the nine-month periods ended September 30, 1994 and September 30, 1995,
respectively. On a pro forma basis after giving effect to the Transactions,
earnings would have been inadequate to cover fixed charges by $42.3 million and
$36.5 million for the year ended December 31, 1994 and the nine-month period
ended September 30, 1995, respectively. There can be no assurance that the
Company will not continue to generate net losses in the future. Continued net
losses could have an adverse effect on the market value and marketability of the
Notes.
The level of the Company's indebtedness could have important consequences
to holders of the Notes, including: (i) a substantial part of the Company's cash
flow from operations must be dedicated to debt service and will not be available
for other purposes; (ii) the Company's ability to obtain needed additional
financing in the future may be limited; (iii) the Company's leveraged position
and covenants contained in the Indenture and the New Credit Facility (or any
replacement thereof) could limit its ability to expand and make capital
improvements and acquisitions; and (iv) the Company's level of indebtedness
could make it more vulnerable to economic downturns, limit its ability to
withstand competitive pressures, and limit its flexibility in reacting to
changes in its industry and economic conditions generally. Certain of the
Company's competitors currently operate on a less leveraged basis and have
significantly greater operating and financing flexibility than the Company.
The Company's ability to pay interest on the Notes and to satisfy its other
debt obligations will depend upon its future operating performance, which will
be affected by prevailing economic conditions and financial, business and other
factors, many of which are beyond its control. The Indenture will permit the
redemption of the Company's Senior Preferred Stock and certain dividend payments
on the Junior Preferred Stock prior to the maturity of the Notes. The Company
expects that its operating cash flow will be sufficient to meet its operating
expenses and to service its debt and preferred stock requirements as they become
due. However, if the Company is unable to service its indebtedness or make
payments with respect to its preferred stock, it will be forced to adopt an
alternative strategy that may include actions such as reducing or delaying
capital expenditures, selling assets, restructuring or refinancing its
indebtedness or seeking additional equity capital. There can be no assurance
that any of these strategies could be effected on satisfactory terms, if at all.
See "Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity and Capital Resources."
DEPENDENCE ON KEY PERSONNEL
The Company's business depends upon the efforts, abilities and expertise of
its executive officers and other key employees, including Lowell W. Paxson. If
certain of these executive officers were to leave the Company, the Company's
operating results could be adversely affected. The Company has no long-term
employment contracts with any of its executive officers, other than Lowell W.
Paxson, whose agreement expires on December 31, 1999, unless terminated sooner
as permitted therein. See "Management."
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MUST CARRY REGULATIONS
The Company believes that its growth and success depends upon access to
households served by cable television systems. Pursuant to the Cable Act of 1992
(the "1992 Cable Act"), each broadcaster was required to elect to exercise
either certain "must-carry" or "retransmission consent" rights in connection
with carriage of their signals by cable systems in their local market. By
electing the must-carry rights, a broadcaster can demand carriage on a specified
channel on cable systems within its DMA. These must-carry rights are not
absolute, and their exercise is dependent on variables such as (i) the number of
activated channels on a cable system, (ii) the location and size of a cable
system, and (iii) the amount of duplicative programming on a broadcast station.
Therefore, under certain circumstances, a cable system can decline to carry a
given station. Alternatively, if a broadcaster chooses to exercise
retransmission consent rights, it can prohibit cable systems from carrying its
signal or grant the appropriate cable system the authority to retransmit the
broadcast signal for a fee or other consideration. The Company's television
stations have, with few exceptions, elected the must-carry alternative. The
Company's elections of retransmission or must-carry status will continue until
the next required election date of October 1, 1996.
The must-carry rules have been subject to judicial scrutiny. In April 1993,
the United States District Court for the District of Columbia upheld the
constitutionality of the must-carry provisions. In June 1994, the Supreme Court
ruled that the must-carry provisions were "content-neutral" and, thus, not
subject to strict scrutiny; however, the Supreme Court remanded the case to the
lower federal court with instructions to hold further proceedings with respect
to evidence that lack of the must-carry requirements would harm local
broadcasting. On December 12, 1995, the District Court again upheld the
constitutionality of the must-carry provisions. The District Court's most recent
decision has been appealed to the Supreme Court, and Management cannot predict
the final outcome of the Supreme Court case or the extent to which, in the
absence of any must-carry obligation, its television stations might lose viewers
because of the deletion or repositioning of its signal on cable television
systems. See "Business -- Federal Regulation of Broadcasting."
GOVERNMENT REGULATION
Each of the Company's radio and television stations operates pursuant to
one or more licenses issued by the Federal Communications Commission (the "FCC")
that expire at different times, commencing February 1996. The Company may apply
to renew those licenses, and third parties may challenge those applications or
file competing applications. Although the Company has no reason to believe that
its licenses will not be renewed in the ordinary course, there can be no
assurance that the licenses will be renewed.
The radio and television broadcasting industries are subject to extensive
and changing regulation. Among other things, the Communications Act of 1934, as
amended (the "Communications Act"), and FCC rules and policies require FCC
consent to assignments of FCC licenses and transfers of control of FCC
licensees. Congress and the FCC currently have under consideration and may in
the future adopt new laws and regulations and policies regarding a wide variety
of matters which could, directly or indirectly, adversely affect the ownership
and operation of the Company's broadcast properties, as well as the Company's
business strategies. For example, changes in the rule for attributing the
ownership of media interests for purposes of the FCC's multiple ownership and
cross-ownership rules could require that the Company restructure or divest
itself of some existing broadcast interests. Changes in the rules to treat
television time brokerage agreements as attributable interests could require the
renegotiation of all or some of the Company's existing time brokerage
arrangements with television licensees. Relaxation of the existing multiple
ownership and cross-ownership rules and policies by the FCC or through new
legislation such as that now pending in Congress could give the Company greater
freedom in structuring future acquisitions and programming arrangements, but
also may remove the restrictions that now restrain larger media, entertainment
and telecommunication companies, with greater access to capital and resources
than the Company, from competing with the Company for the acquisition of media
properties and the negotiation of programming arrangements. The adoption of
measures such as elimination of restrictions on the offering of multiple network
services by the existing major television networks, the removal of restrictions
on the participation by the regional Bell holding companies in cable television
and other direct-to-home video technologies, and the removal of restrictions on
nationwide broadcast ownership could accelerate the existing trend toward
vertical integration in the media and home
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<PAGE> 21
entertainment industries and cause the Company to face more formidable
competition in the future. See "Business -- Federal Regulation of Broadcasting."
MULTIPLE OWNERSHIP RULES AND EFFECT ON TIME BROKERAGE AGREEMENTS
On a national level, FCC rules and regulations generally prevent an entity
or individual from having an attributable interest in more than 12 television
stations, with an additional limit on nationwide reach under which UHF stations
are credited with only 50% of the television households in their markets. On a
local level, the "duopoly" rules prohibit such interests in two or more
television stations with overlapping service areas. The FCC generally applies
its ownership limits to "attributable" interests held by an individual,
corporation, partnership or other entity. In the case of corporations holding
broadcast licenses, the interests of officers, directors and those who directly
or indirectly have the right to vote 5% or more of the corporation's voting
stock (or 10% or more of such stock in the case of insurance companies, certain
regulated investment companies and bank trust departments) are generally deemed
to be attributable, as are positions as an officer or director of a corporate
parent of a broadcast licensee.
The FCC has initiated rule making proceedings to consider proposals to
modify its television ownership restrictions, including ones that may permit
ownership, in some circumstances, of two television stations with overlapping
service areas. The FCC also is considering in these proceedings whether to adopt
restrictions on television time brokerage agreements. The "duopoly" rules for
television currently prevent the Company from acquiring the FCC licenses of
television stations with which it has time brokerage agreements in those markets
where the Company owns a station. In addition, if the FCC were to decide that
the provider of programming services under time brokerage agreements should be
treated as having an attributable ownership in the television station it
programs, and if it did not relax the duopoly rules, or if the FCC were to adopt
restrictions on time brokerage agreements without grandfathering existing time
brokerage agreements, the Company could be required to modify or terminate
certain of its time brokerage agreements. In such an event, the Company could be
required to pay termination penalties under certain of its time brokerage
agreements. Furthermore, if the FCC were to find that the licensees of the
stations with which the Company has time brokerage agreements failed to maintain
control over their operations as required by FCC rules and policies, the
licensee of the time brokerage agreements and/or the Company could be fined or
could be set for hearing, the outcome of which could be a fine or, under certain
circumstances, loss of the applicable FCC license. The Company is unable to
predict the ultimate outcome of possible changes to these FCC rules and the
impact such FCC rules may have on its broadcasting operations. See
"Business -- Federal Regulation of Broadcasting."
CHANGE OF CONTROL
In the event of a Change of Control, the Company will be required to offer
to repurchase all of the outstanding Notes at 101% of the principal amount
thereof plus any accrued and unpaid interest thereon to the date of the
purchase. A Change of Control under the Indenture will result in a default under
the New Credit Facility. The exercise by the holders of the Notes of their right
to require the Company to repurchase the Notes upon a Change of Control could
also cause a default under other indebtedness of the Company, even if the Change
of Control itself does not, because of the financial effect of such repurchase
on the Company. The Company's ability to pay cash to the holders of the Notes
upon a repurchase may be limited by the Company's then existing financial
resources. In addition, holders of the Senior Preferred Stock (as defined
herein) will have the right to require the Company to redeem the Senior
Preferred Stock in the event of a change of control (as defined with respect
thereto) and cause a significant increase in the dividend rate of the Junior
Preferred Stock (as defined herein) unless it is redeemed. There can be no
assurance that in the event of a Change of Control, the Company will have, or
will have access to, sufficient funds or will be contractually permitted under
the terms of outstanding indebtedness to pay the required purchase price for all
Notes tendered by holders upon a Change of Control or redeem Senior Preferred
Stock or Junior Preferred Stock. See "Description of the Notes -- Change of
Control," "Description of New Credit Facility" and "Description of Capital
Stock -- Senior Preferred Stock" and "-- Junior Preferred Stock."
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NEW INDUSTRY
The business in which IN TV operates is a relatively new industry with no
significant operating history. Potential investors should be aware of the
difficulties and uncertainty that are normally associated with new industries,
including a lack of consumer and advertiser acceptance, difficulty in obtaining
financing, increasing competition, advances in technology, and changes in law
and regulations. There can be no assurance that this new industry will develop
and continue as a viable industry. Such development could require the Company to
sell its IN TV dedicated television stations or convert them to other uses that
are less profitable than expected. Growth in revenue from the Company's IN TV
business depends on increasing consumer awareness and acceptance of infomercial
programming and growing demand by infomercial advertisers. See "Business --
Infomall TV Network."
ABILITY TO MANAGE GROWTH
Since inception, the Company has experienced rapid growth, primarily
through acquisitions. Rapidly growing businesses frequently encounter unforeseen
expenses and delays in completing acquisitions, as well as difficulties and
complications in integrating acquired operations without disruption to overall
operations. In addition, such rapid growth may adversely affect the Company's
operating results because of many factors, including capital requirements,
transitional management and operating adjustments, and interest costs associated
with acquisition debt. There can be no assurance that the Company will
successfully integrate recently acquired and future acquired operations or
successfully manage the costs often associated with rapid growth. The Company
continuously evaluates the acquisition of additional television and radio
stations.
TIME BROKERAGE AGREEMENTS -- RIGHTS OF PREEMPTION AND TERMINATION
A significant number of the television stations the Company operates or
intends to acquire will be operated pursuant to time brokerage agreements and
will not be owned by the Company. The Company has options to purchase all but
two of the stations it operates under time brokerage agreements, which options
may be exercised only when permitted by applicable law. All of the Company's
time brokerage agreements allow, in accordance with FCC rules, regulations and
policies, preemption of the Company's programming by the FCC licensee of each
station with which the Company has a time brokerage agreement. In addition, each
time brokerage agreement provides that under certain limited circumstances it
may be terminated by the FCC licensee. Accordingly, there can be no assurance
that the Company will be able to air all the programming expected to be aired on
those stations with which it has a time brokerage agreement or that the Company
will receive the expected advertising revenue from the sale of advertising in
such programming. Although the Company believes that the terms and conditions of
each of its time brokerage agreements should enable the Company to air and
utilize the programming and other non-broadcast license assets of the respective
stations, there can be no assurance that early terminations of the time
brokerage agreements or unexpected preemptions of all or a significant part of
the programming by the FCC licensee of such stations will not occur. An early
termination of one of the Company's time brokerage agreements, or repeated and
material preemptions of programming could adversely affect the Company's
operations. In addition, the Company's time brokerage agreements have expiration
dates. The WTJC-TV time brokerage agreement, effective October 6, 1995, is for a
term of 10 years, subject to renewal upon the mutual agreement of the parties.
The KUBD-TV time brokerage agreement, effective August 31, 1995, is for a term
of 10 years, subject to renewal upon the mutual agreement of the parties. The
WIRB-TV time brokerage agreement, effective August 31, 1995, is for a term of 10
years, subject to renewal upon the mutual agreement of the parties. The WTVX-TV
time brokerage agreement, effective August 4, 1995, is for a term of seven
years, subject to renewal as mutually agreed upon by the parties. The WCTD-TV
time brokerage agreement, effective April 1994, is for a term of five years,
renewable by the Company for an additional five years. The WOAC-TV time
brokerage agreement effective October 30, 1995 is for a period of ten years,
subject to renewal as mutually agreed upon by the parties. Finally, the WFCT-TV
time brokerage agreement, which commenced in August 1, 1994, is for an initial
term of 30 months, renewable for an additional 18 months. The Company
anticipates that its future time brokerage agreements will be for terms of not
more than 10 years. There can be no assurance that the Company will be able to
negotiate extensions of its time brokerage agreements, after such additional
renewal periods, on terms satisfactory to the Company.
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INDUSTRY AND ECONOMIC CONDITIONS; SEASONALITY
The profitability of the Company's radio and television stations is subject
to various factors that influence the radio and television broadcasting
industries as a whole. The Company's radio and television stations may be
affected by numerous factors, including changes in audience tastes, priorities
of advertisers, new laws and governmental regulations and policies, changes in
broadcast technical requirements, technological changes, proposals to eliminate
the tax deductibility of expenses incurred by advertisers and changes in the
willingness of financial institutions and other lenders to finance radio and
television station acquisitions and operations. The Company cannot predict
which, if any, of these or other factors might have a significant impact on the
radio and television broadcasting industry in the future, nor can it predict
what impact, if any, the occurrence of these or other events might have on the
Company's operations. Generally, advertising tends to decline during economic
recession or downturn. Consequently, the Company's broadcasting revenue is
likely to be adversely affected by a recession or downturn in the United States
economy or other events or circumstances that adversely affect advertising
activity. In addition, the Company's operating results in individual geographic
markets could be adversely affected by local regional economic downturns,
particularly in Florida. Seasonal revenue fluctuations are common in the radio
and television broadcasting industry and result primarily from fluctuation in
advertising expenditures by local retailers. Paxson Radio and Paxson Television
generally experience their lowest revenue for the year in the first quarter,
whereas their highest revenue generally occurs in the fourth fiscal quarter.
Because of the short operating history of IN TV, the Company's ability to assess
the effects of seasonality on IN TV is limited. However, it appears that IN TV
experiences its highest revenues in the first and fourth quarters.
COMPETITION; NEW TECHNOLOGY
The Company's television and radio stations are located in highly
competitive markets. The financial success of each of the Company's radio and
television markets stations depends, to a significant degree, upon its audience
ratings, its share of the overall radio and television, as applicable, sales
within its geographic market, the economic health of the market and the
popularity of its programming. The audience ratings and advertising of such
individual stations are subject to change and any adverse change in a particular
market could have a material adverse effect on the revenue and cash flows of the
Company. The Company's radio stations compete for audience share and advertising
revenue directly with other FM and AM radio stations and with other media within
their respective markets. Although the Company competes with other radio
stations with comparable programming formats in most of its markets, if another
station in the market were to convert its programming format to a format similar
to one of the Company's radio station's, if a new radio station were to adopt a
competitive format or if an existing competitor were to strengthen its
operations, the Company's stations could suffer a reduction in ratings or
advertising revenue and could require increased promotional and other expenses.
Paxson Television stations face similar competitive forces. In addition, to the
extent that certain of the Company's competitors have or may, in the future,
obtain greater resources than the Company, its ability to compete successfully
in its broadcasting markets may be impeded. There can be no assurance that the
Company will be able to maintain or increase its current audience ratings and
advertising revenue. See "Business -- Competition."
Radio and television broadcasting are also subject to competition with new
media technologies that are being developed or have been introduced, such as,
for radio, the delivery of audio programming through cable television, telephone
or electrical wires or the introduction of digital audio broadcasting ("DAB")
and, for television, direct satellite-to-home video programming and so-called
"video dialtone" in which telephone or other companies provide broad-band wire
links for delivery of video programming to homes by independent program
suppliers. DAB may provide a medium for the delivery by satellite or terrestrial
means of multiple audio programming formats to local and national audiences. The
Company cannot predict the effect, if any, that these or other new technologies
may have on the radio broadcast industry or on the Company. See
"Business -- Federal Regulation of Broadcasting."
The Company's IN TV stations face significant competition from various
broadcasting stations and broadcasting and cable networks that air both
traditional and long-form paid programming in varied amounts, as well as local
cable operators that sell blocks of time to long-form advertisers and could
encounter competition from developments in technology that may be subsequently
commercialized. To the extent that
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the Infomall TV Network is successful, it is likely that the Company will face
additional competition from new market entrants. See "Business -- Competition."
DEPENDENCE ON CASH FLOW FROM SUBSIDIARIES
The Company's operations are conducted through its direct and indirect
wholly-owned subsidiaries, which will guarantee the Notes, jointly and
severally, on a senior subordinated unsecured basis. The Company does not have
significant assets other than its equity in its subsidiaries, and it depends
upon the cash flow of its subsidiaries to meet its own obligations. Accordingly,
the Company's ability to make interest and principal payments when due to
holders of the Notes and its ability to purchase the Notes upon a Change of
Control depend upon the receipt of sufficient funds from its subsidiaries, which
may be restricted by the terms of future Senior Indebtedness of such
subsidiaries. As a result, the Notes and the subsidiary Guarantees effectively
will be subordinated to all existing and future Senior Indebtedness and other
liabilities and commitments of the subsidiaries.
SUBORDINATION OF THE NOTES
The Notes will be subordinated in right of payment to all Senior
Indebtedness of the Company. In the event of bankruptcy, liquidation or
reorganization of the Company, the assets of the Company will be available to
pay obligations on the Notes only after all Senior Indebtedness has been paid in
full, and there may not be sufficient assets remaining to pay amounts due on any
or all of the Notes then outstanding. Similarly, the Guarantees will be
subordinated in right of payment to all Senior Indebtedness of the respective
Guarantors. In certain circumstances, provisions of Senior Indebtedness could
prohibit payments of amounts due to holders of the Notes. Immediately after
giving pro forma effect to the Offering, the Company would have Senior
Indebtedness in an aggregate amount of approximately $32.9 million.
Additionally, Senior Indebtedness may be incurred by the Company from time to
time, subject to certain restrictions. See "Description of the Notes -- Certain
Covenants -- Limitation on Additional Indebtedness."
RESTRICTIVE DEBT COVENANTS
It is expected that the New Credit Facility will contain certain
restrictive covenants that, among other things, limit the Company's ability to
incur additional indebtedness, create liens, and make investments and capital
expenditures. The New Credit Facility also may require the Company to comply
with certain financial ratios and tests, under which the Company will be
required to achieve certain financial and operating results. The Company's
ability to meet these financial ratios and tests may be affected by events
beyond its control, and there can be no assurance that they will be met. In the
event of such a default under the New Credit Facility, the lenders thereunder
may terminate their lending commitments and declare the indebtedness under the
New Credit Facility immediately due and payable which would result in a default
under the Notes. As a result of the priority and security afforded the New
Credit Facility, there can be no assurance that the Company would have
sufficient assets to pay indebtedness then outstanding under the New Credit
Facility and the Notes. See "Description of New Credit Facility." Any
refinancing of the New Credit Facility is likely to contain similar restrictive
covenants.
FRAUDULENT CONVEYANCE CONSIDERATIONS
The Notes are obligations of the Company and will be guaranteed by the
Guarantors. Substantially all the assets of the Company, other than stock of the
Guarantors, are held by the Guarantors and all of the Company's operating
revenue is derived from operations of the Guarantors. Accordingly, the Company's
ability to make interest and principal payments when due to holders of the Notes
depends upon the receipt of sufficient funds from the Guarantors. To the extent
that a court were to find that (i) a Guarantee was incurred by a Guarantor with
intent to hinder, delay or defraud any current or future creditor or the
Guarantor contemplated insolvency with a design to prefer one or more creditors
to the exclusion in whole or in part of other creditors or (ii) such Guarantor
did not receive fair consideration or reasonably equivalent value for issuing
its Guarantee and such Guarantor (a) was insolvent, (b) was rendered insolvent
by reason of the issuance of such Guarantee, (c) was engaged in or about to
engage in a business or transaction for which its
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remaining assets constituted unreasonably small capital to carry on its business
or (d) intended to incur, or believed, or reasonably should have believed, that
it would incur debts beyond its ability to pay such debts as they matured, the
court could avoid or subordinate such Guarantee in favor of the Guarantor's
other creditors or take other action detrimental to the holders of Notes. Among
other matters, a legal challenge of a Guarantee on fraudulent conveyance grounds
may focus on the benefits, if any, realized by the Guarantor as a result of the
issuance by the Company of the Notes. To the extent any Guarantees were voided
as fraudulent conveyances or held to be unenforceable for any other reason,
holders of the Notes would cease to have any claim in respect of such Guarantor
and would be creditors solely of the Company and any Guarantor whose Guarantee
was not voided or held unenforceable.
Based upon financial and other information currently available to it, the
Company believes that the Guarantees are being issued without the intent to
hinder, delay, or defraud any current or future creditors of the Guarantors and
that immediately following the consummation of the Transactions, including the
consummation of the Offering, the Company and each Guarantor will be solvent,
have sufficient capital for carrying on its business and be able to pay its
debts and other obligations as they mature. There can be no assurance, however,
that a court would reach the same conclusion. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations -- Liquidity and
Capital Resources" and "Description of the Notes -- Guarantees."
LACK OF PUBLIC MARKET FOR THE NOTES
The New Notes are being offered to the Holders of the Original Notes. The
Original Notes were offered and sold to the Initial Purchasers who offered and
resold them to a small number of accredited institutional investors and are
eligible for trading in the Private Offerings, Resale and Trading through
Automatic Linkages (PORTAL) Market. Prior to the Exchange Offer, there has been
no market for the New Notes. The Company intends, to the extent practicable, to
apply for listing or quotation of the New Notes on a securities exchange or
stock market. However, there can be no assurance given that such listing or
quotation shall occur. Future trading prices of the New Notes will depend upon
many factors, including prevailing interest rates, the Company's operating
results and the market for similar securities.
CONSEQUENCE OF FAILURE TO EXCHANGE
Holders of Original Notes who do not exchange their Original Notes for New
Notes pursuant to the Exchange Offer will continue to be subject to the
restrictions on transfer of such Original Notes as set forth in the legend
thereon as a consequence of the offer or sale of the Original Notes pursuant to
an exemption from or in a transaction not subject to, the registration
requirements of the Securities Act and applicable state securities laws. In
general, the Original Notes may not be offered or sold, unless registered under
the Securities Act, except pursuant to an exemption from, or in a transaction
not subject to, the Securities Act or applicable state securities laws. The
Company does not currently expect that it will register the Original Notes under
the Securities Act. Based on interpretations by the staff of the Commission
issued in no-action letters to third parties, the Company believes that the New
Notes issued pursuant to the Exchange Offer in exchange for Original Notes may
be offered for resale, resold or otherwise transferred by the Holder thereof
(other than any such Holder which is an "affiliate" of the Company within the
meaning of Rule 405 under the Securities Act), provided that such New Notes are
acquired in the ordinary course of such Holder's business and such Holder has no
arrangement with any person to participate in the distribution of such New
Notes. Such no-action letters are not binding interpretations of the law. Any
Holder of Original Notes who tenders in the Exchange Offer for the purpose of
participating in a distribution of the New Notes would not be acting
consistently with such interpretation by the staff of the Commission and must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any resale transaction. Thus, any New Notes
acquired by such Holder will not be freely transferable except in compliance
with the Securities Act. Each Restricted Holder that receives New Notes for its
own account in exchange for the Original Notes, where such Original Notes were
acquired by such broker-dealer as a result of market-making activities or other
trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such New Notes. See "Plan of Distribution."
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THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
The Original Notes were sold by the Company on September 28, 1995 to the
Initial Purchasers who resold them to certain accredited institutions in the
Private Offering. In connection with the Private Offering, the Company entered
into the Registration Rights Agreement, which requires that within thirty days
following the issuance of the Original Notes, the Company file with the
Commission a registration statement under the Securities Act with respect to an
issue of New Notes of the Company identical in all material respects to the
Original Notes, use its best efforts to cause such registration statement to
become effective under the Securities Act within 150 days following the issuance
of the Original Notes, and upon the effectiveness of that registration
statement, offer to the Holders of the Original Notes the opportunity to
exchange their Original Notes for a like principal amount of such New Notes,
which will be issued without a restrictive legend. The purpose of the Exchange
Offer is to fulfill the Company's obligations under the Registration Rights
Agreement. The Original Notes were initially represented by two global Notes in
registered form, each in the principal amount of $115,000,000 registered in the
name of Cede & Co., a nominee of The Depository Trust Company, New York, New
York ("DTC"), as depositary.
Based on no-action letters issued by the Staff of the Commission to third
parties, the Company believes that the New Notes issued pursuant to the Exchange
Offer in exchange for the Original Notes may be offered for resale, resold and
otherwise transferred by any Holder of such New Notes without compliance with
the registration and prospectus delivery provisions of the Securities Act (other
than "affiliates" of the Company within the meaning of Rule 405 under the
Securities Act), provided that such New Notes are acquired in the ordinary
course of such Holder's business and such Holder has no arrangement or
understanding with any person to participate in the distribution of such New
Notes. Such no-action letters are not binding interpretations of the law. Any
Holder of Original Notes who tenders in the Exchange Offer for the purpose of
participating in a distribution of the New Notes would not be acting
consistently with such interpretation by the Staff of the Commission and must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any resale transaction. Thus, any New Notes
acquired by such Holder will not be freely transferable except in compliance
with the Securities Act. Each Restricted Holder that receives New Notes for its
own account in exchange for the Original Notes, where such Original Notes were
acquired by such Restricted Holder as a result of market-making activities or
other trading activities, must acknowledge that it will deliver a prospectus in
connection with a resale of such New Notes. See "Plan of Distribution."
Upon consummation of the Exchange Offer, the Company's obligation to
increase the annual rate of interest payable with respect to the Original Notes
will be terminated.
As described above, the Original Notes were sold to the Initial Purchasers
and resold by the Initial Purchasers to a small number of institutional
investors on September 28, 1995, and there is currently a limited private
trading market for them. To the extent Original Notes are tendered and accepted
in the Exchange Offer, the principal amount of outstanding Original Notes will
decrease. Following the consummation of the Exchange Offer, Holders of Original
Notes will continue to be subject to certain restrictions on transfer.
Accordingly, the liquidity of the market of the Original Notes could be
adversely affected. See "Risk Factors -- Consequence of Failure to Exchange."
TERMS OF THE EXCHANGE
Upon the terms and subject to the conditions set forth in this Prospectus
and in the Letter of Transmittal (which together constitute the "Exchange
Offer"), the Company will accept any and all Original Notes validly tendered,
and not theretofore withdrawn, prior to 5:00 p.m., New York City time, on the
Expiration Date. The Company will issue $1,000 principal amount of New Notes in
exchange for each $1,000 principal amount of outstanding Original Notes accepted
in the Exchange Offer, as promptly as practicable after the Expiration Date.
Holders may tender some or all of their Original Notes pursuant to the Exchange
Offer, provided, however, that Original Notes may be tendered only in integral
multiples of $1,000. The Exchange
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Offer is not conditioned upon any minimum aggregate principal amount of Original
Notes being tendered for exchange.
The form and terms of the New Notes are identical in all material respects
to the form and terms of the Original Notes except that the New Notes will have
been registered under the Securities Act and, therefore, will not bear legends
restricting the transfer thereof. The New Notes will not represent additional
indebtedness of the Company and will be entitled to the benefits of the
Indenture, which is the same Indenture as the one under which the Original Notes
were issued.
Interest on New Notes will accrue from the most recent date to which
interest has been paid on the Original Notes or, if no interest has been paid,
from September 28, 1995.
Holders of Original Notes do not have any appraisal or dissenters' rights
under the Delaware General Corporation Law or the Indenture in connection with
the Exchange Offer. The Company intends to conduct the Exchange Offer in
accordance with the applicable requirements of the Exchange Act and the rules
and regulations of the Commission thereunder.
For purposes of the Exchange Offer, the Company shall be deemed to have
accepted for exchange and exchanged Original Notes validly tendered for exchange
when, as and if the Company gives oral or written notice to the Exchange Agent
of acceptance of the tenders of such Original Notes for exchange. Exchange of
Original Notes accepted for exchange pursuant to the Exchange Offer will be made
by deposit of tendered Original Notes with the Exchange Agent, which will act as
agent for the tendering Holders for the purpose of receiving New Notes from the
Company and transmitting such New Notes to tendering Holders. In all cases, any
exchange of New Notes for Original Notes accepted for exchange pursuant to the
Exchange Offer will be made only after timely receipt by the Exchange Agent of
certificates for such Original Notes (or of a confirmation of a book-entry
transfer of such Original Notes in the Exchange Agent's account at the Book-
Entry Transfer Facility (as defined in "-- Procedures for Tendering" below)), a
properly completed and duly executed Letter of Transmittal (or facsimile
thereof) and any other required documents. For a description of the procedures
for tendering Original Notes pursuant to the Exchange Offer, see "-- Procedures
for Tendering."
If any tendered Original Notes are not accepted for exchange because of an
invalid tender, or due to the occurrence of certain other events set forth
herein or otherwise, certificates for any such unaccepted Original Notes will be
returned without expense to the tendering Holders thereof (or in the case of
Original Notes tendered by book-entry transfer, such Original Notes will be
credited to the account of such Holder maintained at the Book-Entry Transfer
Facility), as promptly as practicable after the expiration or termination of the
Exchange Offer.
No alternative, conditional or contingent tenders will be accepted. All
tendering Holders, by execution of a Letter of Transmittal (or facsimile
thereof), waive any right to receive notice of acceptance of their Original
Notes for exchange.
Holders who tender Original Notes in the Exchange Offer will not be
required to pay brokerage commission or fees or, subject to the instructions in
the Letter of Transmittal, transfer taxes with respect to the exchange of
Original Notes pursuant to the Exchange Offer. The Company will pay all charges
and expenses, other than certain applicable taxes, in connection with the
Exchange Offer. See "-- Fees and Expenses."
This Prospectus, together with the Letter of Transmittal, is being sent to
registered Holders of Original Notes as of January 24, 1996.
EXPIRATION DATE; EXTENSIONS; AMENDMENTS; TERMINATION
The Expiration Date shall be 5:00 p.m. New York City time on February 23,
1996, unless the Company, in its sole discretion, extends the Exchange Offer, in
which case the Expiration Date shall be the latest date and time to which the
Exchange Offer is extended.
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<PAGE> 28
In order to extend the Exchange Offer, the Company will notify the Exchange
Agent of any extension by oral (promptly confirmed in writing) or written notice
and will make a public announcement thereof, each prior to 9:00 a.m. New York
City time, of the next business day after the previously scheduled expiration
date of the Exchange Offer.
The Company reserves the right, at any time and from time to time, in its
sole discretion (subject to its obligations under the Registration Rights
Agreement) (i) to delay accepting any Original Notes or to delay the issuance
and exchange of New Notes for Original Notes, (ii) to extend the Exchange Offer
or, if any of the conditions set forth below under "-- Conditions to the
Exchange Offer" shall not have been satisfied, to terminate the Exchange Offer
by giving oral or written notice of such delay, extension or termination to the
Exchange Agent, or (iii) to amend the terms of the Exchange Offer in any manner.
If the Company extends the period of time during which the Exchange Offer
is open, or if it is delayed in accepting for exchange of, or in issuing and
exchanging the New Notes for, any Original Notes, or is unable to accept for
exchange of, or issue New Notes for, any Original Notes pursuant to the Exchange
Offer for any reason, then, without prejudice to the Company's rights under the
Exchange Offer, the Exchange Agent may, on behalf of the Company, retain all
Original Notes tendered, and such Original Notes may not be withdrawn except as
otherwise provided below in "-- Withdrawal of Tenders." The adoption by the
Company of the right to delay acceptance for exchange of, or the issuance and
the exchange of the New Notes, for any Original Notes is subject to applicable
law, including Rule 14e-1(c) under the Exchange Act, which requires that the
Company pay the consideration offered or return the Original Notes deposited by
or on behalf of the Holders thereof promptly after the termination or withdrawal
of the Exchange Offer.
Any such delay in acceptance, extension, termination or amendment will be
followed as promptly as practicable by a public announcement thereof. If the
Exchange Offer is amended in a manner determined by the Company to constitute a
material change, the Company will promptly disclose such amendment by means of a
prospectus supplement that will be distributed to the registered Holders, and
the Company will extend the Exchange Offer for a period of five to ten business
days, depending upon the significance of the amendment and the manner of
disclosure to the registered Holders, if the Exchange Offer would otherwise
expire during such five to ten business day period. The term "business day"
shall mean any day other than Saturday, Sunday or a federal holiday and shall
consist of the time period from 12:01 a.m. through 12:00 midnight, New York City
time.
Without limiting the manner in which the Company may choose to make a
public announcement of any delay, extension, termination or amendment of the
Exchange Offer, the Company shall have no obligation to make public, advertise,
or otherwise communicate any such public announcement, other than by making a
timely release to the Dow Jones News Service. Any such announcement of an
extension of the Exchange Offer shall be issued no later than 9:00 a.m., New
York City time, on the next business day after the previously scheduled
Expiration Date of the Exchange Offer.
PROCEDURES FOR TENDERING
Only a Holder of Original Notes may tender such Original Notes in the
Exchange Offer. To tender in the Exchange Offer, the Holder must complete, sign
and date the Letter of Transmittal, or a facsimile thereof, have the signatures
thereon guaranteed if required by the Letter of Transmittal, and mail or
otherwise deliver such Letter of Transmittal, or such facsimile, together with
any other required documents, to the Exchange Agent so that delivery is received
prior to 5:00 p.m., New York City time, on the Expiration Date. To be tendered
effectively, the Letter of Transmittal and other required documents must be
received by the Exchange Agent at the address set forth below under "-- Exchange
Agent" prior to 5:00 p.m., New York City time, on the Expiration Date. In
addition, either (i) the certificates for the tendered Original Notes must be
received by the Exchange Agent along with the Letter of Transmittal, or such
Original Notes must be tendered pursuant to the procedures for book-entry
transfer described below and a confirmation of receipt of such tendered Original
Notes must be received by the Exchange Agent, in each case, prior to 5:00 p.m.,
New York City time, on the Expiration Date, or (ii) the tendering Holder must
comply with the guaranteed delivery procedures described below.
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NO LETTERS OF TRANSMITTAL, CERTIFICATES REPRESENTING ORIGINAL NOTES OR ANY
OTHER REQUIRED DOCUMENTATION SHOULD BE SENT TO THE COMPANY. SUCH DOCUMENTS
SHOULD BE SENT ONLY TO THE EXCHANGE AGENT.
The tender by a Holder of Original Notes made pursuant to any method of
delivery set forth in the Letter of Transmittal will constitute a binding
agreement between such tendering Holder and the Company in accordance with the
terms and subject to the conditions of the Exchange Offer.
The method of delivery of Original Notes and the Letter of Transmittal and
all other required documents to the Exchange Agent is at the election and risk
of the Holder. Instead of delivery by mail, it is recommended that Holders use
an overnight or hand delivery service. In all cases, sufficient time should be
allowed to assure delivery to the Exchange Agent before the Expiration Date.
Holders may request their respective brokers, dealers, commercial banks, trust
companies or nominees to effect the above transaction for such Holders or for
assistance concerning the Exchange Offer.
Any beneficial owner whose Original Notes are registered in the name of a
broker, dealer, commercial bank, trust company or other nominee and who wishes
to tender should contact the registered Holder promptly and instruct such
registered Holder to tender on such beneficial owner's behalf. If such
beneficial owner wishes to tender on such owner's own behalf, such owner must,
prior to completing and executing the Letter of Transmittal and delivery of such
owner's Original Notes, either make appropriate arrangements to register
ownership of the Original Notes in such owner's name or obtain a properly
completed bond power from the registered Holder. The transfer of registered
ownership may take considerable time.
If the Letter of Transmittal is signed by a person other than the
registered Holder of any Original Notes (which term includes any participants in
DTC whose name appears on a security position listing as the owner of the
Original Notes) or if delivery of the Original Notes is to be made to a person
other than the registered Holder, such Original Notes must be endorsed or
accompanied by a properly completed bond power, in either case signed by such
registered Holder as such registered Holder's name appears on such Original
Notes with the signature on the Original Notes or the bond power guaranteed by
an Eligible Institution (as defined below).
If the Letter of Transmittal or any Original Notes or bond powers are
signed by trustees, executors, administrators, guardians, attorney-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing and, unless waived by the
Company, must submit with the Letter of Transmittal evidence satisfactory to the
Company of their authority to so act.
Signature on a Letter of Transmittal or a notice of withdrawal, as the case
may be, must be guaranteed by an Eligible Institution unless the Original Notes
tendered pursuant thereto are (i) by a registered Holder who has not completed
the box entitled "Special Registration Instructions" or "Special Delivery
Instructions" on the Letter of Transmittal, (ii) for the account of an Eligible
Institution, or (iii) for the account of DTC. See Instruction 4 in the Letter of
Transmittal. In the event that a signature on a Letter of Transmittal or a
notice of withdrawal, as the case may be, is required to be guaranteed, such
guarantee must be by a member firm of a registered national securities exchange
or of the National Association of Securities Dealers, Inc., a commercial bank or
trust company having an office or correspondent in the United States or an
"eligible guarantor institution" within the meaning of Rule 17Ad-15 under the
Exchange Act (any of which is referred to herein as an "Eligible Institution").
The Exchange Agent will establish an account with respect to the Original
Notes at DTC (the "Book-Entry Transfer Facility") for the purpose of the
Exchange Offer promptly after the date of this Prospectus, and any financial
institution that is a participant in the Book-Entry Transfer Facility's system
may make delivery of the Original Notes by causing the Book-Entry Transfer
Facility to transfer such Original Notes into the Exchange Agent's Notes account
in accordance with the Book-Entry Transfer Facility's procedure for such
transfer. ALTHOUGH DELIVERY OF ORIGINAL NOTES MAY BE EFFECTED THROUGH BOOK-ENTRY
TRANSFER IN THE EXCHANGE AGENT'S ACCOUNT AT THE BOOK-ENTRY TRANSFER FACILITY,
THE LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF) WITH ALL REQUIRED SIGNATURE
GUARANTEES AND ANY OTHER REQUIRED DOCUMENTS
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MUST, IN ANY CASE, BE TRANSMITTED TO AND RECEIVED AND CONFIRMED BY THE EXCHANGE
AGENT AT ITS ADDRESS SET FORTH BELOW PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON
THE EXPIRATION DATE, EXCEPT AS OTHERWISE PROVIDED BELOW UNDER THE CAPTION
"-- GUARANTEED DELIVERY PROCEDURES." DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY
TRANSFER FACILITY IN ACCORDANCE WITH ITS PROCEDURES DOES NOT CONSTITUTE DELIVERY
TO THE EXCHANGE AGENT.
All questions as to the validity, form (including time of receipt),
acceptance and withdrawal of tendered Original Notes will be determined by the
Company in its sole discretion, which determination will be final and binding.
The Company reserves the absolute right to reject any and all Original Notes
determined by the Company not to be validly tendered or any Original Notes the
Company's acceptance of which would, in the opinion of counsel for the Company,
be unlawful. The Company also reserves the absolute right to waive any defects,
irregularities or conditions of tender as to particular Original Notes. The
Company's interpretation of the terms and conditions of the Exchange Offer
(including the instructions in the Letter of Transmittal) will be final and
binding on all parties. Unless waived by the Company in its sole discretion, any
defects or irregularities in connection with tenders of Original Notes will
render such tenders invalid unless such defects or irregularities are cured
within such time as the Company shall determine. Although the Company intends to
notify Holders of defects or irregularities with respect to tenders of Original
Notes, neither the Company, the Exchange Agent nor any other person shall incur
any liability for failure to give such notification. Any Original Notes received
by the Exchange Agent that are not properly tendered and as to which the defects
or irregularities have not been cured or waived, as provided for herein, will be
returned by the Exchange Agent to the tendering Holders, unless otherwise
provided in the Letter of Transmittal, as soon as practicable following the
Expiration Date.
In addition, the Company reserves the right in its sole discretion to
purchase or make offers for any Original Notes that remain outstanding
subsequent to the Expiration Date, or, as set forth herein, to terminate the
Exchange Offer and, to the extent permitted by applicable law, purchase Original
Notes in the open market, privately negotiated transactions or otherwise. The
terms of any such purchases or offers could differ from the terms of the
Exchange Offer.
GUARANTEED DELIVERY PROCEDURES
Holders who wish to tender their Original Notes and (i) whose Original
Notes are not immediately available, or (ii) who cannot deliver their Original
Notes (or complete the procedures for book-entry transfer), the Letter of
Transmittal or any other required documents to the Exchange Agent prior to the
Expiration Date, may nevertheless effect a tender of Original Notes if all of
the following conditions are met:
(a) the tender is made by or through an Eligible Institution;
(b) prior to the Expiration Date, the Exchange Agent receives from
such Eligible Institution a properly completed and duly executed Notice of
Guaranteed Delivery (by facsimile transmission, mail, hand delivery or
overnight courier) setting forth the name and address of the Holder, any
certificate number(s) of such Original Notes and the principal amount of
Original Notes tendered, stating that the tender is being made thereby and
guaranteeing that, within five New York Stock Exchange trading days after
the Expiration Date, the Letter of Transmittal (or facsimile thereof)
together with the certificate(s) representing the Original Notes (or a
confirmation of a book-entry transfer of such Original Notes in the
Exchange Agent's account at the Book-Entry Transfer Facility) and any other
documents required by the Letter of Transmittal will be deposited into the
Exchange Agent's account at the Book-Entry Transfer Facility) and any other
documents required by the Letter of Transmittal will be deposited by the
Eligible Institution with the Exchange Agent; and
(c) such properly completed and executed Letter of Transmittal (or
facsimile thereof) as well as the certificate(s) representing all tendered
Original Notes in proper form for transfer (or a confirmation of book-entry
transfer of such Original Notes into the Exchange Agent's Notes account at
the Book-Entry Transfer Facility) and all other documents required by the
Letter of Transmittal are received by the Exchange Agent within five New
York Stock Exchange trading days after the Expiration Date.
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A Notice of Guaranteed Delivery is being sent to Holders along with the
Prospectus and the Letter of Transmittal.
WITHDRAWAL OF TENDERS
Except as otherwise provided herein, tenders of Original Notes may be
withdrawn at any time prior to 5:00 p.m. New York City time, on the Expiration
Date, as such term is defined above under the caption "-- Expiration Date;
Extensions; Amendments; Termination." If the Company extends the period of time
during which the Exchange Offer is open, or if it is delayed in accepting for
exchange of, or in issuing and exchanging the New Notes for, any Original Notes
or if it is unable to accept for exchange of, or issue and exchange the New
Notes for, any Original Notes pursuant to the Exchange Offer for any reason,
then without prejudice to the Company's rights under the Exchange Offer, the
Exchange Agent may, on behalf of the Company, retain all Original Notes
tendered, and such Original Notes may not be withdrawn except as otherwise
provided herein, subject to Rule 14e-1(c) under the Exchange Act, which provides
that the person making an issuer tender offer shall either pay the consideration
offered or return tendered securities, promptly after the termination or
withdrawal of the offer.
To withdraw a tender of Original Notes in the Exchange Offer, a written or
facsimile transmission notice of withdrawal must be received by the Exchange
Agent at its offices as set forth herein prior to 5:00 p.m., New York City time,
on the Expiration Date. Any such notice of withdrawal must (i) specify the name
of the person having deposited the Original Notes to be withdrawn (the
"Depositor"), (ii) specify the serial numbers on the particular certificates
evidencing the Original Notes to be withdrawn and the name of the registered
Holder thereof (if certificates have been delivered or otherwise identified to
the Exchange Agent) or the name and number of the account at DTC to be credited
with withdrawal of the Original Notes (if the Original Notes have been tendered
pursuant to the procedures for book-entry transfer), (iii) be signed by the
Holders in the same manner as the original signature on the Letter of
Transmittal by which Original Notes were tendered (including any required
signature guarantees) or be accompanied by documents of transfer sufficient to
have the registrar (the "Registrar") with respect to the Original Notes register
the transfer of such Original Notes into the name of the person withdrawing the
tender and (iv) specify the name in which any such Original Notes are to be
registered, if different from that of the Depositor. All questions as to the
validity, form and eligibility (including time of receipt) of such notices will
be determined by the Company in its sole discretion, which determination shall
be final and binding on all parties. Any Original Notes so withdrawn will be
deemed not to have been validly tendered for purposes of the Exchange Offer, and
no New Notes will be issued with respect thereto unless the Original Notes so
withdrawn are validly retendered. Properly withdrawn Original Notes may be
retendered by following one of the procedures described above under
"-- Procedures for Tendering" at any time prior to the Expiration Date.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other term of the Exchange Offer and without prejudice
to the Company's other rights under the Exchange Offer, the Company shall not be
required to accept for exchange, or exchange New Notes for any Original Notes,
and may amend or terminate the Exchange Offer as provided herein before the
acceptance of such Original Notes, if, among other things:
(a) any action or proceeding is instituted or threatened in any court
or by or before any governmental agency with respect to the Exchange Offer
which might materially impair the ability of the Company to proceed with
the Exchange Offer or materially impair the contemplated benefits of the
Exchange Offer to the Company, or any material adverse development has
occurred in any existing action or proceeding with respect to the Company
or any of its subsidiaries; or
(b) any change, or any development involving a prospective change, in
the business or financial affairs of the Company or any of its subsidiaries
has occurred which might materially impair the ability of the Company to
proceed with the Exchange Offer or materially impair the contemplated
benefits of the Exchange Offer to the Company; or
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(c) any law, statute, rule or regulation is proposed, adopted or
enacted, that might materially impair the ability of the Company to proceed
with the Exchange Offer or materially impair the contemplated benefits of
the Exchange Offer to the Company; or
(d) the New Notes to be received by Holders of Original Notes in the
Exchange Offer, upon receipt, will not be transferable by such Holders
(other than as "affiliates" of the Company) without restriction under the
Securities Act and Exchange Act and without material restriction under the
blue sky laws of substantially all of the states of the United States
(subject, in the case of Restricted Holders, to any requirements that such
persons comply with the Prospectus Delivery Requirements).
If the Company determines in its sole discretion that any of the conditions
are not satisfied, the Company may, subject to its obligations under the
Registration Rights Agreement to use its best efforts to consummate the Exchange
Offer, (i) terminate the Exchange Offer and return all tendered Original Notes
to tendering Holders, (ii) extend the Exchange Offer and, subject to withdrawal
rights as set forth in "-- Withdrawal of Tenders" above, retain all such
Original Notes until the expiration of the Exchange Offer as so extended, (iii)
waive such condition and, subject to any requirement to extend the period of
time during which the Exchange Offer is open, exchange all Original Notes
validly tendered for exchange by the Expiration Date and not withdrawn or (iv)
delay acceptance or exchange of, or delay the issuance and exchange of New Notes
for, any Original Notes until satisfaction or waiver of such conditions to the
Exchange Offer even though the Exchange Offer has expired. The Company's right
to delay acceptance for exchange of, or delay the issuance and exchange of New
Notes for, Original Notes tendered for exchange pursuant to the Exchange Offer
is subject to provisions of applicable law, including, to the extent applicable,
Rule 14e-1(c) promulgated under the Exchange Act, which requires that the
Company pay the consideration offered or return the Original Notes deposited by
or on behalf of Holders of Original Notes promptly after the termination or
withdrawal of the Exchange Offer. For a description of the Company's right to
extend the period of time during which the Exchange Offer is open and to amend,
delay or terminate the Exchange Offer, see "-- Expiration Date; Extensions;
Amendments; Termination" above. If such waiver constitutes a material change to
the Exchange Offer, the Company will promptly disclose such waiver by means of a
prospectus supplement that will be distributed to the registered Holders, and
the Company will extend the Exchange Offer for a period of five to ten business
days, depending upon the significance of the waiver and the manner of disclosure
to the registered Holders, if the Exchange Offer would otherwise expire during
such five to ten business day period.
EXCHANGE AGENT
The Bank of New York has been appointed as Exchange Agent for the Exchange
Offer. Questions and requests for assistance with respect to completing the
Letter of Transmittal or a Notice of Guaranteed
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<PAGE> 33
Delivery, requests for additional copies of this Prospectus or of the Letter of
Transmittal and requests for Notices of Guaranteed Delivery should be directed
to the Exchange Agent addressed as follows:
By Registered or Certified Mail
The Bank of New York
101 Barclay Street
New York, New York 10286
Attn: Arwen Gibbons, Corporate Trust Operations, Floor 7E
By Overnight Courier or By Hand
The Bank of New York
101 Barclay Street
New York, New York 10286
Attn: Arwen Gibbons, Corporate Trust Operations, Floor 7E
By Facsimile
(212) 571-3083
Confirm by Telephone
(212) 815-6333
FEES AND EXPENSES
The expense of soliciting tenders will be borne by the Company. The
principal solicitation is being made by mail, however, additional solicitation
may be made by telegraph, telephone or in person by officers and regular
employees of the Company and its affiliates.
The Company has not retained any dealer-manager or other soliciting agent
in connection with the Exchange Offer and will not make any payments to brokers,
dealers or others soliciting acceptance of the Exchange Offer. The Company,
however, will pay the Exchange Agent reasonable and customary fees for its
services and will reimburse it for its reasonable out-of-pocket expenses in
connection therewith.
The cash expenses to be incurred in connection with the Exchange Offer will
be paid by the Company and are estimated in the aggregate to be approximately
$250,000.00. Such expenses include fees and expenses of the Exchange Agent,
Trustee, Paying Agent and Registrar, accounting and legal fees and printing
costs, among others.
The Company will pay all transfer taxes, if any, applicable to the exchange
of Original Notes pursuant to the Exchange Offer. If, however, certificates
representing New Notes, or Original Notes for principal amounts not tendered or
acceptable for exchange, are to be delivered to, or are to be issued in the name
of, any person other than the registered Holders of the Original Notes tendered,
or if tendered Original Notes are registered in the name of any person other
than the person signing the Letter of Transmittal, or if a transfer tax is
imposed for any reason other than the exchange of Original Notes pursuant to the
Exchange Offer, then the amount of any such transfer taxes (whether imposed on
the registered Holder or any other persons) will be payable by the tendering
Holder. If satisfactory evidence of payment of such taxes or exemption therefrom
is not submitted with the Letter of Transmittal, the amount of such transfer
taxes will be billed directly to such tendering Holder.
ACCOUNTING TREATMENT
The New Notes will be recorded at the same carrying value as the Original
Notes as reflected in the Company's accounting records on the date of the
exchange. Accordingly, no gain or loss for accounting purposes will be
recognized. The expenses of the Exchange Offer will be amortized over the term
of the New Notes.
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THE COMPANY
The Company was organized in December 1993, as the successor to businesses
formed in 1991 primarily for the purpose of owning and operating radio and
television broadcasting stations and networks. The Company's principal executive
offices are located at 601 Clearwater Park Road, West Palm Beach, Florida 33401
and its telephone number is (407) 659-4122.
THE GUARANTORS
Upon the consummation of the Offering, the Notes will be fully and
unconditionally guaranteed, on an unsecured senior subordinated basis, as to
payment of principal, premium, if any, and interest, jointly and severally, by
the Guarantors each of which is a direct or indirect wholly-owned subsidiary
corporation or partnership. Separate financial statements for each of the
Guarantors have not been included because management has determined that they
would not be material to investors. The parent Company is a holding company; all
subsidiaries which constitute the operating entities of the registrant and all
the Guarantors of the registrant's debt securities are included in the
registrant's consolidated financial statements. Each subsidiary's guarantee is
full and unconditional. The Indenture will provide that certain future
Restricted Subsidiaries (as defined herein), if any, of the Company and the
Guarantors will also become Guarantors of the Notes. The Guarantees will be
subordinated to all Senior Indebtedness of the Guarantors.
THE ACQUISITIONS
From January 1994 to December 15, 1995, the Company has acquired five radio
stations and eight radio networks and acquired or entered into time brokerage
arrangements to operate 12 television stations (collectively, the "1994/1995
Acquisitions"). Since August 15, 1995 the Company has acquired or entered into
time brokerage agreements for six additional television stations by closing the
Recent Acquisitions. The Company currently has agreements, subject to various
conditions including the receipt of regulatory approvals, to purchase the assets
of or, as indicated below, to enter into time brokerage arrangements with
respect to the following television stations (dollars in thousands):
<TABLE>
<CAPTION>
EXPECTED CAPITAL TOTAL EXPECTED
MARKET(A) STATION PURCHASE PRICE EXPENDITURES COST
- -------------------- -------- -------------- ---------------- --------------
<S> <C> <C> <C> <C>
New York, NY WHAI-TV $ 22,000 $ 1,000 $ 23,000
Dallas, TX(b) Channel 3,000 2,700 5,700
68
Atlanta, GA(b)(c) WNGM-TV n/a 2,900 2,900
Phoenix, AZ(d) KWBF-TV 1,400 1,600 3,000
St. Louis, MO(d) WCEE-TV 3,200 2,100 5,300
Milwaukee, WI(d) WHKE-TV 2,500 1,800 4,300
Grand Rapids, WJUE-TV 1,000 4,200 5,200
MI(e)(f)
Akron, OH(e) WAKC-TV 18,000 1,200 19,200
West Palm Beach, WHBI-TV 3,000 4,000 7,000
FL(b)(g)
Albany, NY(d) WOCD-TV 2,500 1,000 3,500
San Juan PR(b) WSJN-TV 4,000 500 4,500
-------------- -------- --------------
$ 60,600 $ 23,000 $ 83,600
============ ============== ============
</TABLE>
- ---------------
(a) Each station is licensed by the FCC to serve a specific community within the
listed DMA, which may differ from the market listed.
(b) Pending construction.
(c) The station license will be held by an affiliate of Whitehead Media, Inc.
("Whitehead"), an entity that is not owned by the Company. The Company plans
to enter into a time brokerage agreement with the station. A third party is
financing Whitehead's acquisition of the station for $10 million and the
Company will provide for certain capital expenditures for the station.
(d) Station licenses will be held by subsidiaries of The Christian Network, Inc.
The Company plans to enter into time brokerage agreements with, and acquire
certain assets of, these stations.
(e) WAKC-TV is licensed within the Cleveland DMA, and currently serves as the
Akron network-affiliated ABC station. The Company intends to operate it as
an IN TV station.
(f) 70% ownership interest.
(g) The station license will be held by WFB Communications, Inc. The Company
plans to enter into a time brokerage agreement with this station.
(h) 50% ownership interest; WSJN's signal will be satellite simulcast on WKOV-TV
and WJWN-TV, stations in San Juan, P.R. area the Company is also acquiring.
27
<PAGE> 35
In an effort to continue to expand the number of television markets in
which the Company has a presence, while remaining in compliance with FCC
regulations concerning aggregate station ownership limitations, the Company has
entered into time brokerage arrangements with third parties pursuant to which
the Company enjoys many, but not all, of the benefits of operating a television
station while not owning such station. Currently, the Company operates
television stations WCTD-TV, WFCT-TV, WTVX-TV, WIRB-TV, KUBD-TV, WOAC-TV and
WTJC-TV, pursuant to time brokerage agreements and, upon consummation of all of
the Transactions, the Company will also operate television stations WHKE-TV,
WCEE-TV, WNGM-TV, KWBF-TV, WOCD-TV, WRMY-TV, and WHBI-TV pursuant to time
brokerage agreements. The Company has and may in the future enter into other
time brokerage agreements to operate stations prior to their acquisition.
After giving effect to the consummation of the seven agreements involving
time-brokered stations, eight of the Company's fourteen time-brokered stations
will be operated pursuant to time brokerage arrangements with subsidiaries of
The Christian Network, Inc. ("CNI"), three stations (WTVX-TV, WOAC-TV and
WNGM-TV) will be operated pursuant to time brokerage arrangements with Whitehead
Media Inc. ("Whitehead Media") or its affiliates, one station (WHBI-TV) will be
operated by the Company and Cocola Media Corporation of Florida ("Cocola")
pursuant to a time brokerage agreement with WPB Communications, Inc., one
station (WRMY-TV) will be operated by the Company pursuant to a time brokerage
agreement with Roberts Brothers Broadcasting Company of Raleigh-Durham, L.P.
("Roberts Company") and one station (WFCT-TV) will be operated by the Company
and a CNI subsidiary pursuant to a time brokerage agreement with Bradenton
Broadcast Television Company, Ltd. ("BBTC"). CNI is a sec.501(c)(3) non-profit
corporation to which Mr. Paxson has been a substantial financial contributor and
of which he is a former director. Since December 1993, Mr. Paxson and the
Company have engaged in a number of transactions related to time brokerage
arrangements with CNI or its subsidiaries, as well as made loans to them to
assist them in meeting their operating expenses and for capital improvements. As
of the date hereof, CNI is indebted to the Company in the amount of $1,343,000.
See "Certain Transactions." In addition to the time brokerage arrangements with
subsidiaries of CNI, Whitehead Media, BBTC, Cocola and Roberts Company (or any
of their affiliates) referred to above, the Company may, to the extent
attractive opportunities arise in the future, enter into additional time
brokerage arrangements with subsidiaries of CNI, Whitehead Media, Cocola,
Roberts Company or other third parties to enable the Company to operate
additional television stations that it might not otherwise be able to own itself
under current FCC multiple station ownership restrictions.
With certain limited exceptions, the time brokerage arrangements of the
Company involve a basic transaction structure. The Company (i) finances the
acquisition by the third party of some or all of the assets of the brokered
stations and secures such financing by encumbering such assets including, to the
extent permitted under FCC rules and regulations, the FCC license and all of the
capital stock of the acquiring company; and (ii) enters into a time brokerage
agreement with such third party which allows the Company to operate the brokered
station, in accordance with FCC guidelines. In the case of Whitehead Media, the
Company initially financed the acquisition by Whitehead Media of each of WTVX-TV
and WOAC-TV. Whitehead Media subsequently obtained third party financing,
portions of the proceeds of which were used to repay the debt owed by Whitehead
Media to the Company and will also be used to fund the acquisition by Whitehead
Media of WNGM-TV. The third party financing provided to Whitehead Media is
unconditionally guaranteed by Lowell W. Paxson, chief executive officer of the
Company, and certain affiliates of Lowell W. Paxson, all of which are directly
or indirectly owners of the capital stock of the Company. See "Certain
Transactions". The Company operates each of stations WTVX-TV and WOAC-TV and
will operate WNGM-TV pursuant to time brokerage agreements and has an option to
purchase each of such stations, which options to purchase would otherwise be
prohibited under FCC rules and regulations because each of such stations serves
a market in which the Company has or expects to own another television station
which also serves the same market. Payments made to the FCC licensee under the
time brokerage agreement are established, and renegotiated from time to time,
based upon increases in expenses for which the FCC licensee must, in accordance
with FCC regulations, remain primarily liable, including servicing the
indebtedness owed by such FCC licensee to the Company or, in the case of
Whitehead Media, to third parties. In certain
28
<PAGE> 36
circumstances, the Company may acquire certain tangible assets useful in the
construction or operation of the brokered station and lease such assets to the
brokered station. In addition, unless prohibited by FCC rules and regulations,
the FCC licensee also grants to the Company an option to purchase the station
for an amount payable in cash together with the forgiveness of all outstanding
indebtedness. Upon the consummation of the Acquisitions, the Company will have
options to purchase each such station other than WIRB-TV and WHBI-TV.
29
<PAGE> 37
USE OF PROCEEDS
The Company will receive no proceeds from the exchange of the New Notes for
the Original Notes.
The gross proceeds from the sale by the Company of the Original Notes was
approximately $227.3 million. Such proceeds together with borrowings in the
amount of $30 million under the New Credit Facility were or will be used to: (i)
retire the outstanding senior debt under the Paxson Communications of Florida,
Inc., the Paxson Communications Television, Inc. and Paxson Outdoor, Inc. credit
facilities (the "Existing Senior Indebtedness"); (ii) repayment of accrued
interest related to the Existing Senior Indebtedness; (iii) fund the
Acquisitions and expected capital expenditures related thereto; and (iv) pay the
fees and expenses of the Private Offering and the New Credit Facility.
The following table illustrates the estimated sources and uses of proceeds
on a pro forma basis as if the Acquisitions, the Private Offering, the repayment
of the Whitehead Media to the Company and borrowings under the New Credit
Facility were consummated on September 30, 1995, (dollars in thousands):
<TABLE>
<S> <C>
Sources of proceeds:
Sale of Original Notes(a)............................................... $227,309
New Credit Facility..................................................... 30,000
Whitehead Media debt repayment.......................................... 24,196
Working Capital......................................................... 4,376
--------
Total sources of proceeds............................................ $285,881
========
Uses of proceeds:
Retirement of Existing Senior Indebtedness(b)........................... $169,250
Repayment of accrued interest on Senior Indebtedness.................... 2,131
Repayment of related party note......................................... 1,200
The Proposed Acquisitions............................................... 83,600
The Recent Acquisitions subsequent to September 30, 1995................ 18,900
Estimated fees and expenses............................................. 10,800
--------
Total uses of proceeds............................................... $285,881
========
</TABLE>
- ---------------
(a) Net of discount of $2.7 million upon issuance.
(b) See Note 9 to the Company's consolidated financial statements for a
description of such Existing Senior Indebtedness including the maturities
and interest rates thereof.
30
<PAGE> 38
CAPITALIZATION
The following table sets forth the actual capitalization of the Company (i)
as of September 30, 1995, (ii) as adjusted to give effect to investments in
conjunction with time brokerage arrangements for WOAC-TV, WTJC-TV and WRMY-TV,
initial closing on the New Credit Facility, closing on the Whitehead financing
and the repayment of a related party note payable, all of which occurred after
September 30, 1995, and (iii) the pro forma capitalization after giving effect
to the Transactions, as if the Transactions had occurred on September 30, 1995.
This table should be read in conjunction with the information contained in "Pro
Forma Financial Information" and the Company's consolidated financial statements
and notes thereto appearing elsewhere herein.
<TABLE>
<CAPTION>
AS OF SEPTEMBER 30, 1995
---------------------------------------
ACTUAL ADJUSTED PRO FORMA
-------- -------- ---------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Cash(a)...................................... $ 57,945 $ 79,841 $ 5,241
======== ======== ========
Long-term debt (including current maturities)
New Credit Facility........................ 0 10,000 30,000
Notes offered hereby(b).................... 227,311 227,311 227,311
Other debt................................. 4,198 2,998 2,998
-------- -------- ---------
231,509 240,309 260,309
Senior Preferred Stock(c).................... 18,221 18,221 18,221
Redeemable class A and B common stock
warrants................................... 4,379 4,379 4,379
Junior Preferred Stock(c).................... 30,399 30,399 30,399
Other equity(d).............................. (8,925) (8,925) (8,925)
-------- -------- ---------
Total capitalization.................... $275,583 $284,383 $ 304,383
======== ======== ========
</TABLE>
- ---------------
(a) The Company has agreed to set aside $5 million to fund certain corporate
overhead costs in connection with the New Credit Facility.
(b) Net of discount of $2.7 million upon issuance.
(c) See "Description of the Capital Stock."
(d) Other equity is comprised of common stock, class C common stock warrants,
stock subscription notes receivable, additional paid-in capital, deferred
option plan compensation and accumulated deficit.
31
<PAGE> 39
PRO FORMA FINANCIAL INFORMATION
The unaudited pro forma statement of operations and other data for the year
ended December 31, 1994 and the nine months ended September 30, 1995 give effect
to: (i) the consummation of the Offering; (ii) the execution of the New Credit
Facility; (iii) the 1994/1995 Acquisitions using the prior operators' unaudited
financial information except for the year ended December 31, 1994 for the
Philadelphia, Houston, Los Angeles and Boston IN TV stations and WTVX-TV which
are derived from audited financial statements included elsewhere herein; (iv)
the Acquisitions; and (v) the elimination of certain terminated operations, as
if such events included in (i) through (v) had occurred on January 1, 1994.
Terminated operations include revenue and expenses associated with (i) the
winding down of ancillary businesses in May 1995, (ii) the decision not to renew
a contract for the Georgia Sports Network after March 1995 and (iii) the removal
of certain corporate positions in August 1995. The elimination of the terminated
operations results in a total pro forma EBITDA savings to the Company of
approximately $415,000 and $776,000 for the year ended December 31, 1994 and the
nine months ended September 30, 1995, respectively. For purposes of the
statement of operations data, for each period the results of operations of the
San Francisco IN TV station acquisitions was not included because the prior
operators' financial information is not available, and the results of the New
York, Akron, Washington, D.C., Dallas, Albany, Raleigh, West Palm Beach
(WHBI-TV), Grand Rapids, San Juan and Phoenix IN TV stations were not included
because the prior operators financial information is not relevant to the future
operations of such stations by the Company. However, interest, depreciation and
amortization expense has been increased for each period to reflect preliminary
purchase price allocations for all stations included in the Acquisitions. The
pro forma balance sheet at September 30, 1995 presents the balance sheet of the
Company as if, among other things, the Transactions had occurred on September
30, 1995.
The Acquisitions will be accounted for using the purchase method of
accounting. The total cost of the Acquisitions will be allocated to the tangible
and intangible assets acquired and liabilities assumed based upon their
respective fair values. The allocation of the respective purchase prices
included in the pro forma financial information is preliminary. The Company does
not expect that the final allocation of the purchase prices will materially
differ from the preliminary allocation.
The pro forma adjustments are based upon available information and certain
assumptions that the Company believes are reasonable under the circumstances.
The pro forma consolidated financial information should be read in conjunction
with the Company's consolidated financial statements and notes thereto,
appearing elsewhere in this Prospectus. The unaudited pro forma statement of
operations data are not necessarily indicative of the results that would have
occurred if the Transactions had occurred on the dates indicated, nor are they
indicative of the Company's future results of operations. There can be no
assurance whether or when all of the Acquisitions will be consummated.
32
<PAGE> 40
UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31, 1994
--------------------------------------------------------------------------------
THE LOS
COMPANY MERGER(A) PHILADELPHIA HOUSTON ANGELES BOSTON WTVX-TV
------- --------- ------------ ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Total gross revenue................ $62,067 $9,539 $3,111 $2,665 $1,712 $ 1,222 $5,190
Operating expenses, excluding
depreciation and amortization.... 51,225 9,197 2,721 2,221 1,041 1,946 4,073
Depreciation and amortization...... 12,404 1,288 391 225 743 203 521
------- ------ ------ ------ ------ ------- ------
Income
(loss) from operations........... (1,562) (946) (1) 219 (72) (927) 596
Interest income (expense), net..... (4,875) 258 (461) (106) (856) (332) (748)
Other income (expense), net........ (5) (505) 442 (51) (124)
Benefit (provision) for income
taxes............................ 1,680
------- ------ ------ ------ ------ ------- ------
Net income (loss) before
extraordinary item............... $(4,762) $ (688) $ (967) $ 555 $ (928) $(1,310) $ (276)
======= ====== ====== ====== ====== ======= ======
<CAPTION>
1994/1995 PROPOSED PRO FORMA PRO
ACQUISITIONS ACQUISITIONS ADJUSTMENTS FORMA
------------ ------------ ----------- --------
<S> <C> <C> <C> <C>
Total gross revenue................ $9,819 $ 2,478 $ (3,041)(b) $ 94,762
Operating expenses, excluding
depreciation and amortization.... 8,993 3,177 (4,592)(c) 80,002
Depreciation and amortization...... 413 606 8,810 (d) 25,604
------ ------- -------- --------
Income
(loss) from operations........... 413 (1,305) (7,259) (10,844)
Interest income (expense), net..... (135) (123) (23,902)(e) (31,280)
Other income (expense), net........ 46 (12) (2)(f) (211)
Benefit (provision) for income
taxes............................ (11) 11 (g) 1,680
------ ------- -------- --------
Net income (loss) before
extraordinary item............... $ 313 $(1,440) $(31,152) $(40,655)
====== ======= ======== ========
</TABLE>
<TABLE>
<CAPTION>
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1995
--------------------------------------------------------------------
LOS
COMPANY PHILADELPHIA HOUSTON ANGELES BOSTON WTVX-TV
-------- ------------ ------- -------- ------ -------
<S> <C> <C> <C> <C> <C> <C>
Total gross revenue................ $71,524 $370 $648 $1,019 $ 600 $3,124
Operating expenses excluding
depreciation, amortization and
option plan compensation......... 58,978 273 413 351 583 2,682
Option plan compensation(h)........ 9,809
Depreciation and amortization...... 13,079 33 92 279 128 294
-------- ---- ---- ------ ----- ------
Income (loss) from operations...... (10,342) 64 143 389 (111) 148
Interest expense, net.............. (7,853) (45) (46) (271) (174) (532)
Other income (expense), net........ (46) (31) (10) (88)
Benefit (provision) for income
taxes............................ 960
-------- ---- ---- ------ ----- ------
Net income (loss) before
extraordinary item............... $(17,281) $(12) $ 97 $ 118 $ (295) $ (472)
======== ==== ==== ====== ===== ======
<CAPTION>
1994/1995 PROPOSED PRO FORMA PRO
ACQUISITIONS ACQUISITIONS ADJUSTMENTS FORMA
------------ ------------- ---------- -------
<S> <C> <C> <C> <C>
Total gross revenue................ $4,362 $2,299 $ (695)(b) $ 83,251
Operating expenses excluding
depreciation, amortization and
option plan compensation......... 3,473 2,147 (1,792)(c) 67,108
Option plan compensation(h)........ $ 9,809
Depreciation and amortization...... 107 307 4,884 (d) $ 19,203
------ ------ ------- -------
Income (loss) from operations...... 782 (155) (3,787) (12,869)
Interest expense, net.............. (61) (30) (14,448)(e) (23,460)
Other income (expense), net........ 7 13 19 (f) (136)
Benefit (provision) for income
taxes............................ 960
------ ------ ------- -------
Net income (loss) before
extraordinary item............... $ 728 $ (172) $(18,216) $(35,505)
====== ====== ======= =======
</TABLE>
(see footnotes on the following page)
33
<PAGE> 41
NOTES TO UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS
(DOLLARS IN THOUSANDS)
(a) Reflects the inclusion of the results of operations of ANG, WPBF-TV and
WTLK-TV, in the period prior to their respective acquisitions and consolidation
with the Company.
(b) To reflect the elimination of time brokerage revenue of $135 (WTLK-TV)
and $184 (KTFH-TV) recorded in the prior operators' financial information, the
elimination of revenue from terminated operations of $2,906 and $800 for the
year ended December 31, 1994, and the nine months ended September 30, 1995,
respectively, and the increase in revenues of $289 (KZKI) for the month of
January 1995 to reflect a full nine months of revenues for the period ended
September 30, 1995 as KZKI's fiscal year is February 1 to January 31.
(c) To reflect the elimination of $1,437 and $372 of general and
administrative costs which represent redundant facilities and staff for
operations acquired, $152 and $0 of general and administrative expenses which
represent legal and investment banking expenses related to the sale of the
station to the Company in a prior operator's financial information, $3,321 and
$1,577 which represent terminated operations and $186 and $287 which represented
time brokerage fees paid to prior operators, the increase in time brokerage
expense of $504 and $384 for additional fees to be paid to operators for the
year ended December 31, 1994 and the nine months ended September 30, 1995,
respectively, and the increase in operating expense of $60 (KZKI) for the month
of January 1995 to reflect a full nine months of expenses for the period ended
September 30, 1995 as KZKI's fiscal year is February 1 to January 31.
(d) To reflect the increase in depreciation and amortization expense for
purchase accounting allocations made for the Acquisitions as follows:
<TABLE>
<CAPTION>
FOR THE YEAR FOR THE NINE
ENDED MONTHS ENDED
DECEMBER 31, SEPTEMBER 30,
1994 1995
------------ -------------
<S> <C> <C>
Pro forma depreciation............................................... $ 16,324 $ 12,243
Pro forma amortization............................................... 9,280 6,960
------------ -------------
Total pro forma depreciation and amortization.................... $ 25,604 $ 19,203
Less amounts as reported............................................. (16,794) (14,319)
------------ -------------
Total....................................................... $ 8,810 $ 4,884
============ ============
</TABLE>
(e) Adjustment necessary to reflect interest expense associated with the
Notes and borrowings under the New Credit Facility.
(f) To reflect the elimination of (i) $186 and $319 of non-recurring
expenses relating to reorganization expenses and management fees for the year
ended December 31, 1994, respectively, at the Philadelphia station; (ii) $512 of
reorganization income of Houston for the year ended December 31, 1994; and (iii)
$5 and $19 of other expense related to terminated operations for the year ended
December 31, 1994 and the nine months ended September 30, 1995, respectively.
(g) To reflect the elimination of income tax expense from certain of the
stations to be acquired based upon the federal income tax rate for the
consolidated group.
(h) Option plan compensation represents a non-cash charge associated with
the granting of common stock options to employees under the Company's Stock
Incentive Plan. See "Management's Discussion and Analysis of Financial Condition
and Results of Operations -- Results of Operations" and "Management -- Stock
Incentive Plan."
34
<PAGE> 42
UNAUDITED PRO FORMA CONSOLIDATED BALANCE SHEET
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
SEPTEMBER 30, 1995
---------------------------------------------------------
PROPOSED PRO FORMA
COMPANY ACQUISITIONS ADJUSTMENTS PRO FORMA(A)
-------- ------------ ----------- ------------
<S> <C> <C> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents.................. $ 57,945 $ 20,000(d) $ 24,196(b) $ 5,241
(83,600)(f) (1,200)(c)
(18,900)(g)
6,800(h)
Accounts receivable, net................... 14,173 14,173
Prepaid expense and other current assets... 1,559 1,559
Current deferred income taxes.............. 195 195
Current program rights..................... 1,182 1,182
-------- ------------ ----------- ------------
Total current assets.................... 75,054 (63,600) 10,896 22,350
Property and equipment, net.................. 75,064 16,100(e) 3,900(e) 95,064
Intangible assets, net....................... 87,687 43,000(e) 130,687
Other assets, net............................ 15,245 3,200(h) 18,445
Investment in broadcast properties........... 28,013 24,500(e) (24,196)(b) 43,317
15,000(e)
Related party notes receivable............... 2,500 2,500
Program rights, net.......................... 366 366
-------- ------------ ----------- ------------
Total assets....................... $283,929 $ 20,000 $ 8,800 $312,729
======== ========= ========= ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Accounts payable and accrued liabilities... $ 6,048 $ 6,048
Current portion of program rights.......... 1,056 1,056
Related party note payable................. 1,200 (1,200)(c)
Current portion of long-term debt.......... 333 333
-------- ------------ ----------- ------------
Total current liabilities............... 8,637 (1,200) 7,437
Program rights payable....................... 637 637
Long-term debt............................... 2,665 20,000(d) 10,000(h) 32,665
Deferred income taxes........................ 605 605
Senior subordinated notes, net(i)............ 227,311 227,311
Senior Preferred Stock(j).................... 18,221 18,221
Redeemable Class A and B common stock 4,379 4,379
warrants(j)................................
Junior Preferred Stock(j).................... 30,399 30,399
Other equity(k).............................. (8,925) (8,925)
-------- ------------ ----------- ------------
Total liabilities and
stockholders' equity............. $283,929 $ 20,000 $ 8,800 $312,729
======== ========= ========= ==========
</TABLE>
(see footnotes on the following page)
35
<PAGE> 43
NOTES TO UNAUDITED PRO FORMA CONSOLIDATED BALANCE SHEET DATA
(DOLLARS IN THOUSANDS)
(a) Pro forma balance sheet data as of September 30, 1995 give effect to:
(i) the Proposed Acquisitions; (ii) the execution of the New Credit Facility;
(iii) the Recent Acquisitions subsequent to September 30, 1995; and (iv) the
Whitehead Media debt repayment and the repayment by the Company of the related
party note as if such events included in (i) through (iv) had occurred at
September 30, 1995.
(b) To reflect the proceeds of the financing used by Whitehead Media Inc. to
repay notes receivable to the Company.
(c) Reflects the use of cash to repay related party note receivable.
(d) Proceeds from borrowings under the New Credit Facility used to
facilitate the Proposed Acquisitions.
(e) To reflect the increases in fixed and intangible assets for purchase
price allocation made, as the case may be, the Proposed Acquisitions and the
Recent Acquisitions subsequent to September 30, 1995. Allocation of purchase
prices reflects capital expenditures and ownership of New York, Akron and Dallas
with remaining properties reflected as investments in broadcast properties in
which the Company financed the acquisition of time brokered stations by third
parties.
(f) Reflects the use of cash for the Proposed Acquisitions.
(g) Reflects the use of cash for the Recent Acquisitions subsequent to
September 30, 1995.
(h) Proceeds from the initial $10 million borrowing on the New Credit
Facility net of estimated $3.2 million of additional deferred financing costs
associated with this offering and the New Credit Facility.
(i) Net of discount of $2.7 million upon issuance.
(j) See "Description of the Capital Stock."
(k) Other equity is comprised of common stock, class C common stock
warrants, stock subscription notes receivable, additional paid-in capital,
deferred option plan compensation and accumulated deficit.
36
<PAGE> 44
SELECTED HISTORICAL AND PRO FORMA FINANCIAL DATA
The following selected historical and pro forma financial data, insofar as
it relates to each of the four years ended December 31, 1994, has been derived
from Company prepared financial information and should be read in conjunction
with the audited financial statements, including the consolidated balance sheets
at December 31, 1993 and 1994 and the related consolidated statements of
operations for each of the years for the three year period ended December 31,
1994 and the notes thereto appearing elsewhere in this Prospectus. The selected
historical and pro forma financial data as of and for the nine months ended
September 30, 1994 and 1995 has been derived from unaudited financial statements
also appearing herein and which, in the opinion of management, include all
adjustments, consisting only of normal recurring adjustments, necessary for a
fair presentation of the results for the unaudited interim periods. Results for
the nine months ended September 30, 1995 are not necessarily indicative of
results that may be expected for the entire year. Separate financial statements
for each of the Guarantors have not been presented because management has
determined that such financial statements would not be material to investors
because all subsidiary Guarantors are consolidated with the Company and the
subsidiary Guarantors represent all consolidated subsidiaries. The summary
financial information should be read in conjunction with the information
contained in the Company's consolidated financial statements and the notes
thereto, "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and "Pro Forma Financial Information" included elsewhere
herein.
The following unaudited selected pro forma statement of operations data and
other data give effect to, among other things, the Transactions, as if they had
occurred on January 1, 1994. The following unaudited selected pro forma balance
sheet data give effect to, among other things, the Transactions, as if they had
occurred on September 30, 1995. The Transactions and certain management
assumptions and adjustments are described in the accompanying notes hereto. The
pro forma information should be read in conjunction with the Company's
consolidated financial statements and notes thereto, as of December 31, 1994 and
the three years then ended, appearing elsewhere in this Prospectus. This pro
forma information is not necessarily indicative of actual or future operating
results or financial position.
37
<PAGE> 45
SELECTED HISTORICAL AND PRO FORMA FINANCIAL DATA
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
NINE MONTHS ENDED SEPTEMBER 30,
YEAR ENDED DECEMBER 31,
--------------------------------------------------------- -----------------------------------
PRO FORMA PRO FORMA
1991 1992 1993 1994 1994(A) 1994 1995 1995(A)
------- -------- ---------- ----------- --------- ---------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Total gross revenue........... $ 830 $ 17,062 $ 32,062 $ 62,067 $ 94,762 $ 39,841 $ 71,524 $83,251
Operating expenses, excluding
depreciation, amortization
and option plan
compensation................ 1,719 17,922 28,872 51,225 80,002 32,813 58,978 67,108
Option plan compensation(b)... -- -- -- -- -- -- 9,809 9,809
Depreciation and
amortization................ 497 5,977 9,351 12,404 25,604 8,558 13,079 19,203
------- -------- ---------- ----------- -------- ---------- ---------- -------
Loss from operations.......... (1,386) (6,837) (6,161) (1,562) (10,844 ) (1,530) (10,342) (12,869)
Interest expense, net(c)...... (52) (1,262) (2,052) (4,875) (31,280 ) (3,191) (7,853) (23,460)
Other income (expense), net... 10 134 221 (5) (211 ) 162 (46) (136)
Benefit (provision) for income
taxes....................... -- -- (2,960) 1,680 1,680 1,769 960 960
Extraordinary item and
cumulative effect of a
change in accounting
principle(d)................ -- 110 (457) -- -- (10,626)
------- -------- ---------- ----------- ---------- ----------
Net loss...................... (1,428) (7,855) (11,409) (4,762) (2,790) (27,907)
Dividends and accretion on
preferred stock and common
stock warrants(e)........... -- -- (151) (3,386) (2,407) (9,121)
------- -------- ---------- ----------- ---------- ----------
Net loss attributable to
common stock and common
stock equivalents........... $(1,428) $ (7,855) $ (11,560) $ (8,148) $ (5,197) $ (37,028)
======= ======== ========== =========== ========== ==========
Loss per share data:(f)
Net loss.................... -- -- $ (0.36) $ (0.14) $ (0.09) $ (0.81)
Net loss attributable to
common stock and common
stock equivalents......... -- -- (0.37) (0.24) (0.16) (1.08)
Weighted average shares
outstanding -- primary and
fully diluted(g).......... -- -- 31,581,948 33,430,116 32,506,032 34,404,800
OTHER DATA:
EBITDA(h)..................... $ (796) $ (162) $ 4,522 $ 11,644 $ 15,466 $ 7,221 $ 13,187 $16,718
Capital expenditures(i)....... 60 1,273 1,963 5,917 5,917 4,604 18,864 18,864
Ratio of earnings to fixed
charges(j).................. -- -- -- -- -- -- -- --
</TABLE>
<TABLE>
<CAPTION>
PRO FORMA
TWELVE MONTHS
ENDED
SEPTEMBER 30, 1995(A)
----------------------
<S> <C>
Adjusted EBITDA(k)...................................................................................... $ 28,215
Ratio of Adjusted EBITDA to interest expense, net....................................................... 1.20x
Ratio of total debt to Adjusted EBITDA.................................................................. 9.23
Ratio of net debt to Adjusted EBITDA(l)................................................................. 9.04
</TABLE>
<TABLE>
<CAPTION>
AS OF SEPTEMBER 30, 1995
-------------------------------
BALANCE SHEET DATA: ACTUAL PRO FORMA(A)
------------ ------------
<S> <C> <C>
Cash and cash equivalents..................................................................... $ 57,945 $ 5,241
Net working capital........................................................................... 66,418 14,913
Total assets.................................................................................. 283,929 312,729
Total debt.................................................................................... 231,509 260,309
Redeemable preferred stock and Class A and B common stock warrants............................ 53,000 53,000
</TABLE>
(see footnotes on the following page)
38
<PAGE> 46
NOTES TO SELECTED HISTORICAL AND PRO FORMA FINANCIAL DATA
(a) Pro forma statement of operations and other data for the year ended
December 31, 1994 and the nine months ended September 30, 1995 give effect to:
(i) the consummation of the Offering; (ii) the execution of the New Credit
Facility; (iii) the 1994/1995 Acquisitions using the prior operators' unaudited
financial information except for the year ended December 31, 1994 for the
Boston, Philadelphia, Houston and Los Angeles IN TV stations and West Palm Beach
(WTVX-TV) which are derived from audited financial statements included elsewhere
herein; (iv) the Acquisitions; and (v) the elimination of certain terminated
operations, as if such events included in (i) through (v) had occurred on
January 1, 1994. For purposes of the statement of operations data the results of
operations of the San Francisco IN TV station was not included because the prior
operators' financial information is not available, and the results of the New
York, Akron, Washington, D.C., Dallas, Albany, Raleigh, West Palm Beach
(WHBI-TV) Grand Rapids, San Juan and Phoenix IN TV stations were not included
because the prior operator's financial information is not relevant to the future
operations of such stations by the Company. However, interest, depreciation and
amortization expense has been increased for each period to reflect preliminary
purchase price allocations for all stations acquired in the Acquisition. The pro
forma balance sheet data give effect to, among other things, the Transactions as
if the Transactions had occurred on September 30, 1995.
(b) Option plan compensation represents a non-cash charge associated with
the granting of common stock options to employees under the Company's Stock
Incentive Plan. See "Management's Discussion and Analysis of Financial Condition
and Results of Operations -- Results of Operations" and "Management -- Stock
Incentive Plan."
(c) Interest expense, net is equal to total interest expense less interest
income.
(d) Extraordinary item and cumulative effect of a change in accounting
principle reflects a gain of $109,540 in 1992 as a result of a change in the
method of calculating depreciation and an extraordinary loss of $457,147 in 1993
associated with the write-off of capitalized financing costs on debt retired in
conjunction with the Company's reorganization on December 15, 1993. The nine
months ended September 30, 1995 reflect an extraordinary loss on the write-off
of previously capitalized financing costs of $10.6 million.
(e) Dividends and accretion on preferred stock and common stock warrants
represent the Senior Preferred Stock (15% dividend rate), redeemable Class A and
B common stock warrants and Junior Preferred Stock (12% dividend rate). Such
capital stock is mandatorily redeemable and certain issues have accretion
provisions. See "Description of the Capital Stock."
(f) Loss per share data for the historical years ended December 31, 1993 and
1994 give a pro forma effect to (i) the Company's amended capital structure
related to the merger with ANG on April 14, 1994; and (ii) a stock dividend on
common shares outstanding on January 1, 1995. Loss per share data for the
historical nine months ended September 30, 1994 give pro forma effect to a stock
dividend on common shares outstanding on January 1, 1995.
(g) Weighted average shares outstanding for the years ended December 31,
1993 and 1994 give a pro forma effect to (i) the Company's amended capital
structure related to the merger with ANG on April 14, 1994 of 21,054,632 and
22,286,744 shares, respectively; and (ii) a stock dividend on common shares
outstanding on January 1, 1995 of 11,143,372 and 10,527,316 shares,
respectively. Weighted average shares outstanding -- primary and fully diluted
for the nine months ended September 30, 1994 give pro forma effect to a stock
dividend on common shares outstanding on January 1, 1995 of 10,835,342.
(h) EBITDA is defined as net income (loss) before (i) extraordinary item and
cumulative effect of a change in accounting principle, (ii) benefit (provision)
for income taxes, (iii) other income (expenses), net, (iv) interest expense,
net, (v) depreciation and amortization, (vi) option plan compensation and (vii)
non-recurring items including terminated operations; less scheduled broadcast
rights payments.
(i) Includes all capital expenditures including expenditures associated with
the upgrade and conversion of acquired television stations to the IN TV format.
Pro forma capital expenditures exclude $23 million associated with the
Acquisitions which will be funded from the proceeds of the Offering and
borrowings under the New Credit Facility.
(j) For purposes of this computation, earnings are defined as earnings or
loss before extraordinary items and fixed charges. Fixed charges are the sum of
(i) interest costs (including the cash and non-cash interest portion of
operating leases) and (ii) amortization of deferred financing costs. Earnings
were inadequate to cover fixed charges by approximately $1.4 million, $8.0
million, $8.0 million, $ 6.4 million, $4.6 million and $18.2 million, for the
years ended December 31, 1991, December 31, 1992, December 31, 1993, December
31, 1994 and for the nine-month periods ended September 30, 1994 and September
30, 1995, respectively. On a pro forma basis, earnings were insufficient to
cover fixed charges by approximately $42.3 million and $36.5 million for the
year ended December 31, 1994 and the nine-month period ended September 30, 1995.
(k) Adjusted EBITDA for the latest twelve months ended September 30, 1995 is
defined as EBITDA for such period less (i) the segment operating profit for the
Infomall TV Network for such period plus (ii) four times segment operating
profit for the Infomall TV Network for the quarter ended September 30, 1995. For
purposes of this calculation, the results of operations of the San Francisco IN
TV station was not included because the prior operator's financial information
is not available, and the results of the New York, Akron, Washington D.C.,
Dallas, Albany, Raleigh, West Palm Beach (WHBI-TV) Grand Rapids, San Juan and
Phoenix IN TV stations were not included because the prior operators' financial
information is not relevant to the future operations of such stations by the
Company. Adjusted EBITDA is calculated on a basis consistent with calculations
required under the Indenture.
(l) Net debt is total debt less cash and cash equivalents.
39
<PAGE> 47
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
GENERAL
The Company's growth since its inception in 1991 has primarily been based
upon the acquisition of or management of radio stations, television stations,
and radio networks, as well as the subsequent improvement of those operations.
The pace and magnitude of the Company's acquisitions hinder meaningful
period-to-period comparisons of results. The following table sets forth certain
information concerning stations acquired by the Company or operated by the
Company pursuant to time brokerage agreements as of June 30, 1995:
<TABLE>
<CAPTION>
DATE OF COMMENCEMENT DATE OF
STATION TYPE MARKET ACQUISITION TIME BROKERAGE AGREEMENT
- ----- ----- --------------------- ------------------ ------------------------
<S> <C> <C> <C> <C>
WROO FM Jacksonville September 1991
WNZS AM Jacksonville May 1993
WHPT FM Tampa/St. Petersburg November 1991
WHNZ AM Tampa/St. Petersburg November 1991
WZTA FM Miami/Ft. Lauderdale April 1992
WINZ AM Miami/Ft. Lauderdale April 1992
WWNZ AM Orlando April 1992
WMGF FM Orlando May 1993
WJRR FM Orlando May 1993
WWZN AM Orlando December 1994
WPLA FM Jacksonville May 1993
WZNZ AM Jacksonville May 1993
WLVE FM Miami/Ft. Lauderdale April 1993
WGSQ FM Cookeville April 1994
WPTN AM Cookeville April 1994
WTLK TV Atlanta July 1994 April 1994
WCTD TV Miami/Ft. Lauderdale Option April 1994
WFCT TV Tampa/St. Petersburg Option August 1994
WPBF TV West Palm Beach July 1994
WIRB TV Orlando -- December 1994
WTGI TV Philadelphia February 1995
WNZE AM Tampa/St. Petersburg February 1995 August 1994
WTWS TV Hartford/New Haven March 1995
WSJT FM Tampa/St. Petersburg March 1995
KZKI TV Los Angeles May 1995
WGOT TV Boston May 1995
KLXV TV San Francisco June 1995
WFTL AM Miami/Ft. Lauderdale June 1995
KTFH TV Houston July 1995 March 1995
KUBD TV Denver Option August 1995
WTVX TV Palm Beach Option August 1995
WTJC TV Dayton, Ohio Option October 1995
WYVN TV Washington October 1995
WOAC TV Cleveland Option October 1995
WRMY TV Raleigh Option January 1996
</TABLE>
In August and October 1995, the Company financed acquisitions by
subsidiaries of The Christian Network, Inc. ("CNI") of WIRB-TV, KUBD-TV and
WTJC-TV, serving the Orlando, Florida, Denver, Colorado, and Dayton, Ohio
markets, respectively. Upon consummation of these acquisitions CNI entered into
time brokerage agreements with the Company. The Company has operated WIRB-TV
under an assignment of CNI's time brokerage agreement since December 1994.
40
<PAGE> 48
In August and October 1995, the Company also financed the acquisitions of
WTVX-TV and WOAC-TV serving the Palm Beach, Florida and Cleveland, Ohio markets,
respectively, by Whitehead Media. Upon consummation of these acquisitions,
Whitehead Media entered into time brokerage agreements with the Company. The
Company's loan to Whitehead Media to purchase WTVX-TV and WOAC-TV was repaid in
December 1995 and the Company was granted options to purchase each of the
stations.
In October 1995, the Company acquired the license and certain assets of
WYVN-TV, serving the Washington, D.C. market. The station is not presently on
the air and the Company estimates spending $2,000,000 in build-out costs before
broadcasting can begin.
On August 25, 1995, the Company and Lowell W. Paxson ("Paxson"), its
Chairman and Chief Executive Officer, agreed with the Home Shopping Network,
Inc. ("HSN") to, among other things, terminate HSN's rights under a consulting
agreement containing various restrictions upon activities by Paxson that might
be considered competitive with HSN, in consideration of a payment to HSN by the
Company of $1,200,000. Shortly before the transaction with HSN, Mr. Paxson
agreed with the Company that upon termination of HSN's rights under the
consulting agreement, he will not compete with the Company for a period ending
on December 31, 1999 (the date that the HSN consulting agreement would have
otherwise terminated). In conjunction with this transaction Paxson advanced
$1,200,000 to the Company in the form of a note bearing interest at 6%. The
Company repaid the note in October 1995. An intangible asset has been recorded
for $1,200,000 which will be amortized through maturity of the agreement.
RESULTS OF OPERATIONS
Nine Months Ended September 30, 1995 and 1994
Consolidated revenue for the nine months ended September 30, 1995 increased
80% (or $31.7 million) to $71.5 million from $39.8 million for the nine months
ended September 30, 1994. This increase was primarily due to the new television
acquisitions and time brokerage operations discussed above, acquisition of WPBF-
TV on July 1, 1994 and increased revenues from existing television stations.
Operating expenses for the nine months ended September 30, 1995 increased
98% (or $40.6 million) to $81.9 million from $41.3 million for the nine months
ended September 30, 1994. The increase was primarily due to the costs of
operating these newly acquired television stations, direct expenses such as
commissions which rise in proportion to revenues, higher corporate overhead,
including option plan compensation and higher depreciation and amortization
related to assets acquired. Further, based on the vesting formula associated
with the options granted under the Stock Incentive Plan, the Company expects to
recognize additional compensation expense (related to the Company's Stock
Incentive Plan) over the next five years in the aggregate amount of
approximately $2.2 million.
Broadcast cash flow for the nine months ended September 30, 1995 increased
110% (or $10 million) to $19.1 million, from $9.1 million for the nine months
ended September 30, 1994. The increase in broadcast cash flow was a direct
result of television acquisitions and improved performance of existing
television properties.
Net interest expense for the nine months ended September 30, 1995 increased
to $7.8 million from $3.2 million for the nine months ended September 30, 1994,
an increase of 144% primarily due to a greater level of long-term notes
outstanding throughout the period and higher borrowing rates. As a result of
acquisitions, at September 30, 1995, total long-term debt and senior
subordinated notes was $230 million, or 181% higher than the $82.2 million
outstanding a year prior.
The Company recognized $960,000 of income tax benefit which resulted
primarily from the 1995 net loss and reversal of deferred taxes associated with
the 1993 tax provision resulting from the change in tax status.
Years Ended December 31, 1994 and 1993
Consolidated revenue in 1994 increased 93% (or $30 million) to $62.1
million from $32.1 million in 1993. This increase was primarily due to the
acquisition of WPBF-TV on July 1, 1994, revenue received under the time
brokerage agreement for WTLK-TV beginning April 4, 1994 and the subsequent
purchase thereof on
41
<PAGE> 49
July 13, 1994, the consolidation of the ANG operations beginning April 14, 1994,
and improved market conditions and better sales management within the Company's
existing properties. In addition, revenue increased because of the time
brokerages of WCTD-TV beginning April 1, 1994 and WFCT-TV beginning August 1,
1994.
Operating expenses in 1994 increased 66% (or $25.4 million) to $63.6
million from $38.2 million in 1993. The increase was primarily due to the costs
of operating WPBF-TV and WTLK-TV, direct expenses such as commissions which rise
in proportion to revenue, the consolidation of ANG, and higher depreciation and
amortization related to assets acquired. In addition, operating expenses
increased because of the time brokerages of WCTD-TV and WFCT-TV and related
fees. Somewhat offsetting these increases was the elimination of time brokerage
fees for stations acquired during May 1993 and the sale of WWNZ-AM in 1993.
Broadcast cash flow for 1994 increased 112% (or $7.6 million) to $14.4
million, from $6.8 million in 1993. The increase in broadcast cash flow was a
direct result of acquisitions, revenue growth and continued expense controls.
Net interest expense increased to $4.9 million from $2.1 million, an
increase of 133%, primarily due to a greater level of long-term debt throughout
the year and higher borrowing rates. As a result of acquisitions, at December
31, 1994, long-term debt was $82.4 million, or 153% higher than the $32.6
million outstanding a year prior.
The Company recognized $1.7 million of income tax benefit which resulted
primarily from the 1994 net loss and related reversal of deferred taxes
associated with the 1993 tax provision.
Years Ended December 31, 1993 and 1992
Consolidated revenue in 1993 increased 88% (or $15.0 million) to $32.1
million from $17.1 million in 1992. This increase was primarily due to the
acquisition of WLVE-FM in April 1993 and the effect of a full year of operations
in 1993 of WZTA-FM, WINZ-AM, WMGF-FM, WJRR-FM, WWNZ-AM, WWZN-AM, WPLA-FM and
WZNZ-AM, all of which were acquired or commenced operation under time brokerage
agreements during April to July 1992. In addition, the increase in revenue was
the result of stronger market conditions and improved sales management, offset
somewhat by the divestiture of WWNZ-FM, which was operated for approximately
eight months in 1992. Revenue generated apart from the Company's radio stations
increased due to the acquisition of Florida Radio Network and the development of
merchandising and direct marketing activities.
Operating expenses in 1993 increased 60% (or $14.3 million) to $38.2
million from $23.9 million in 1992. This increase was primarily due to the
acquisition of WLVE-FM in April 1993 and the effect of a full year of operations
in 1993 of WZTA-FM, WINZ-AM, WMGF-FM, WJRR-FM, WWNZ-AM, WWZN-AM, WPLA-FM and
WZNZ-AM, all of which were acquired or commenced operation under time brokerage
agreements during April to July 1992. This increase was offset somewhat by
savings from the consolidation of the operations of three to four radio stations
in each of the markets of Miami/Ft. Lauderdale, Orlando and Jacksonville,
particularly with regard to sales and general and administrative costs as
redundant personnel and office space were eliminated. In addition, the Company
realized decreases in promotional expenses through economies of scale for
stations owned or operated during similar periods in each year. The divestiture
of WWNZ-FM in early 1993 reduced expenses in comparison to 1992 when the station
was operated for eight months.
Broadcast cash flow for 1993 increased 94% (or $3.3 million) to $6.8
million from $3.0 million in 1992. The increase in broadcast cash flow was a
direct result of acquisitions, revenue growth and continued expense controls.
Net interest expense increased to $2.1 million from $1.3 million, an
increase of 62%, primarily due to a greater level of long-term debt throughout
the year. At December 31, 1993, long-term debt was $32.6 million, or 52% higher
than the $21.5 million outstanding a year prior.
The sale of WWNZ-FM resulted in a gain of approximately $427,000 in 1993.
42
<PAGE> 50
In 1993 the Company provided for $3.0 million of income taxes which
resulted from the December 15, 1993 reorganization and consolidation. Prior to
December 15, 1993 the Company operated in the form of partnerships and S
corporations for federal and state income tax purposes. Therefore, all income
and loss for the periods prior to December 15, 1993 were taxed at the partner
and stockholder level and no provision for income taxes was recorded. The 1993
extraordinary loss relates to the write-off of deferred financing costs upon
extinguishment of the existing Company senior debt in March 1993.
LIQUIDITY AND CAPITAL RESOURCES
The Company's working capital at September 30, 1995 and December 31, 1994
was $66.4 million and $26.4 million, respectively, and the ratio of current
assets to current liabilities was 8.69:1 and 3.11:1, on such dates respectively.
Working capital increased primarily due to proceeds from the Notes net of debt
repaid and acquisitions previously discussed.
Cash provided by operations of $4.1 million and $3.4 million for the nine
months ended September 30, 1995 and 1994, respectively, reflect the improvement
in operating results of existing properties, acquisitions and time brokerage
properties net of increased interest expense and increases in other assets. Cash
used for investing activities primarily reflects the acquisitions and
investments discussed above, and purchases of equipment for these and existing
properties. Cash provided by financing activities primarily reflects the
proceeds from the Notes and long-term debt net of debt repaid and loan
origination costs incurred. In addition, the Company has advanced $1,343,000 to
CNI since April 1, 1995 under a demand note bearing interest at 6%. Non-cash
activity relates to option plan compensation, reciprocal trade advertising
revenue and expenses, as well as dividends and accretion on the preferred stock
and common stock warrants.
The Company was initially funded primarily by Mr. Paxson, who has made net
equity investments in the Company since its inception totaling in excess of $33
million. Beginning in 1992, the Company has also utilized senior long-term debt
provided to its principal operating subsidiaries by consortiums of financial
institutions. A credit facility of $32 million was established in March 1993.
This facility was subsequently increased to $40 million in December 1993 and
$150 million in July 1994. The credit terms require amortization of principal
over a seven-year period with the first payment due September 30, 1995, and
interest payable quarterly at a floating rate (initially LIBOR plus 2.75%). As
of June 30, 1995, $90 million has been drawn under this facility. A separate
senior revolving credit facility of $75 million was established in May 1995. The
credit terms under such additional facility require interest payable quarterly
at a floating rate (initially LIBOR plus 3.5%, and changing to LIBOR plus 2.5%
three months later). At June 30, 1995, $39 million had been drawn under this
facility. The Company entered into the New Credit Facility on December 19, 1995
(see "Description of New Credit Facility"). Proceeds from the Private Offering
were used to retire the Existing Senior Indebtedness. The Company has or will
fund the cash payments required for the Acquisitions primarily from a
combination of borrowings under the Existing Credit Facilities, prior to the
Offering, and from the proceeds of the Private Offering and borrowings under the
New Credit Facility thereafter. As a result, the Company wrote off $10.6 million
of loan origination costs associated with its two Existing Credit Facilities.
The Company's principal capital requirements are interest and principal
payments on indebtedness. The Notes require semi-annual interest payments at a
fixed rate. Borrowings under the New Credit Facility bear interest at floating
rates and require interest payments on varying dates depending on the interest
rate option selected by the Company. The New Credit Facility will mature on June
30, 2002. In addition to debt service, the Company's principal cash requirements
will be for capital expenditures and, if appropriate opportunities arise, the
acquisition of additional broadcasting stations or assets.
43
<PAGE> 51
The Company believes that the proceeds from the Private Offering together
with the cash flow from operations, the recent repayment by Whitehead Media of
the loans made to it by the Company to finance Whitehead Media's acquisition of
WTVX-TV and WOAC-TV and borrowings under the New Credit Facility will be
sufficient to consummate the Acquisitions (including the expected capital
expenditures associated therewith) and to meet working capital requirements for
existing properties. To the extent that the Company pursues future acquisitions,
the Company may be required to obtain additional financing. There can be no
assurance that it will be able to obtain such financing on terms acceptable to
it.
44
<PAGE> 52
BUSINESS
GENERAL
Paxson Communications is a publicly-held, diversified media company that
operates in the radio broadcasting, radio network and television broadcasting
businesses. In addition, in January 1995, the Company introduced its Infomall TV
Network, a national network of owned, operated, and affiliated television
stations dedicated to infomercial programming. The Company was founded in 1991
by Lowell W. "Bud" Paxson, the creator, co-founder and president emeritus of
Home Shopping Network, Inc.
PAXSON RADIO
Paxson Communications owns and operates 18 radio stations (9 FM and 9 AM
stations), with more radio stations in Florida than any other broadcaster. The
Company operates FM and AM duopolies in Miami, Tampa, Orlando and Jacksonville,
as well as an AM/FM combination in Cookeville, Tennessee. The Company also has
joint sales agreements with an additional FM station in Jacksonville and an AM
station in Miami. The Company's radio stations employ broadly diversified
programming formats, including News, Talk, Sports, Country, Soft Adult
Contemporary, Smooth Jazz, Album Oriented Rock, Modern Rock and Alternative
Rock. The Company also operates seven radio networks, primarily in the
southeastern United States, that provide daily statewide news segments, sports
programming and satellite distribution of play-by-play broadcasts of
professional and collegiate sports teams for approximately 338 affiliated
stations. In addition, the Company controls 67 billboard locations in the Tampa
and Orlando markets that support the Company's radio station operations.
Radio Broadcasting
The Company was one of the first radio broadcasters to capitalize on
changes in federal regulations permitting radio market duopolies, and has
subsequently assembled eight duopolies serving Florida's four most populous
cities. Beginning with the acquisition of an AM/FM combination in the Tampa
market and a Jacksonville FM station in 1991, the Company has made acquisitions
of, or has entered into time brokerage agreements with, radio stations in
selected Florida markets. The Company has pursued a strategy of entering into
time brokerage agreements with, and concurrently obtaining an option to
purchase, stations in markets in which the Company already owns a station in the
same radio service (AM or FM). Following changes in the FCC's rules regarding
multiple ownership of radio stations in September 1992, the Company was able to
exercise such purchase options. By June 1995 the Company had assembled both FM
and AM duopolies in the Miami, Tampa, Orlando and Jacksonville markets (for a
total cost of $65.1 million), in addition to an AM/FM combination in Cookeville,
Tennessee. The Company will continue to consider radio acquisition and
disposition opportunities.
Operating Strategy
The Company believes that its radio properties are well positioned in
attractive markets, and the Company hopes to continue to improve cash flow
growth through the integration of recent duopoly acquisitions and enhanced
station performance. The principal elements of the Company's operating strategy
include:
Benefits of Geographic Proximity. The Company believes that the
geographic proximity of its FM and AM duopolies throughout Florida give it
the ability to realize synergistic revenue and promotional opportunities as
well as significant cost efficiencies. The Company's group of Florida
stations enables an advertiser to cover an entire geographic region, while
effectively reaching targeted demographic groups. Various cross-market
promotional opportunities exist, such as the ability to provide listeners
with tickets to another market's sporting events or local entertainment
attractions. Personnel and technical costs can be minimized by virtue of
the ability to service each market in close proximity. Finally, the
stations' geographic concentration allows management to more easily and
rapidly respond to market issues.
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<PAGE> 53
Skilled Local Staff and Management. The Company believes that its
experienced management team is one of its strongest assets. Local managers
are responsible for the day-to-day operations of their respective stations.
The Company believes that the autonomy of its station management and its
incentive-based compensation enable it to attract and retain skilled and
experienced managers capable of implementing the Company's aggressive
marketing and promotion strategy. Local managers have incentive
compensation and equity arrangements linked to the station's broadcast cash
flow performance, increases in the value of the station or stations for
which such manager is responsible and increases in the value of the
Company.
Corporate management is responsible for long-range planning,
establishment of primary policies and procedures, resource allocation,
accounting and auditing, regulatory and legal compliance, license renewals
and the evaluation of potential acquisitions. Corporate management reviews
sales pacing reports from each station on a daily basis. In addition,
members of senior management visit the Company's stations on a regular
basis to review performance and to assist local management with its
programming, sales and recruiting efforts, as well as to develop overall
station operating and marketing strategies.
Targeted Programming/Extensive Market Research. The Company provides
programming designed to appeal to targeted demographic groups, and seeks to
convert its rating shares into disproportionately large shares of each
market's advertising dollars. The Company believes that effective
programming is a key element in sustaining and improving audience shares
within its targeted demographic groups, and uses extensive ongoing research
to refine each station's programming. For example, the Company decided to
operate News and Sports formats in all four of its Florida markets
following extensive research demonstrating the popularity of each format
with an upscale male audience. Similarly, Tampa's WSJT-FM began
broadcasting a Smooth Jazz format, designed to appeal to adults aged 25-54
(a demographic group attractive to advertisers), in July 1995 following
programming research. The Company will continue to identify and refine
programming to enhance its stations' audience and advertiser appeal.
Aggressive Marketing and Promotion. The Company believes that
effective marketing and promotion play a significant role in maximizing
each station's performance. The Company utilizes local television, print
media, telemarketing and billboards to promote its stations. In the Orlando
and Tampa markets, the Company's billboard locations are used to promote
its stations. The Company also believes that community involvement is
particularly important in creating public awareness and its stations
participate in numerous community programs and activities.
Strict Cost Controls. Management believes that it is critical to
maintain the lowest possible cost structure compatible with its operating
strategy. Strict financial reporting standards and cost control measures
are implemented to ensure a focus on improvements in operating results
throughout the organization. Management regularly receives operating
reports that track station performance, thereby enabling better monitoring
by management and establishing greater accountability throughout the
station group. In addition, since local management incentive programs are
tied to increasing station value, local managers are focused on minimizing
costs and exceeding budgeted cash flow results.
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<PAGE> 54
Radio Properties
The following table sets forth certain information about the Company's
current radio stations:
<TABLE>
<CAPTION>
% OF AUDIENCE
NATIONAL RADIO STATION POWER AUDIENCE SHARE
MARKET(A) MARKET RANK(B) STATION FORMAT FREQUENCY (WATTS) SHARE(C) RANK(C)
- --------------- --------------- ------- ------------ --------- ------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Miami/ 11 WLVE-FM Smooth Jazz 93.9 100,000 4.0 9 of 38
Ft. Lauderdale
WZTA-FM Album 94.9 100,000 4.0 9 of 38
Oriented
Rock
WINZ-AM News and 940 50,000 1.7 19 of 38
Sports
WFTL-AM Talk and 1400 1,000 0.3 34 of 38
Sports
Tampa/ 21 WHPT-FM Rock Adult 102.5 100,000 6.1 7 of 29
St. Petersburg Contemporary
WSJT-FM Smooth Jazz 94.1 100,000 5.6 9 of 29
WHNZ-AM News and 570 5,000(day) 1.2 17 of 29
Sports 10,000 night)
WNZE-AM Sports 820 50,000(day) n/a n/a
1,000 night)
Orlando 35 WMGF-FM Soft Adult 107.9 100,000 9.3 2 of 24
Contemporary
WJRR-FM Modern Rock 101.1 100,000 3.3 14 of 24
WWNZ-AM News 740 50,000 1.4 15 of 24
WWZN-AM Sports 540 50,000 0.8 17 of 24
Jacksonville 50 WROO-FM Young 107.3 100,000 7.5 4 of 23
Country
WPLA-FM Alternative 93.3 50,000 2.7 12 of 23
Rock
WNZS-AM Sports 930 5,000 1.6 15 of 23
WZNZ-AM News 1460 5,000 0.3 22 of 23
Cookeville n/c WGSQ-FM Country 94.7 100,000 n/c n/c
WPTN-AM Talk 780 1,000 n/c n/c
</TABLE>
- ---------------
(a) Each station is licensed by the FCC to serve a specific community within the
market, which may differ from the listed market.
(b) Source: Miller Kaplan.
(c) Adults 25-54 Monday-Sunday 6 AM-Midnight in radio market per Summer 1995
Arbitron Radio Market Reports.
n/a Insignificant share.
n/c Market not covered by Arbitron; revenue not independently reported.
Market Overviews
Miami/Ft. Lauderdale, FL. The Company owns and operates radio stations
WLVE-FM, WZTA-FM, WINZ-AM and WFTL-AM in the Miami/Ft. Lauderdale radio market,
the 11th largest radio market in the United States. The Company also provides
certain sales and marketing services to WACC-AM through a joint sales agreement,
and has an option to acquire a 49% interest in such station. The Miami/Ft.
Lauderdale radio market had advertising revenue of $136.3 million in 1995, a
9.9% increase over 1994. The Company's Miami/Ft. Lauderdale radio stations had a
10.8% combined audience share in the Miami/Ft. Lauderdale 25-54 year old
demographic category, according to the Summer 1995 Arbitron ratings survey.
WLVE-FM is programmed in a Smooth Jazz format, playing a blend of
contemporary jazz and vocals, targeting the upscale 25-54 year old audience.
WLVE-FM does not have a direct competitor within the format category. WZTA-FM
became the only Album Oriented Rock station in the Miami market when its former
competitor changed formats to Alternative Rock in May 1995. WINZ-AM is the only
station in the Miami market with an All News format throughout the daytime
hours. After 7:00 p.m. WINZ-AM carries sports programming with broadcast rights
to the Miami Heat NBA basketball team and the University of Miami
47
<PAGE> 55
football games. WFTL-AM located in Broward County has a talk radio format and
through a simulcast with WINZ-AM increases the Company's broadcast reach of the
Miami Heat.
Tampa/St. Petersburg, FL. The Company owns and operates radio stations
WHPT-FM, WSJT-FM, WHNZ-AM and WNZE-AM in the Tampa/St. Petersburg radio market,
the 21st largest radio market in the United States. The Tampa/St. Petersburg
radio market had advertising revenue of $77.4 million in 1995, a 9.8% increase
over 1994. The Company's Tampa/St. Petersburg stations had a 12.9% combined
audience share in the Summer 1995 Arbitron ratings survey, including WSJT-FM
which commenced broadcasting in July 1995.
WHPT-FM is formatted with a distinctive blend of music categorized as Rock
Adult Contemporary targeted toward white-collar, adult listeners. The Company
purchased WEZY-FM in Lakeland, Florida in March 1995 and subsequently moved the
station to the Tampa market. The Company reformatted the station as WSJT-FM, a
Smooth Jazz station targeted to adults in the 25-54 year old demographic
category. WHPT-FM and WSJT-FM have two of the strongest signals in the State of
Florida. WHNZ-AM is the only radio station in the Tampa market with an All News
format throughout the daytime hours. After 7:00 p.m. the station carries sports
talk and play-by-play sports programming, including University of Florida
football and basketball games. WNZE-AM is one of two AM radio stations in the
Tampa market that provides an All Sports format, including play-by-play coverage
of the Florida State football and basketball games. WNZE-AM achieves economies
by utilizing satellite programming.
Orlando, FL. The Company owns and operates radio stations WMGF-FM,
WJRR-FM, WWNZ-AM and WWZN-AM in Orlando, the 35th largest radio market in the
United States. The Orlando radio market had advertising revenue of $63.5 million
in 1995, an 8.4% increase over 1994. The Company's Orlando radio stations had a
14.8% combined audience share in the Orlando 25-54 year old demographic
category, according to the Summer 1995 Arbitron ratings survey.
WMGF-FM is a Soft Adult Contemporary format appealing to the 35-54
audience. WJRR-FM, a Modern Rock station, complements WMGF-FM by appealing
primarily to the 18-49 year old male audience. WWNZ-AM is the only station in
the market with an All News format, and experienced increased Arbitron
ratings due to its extensive coverage of the O.J. Simpson trial. WWZN-AM is the
only All Sports radio station in the Orlando market, and includes play-by-play
programming and sports talk shows. Cost savings are obtained through the
utilization of satellite programming, which is used to augment the station's
sports-talk programming.
Jacksonville, FL. The Company owns and operates radio stations WROO-FM,
WPLA-FM, WNZS-AM and WZNZ-AM in Jacksonville, the 50th largest radio market in
the United States. The Company also provides certain sales and marketing
services to WFSJ-FM under a joint sales agreement. The Jacksonville radio market
had advertising revenue of $34.7 million in 1995, an 8.4% increase over 1994.
The Company's radio stations had a 12.1% combined audience share in the 25-54
year old demographic category, according to the Summer 1995 Arbitron ratings
survey.
WROO-FM broadcasts a Young Country format that appeals to the 18-49-year
old demographic category. WPLA-FM was recently reformatted as an Alternative
Rock radio station, designed to appeal to a younger 18-34 target audience.
WNZS-AM broadcasts an All Sports format, including the leading sports talk show
in the market, and carries live play-by-play sports broadcasts, including
Florida State University mens' football and basketball games. WZNZ-AM has an all
News format consisting of satellite-delivered CNN "Headline News" programming.
Cookeville, TN. The Company owns and operates WGSQ-FM and WPTN-AM in the
Cookeville, Tennessee radio market, serving the Upper Cumberland region between
Nashville and Knoxville (ranked the 45th and 70th largest markets,
respectively). The Company's stations are first on a combined basis within its
market in all categories of listenership. Radio station WGSQ-FM broadcasts a
country format. WPTN-AM programs an All Talk format featuring various local and
nationally-syndicated personalities, including Rush Limbaugh. The stations have
a combined 30% share of the 12+ demographic group in Arbitron's most recent
county-by-county survey.
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<PAGE> 56
Radio Networks
The Company operates seven radio networks that serve approximately 389
affiliates. The programs produced and distributed by the Company's radio
networks include news broadcasts, sports and sports talk shows, and business and
agricultural news and information. In addition to providing radio programming,
the Company also offers its affiliates printed script for news, sports and
weather information, that the Company either generates internally or
consolidates from wire services and other sources. The Company believes radio
networks are attractive to advertisers because they provide an opportunity to
advertise simultaneously on multiple stations. In addition, the Company's
networks provide certain programming to the Company's radio broadcast stations.
In December 1992, the Company purchased the Florida Radio Network in order
to build statewide advertising sales. The network produces daily news segments
for 56 affiliated stations in Florida, thereby giving the Company a presence in
almost every market in Florida. On November 4, 1994, the Company merged with ANG
significantly expanding the Company's radio network holdings. As a result of the
merger, the Company acquired and began operating radio networks in Tennessee and
South Carolina (which it recently ceased operating), as well as several
collegiate sports radio networks. Such radio networks currently produce and
distribute news, sports and other programs, giving the Company 79 affiliated
radio stations in Tennessee. In January 1995, the Company acquired the Alabama
Radio Network, which produces and distributes news, sports and other programs to
74 affiliates in Alabama. The Company has the exclusive rights to produce and
broadcast the men's football and basketball games and weekly coaches' radio
shows of the University of Florida through 53 affiliates, the University of
Miami through 25 affiliates, Pennsylvania State University through 51
affiliates, and Virginia Polytechnic Institute and State University (which
expires in March 1996) through 50 affiliates. The broadcasts are distributed to
radio stations that have subscribed for them pursuant to affiliate agreements.
Certain affiliates of the Company's sports networks are also affiliates of its
state radio networks.
The Company is currently upgrading the technical facilities at its radio
networks with digital sound programming. During 1995, the Company completed the
upgrade of its Florida radio network. The Company expects to complete the
upgrade of all of its networks in the near future, and believes such quality
improvements will enable it to obtain more affiliates, including FM stations
that did not previously carry the Company's networks.
Billboard Properties
The Company currently owns 67 billboard locations, including 55 billboards
with 113 faces in the Tampa market, and 12 billboard locations at which the
Company will have 48 faces in the Orlando market. While the Company will sell
the use of the billboards to a broad group of potential advertisers, the Company
takes advantage of the relationships it has with its radio advertisers to
broaden its billboard client base, as well as expand the Company's shares of the
advertiser's media purchases within a market. In addition, as broadcasters are
major users of billboard advertising campaigns, the Company can control its own
billboard promotional expenditures through the use of its billboards, as well as
assure full use of all its owned billboards. As opportunities are presented to
the Company, it will consider the acquisition of additional billboards in
markets in which it owns broadcasting properties.
PAXSON TELEVISION
Paxson Communications owns and operates an ABC-TV affiliate, WPBF-TV, and
in August 1995 entered into a time brokerage agreement under which it programs
and markets commercial time for a second television station, WTVX-TV (a combined
United Paramount network and Warner Brothers network affiliate), both in the
West Palm Beach market, the 45th largest DMA. The West Palm Beach DMA had
television revenue of approximately $85.5 million in 1994, a 17.6% increase over
1993. The Company acquired WPBF-TV for approximately $32.5 million in July 1994.
In July 1995, in connection with entering into the WTVX-TV time brokerage
agreement, the Company loaned $18.0 million to Whitehead Media which acquired
the FCC license and assets of such station. All such acquired assets, including,
to the extent permitted by the FCC rules, the FCC license, were pledged to the
Company to secure repayment of such loan.
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<PAGE> 57
Such loan was repaid in December 1995 and Whitehead Media granted the Company an
option to purchase the station for approximately 19.0 million.
WPBF-TV (channel 25) is the ABC-TV affiliate in the West Palm Beach,
Florida market. The station achieved a 10 share of household audience in the
November 1995 Nielsen ratings survey, tied for third place in the market.
WPBF-TV airs ninety minutes of local news each weekday and an hour each Saturday
and Sunday. In addition, the station's fall schedule includes the following
syndicated programs: Hard Copy, Current Affair, Day and Date, America's Most
Wanted, Jerry Springer and Sally Jessy Raphael. The latter two programs are also
broadcast on WTVX-TV, channel 34, as part of a four-hour morning talk show block
which includes Geraldo!, Charles Perez and Carnie. WTVX-TV is a leading provider
of children's programming in the West Palm Beach market with the following
syndicated programs: Teenage Mutant Ninja Turtles, Goof Troop, Aladdin and
Animaniacs. The station also airs off-network and original syndicated
family-oriented programming such as Family Matters, Step by Step, Baywatch,
Highlander, Kung Fu, Land's End, High Tide, Renegade and the new Flipper.
WTVX-TV achieved a four share of household audience in the November 1995 Nielsen
ratings, ranking fifth in the market. WPBF-TV and WTVX-TV will combine this fall
to carry SEC and ACC college football games featuring among others the
University of Florida Gators and the Florida State Seminoles.
The Company's television broadcasting strategy is to supply desirable
programming in its markets and aggressively sell advertising time. The Company
plans to capitalize on new selling and cost saving opportunities through its
recent time brokerage agreement with WTVX-TV. The Company's strategy for its
network-affiliated television business has focused on the acquisition of
underperforming network-affiliated television properties and improving
management in an effort to realize improved operational and financial
performance. The Company believes that by operating two stations within a
market, the Company expects to centralize certain aspects of such stations
operations thereby eliminating duplicative operating and marketing functions and
expenses, in addition to realizing enhanced revenue opportunities.
In connection with the Acquisitions, the Company has entered into an
agreement to purchase WAKC-TV an ABC affiliate in Akron, Ohio (located in the
Cleveland DMA). The Company will purchase WAKC-TV in tandem with the New York IN
TV station. The Company intends to terminate WAKC-TV's ABC network affiliation
and replace it with IN TV programming. The Company is currently considering
alternative means of capitalizing on such ABC affiliation. The Company will
continue to evaluate purchases of network-affiliated properties that it can
acquire for an appropriate price and improve results through enhanced sale
strategies and streamlining of operations.
INFOMALL TV NETWORK
In January 1995, Paxson Communications established its infomercial
television network, the Infomall TV Network. The Company has assembled 14 owned
or operated stations dedicated to IN TV programming and has entered into
agreements with respect to ten additional television stations to be owned or
operated by the Company as IN TV stations. The Company also has affiliation
agreements with four independently owned and operated television stations. After
giving effect to the Acquisitions, the Company estimates that its owned,
operated or affiliated IN TV stations will reach approximately 14.3 million
cable households and be in 21 of the 30 largest U.S. television markets. In
addition, the Company believes that it will also reach a significant additional
number of broadcast households that do not receive cable. The Company believes
that the Infomall TV Network contains the only group of television stations in
the United States that currently offers infomercial advertisers both significant
national and regional distribution capability, and inventory availability during
popular morning, daytime and prime time hours.
Industry Background
During recent years, advertisers have evaluated the benefits of television
and cable advertising, with many sophisticated consumer product and service
advertisers now recognizing the effectiveness and reasonable cost of long-form
programming, or "infomercials." An infomercial is an advertisement, usually one
half-hour in length, that is paid for by the advertiser on the basis of air-time
and the approximate number of households
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<PAGE> 58
receiving the broadcast signal on the cable system feed. Regardless of the
presentation format, the viewer is provided information that can be used to make
informed purchasing decisions from the comfort of their home without the
pressure of a salesperson or a crowded shopping mall.
Increasingly, advertisers are recognizing the benefits of infomercials as a
powerful marketing tool. Infomercials provide advertisers with a cost-effective
medium through which to deliver sales messages, product introduction or
demonstration to an interested target audience. Advertisers are recognizing that
infomercials can increase a company's or product's brand awareness and loyalty
while educating uninformed potential new customers. An infomercial can be used
to support an advertiser's current sales efforts. The viewer or potential
consumer is provided information that can be used to make informed purchasing
decisions.
The Company believes that the infomercial industry has grown rapidly during
the past several years and currently accounts for total media spending in excess
of $1 billion. Originally, and to a large extent today, long-form informational
programming occupied time slots that were otherwise unprofitable for
broadcasters. Increasingly, infomercials are being placed in more expensive and
attractive time slots. In addition, the quality of the infomercial advertiser
has improved. Today, infomercials are being produced by major companies,
including:
<TABLE>
<S> <C> <C>
American Express Fidelity Investments Motorola
Apple Computers Ford Nissan
Avon Products General Motors Philips Consumer Electronics
Bank of America GTE Procter & Gamble
Bell Atlanta Lexus Sears Roebuck
Black & Decker Magnavox Sega of America
Braun Mastercard Toyota
Coca Cola Mattel Visa
Compaq Mercedes Benz Volvo
Estee Lauder Microsoft Warner Music
</TABLE>
The production quality of infomercial programming by these major
advertisers has also brought increased credibility to the infomercial industry.
The Company believes that as the benefits of infomercial programming become more
widely understood, the number of advertisers and the volume of infomercial
programming will continue to grow.
Operating Strategy
By purchasing independent television stations, in addition to signing
affiliate stations, and extending their broadcast reach on cable via
"must-carry" requirements, the Company has created a television network
dedicated to providing long-form, paid entertainment and information
programming. Expansion of the Infomall TV Network continues through the
purchase, operation or affiliation with independent television stations in major
United States television markets. By concentrating on larger national markets,
the Company believes that IN TV will reach in excess of 14.3 million cable
households after giving effect to the Acquisitions.
By eliminating programming costs and removing non-essential operating costs
related to a station's prior format and owners, the Company is able to improve
each station's cost structure. Because infomercial programming is paid for by
the advertiser, the Company is able to realize cash flow from each of its owned
or operated IN TV stations shortly after its acquisition.
IN TV programming time is sold on a local, national and network basis.
Local programming time is sold by each station's local sales force and is
offered to merchants and businesses operating within a station's local market,
including medical clinics, automobile dealers and groups of related-product
merchants. National and network programming time is sold by national advertising
placement agencies and the Company's own in-house national and network sales
force. National and network programming times appeal to advertisers who desire
to reach viewers in targeted IN TV markets and all IN TV markets. Currently, the
Company maintains national sales offices in the Company's headquarters in West
Palm Beach, Atlanta, New York, Chicago and
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<PAGE> 59
Los Angeles. All network sales operations are based at the Company's
headquarters. Support and administration of the Infomall TV Network is also
centralized at the Company's West Palm Beach headquarters, including most
accounting and personnel functions as well as administration of the IN TV
programming traffic systems.
The potential of the Infomall TV Network is being realized as IN TV makes
accessible popular viewing advertising slots, previously unavailable to
advertisers at reasonable rates through other broadcasters. Attractive rates and
further growth of IN TV's audience reach should continue to attract a greater
breadth of advertising clients. Schedules in television guides, newspapers,
radio and on-air programming guides will allow the viewer or potential consumer
to seek out and watch or record desired programming.
Expansion Strategy
The Company has created its Infomall TV Network through the acquisition of
independent television stations, certain of which are licensed to communities on
the "fringe" (or outside the center) of major markets, but within such market's
DMA. The Company has used the broadcast signal of these stations to reach a part
of the major television market's broadcast homes and extended their broadcast
reach to a significant part of the metropolitan area's home cable system via
"must carry" requirements. The Company had paid an aggregate of $97 million
(including capital expenditures through the date hereof) for its owned or
operated IN TV stations, with an additional $96 million committed for IN TV
Stations included in the Proposed Acquisitions and capital expenditures related
to the Acquisitions. The Company intends to continue to evaluate the acquisition
of or affiliation with independent television stations to further extend the
national distribution system for its Infomall TV Network. Finally, the Company
may selectively consider joint venture or other relationships with established
members of the informercial and telemarketing industries with whom the Company
can further exploit both its infomercial distribution system and its knowledge
of the informercial and telemarketing industries generally. For example, the
Company recently announced a joint venture to be established with the L.L.
Knickerbocker Company, Inc. ("Knickerbocker") which will permit the Company,
together with its co-venturer, to identify products and services which are
suited to exploit advantages of long-form advertising, develop marketing
strategies and infomercials for such products and services, including the airing
of infomercials for such products and services on the Infomall TV Network, and
then participate in the revenues and profits from sales of such products and
services. Although the joint venture with Knickerbocker is not expected to be a
significant portion of the Company's overall business, it does illustrate the
Company's continuing efforts to fully utilize and exploit its Infomall TV
Network and its knowledge of the infomercial and telemarketing industry.
Infomall Properties
The stations included in the Company's Infomall TV Network are either (i)
owned by the Company, (ii) operated by the Company pursuant to time brokerage
agreements entered into with the FCC licensee, or (iii) owned by independent
television station operators that enter into affiliation agreements with the
Company. The time brokerage agreements with respect to WCTD-TV, WFCT-TV,
WIRB-TV, KUBD-TV and WTJC-TV are with subsidiaries of CNI or BBTC, the FCC
licensees and owners of certain assets of the stations. Lowell W. Paxson is a
substantial contributor to and former director of CNI. See "Certain
Transactions." In connection with the stations owned by subsidiaries of CNI and
operated by the Company pursuant to time brokerage agreements (the "CNI
Stations"), the Company often acquires and leases to each of the CNI Stations
certain assets used in connection with the operation of each of the CNI
Stations. Pursuant to time brokerage agreements, CNI has priority over the
Company's programming to air religious programming on the CNI Stations. The
Company has options to purchase the broadcasting license of WCTD-TV, WFCT-TV,
KUBD-TV and WTJC-TV for consideration of approximately $880,317, $191,000,
$100,000 and $100,000, respectively, subject to the receipt of certain
regulatory approvals and waivers of the FCC's broadcast ownership rules. After
giving effect to the Acquisitions, the Company will own and/or operate pursuant
to a time brokerage agreement 26 stations, and have affiliation agreements with
four independently owned and operated stations that are currently dedicated to
IN TV.
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The following table lists those Infomall properties that the Company owns,
operates or is affiliated with:
<TABLE>
<CAPTION>
MARKET FORM OF COMMENCEMENT
STATION MARKET RANK CHANNEL OPERATION DATE
- -------- ------------------------------------------- ------- ------- -------------- --------------
<S> <C> <C> <C> <C> <C>
WTLK-TV Atlanta 10 14 Owned April 1994
WCTD-TV Miami/Ft. Lauderdale 16 35 Time brokerage April 1994
</TABLE>
<TABLE>
<S> <C> <C> <C> <C> <C>
WFCT-TV Tampa/St. Petersburg 15 66 Time brokerage August 1994
WIRB-TV Orlando 22 56 Time brokerage January 1995
WTGI-TV Philadelphia 4 61 Owned February 1995
KTFH-TV Houston 11 49 Owned March 1995
WTWS-TV Hartford/New Haven 26 26 Owned March 1995
WGOT-TV Boston 6 60 Owned May 1995
KZKI-TV Los Angeles 2 30 Owned May 1995
KLXV-TV San Francisco 5 65 Owned June 1995
KUBD-TV Denver 18 59 Time Brokerage August 1995
WTJC-TV Dayton 53 26 Time Brokerage October 1995
WOAC-TV Cleveland 13 67 Time Brokerage October 1995
WYVN-TV Washington, D.C. 7 60 Owned April 1996
WRMY-TV Raleigh 32 47 Time Brokerage June 1996
KCMY-TV Sacramento 21 29 Affiliate July 1995
WJCB-TV Norfolk 40 49 Affiliate August 1995
KGMC-TV Fresno 57 43 Affiliate January 1996
WIIB-TV Indianapolis 24 63 Affiliate January 1996
</TABLE>
ADVERTISING
Virtually all the Company's broadcasting revenue is derived from local,
regional and national advertising. Advertising rates charged by radio and
network television stations are based on a station's ability to attract
audiences in the demographic groups that advertisers wish to reach, and the
number of stations competing in the market area. A station's audience is
reflected in rating surveys of the number of listeners tuned to the station and
the time spent listening. The Company believes that its presence in Florida's
largest markets and its targeted demographic groups in those markets make it
attractive to national, regional and local radio and television advertisers. The
Company strives to maximize radio revenue by constantly managing the number of
commercials available and all broadcast revenue by adjusting prices based upon
demand by advertisers to reach the Company's stations' target demographic
groups. In addition to the sales of advertising time for cash, stations
typically exchange advertising time for goods or services that can be used by
the station in its business operations, including radio, television and
billboard advertising and such items as travel and entertainment services. The
Company generally confines the use of such "trade" transactions to promotional
items or services for which the Company would otherwise have paid cash. In
addition, it is the Company's general policy not to preempt advertising spots
paid for in cash with advertising spots paid for in trade.
IN TV advertising rates are based on the number of households reached, the
effectiveness of infomercials and ultimately the demand for available
infomercial time. The Company attempts to maximize revenue by increasing the
number of cable homes reached providing advertisers with increased viewership.
The Company increases the number of cable households reached both by increasing
the reach of each of its stations through "must carry" regulations and by
acquiring broadcast stations in additional markets. In addition, advertisers can
measure the success of an infomercial program almost immediately after a show is
broadcast. The Company believes the success of infomercials with viewers
continues to drive advertisers to use infomercials. As such, the demand for
infomercials continues to increase.
COMPETITION
The Company's radio and television stations compete with the other radio
and television broadcasting stations in their respective market areas, as well
as with other advertising media, including newspapers, television, magazines,
outdoor advertising, transit advertising and direct mail marketing. Competition
within the radio and television broadcasting industries occurs primarily in
individual market areas, so a station in one market does not generally compete
with stations in other market areas. In each of its markets, the Company's radio
and television stations face competition from other stations with substantial
financial resources, including stations whose programming is directed to the
same demographic groups. In addition to management experience, factors that are
material to competitive positions include a station's rank in its market,
authorized power, assigned frequency or station (as applicable), audience
characteristics, local program acceptance and
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the programming characteristics of other stations in the market area. The
Company attempts to improve its radio station's competitive position with
extensive research and promotional campaigns aimed at the demographic groups
targeted by its stations, and through sales efforts designed to attract
advertisers, including those who have done little or no radio advertising, by
emphasizing the effectiveness of radio advertising in increasing the
advertisers' revenue. Recent changes in the FCC's policies and rules permit
increased joint ownership and joint operation of local radio stations. Stations,
such as the Company, taking advantage of these joint arrangements may in certain
instances have lower operating costs and may be able to offer advertisers more
attractive rates and services. The Company attempts to improve its television
stations' competitive positions with local tie-in promotions and strong local
news segments. Although the Company believes that each of the Company's radio
and television stations can compete effectively in its market, there can be no
assurance that any of the Company's radio or television stations will be able to
maintain or increase its current audience rating or advertising revenue market
share.
Although the radio and television broadcasting industries are highly
competitive, some barriers to entry exist. The operation of a radio or
television broadcasting station requires a license from the FCC, and the number
of radio and television stations that can operate in a given market is limited
by the availability of the FM and AM radio frequencies or stations (as
applicable) that the FCC will license in that market. The radio and television
broadcasting industries historically have grown in terms of total revenue,
despite the introduction of new technologies for the delivery of entertainment
and information, such as cable, audio tapes and compact discs. The Company
believes that radio's portability makes it less vulnerable than other media to
competition from new methods of distribution or other technological advances.
There can be no assurance, however, that the involvement or introduction in the
future of any new media technology will not have an adverse effect on the radio
or television broadcasting industries.
The Company's development of IN TV and success in the creation of a
national long-form paid programming distribution system is a relatively new
concept, and there can be no assurance of its success. The concept is subject to
competition from several sources and other contingencies and uncertainties. The
Company's IN TV stations face significant competition from established
broadcasting stations and cable television in varied amounts. Various television
networks carry blocks of infomercials and local cable operators also sell blocks
of time to long-form advertisers. To the extent that the Infomall TV Network is
successful, it is likely that the Company will face competition from new market
entrants, some of which could have significantly greater financial resources
than the Company. In addition, the Company could encounter competition as a
result of the technological developments that are commercialized. However, the
Company believes it competes on a favorable basis because it contains the only
group of television stations in the United States that currently offers
infomercial advertisers both significant national and regional distribution
capabilities and inventory availability during popular morning, daytime and
prime time hours.
FEDERAL REGULATION OF BROADCASTING
The FCC regulates radio and television broadcast stations pursuant to the
Communications Act. The Communications Act permits the operation of radio and
television broadcast stations only in accordance with a license issued by the
FCC upon a finding that the grant of such license would serve the public
interest, convenience and necessity. The Communications Act provides for the FCC
to exercise its licensing authority to provide a fair, efficient and equitable
distribution of broadcast service throughout the United States.
The Communications Act empowers the FCC, among other things, to determine
the frequencies, location, and power of broadcast stations; to issue, modify,
renew, and revoke station licenses; to approve the assignment or transfer of
control of broadcast licenses; to regulate the equipment used by stations; to
impose fees for processing applications; to adopt regulations to implement the
provisions of the Communications Act; and to impose penalties for violations of
the Communications Act or FCC regulations. The FCC may revoke licenses for,
among other things, false statements made to the FCC or willful or repeated
violations of the Communications Act or of FCC rules. Legislation has been
introduced from time to time to amend the Communications Act in various respects
and the FCC from time to time considers new regulations or amendments to its
existing regulations. The Company cannot predict whether Congress will enact any
such legislation, whether the FCC will adopt new or amended regulations, or what
the effect of such actions would be on the Company.
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The following is a brief summary of certain provisions of the
Communications Act and the rules of the FCC. Reference should be made to the
Communications Act and the rules, orders, decisions and published policies of
the FCC for further information on FCC regulation of television and radio
broadcast stations.
License Renewal. The Communications Act provides that a broadcast station
license may be granted to an applicant if the public interest, convenience and
necessity will be served thereby, subject to certain limitations. In making
licensing determinations, the FCC considers an applicant's legal, technical,
financial and other qualifications. Broadcast station licenses are granted for
specific, limited periods, and, upon application, are renewable for additional
terms. Under the Communications Act, radio station licenses may be granted for a
maximum term of seven years, and television station licenses may be granted for
a maximum term of five years. The Company's current licenses, and the licenses
of stations with which the Company has time brokerage agreements expire on the
following dates:
<TABLE>
<CAPTION>
RADIO STATIONS MARKETS(A) LICENSE EXPIRATION
- ------------------------- --------------------- ------------------
<S> <C> <C>
WLVE-FM Miami/Ft. Lauderdale February 1, 1996
WZTA-FM Miami/Ft. Lauderdale February 1, 1996
WINZ-AM Miami/Ft. Lauderdale February 1, 1996
WFTL-AM Miami/Ft. Lauderdale February 1, 1996
WHPT-FM Tampa/St. Petersburg February 1, 1996
WSJT-FM Tampa/St. Petersburg February 1, 1996
WHNZ-AM Tampa/St. Petersburg February 1, 1996
WNZE-AM Tampa/St. Petersburg February 1, 1996
WJRR-FM Orlando February 1, 1996
WMGF-FM Orlando February 1, 1996
WWNZ-AM Orlando February 1, 1996
WWZN-AM Orlando February 1, 1996
WPLA-FM Jacksonville February 1, 1996
WROO-AM Jacksonville February 1, 1996
WNZS-AM Jacksonville February 1, 1996
WZNZ-AM Jacksonville February 1, 1996
WPTN-AM Cookeville August 1, 1996
WGSQ-FM Cookeville August 1, 1996
</TABLE>
<TABLE>
<CAPTION>
OWNED TELEVISION STATIONS MARKETS(A) LICENSE EXPIRATION
- ------------------------- --------------------- ------------------
<S> <C> <C>
KZKI Los Angeles December 1, 1998
WTGI Philadelphia August 1, 1999
KLXV San Francisco December 1, 1998
WGOT Boston April 1, 1999
WYVN Washington, D.C. October 1, 1996
WTLK Atlanta April 1, 1997
KTFH Houston August 1, 1998
WTWS Hartford/New Haven April 1, 1999
WPBF West Palm Beach February 1, 1997
</TABLE>
<TABLE>
<CAPTION>
TIME BROKERAGE
TELEVISION STATIONS MARKETS(A) LICENSE EXPIRATION
- ------------------------- --------------------- ------------------
<S> <C> <C>
WFCT Tampa/St. Petersburg February 1, 1997
WCTD Miami/Ft. Lauderdale February 1, 1997
WOAC Cleveland October 1, 1997
KUBD Denver April 1, 1998
WIRB Orlando February 1, 1997
WTVX West Palm Beach February 1, 1997
WTJC Dayton October 1, 1997
WRMY Raleigh December 1, 1996
</TABLE>
- ---------------
(a) Each station is licensed by the FCC to serve a specific community within the
market, which may differ from the listed market.
Generally, the FCC renews licenses without a hearing. The Communications
Act authorizes the filing of petitions to deny and of competing applications
against license renewal applications during specified periods
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<PAGE> 63
after the renewal applications have been filed. Interested parties, including
members of the public, may file petitions to deny as a means to raise issues
concerning the renewal applicant's qualifications.
If a substantial and material question of fact concerning a renewal or
other application is raised by the FCC or other interested parties, or if for
any reason the FCC cannot determine whether an applicant would serve the public
interest, convenience and necessity, the FCC will hold an evidentiary hearing on
the application. In a comparative hearing with a competing applicant, the
incumbent licensee may be entitled to a "renewal expectancy" to support
retention of its license, depending upon the nature of the incumbent's operation
of the station during the prior license term. In recent years, there have been a
number of petitions to deny and competing applications filed with respect to
broadcast license renewal applications, but in the vast majority of cases, the
FCC has renewed incumbent operators' station licenses.
Ownership Matters. The Communications Act requires the prior approval of
the FCC for the assignment of a broadcast license or the transfer of control of
a corporation or other entity holding a license. In determining whether to
approve an assignment of a broadcast license or a transfer of control of a
broadcast licensee, the FCC considers, among other things, the financial and
legal qualifications of the prospective assignee or transferee, including
compliance with FCC restrictions on alien ownership and control, compliance with
rules limiting the common ownership of certain "attributable" interests in
broadcast, cable and newspaper properties, and the "character" qualifications of
the transferee or assignee and the individuals or entities holding
"attributable" interests in them.
The FCC generally applies its ownership limits to "attributable" interests
held by an individual, corporation, partnership, or other association or entity.
In the case of corporations holding broadcast licenses, the interests of
officers, directors, and those who, directly or indirectly, have the right to
vote five percent or more of the corporation's stock are generally attributable,
as are positions of an officer or director of a corporate parent of a broadcast
licensee. The FCC treats all partnership interests as attributable, except for
those limited partnership interests that are "insulated" under FCC policies. For
insurance companies, certain regulated investment companies and bank trust
departments, that hold stock for investment purposes only, such interests become
attributable with the ownership of ten percent or more of the stock of the
corporation holding broadcast licenses. The FCC's rules specify exceptions to
the general principles for attribution. For example, in a corporation with a
single majority shareholder, such as the Company, no other shareholder is deemed
to hold an attributable interest.
Current FCC nationwide ownership rules allow one entity to hold
"attributable" interests in up to 20 FM radio stations, 20 AM radio stations and
12 TV stations nationwide, provided that an entity may have a noncontrolling
attributable interest in 5 additional FM, 5 AM and 2 TV stations that are
controlled by members of minority groups or, in the case of radio stations, by
certain small businesses. The FCC's rules also prohibit any entity from
acquiring an additional television station if, after the acquisition, the entity
would hold an attributable interest in television stations reaching more than
25% of the United States television households. Historically, VHF stations have
shared a larger part of the market than UHF stations. As such, only half of the
households in the market area of any UHF station owned by an entity are included
when calculating whether an entity reaches more than 25% of the United States
television households. A higher ceiling applies to attributable interests held
in television stations controlled by certain ethnic or racial minority groups.
In addition to the nationwide limits on broadcast ownership, the FCC's
rules limit the number of co-located radio or television broadcast stations in
which a single entity may own an attributable interest. For television, no
single entity may hold an attributable interest in television stations with
overlapping Grade B service contours. The Grade B contour is a predicted signal
strength contour that generally approximates the area within which a viewer can
receive off the air a signal adequate for normal viewing. The local ownership
restrictions for radio broadcast stations vary based on market size and audience
share. In markets with fifteen or more commercial radio stations, a single
entity may have an attributable interest in two AM and two FM stations unless
common ownership would result in "excessive concentration" in the local market.
"Excessive concentration" is presumed where the combined audience share of the
same market of stations owned by a single entity exceeds twenty-five percent
(25%). No divestiture is required, however, if a station combination
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at or below the 25% mark at the time of acquisition subsequently exceeds that
limit. The FCC's rules specify the definition of a "market" based on primary
service contours for the stations involved and the acceptable means for
determining audience share.
Under local radio ownership rules, an entity with an attributable interest
in one radio station is considered also to have an attributable interest in any
other radio station in the same market for which the first radio station
provides the programming for more than 15% of the broadcast time, on a weekly
basis. As a result, such programming arrangements may not be entered into by
radio station combinations that could not be commonly owned under FCC rules.
The FCC's cross-ownership rules prohibit the common ownership of
attributable interests in certain combinations of media outlets serving the same
geographic area. Under these rules, a single entity may not have an attributable
interest in (i) both a radio station and a television station that serve
specified overlapping areas; (ii) a daily newspaper and either a radio station
or a television station that serve specified overlapping areas; or (iii) a
television station and a cable television system that serve specified
overlapping areas. The FCC has established a liberal waiver policy to permit
common ownership of a radio station and a television station in any of the
nation's 25 largest markets, and in some circumstances involving "failed
stations" and in other situations where more stringent waiver standards can be
met. In addition, legislative proposals have been made from time to time to
liberalize or strengthen these prohibitions. See "Proposed Changes."
In cases involving competing media in the same market, FCC policy in
certain instances prohibits common ownership interests under its
"cross-interest" policy even if the interests involved are non-voting or other
non-attributable interests not specifically forbidden under the FCC's
cross-ownership rules. The FCC has initiated proceedings to inquire whether it
should change or eliminate this policy, covering joint ventures and common key
employees. The policy does not necessarily prohibit these interests, but may
require that the FCC consider whether they could have a significant adverse
affect on programming diversity and competition in the market. See "Proposed
Changes."
In cases where one person or entity (such as Mr. Paxson in the case of the
Company) holds more than 50% of the combined voting power of the common stock of
a broadcasting corporation, a minority shareholder of the corporation generally
would not acquire an "attributable" interest in the corporation. Any
attributable interest by any shareholder in another broadcast station or daily
newspaper in a market where such a corporation owns or seeks to acquire a
station may still be subject to review by the FCC under its "cross-interest"
policy, and could result in the Company's being unable to obtain from the FCC
one or more authorizations needed to acquire other broadcast stations.
Furthermore, if a majority shareholder of a company (such as Mr. Paxson in the
case of the Company) were no longer to hold more than 50% of the combined voting
power of the common stock of the Company, the interests of minority shareholders
that had theretofore been considered non-attributable could become attributable,
with the result that any other media interests held by such shareholders would
be combined with the media interests of such company for purposes of determining
the shareholders' compliance with FCC ownership rules. In the event of any
noncompliance, steps required to achieve compliance could include divestitures
by either the shareholder or the affected company. Furthermore, other media
interests of shareholders having or acquiring an attributable interest in such a
company could result in the company's being unable to obtain FCC consents for
future acquisitions. Conversely, the Company's media interests could operate to
restrict other media investments by shareholders having or acquiring an interest
in the Company.
Under the Communications Act, no FCC license may be held by a corporation
of which any officer or director is an alien or of which more than one-fifth of
its capital stock is owned of record or voted by aliens or their representatives
or by a foreign government or representative thereof, or by any corporation
organized under the laws of a foreign country (collectively "Aliens").
Furthermore, the Communications Act provides that no FCC license may be granted
to any corporation directly or indirectly controlled by any other corporation of
which any officer or more than one-fourth of its directors are Aliens, or of
which more than one-fourth of its capital stock is owned of record or voted by
Aliens if the FCC should find that the public interest would be served by the
refusal of such license. Restrictions on alien ownership also apply, in modified
form, to other types of business organizations, including partnerships.
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<PAGE> 65
Congress and the FCC are actively considering a number of matters that bear
upon broadcast ownership restrictions. See "-- Proposed Changes." The Company
cannot predict whether any proposed changes will be adopted nor can it predict
what other matters might be considered in the future, nor can it judge in
advance what impact, if any, the implementation of any of these proposals or
changes might have on its business.
Programming and Operation. The Communications Act requires broadcasters to
serve the "public interest." Since the late 1970's, the FCC gradually has
relaxed or eliminated many of the more formalized procedures it developed to
promote the broadcast of certain types of programming responsive to the needs of
a station's market. Nevertheless, broadcast licensees continue to be required to
present programming that responds to community problems, needs, and interests
and to maintain certain records demonstrating such responsiveness. Complaints
from listeners or viewers about a broadcast station's programming often will be
considered by the FCC when it evaluates renewal applications of a licensee,
although such complaints may be filed at any time.
Broadcast of obscene or indecent material is regulated by the FCC as well
as by state and federal law. Stations also must follow various rules promulgated
under the Communications Act that regulate, among other things, political
advertising, sponsorship identifications, the advertising of contests and
lotteries, and technical operations, including limits on radio frequency
radiation. In addition, licensees must develop and implement affirmative action
programs designed to promote equal employment opportunities, and must submit
reports to the FCC with respect to these matters on an annual basis and in
connection with a renewal application. Pursuant to the Children's Television Act
of 1990, the FCC has adopted rules limiting advertising in children's television
programming and requiring that television broadcast stations serve the
educational and informational needs of children. The Children's Television Act
specifically requires that the FCC must consider compliance with these
obligations in deciding whether to renew a television broadcast license.
Failure to observe these or other rules and policies can result in the
imposition of various sanctions, including monetary forfeitures, the grant of
"short" term renewals (less than the full five or seven years) renewal terms or,
for particularly egregious violations, the denial of a license renewal
application or the revocation of a license.
Time Brokerage Agreements. Over the past several years a significant
number of radio broadcast licensees, including certain of the Company's
subsidiaries, have entered into time brokerage agreements. While these
agreements may take varying forms, under a typical time brokerage agreement
separately-owned and licensed radio stations agree to enter into arrangements of
varying sorts, subject to compliance with the requirements of antitrust laws and
with the FCC's rules and policies. These arrangements are subject under FCC
rules and regulations to maintenance by the licensee of each station of
independent control over the programming and station operations of its own
station.
Typically, a time brokerage agreement is a programming agreement between
two separately owned radio stations serving a common service area, whereby the
licensee of one station programs substantial parts of the broadcast day on the
other licensee's station, subject to ultimate editorial and other controls being
exercised by the licensee of the "brokered" station. The broker then sells
advertising time during such program segments for its own account. Such
arrangements are an extension of the concept of "time brokerage," under which a
licensee of a station sells the right to broadcast blocks of time on its station
to an entity or entities which program the blocks of time and sell their own
commercial advertising announcements for their own account during the time
periods in question.
The FCC has determined that issues of joint advertising sales should be
left to antitrust enforcement. In addition, it has specifically exempted time
brokerage agreements from its "cross-interest" policy. Furthermore, the FCC and
the staff of the FCC's Mass Media Bureau have held that time brokerage
agreements do not per se constitute a transfer of control and are not contrary
to the Communications Act provided that the licensee of the station maintains
ultimate responsibility for and control over operations of its broadcast station
(including, specifically, control over station finances, licensee personnel, and
programming) and complies with applicable FCC rules and with antitrust laws.
Thus far, the FCC has not considered what relevance, if any, a time brokerage
agreement may have upon its evaluation of a licensee's performance at renewal
time.
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Under certain circumstances, the FCC will consider a station brokering time
on another radio station serving the same market to have an attributable
ownership interest in the brokered station for purposes of the FCC's radio local
ownership rules. In particular, a radio broadcast station is not permitted to
enter into a time brokerage agreement giving it the right to program more than
15% of the broadcast time, on a weekly basis, of another local station that it
could not own under the FCC's revised local radio "duopoly" multiple ownership
rules. Nevertheless, time brokerage agreements entered into before September 16,
1992, are generally grandfathered. The FCC has no present rules on the
attribution of television time brokerage agreements as it does with radio time
brokerage agreements. The FCC has adopted an interim policy on the grant of
transfer and assignment applications that include television time brokerage
arrangements and the FCC is now considering whether to adopt rules governing
television time brokerage agreements. See "Proposed Changes."
The FCC rules also prohibit a broadcast licensee from simulcasting more
than 25% of its programming on another station in the same broadcast service
(that is, AM-AM or FM-FM) whether it owns both stations or operates both through
a time brokerage agreement where the brokered and brokering stations serve
substantially the same geographic area.
Must Carry/Retransmission Consent. Some provisions of the Cable Television
Consumer Protection and Competition Act of 1992 (the "1992 Cable Act") and the
implementing rules adopted by the FCC, such as signal and carriage and equal
employment opportunity requirements, directly affect television broadcasting.
Other provisions, although focused exclusively on the regulation of cable
television, may indirectly affect the Company because of the competition between
over-the-air television stations and cable systems.
The 1992 Cable Act contains broadcast signal carriage requirements that
allow local commercial television broadcast stations to elect once every three
years to require a cable system to carry the station on certain designated cable
channels subject to certain exceptions, or to negotiate for "retransmission
consent" to carry the station. A cable system generally is required to devote up
to one-third of its activated channel capacity for the mandatory carriage of
local commercial television stations. Local non-commercial television stations
are also given mandatory carriage rights; however, such stations are not given
the option to negotiate retransmission consent for the carriage of their signals
by cable systems. Additionally, cable systems are required to obtain
retransmission consent for all "distant" commercial television stations (except
for commercial satellite-delivered independent "superstations" such as WTBS),
commercial radio stations and certain low power television stations carried by
such systems after October 6, 1993. The constitutionality of the mandatory
signal carriage requirements has been challenged in federal court in an ongoing
proceeding. See "-- Proposed Changes."
The 1992 Cable Act also established a mechanism to modify local television
markets, under which television stations licensed to communities in one "area of
dominant influence" or "ADI," as defined by the ratings service Arbitron, may
become qualified for "must-carry" status on cable systems serving communities
outside their ADI and within the ADI of other television stations. The FCC is
authorized to entertain requests for expansion or other modification of
television station markets. The grant of such requests by a licensee to extend
its must carry rights into another ADI may fractionalize the viewing audience of
other television stations already classified as entitled to must carry rights
within the ADI.
Equal Employment Opportunity Requirements. The 1992 Cable Act also
codified the FCC's existing equal employment opportunity ("EEO") regulations and
reporting forms used by television broadcast stations. In addition, as required
by the 1992 Cable Act, the FCC has adopted rules providing for a review of the
EEO performance of each television station at the mid-point in its license term
(in addition to an examination at renewal time) and for the FCC to inform the
licensee of any improvements in recruiting practices that may be needed as a
result of the review.
Syndicated Exclusivity/Territorial Exclusivity. The FCC has imposed on
cable operators syndicated exclusivity rules and expanded existing network
non-duplication rules. These syndicated exclusivity rules allow local broadcast
stations to require that cable operators black out certain syndicated
non-network programming carried on "distant signals" (that is, signals of
broadcast stations, including so-called "super stations," which serve areas
substantially removed from the cable system's local community). The network
non-duplication
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rules allow local broadcast network affiliates to require that cable operators
black out duplicating network broadcast programming carried on more distant
signals that are not significantly viewed over the air.
Financial Interest/Syndication and Prime Time Access Rules. Previously,
financial interest/syndication ("FIN/SYN") rules applied to any network and
posed various restrictions on its operation and activities. Network status has
been considered to exist under these rules when a broadcast company's weekly
programming offerings exceed 15 hours. These rules prohibited networks from
engaging in syndication for the sale, licensing, or distribution of television
programs for non-network broadcast exhibition in the United States. Furthermore,
these rules prohibited networks from sharing profits from any syndication and
from acquiring any new financial or proprietary interest in programs of which
they are not the sole producer.
The FCC has relaxed the restrictions on current FIN/SYN rules, enabling the
major networks to acquire specified amounts and kinds of financial interests in
program syndication and to engage in program syndication themselves. The Company
cannot predict the effect of these relaxed restrictions under the FIN/SYN rules
on the Company's ability to acquire desirable programming at reasonable prices.
The FCC's prime time access rule also places programming restrictions on
affiliates of major national television "networks." In the past, this rule
restricted affiliates of "networks" in the 50 largest television markets (as
defined by the rule) generally to no more than three hours of network
programming during the four hours of prime time. Recently, the FCC changed its
definition of "network" to include those entities that deliver more than 15
hours of "prime time programming" (a term defined in those rules) to affiliates
reaching 75% of the nation's television homes. Under this definition, certain
national television networks are not subject to the prime time access rule. In
July 1995, the FCC issued an order repealing the prime time access rules,
subject to a one-year transition period during which the rules will continue in
effect. The order remains subject to reconsideration. If the order is not
modified or overturned, the prime time access rules will terminate on August 30,
1996. The Company cannot predict what effect the repeal of the rules may have on
the operation of its network-affiliated television stations or the market for
syndicated television programming.
Television and radio broadcast stations also may be subject to a number of
other federal, state, and local regulation, including regulations of the Federal
Aviation Administration affecting tower height and marking, and federal, state,
and local environmental and land use restrictions and general business
regulation, and a variety of local regulatory concerns.
Proposed Changes. The Congress and the FCC have under consideration, and
in the future may consider and adopt, new laws, regulations and policies
involving a wide variety of matters that could affect, directly or indirectly,
the operation, ownership and profitability of the Company's broadcast stations,
result in the loss of audience and advertising revenue for the Company's
broadcast stations and affect the ability of the Company to acquire additional
broadcast stations or finance such acquisitions.
Pending Legislation to Amend the Communications Act. On June 15, 1995, the
United States Senate passed a bill that, among other measures, would eliminate
the 12-station nationwide television ownership limitation and increase the FCC's
national audience reach limitation for television from 25% to as much as 35%.
The Senate bill also provided for the grandfathering of existing television time
brokerage agreements, established a two-step licensing process that would tend
to protect broadcasters from renewal challenges, and extended the television
license term from five years to ten years.
On August 4, 1995, the United States House of Representatives passed a bill
that, among other measures, would limit the authority of the FCC to regulate the
multiple ownership of broadcast stations. If enacted into law, the House bill,
like the Senate bill, would eliminate the FCC's existing 12-station ownership
limit for television stations and increase the FCC's permissible nationwide
audience reach for television stations from 25% to as much as 35%. Under the
House bill, a single entity could hold two UHF television stations or a UHF and
a VHF television station in the same market, unless the FCC determines that the
combination would harm competition or diversity. The ownership of two VHF
television stations in the same market would not be permitted without an
affirmative finding by the FCC that the combination would not harm competition
or diversity in the market. (The Senate bill, in contrast, would allow present
FCC local television ownership restrictions to stand.) The House bill also
includes requirements for the establishment of a television rating
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code and for the inclusion of an electronic device (commonly called a "V-Chip")
in new television sets, intended principally to permit parents to block
programming they deem unsuitable for children. The legislation also would lift
the present ban on the ownership of cable television systems by telephone
companies, thus allowing telephone companies to compete more freely in the
delivery of video programming directly to home. The House bill would revise
renewal procedures in a manner similar to that in the Senate bill, but would
extend license terms only to seven years to parallel radio broadcast license
terms. A joint House-Senate conference committee has been appointed to reconcile
the House and Senate bills. Once a report of such conference committee has been
adopted, the reconciled bill must be passed by both the House and Senate and
approved by the President (or a presidency veto overidden) before it could
become law. There can be no assurance that the legislation will become law in
either the House or Senate version and the ultimate impact on the Company cannot
be predicted.
FCC Proceedings to Revise Broadcast Ownership Rules. In January 1995, the
FCC issued a further notice of proposed rule making which proposed the following
changes in regulations governing television broadcasting: (i) raising the
national ownership limits to up to 24 stations and raising the national reach
restrictions to 35% or simply eliminating the numerical station limit altogether
and replacing it with an escalating national reach restriction which would
eventually hit a ceiling of 50%; (ii) modifying the reach discount as it applies
to UHF stations; (iii) narrowing the geographic area where common ownership
restrictions would be triggered by limiting it to overlapping "Grade A" contours
rather than "Grade B" contours and by permitting (or granting waivers in
particular cases or markets) certain UHF/UHF or UHF/VHF overlaps; (iv) relaxing
the rules prohibiting cross-ownership of radio and television stations in the
same market to allow certain combinations where there remain alternative outlets
and suppliers to ensure diversity; and (v) treating television time brokerage
agreements the same as radio time brokerage agreements which would preclude
certain television time brokerage agreements where the programmer owns or has an
attributable interest in another television station in the same market. In June
1995, the FCC announced an interim policy for processing television transfer and
assignment application that include television time brokerage arrangements.
Pending the adoption of new rules, the FCC has stated that it will not grant
applications that propose a time-brokerage arrangement if the arrangement also
includes both debt financing by the time broker and an option for the time
broker to purchase the brokered station. The FCC will continue to grant
applications with time-brokerage arrangements if they include only one of those
elements (that is, either debt financing by the broker or an option of the time
broker to purchase). Adoption of the most restrictive proposals in this
proceeding could limit the Company's alternatives for entering into new time
brokerage agreements and making new broadcast acquisitions and, if existing
arrangements are not "grandfathered", could require the Company to modify or
terminate certain of its time brokerage arrangements.
In January 1995, the FCC issued a further notice of proposed rule making
that combined several long-pending proceedings to consider changes in its
ownership rules and policies. In the new proceeding, the FCC is considering,
among other things, (i) whether to make non-voting stock interests attributable;
(ii) whether to change attribution thresholds; (iii) how to treat limited
liability companies for purposes of attribution; (iv) whether to extend the
cross-interest policy to require review of multi-layered business relationships,
including debt relationships, that now are not subject to scrutiny; and (v)
whether to change the insulation standards for non-attribution of limited
partnership interests. Adoption of the most restrictive alternatives available
to the FCC could require that the Company, in assessing acquisition and
compliance strategies, take into account additional interests in itself and its
principals that are now exempt from FCC ownership regulation, and potentially
divest or restructure some interests.
In a second notice of proposed rule making the FCC is seeking comment on
whether the FCC should relax attribution and other rules to facilitate greater
minority and female ownership. The Company cannot predict the outcome of these
proceedings or how they will affect the Company's business.
FCC Inquiry on Broadcast of Commercial Matter. The FCC also has initiated
a notice of inquiry proceeding seeking comment on whether the public interest
would be served by establishing limits on the amount of commercial matter
broadcast by television stations. No prediction can be made at this time as to
whether the FCC will propose any limits on commercial advertising at the
conclusion of its deliberation or the
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effect the imposition of limits on the commercial matter broadcast by television
stations would have upon the Company's operations.
Digital Audio Broadcasting. The FCC recently has allocated spectrum to a
new technology, digital audio broadcasting ("DAB"), to deliver satellite-based
audio programming to a national or regional audience and is considering rules
for a DAB service. DAB may provide a medium for the delivery by satellite or
terrestrial means of multiple new audio programming formats with compact disc
quality sound to local and national audiences. It is not known at this time
whether this technology also may be used in the future by existing radio
broadcast stations either on existing or alternate broadcasting frequencies. In
addition, applications by several entities currently are pending at the FCC for
authority to offer multiple channels of digital, satellite-delivered S-Band
aural services that could compete with conventional terrestrial radio
broadcasting. These satellite radio services use technology that may permit
higher sound quality than is possible with conventional AM and FM terrestrial
radio broadcasting. Thus far, the FCC has not granted the pending requests for
authorizations to offer satellite radio, nor has it adopted rules for the
proposed satellite radio service. Implementation of DAB would provide an
additional audio programming service that could compete with the Company's radio
stations for listeners, but the effect upon the Company cannot be predicted.
Advanced High Definition Television System. The FCC has also begun to
adopt rules for implementing advanced (high definition) television ("ATV") in
the United States. Implementation of ATV service should improve the technical
quality of television broadcasts. The FCC has decided that it will set aside
specific new channel allotments for ATV service. Initial eligibility for these
channels will be limited to existing television licensees. The FCC has not yet
adopted a new technical standard for ATV, nor has it adopted a new Table of
Allotments for ATV channels.
Under the FCC's current plan for phasing in ATV service, each television
station would be able to continue to provide conventional television service on
its regular channel until advanced television service has become the prevalent
medium. In August 1995, the FCC issued its Fourth Further Notice of Proposed
Rule Making and Third Notice of Inquiry in its ATV proceeding. The notice and
inquiry requested public comment on a number of issues in connection with the
establishment of ATV television broadcasting, including (i) procedures and
timetables for existing broadcasters to move to ATV channels and relinquish
their present spectrum; (ii) restrictions on the use of ATV channels during the
transition period; (iii) the effect of conversion to digital transmission on a
broadcaster's public interest obligations; (iv) incentives for the rapid
adoption of ATV transmission technologies by broadcasters and by the public, and
(v) the impact of ATV on cable television carriage or retransmission consent.
Fifteen years after the start date, television broadcasters would be required to
surrender their conventional television licenses. Implementation of ATV service
is likely to impose additional costs on television stations providing new
service, due to increased equipment costs. While the Company believes the FCC
will authorize ATV, the Company cannot predict when such authorization might be
given or the effect such authorization might have on the Company's business.
Must-Carry/Retransmission Consent. On April 8, 1993, a special three-judge
federal district court issued a decision upholding the constitutional validity
of the mandatory signal carriage requirements. In June 1994, the United States
Supreme Court vacated this decision and remanded it to the district court to
determine, among other matters, whether the statutory carriage requirements are
necessary to preserve the economic viability of the broadcast industry. On
December 12, 1995 a three-judge federal district court panel again upheld the
constitutional validity of the mandatory signal carriage requirements, ruling
that reasonable evidence supported Congress' conclusion that must-carry rules
are necessary to preserve the economic viability of the broadcast industry. The
district courts decision has been appealed to the Supreme Court, but the
mandatory broadcast signal carriage requirements will remain in effect pending
the outcome of the further proceedings. The Company cannot predict whether the
Supreme Court will ultimately uphold or strike down the mandatory signal
carriage requirements. If a station is not carried by a cable system in its area
or is shifted to an undesirable channel on such cable system, the station could
experience a decline in viewership that could adversely affect its revenue,
particularly revenue from stations carried on a cable system solely to comply
with the must-carry law (for example, if the Infomall programming competes with
the cable system's own, similar non-broadcast offering).
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<PAGE> 70
Other changes that may result from matters under consideration by the FCC
or the Congress include (i) changes to the broadcast license renewal process;
(ii) spectrum use or other fees on FCC licensees; (iii) the FCC's equal
employment opportunity rules and other matters relating to female or minority
involvement in the broadcasting industry; (iv) rules relating to political
broadcasting; (v) technical and frequency allocation matters; (vi) changes in
the FCC's cross-interest, multiple ownership and cross-ownership rules and
policies; (vii) changes in policies governing the ability of telephone companies
to deliver audio and visual programming to the home by wire; (viii) changes in
the tax deductibility of advertising expenses; (ix) changes in standards
governing the evaluation and regulation of television programming directed
toward children, and violent or indecent programming; and (x) changes in
regulation of the relationship between major television networks and their
affiliates.
The foregoing is only a brief summary of certain provisions of the
Communications Act and of specific FCC and other regulations. Reference is made
to the Communications Act, FCC regulations, and the public notices and rulings
of the FCC for further information concerning the nature and extent of federal
regulation of broadcast stations.
EMPLOYEES
As of December 31, 1995, the Company had approximately 714 full-time
employees and approximately 202 part-time employees, for a total of 916
employees. None of its employees is represented by a labor union. The Company
considers its relations with its employees to be good.
SEASONALITY
Seasonal revenue fluctuations are common within the radio and television
broadcasting industry and result primarily from fluctuations in advertising
expenditures by local retailers. Paxson Radio and Paxson Television generally
experience their lowest revenue for the year in the first quarter, whereas the
highest revenue for the year generally occurs in the fourth fiscal quarter.
Because of the short operating history, the Company's ability to assess the
effects of seasonality on IN TV is limited. It appears, however, that IN TV may
experience its highest revenues during the first and fourth quarters.
PATENTS AND TRADEMARKS
The Company has one registered trademark and 12 trademark registrations
pending relating to its business. It does not own any patents or patent
applications. The Company does not believe that any of its trademarks are
material to its business or operations.
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<PAGE> 71
PROPERTIES AND FACILITIES
The following table sets forth information with respect to the Company's
offices and its studios and broadcast tower locations. Management believes that
the Company's properties are in good condition and are suitable for its
operations.
<TABLE>
<CAPTION>
LEASE
MARKET* PROPERTY OWNED/LEASED EXPIRATION
- ------------------------ -------------------- ------------ ---------------
<S> <C> <C> <C>
Miami, FL Studio/Offices Owned
WLVE-FM Tower Leased January 2000
WZTA-FM Tower Leased April 2007
WINZ-AM Tower Owned
WFTL-AM Tower Owned
Tampa, FL Studio/Offices Leased May 1998
WHNZ-AM Tower Owned
WHPT-FM Tower Owned
WNZE-AM Tower Owned
WSJT-FM Tower Owned
Orlando, FL Studio/Offices Leased March 2002
WJRR-FM Tower Leased April 2000
WMGF-FM Tower Leased February 2001
WWNZ-AM Tower Owned
WWZN-AM Tower Owned
Jacksonville, FL Studio/Offices Leased February 1996
WROO-FM Tower Leased March 1999
WPLA-FM Tower Owned Perpetual
WNZS-AM Tower Leased
WZNZ-AM Tower Owned
Cookeville, TN Studio/Offices Leased December 1998
WGSQ-FM Tower Leased 2017
WPTN-AM Tower Owned
Los Angeles, CA Studio/Offices Leased October 1998
Tower Leased June 2005
National Sales Leased July 1998
Office
Philadelphia, PA Studio Leased September 2000
Tower Owned
San Francisco, CA Studio/Offices Leased June 2005
Tower Leased June 2020
Boston, MA Studio/Offices Leased February 2006
Tower Leased June 2026
Atlanta, GA Studio/Offices Leased June 2001
Tower Leased October 2015
Houston, TX Studio/Offices Leased October 1998
KTFH-TV Tower Owned January 1997
K33DB Tower Leased
</TABLE>
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<PAGE> 72
<TABLE>
<CAPTION>
LEASE
MARKET* PROPERTY OWNED/LEASED EXPIRATION
- ------------------------ -------------------- ------------ ---------------
<S> <C> <C> <C>
Hartford, CT Studio Leased October 1999
Tower Leased October 2035
West Palm Beach, FL Studio/Offices Leased October 1998
Tower Owned
Headquarters Owned
</TABLE>
- ---------------
* Market of station (where applicable), which may differ from actual location.
LEGAL PROCEEDINGS
The Company is involved in litigation from time to time in the ordinary
course of its business. In the opinion of management, no material legal
proceedings are pending to which the Company, or any of its property, is
subject.
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<PAGE> 73
MANAGEMENT
DIRECTORS AND EXECUTIVE OFFICERS
Set forth below is certain information concerning the Company's directors
and executive officers.
<TABLE>
<CAPTION>
NAME AGE POSITION
- ---------------------------- --- -----------------------------------------------------------
<S> <C> <C>
Lowell W. Paxson............ 60 Chairman of the Board, Director and Chief Executive Officer
James B. Bocock............. 51 President, Chief Operating Officer and Director
Dean M. Goodman............. 48 President, Paxson Television
Jon Jay Hoker............... 56 President, Paxson Radio
Vice President, Treasurer, Chief Financial Officer and
Arthur D. Tek............... 46 Director
Anthony L. Morrison......... 34 Vice President, Secretary and General Counsel
Michael J. Marocco.......... 36 Director
John A. Kornreich........... 49 Director
J. Patrick Michaels, Jr..... 51 Director
S. William Scott............ 62 Director
</TABLE>
Lowell W. Paxson has been Chairman of the Board, Chief Executive Officer,
and a Director of the Company since its inception. Mr. Paxson was the creator,
co-founder and president of Home Shopping Network, Inc. ("HSN"), a position he
held from HSN's inception in May 1985 to December 1990. He remained a consultant
to HSN through 1994. Mr. Paxson was a pioneer in the home shopping concept on
radio beginning in 1977, which he later transferred to television through HSN.
Mr. Paxson has been involved in radio for over 40 years, during which time he
owned a majority interest in a number of radio stations. At HSN, in which he was
a major initial stockholder, he was actively involved in the acquisition and
operation of ten television stations which were later spun-off by HSN as Silver
King Communications, Inc. Mr. Paxson earned his Bachelor's degree from Syracuse
University in 1956. He served as a U.S. Army captain from 1956 to 1957. Mr.
Paxson served on the boards of a variety of charitable, civic and educational
institutions. He holds memberships in the National Cable Television Association
and the National Association of Broadcasters.
James B. Bocock has been President and Chief Operating Officer of the
Company since July 1991 and has been a Director since January 1994. Mr. Bocock
was Vice President -- Broadcast Affiliations for HSN from September 1986 to June
1991. While at HSN, Mr. Bocock negotiated HSN's acquisition of several full and
low power television stations. Mr. Bocock has been involved in radio and
television since 1962, including service as the general manager of a number of
radio stations throughout the United States.
Dean M. Goodman has been President of Paxson Television since January 1995.
Mr. Goodman joined the Company in 1993 and prior to becoming President of Paxson
Television,, was the General Manager of the Company's Miami radio group. Prior
to joining the Company in 1993, Mr. Goodman was Executive Vice President of the
television and radio broadcast group of Gilmore Broadcasting Corp. Prior to
joining Gilmore Broadcasting, Mr. Goodman was Vice President and General Manager
of Southwest Radio, Inc. and Community Service Broadcasters, Inc.
Jon Jay Hoker has been the President of Paxson Radio since January 1995.
From April 1994 to January 1995 he was President of Paxson Networks, Inc. Mr.
Hoker is a former radio group owner, having formed Hoker Broadcasting in 1985.
Prior to forming his own group, Mr. Hoker was a vice president with Belo
Broadcasting from 1982 to 1985. Mr. Hoker was responsible for overall operations
of radio stations in Dallas and Denver as well as overseeing all radio
acquisitions. Mr. Hoker began his broadcast career with ABC, where he worked
from 1971 to 1981.
Arthur D. Tek has been Vice President and Chief Financial Officer of the
Company since December 1992. He has been Treasurer and a Director of the Company
since January 1994. Prior to joining the Company, Mr. Tek was Chief Financial
Officer and Controller of Chase Communications, Inc., a television and radio
broadcasting firm, from February 1990 to December 1992. Mr. Tek was Vice
President -- Finance for SunGroup, Inc., a radio station group, from November
1986 to February 1990.
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<PAGE> 74
Anthony L. Morrison has been Vice President, Secretary and General Counsel
since February 1995. He was an attorney in the New York office of the law firm
of O'Melveny & Myers from June 1990 to February 1995, with a practice consisting
of banking, finance, and general corporate matters. Mr. Morrison was an attorney
with the New York office of White & Case from November 1987 to June 1990.
Michael J. Marocco has served as a Director since December 1993. He has
been the President of Sandler Media Group, Inc. since May 1989. Mr. Marocco has
been a general partner of Sandler Associates since 1993 and, through affiliates,
a general partner of the Sandler Partnerships (as defined herein). Mr. Marocco
is a principal of certain other investment partnerships that invest primarily in
companies in the communications industry. The Sandler Partnerships hold an
equity interest in the Company. See "Principal Stockholders." He was a Vice
President at Morgan Stanley & Co. Inc., serving in its communications group,
from 1984 to 1989. Mr. Marocco is also a director of PageAmerica, Inc.
John A. Kornreich has served as a Director since December 1993. He joined
Sandler Media Group, Inc. in 1988 and is a general partner of Sandler Associates
and, through affiliates, a general partner of the Sandler Partnerships and the
21st Century Communications Partnership. The Sandler Partnerships hold an equity
interest in the Company. See "Principal Stockholders." In 1986, Mr. Kornreich
formed J.K. Media, L.P., a private investment partnership funded primarily by
communications industry executives, for which Mr. Kornreich serves as the sole
general partner.
J. Patrick Michaels, Jr. has been serving as a Director since February
1995. Mr. Michaels founded and since 1973 has been the Chairman of the Board of
Directors and Chief Executive Officer of Communications Equity Associates, Inc.
("CEA"), a firm that specializes in providing financial services to a variety of
organizations in the media, communications and entertainment industries. During
1973, Mr. Michaels was Vice President of Cable Funding Corporation, a
specialized finance company lending to the cable television industry. From
October 1968 through December 1972, Mr. Michaels served as one of the original
employees and Vice President of TM Communications, the cable subsidiary of The
Times Mirror Company. Mr. Michaels holds equity interests in a number of media
companies, some of which may be deemed competitive with the Company. Mr.
Michaels is the Vice Chairman of the Board of Directors, Acting President and
Acting Chief Operating Officer of Video Jukebox Network, Inc.
S. William Scott has been serving as a Director since February 1995. From
1983 to 1987, Mr. Scott was Executive Vice President, Westinghouse Broadcasting
Television Group. From 1981 through the end of 1983, Mr. Scott served as
President and Chief Operating Officer of a Westinghouse Broadcasting/American
Broadcasting Company joint venture for cable television known as the Satellite
News Channels. Currently, Mr. Scott provides consulting services to various
media companies, including the Company.
All officers are elected until the next annual meeting of the Board of
Directors or until their respective successors are chosen and qualified.
Directors serve for a one-year term or until their successors are elected.
BOARD COMMITTEES
The Company's Board of Directors appointed a Compensation Committee and an
Audit Committee in February 1995. Neither committee existed in 1994. The
Compensation Committee consists of Lowell W. Paxson, Michael J. Marocco, and
John A. Kornreich. The Compensation Committee recommends to the Board both base
salary levels and bonuses for the Chief Executive Officer and the other officers
of the Company. The Compensation Committee also reviews and makes
recommendations with respect to the Company's existing and proposed compensation
plans, and serves as the committee responsible for administering the Company's
Stock Incentive Plan. Until February 1995, the Compensation Committee's
functions were exercised by the Board of Directors.
On February 1995, the Board appointed an Audit Committee consisting of
James B. Bocock, Michael J. Marocco, and John A. Kornreich. The duties of the
Audit Committee are to recommend to the Board of Directors the selection of
independent certified public accountants, to meet with the Company's independent
certified public accountants to review the scope and results of the audit, and
to consider various accounting and auditing matters related to the Company,
including its system of internal controls and financial management practices.
Until February 1995, the Audit Committee's functions were exercised by the Board
of Directors.
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<PAGE> 75
The Company does not have a nominating committee. This function is
performed by the Board of Directors.
All directors receive reimbursement of reasonable out-of-pocket expenses
incurred in connection with meetings of the Board of Directors. No director
receives separate compensation for services rendered as a director.
EXECUTIVE COMPENSATION
The following table sets forth the compensation received by the Company's
Chief Executive Officer and the four highest paid executive officers (the "Named
Executive Officers") for services rendered to the Company in 1993, 1994 and
1995.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG-TERM COMPENSATION
--------------------------------
ANNUAL COMPENSATION AWARDS
-------------------------------------- ---------------------- PAYOUTS
OTHER RESTRICTED SECURITIES -------
NAME AND ANNUAL STOCK UNDERLYING LTIP ALL OTHER
PRINCIPAL POSITION YEAR SALARY(A) BONUS COMPENSATION(B) AWARD(S) OPTIONS(#) PAYOUTS COMPENSATION
- --------------------------- ---- --------- -------- --------------- -------- ----------- ------- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Lowell W. Paxson........... 1995 $350,000 -- -- -- -- $-- $ --
Chairman and Chief 1994 -- -- -- -- -- -- --
Executive Officer(c) 1993 -- -- -- -- -- -- --
James B. Bocock............ 1995 225,000 -- $ 164,325 -- 850,000 -- --
President and Chief 1994 160,000 -- -- -- -- -- --
Operating Officer 1993 125,000 -- -- -- -- -- --
Dean M. Goodman............ 1995 200,000 $75,000 229,625 -- 223,361 -- --
President, Paxson 1994 183,750 207,057 -- -- -- -- --
Television 1993 126,562 53,665 -- -- -- -- --
John Jay Hoker(c)(d)....... 1995 200,000 50,000 182,688 -- 150,000 -- --
President, Paxson Radio 1994 140,000 51,043 -- -- -- -- --
1993 -- -- -- -- -- -- --
Arthur D. Tek.............. 1995 150,000 -- -- -- 150,000 -- 3,000(e)
Vice President, 1994 112,500 -- -- -- -- -- --
Treasurer, and Chief 1993 100,000 -- -- -- -- -- --
Financial Officer
</TABLE>
- ---------------
(a) Includes amount Named Executive Officer elected to defer pursuant to the
Company's Profit Sharing Plan, if any.
(b) Represents the difference between the price paid by the Named Executive
Officer upon the exercise of his options granted under the Stock Incentive
Plan and the fair market value of such securities at the time of exercise.
(c) Mr. Paxson has entered into a five and one-half year employment agreement
commencing June 30, 1994. See "Employment Agreements."
(d) Mr. Hoker was employed by the Company commencing in January 1994.
(e) Represents relocation allowance in excess of general allowance under
Company's relocation plan.
OPTION GRANTS IN 1995
OPTION GRANTS IN LAST FISCAL YEAR
Individual Grants
<TABLE>
<CAPTION>
POTENTIAL REALIZABLE VALUES
AT ASSUMED ANNUAL RATIOS
NUMBER OF SHARES OF OF STOCK PRICE APPRECIATION
CLASS A COMMON % OF TOTAL OPTIONS EXERCISE FOR OPTION TERM(B)
STOCK UNDERLYING GRANTED TO EMPLOYEES PRICE PER EXPIRATION -------------------------------------
NAME OPTIONS GRANTED(A) IN FISCAL YEAR SHARE DATE 0%(C) 5% 10%
- --------------------- ------------------- -------------------- --------- ---------- --------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Lowell W. Paxson..... -- -- -- -- -- -- --
James B. Bocock...... 850,000 45.6% 3.42 2/12/2005 5,593,000 $11,628,000 $21,343,500
Dean M. Goodman...... 223,361 11.9 3.42 2/12/2005 1,469,715 3,055,579 5,608,595
Jon Jay Hoker........ 150,000 8.0 3.42 2/12/2005 987,000 2,052,000 3,766,500
Arthur D. Tek........ 150,000 8.0 3.42 2/12/2005 987,000 2,052,000 3,766,500
</TABLE>
- ---------------
(a) All options granted to the Named Executive Officers were granted pursuant
to the Stock Incentive Plan. The options were granted pursuant to a five
years vesting schedule retroactive to the executive's date of employment.
(b) Potential realizable Value is based on the assumed growth rates for the
option term. The actual value, if any, an executive may realize will depend
on the excess of the stock price over the exercise price on the date the
option is exercised, therefore there is no assurance the value realized by
an executive will be at or near the amounts reflected in this table.
(c) Denotes realizable value at the date of grant which reflected a market
value of $10.00 per share.
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<PAGE> 76
AGGREGATE OPTION EXERCISES IN 1995
AGGREGATE OPTIONS EXERCISED IN 1995 AND DECEMBER 31, 1995 OPTION VALUES
<TABLE>
<CAPTION>
SHARES OF NUMBER OF SECURITIES
CLASS A UNDERLYING UNEXERCISED VALUE OF UNEXERCISED
COMMON OPTIONS AT IN-THE-MONEY OPTIONS
STOCK DECEMBER 31, 1995 AT DECEMBER 31, 1995(1)
ACQUIRED ON ---------------------------- ----------------------------
NAME EXERCISE(#) VALUE REALIZED($) EXERCISABLE NONEXERCISABLE EXERCISABLE NONEXERCISABLE
- --------------------------- ----------- ----------------- ----------- -------------- ----------- --------------
<S> <C> <C> <C> <C> <C> <C>
Lowell W. Paxson........... -- -- -- -- -- --
James B. Bocock............ 15,000 $ 164,325 665,000 170,000 $7,866,950 $2,011,100
Dean M. Goodman............ 20,000 229,625 113,361 90,000 1,341,061 1,064,700
Jon Jay Hoker.............. 15,000 182,688 15,000 120,000 177,450 1,419,600
Arthur D. Tek.............. -- -- 90,000 60,000 1,064,700 709,800
</TABLE>
- ---------------
(1) Based on the traded value of the stock on December 31, 1995.
STOCK INCENTIVE PLAN
The Company established the Company's Stock Incentive Plan (the "Stock
Incentive Plan") in November 1994 to provide incentives to officers and other
employees who contribute significantly to the strategic and long-term
performance objectives and growth of the Company. The Stock Incentive Plan is
administered by the Compensation Committee of the Company's Board of Directors.
The Stock Incentive Plan provides for the issuance of options, in the form
of incentive stock options or non-qualified stock options, to officers and
employees selected by the Compensation Committee. Under the Stock Incentive
Plan, options exercisable for an aggregate amount of 2,143,575 shares of Class A
Common Stock are available for issuance. The exercise price per share of Class A
Common Stock deliverable upon the exercise of each stock option is determined by
the Compensation Committee at the date the stock option is granted; provided,
however, that the exercise price of incentive stock options shall be the fair
market value of the Class A Common Stock at the date of grant. Stock options are
exercisable in whole or in part on such date or dates as are determined by the
Compensation Committee at the date of the grant. The Compensation Committee may,
in its sole discretion, accelerate the time at which any stock option may be
exercised. Stock options expire on the date or dates determined by the
Compensation Committee at the time the stock options are granted; provided,
however, that the term of the incentive stock options shall not exceed 10 years
after the date of grant. Holders of more than 10% of the combined voting power
of the capital stock of the Company may be granted stock options, provided that
the exercise price be 110% of the fair market value of Class A Common Stock as
of the date of the grant, and provided that the term of the stock option shall
not exceed five years after the date of the grant.
Stock options granted under the Stock Incentive Plan may be exercised by
the participant to whom granted or by his or her legal representative. If a
Stock Incentive Plan participant's employment is terminated for cause, each
stock option which has not been exercised shall terminate.
The Compensation Committee also has the discretion to award restricted
stock. Participants who receive restricted stock do not become 100% vested in
their restricted stock until five years after the effective date of the award.
During the restricted period prior to vesting, the participant may transfer the
restricted stock to a trust for the benefit of the participant or an immediate
family member, but may not otherwise sell, assign, transfer, give, or otherwise
dispose of, mortgage, pledge, or encumber such restricted stock. The
Compensation Committee may, in its discretion, provide that a participant shall
be vested in whole or with respect to any
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<PAGE> 77
portion of the participant's award not previously vested if the participant's
employment with the Company is terminated because of death, disability or
retirement.
PROFIT SHARING PLAN
The Company has a profit sharing plan under Section 401(k) of the Internal
Revenue Code (the "Profit Sharing Plan"). The Profit Sharing Plan provides that
employees of the Company must complete one year of service in order to be
eligible to defer salary and, if available, receive matching contributions under
the Section 401(k) portion of the Profit Sharing Plan. Participants may elect to
defer a specified percentage of their compensation into the Profit Sharing Plan
on a pre-tax basis. The Company may, at its sole discretion, make matching
contributions based on a percentage of deferred salary contributions at a
percentage rate to be determined by the Board of Directors of the Company, which
matching contributions may be in Company stock. In addition, the Company may
make supplemental profit sharing contributions in such amounts as the Board of
Directors of the Company may determine. Participants earn a vested right to
their profit sharing contribution in increasing amounts over a period of five
years. After five years of service, the participant's right to his or her profit
sharing contribution vests 100%. Thereafter the participant may receive a
distribution of the entire value of his or her account at age 55, 62 or 65 or
upon termination of employment, death or disability.
EMPLOYMENT AGREEMENTS
Mr. Paxson is employed as Chairman and Chief Executive Officer of the
Company under an employment agreement. The agreement provides that Mr. Paxson
will be employed for a five and one-half year period commencing on June 30,
1994, unless sooner terminated. Mr. Paxson began receiving an annual base salary
of $350,000 commencing on January 1, 1995. Mr. Paxson's salary will be $385,000
in 1996, $423,500 in 1997, $465,850 in 1998, and $500,000 in 1999. In addition
to the base salary, Mr. Paxson may receive an annual bonus at the discretion and
in an amount set by members of the Compensation Committee that are not employees
of the Company. Mr. Paxson's employment agreement is renewable for successive
one-year terms, subject to good faith negotiation of its terms. Under the terms
of the agreement, Mr. Paxson is eligible to participate in all employee benefit
plans and arrangements that are generally available to other senior executives,
and is entitled to vacation days in an amount determined annually by the Board
of Directors after good faith negotiation. Mr. Paxson is reimbursed for all
reasonable expenses incurred by him in the discharge of his duties, including
entertainment and travel. Mr. Paxson's employment agreement is terminable by the
Board of Directors before expiration for good cause, as defined in the
agreement, or by Mr. Paxson for good reason, as defined in the agreement. In the
event of Mr. Paxson's permanent disability or death, the Company will pay Mr.
Paxson, or his estate, as the case may be, his then existing salary for the
remaining term of the agreement, in the case of disability, or one year, in the
case of death.
In addition, in connection with the recent termination of Mr. Paxson's
consulting agreement with HSN, Mr. Paxson entered into a noncompete agreement
with the Company for a period ending on December 31, 1999 or the date of a
change of control (as defined with respect thereto) of the Company. See "Certain
Transactions -- Home Shopping Network, Inc."
CERTAIN TRANSACTIONS
Mr. Paxson is the Chairman and Chief Executive Officer of the Company.
Messrs. Marocco and Kornreich are directors of the Company and principals of the
Sandler Partnerships, which are significant stockholders of the Company. See
"Principal Stockholders." Mr. Michaels is a director of the Company and the
owner of CEA. Mr. Scott is a director of the Company and provides it certain
consulting services. Set forth below is a description of certain transactions
and relationships between Mr. Paxson, his affiliates and others and the Company,
between the Sandler Partnerships and the Company, CEA and the Company and Mr.
Scott and the Company.
WFCT-TV Transactions. On December 17, 1993, BBTC entered into an agreement
whereby CNI, a Section 501(c)(3) Florida non-profit corporation, to which Mr.
Paxson is a substantial contributor and of which he is a former director, would
make available to BBTC up to $3,120,000 for certain expenses in
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<PAGE> 78
connection with the redemption of a limited partnership interest in BBTC and the
construction of television station WFCT-TV, Bradenton, Florida (the "BBTC Loan
Agreement"). In connection with the loan, BBTC granted to CNI an irrevocable,
exclusive option to purchase the assets owned by BBTC that are used or useful in
the construction or operation of WFCT-TV, including the licenses issued by the
FCC for WFCT-TV, subject to the satisfaction of certain conditions and the
receipt of necessary regulatory approvals. CNI's option may be exercised,
subject to the prior approval of the FCC, at any time during the 10-year period
beginning on August 2, 1995. The price payable to BBTC upon exercise of the
option is $91,000 in cash and the forgiveness of all outstanding indebtedness
under the BBTC Loan Agreement, currently in an amount of $1,120,000. WFCT-TV
commenced broadcasting operations on August 1, 1994.
BBTC also entered into an agreement with Paxson Broadcasting of Tampa
Limited Partnership ("Paxson-Tampa"), an indirect, wholly-owned subsidiary of
the Company, as of December 17, 1993. Under this agreement, Paxson-Tampa
provides certain specified services relating to the construction and
installation of WFCT-TV facilities. Pursuant to a time brokerage agreement, BBTC
makes air-time available to CNI on WFCT-TV. In exchange for certain specified
payments, BBTC has broadcast programming and commercial announcements produced
by CNI.
In connection with the foregoing transactions, Mr. Paxson agreed to lend
CNI up to $3,120,000 to fund the loan to BBTC. On June 15, 1994, CNI and BBTC
revised the BBTC Loan Agreement to reduce the maximum amount of the loan from
$3,120,000 to $1,400,000, and to provide that BBTC lease rather than purchase
the equipment and related tangible personal property required to construct
WFCT-TV from Paxson Communications of Tampa-66, Inc. ("Paxson-66"), an indirect,
wholly-owned subsidiary of the Company.
Mr. Paxson assigned his rights and interests in the CNI loan to Paxson-66
in the amount of $1,120,000 (representing the then outstanding principal balance
owed by CNI), and CNI agreed that the maximum principal amount of the loan would
be reduced from $3,120,000 to $1,400,000. On June 15, 1994, CNI granted to
Paxson-66 the option to acquire the WFCT-TV assets for $191,000 from CNI after
CNI exercised its option to purchase such assets from BBTC. On June 15, 1994,
CNI granted Paxson-66 its rights and interests under the time brokerage
agreement to provide up to 12 hours per day of programming on WFCT-TV.
Worship Channel Studio. On January 1, 1993, Mr. Paxson agreed to lend CNI
up to $2,500,000 to fund CNI's acquisition of certain equipment and related
tangible property used in the production of television programming. Mr. Paxson
assigned his rights and interests under the loan to Paxson-66. In consideration
for such assignment, the Company delivered to Mr. Paxson a promissory note in
the principal amount of $2,500,000. In accordance with the terms of an agreement
dated as of June 15, 1994, CNI sold to Paxson-66 CNI's production assets in
consideration for the cancellation of the $2,500,000 promissory note. CNI and
Paxson-66 have also contracted effective as of August 1, 1994 for Paxson-66 to
lease CNI's television production and distribution facility to Paxson-66 for the
purpose of producing television programming for the Infomall TV Network.
Christian Network, Inc. The Company and CNI entered into an agreement in
May 1994 (the "CNI Agreement") under which the Company agreed that, if the tax
exempt status of CNI were jeopardized by virtue of its relationships with the
Company and its subsidiaries, the Company would take certain actions to try and
ensure that CNI's tax exempt status would no longer be so jeopardized. Such
steps could include, but not be limited to, rescission of one or more
transactions or payment of additional funds by the Company. The Company believes
that all of its agreements with CNI have been on terms at least as favorable to
CNI as it would obtain in arm's length transactions. The Company intends any
future agreements with CNI to be at least as favorable to CNI as CNI would
obtain in arm's length transactions. Accordingly, if the Company's activities
with CNI are consistent with the terms governing their relationship, the Company
believes that it will not be required to take any action under the CNI
Agreement. However, there can be no assurance that the Company will not be
required to take any actions under the CNI Agreement at a material cost to the
Company. In connection with the Company's time brokerage arrangements with
subsidiaries of CNI, the Company has made loans, currently in the amount of
$1,343,000 to CNI, and anticipates continuing to periodically advance additional
sums to CNI.
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<PAGE> 79
Agreements Among Stockholders. On December 15, 1993, in connection with
the issuance of the Company's Initial Senior Preferred Stock (as defined herein)
and warrants to purchase shares of Class A Common Stock and Class B Common
Stock, the Company entered into a stockholders agreement with two entities
controlled by Lowell W. Paxson (collectively, "Management Investors"), and the
four purchasers of the Initial Senior Preferred Stock (the "Sandler Group"),
three of which are affiliates of Michael J. Marocco and John A. Kornreich, two
directors of the Company. On December 22, 1994, in connection with the issuance
of the Junior Preferred Stock and Series B Preferred Stock (as defined herein),
the purchasers of the Junior Preferred Stock and warrants to purchase Class C
Common Stock, became parties to the stockholders agreement, which was amended
and restated (as so amended and restated, the "Stockholders Agreement"). In
addition, at the same time, the Sandler Group entered into an exchange agreement
and consent with the Company under which certain call rights with respect to
warrants held by the Sandler Group were terminated and the Sandler Group
exercised certain of their warrants and exchanged them for the Series B
Preferred Stock. The ownership interest of the Sandler Group in the Initial
Senior Preferred Stock and Series B Preferred Stock are identical. The rights of
the holders of Senior Preferred Stock and the Junior Preferred Stock differ in
certain respects under the Stockholders Agreement.
Under the terms of the Stockholders Agreement, each holder of Senior
Preferred Stock has redemption rights that can be triggered by a change of
control (as defined with respect thereto) of the Company or by certain
bankruptcy-related events. In addition, subject to certain limitations and only
after December 15, 1999, each holder of Senior Preferred Stock has the right to
require that any shares of Senior Preferred Stock held by such holder be
purchased for cash by the Company. Commencing on December 15, 2000, and on each
subsequent anniversary thereof, holders of Senior Preferred Stock owning certain
warrants have a limited right for a sixty-day period to require the Company to
purchase any shares of Class A Common Stock or Class B Common Stock issuable
upon exercise of such warrants (the "Warrant Shares") held by the holder.
If a holder of Senior Preferred Stock chooses to exercise its put or
similar rights with respect to Senior Preferred Stock or Warrant Shares and the
Company is unable to purchase all of the shares on the applicable purchase date
because of a material contractual obligation that prohibits such a repurchase,
the Company is required to take reasonable actions to enable the Company to
purchase the securities subject to the put notice, and is required to engage a
nationally recognized investment banking firm in order to advise and assist the
Company in connection with such actions.
The Stockholders Agreement also grants to each holder of Senior Preferred
Stock and each holder of Junior Preferred Stock the right of first refusal to
purchase, subject to certain conditions, its pro rata share of any new
securities the Company may issue. The Company must give each holder of Senior
Preferred Stock and each holder of Junior Preferred Stock written notice of the
Company's intention to issue certain new securities.
Pursuant to registration rights granted in the Stockholders Agreement, at
any time after December 15, 1997, any holder of Senior Preferred Stock may
require the Company to register with the Commission under and in accordance with
the Securities Act of all or part of its Registrable Shares. "Registrable
Shares" are defined to include shares issued or issuable as Warrant Shares (as
adjusted for certain stock splits, stock dividends, recapitalizations, and
similar events) and any securities issued to the holders of Senior Preferred
Stock pursuant to the rights of first refusal described above. The Company is
required to effectuate a demand registration only if it (i) has been requested
by or consented to by the holders of a majority of the registrable shares held
by the holders of Senior Preferred Stock, and (ii) represents at least 25% of
the aggregate registrable shares held by the participating holders of Senior
Preferred Stock. Generally, the holders of Senior Preferred Stock as a group are
entitled to two demand registrations.
If at any time the Company proposes to file on its own behalf or on behalf
of any holder or holders of any equity securities a registration statement under
the Securities Act (other than a registration statement on Form S-4, Form S-8,
or any successor form for the registration of securities to be offered pursuant
to an employee benefit plan), then the Company must give notice to the holders
of Senior Preferred Stock of their right to include Registrable Shares in a
"piggyback" registration. The Company has the right, upon prompt
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<PAGE> 80
written notice to each holder of Senior Preferred Stock delivering a piggyback
registration request, to abandon such registration statement.
In the case of a demand registration or a piggyback registration, the
Company will pay all registration expenses except underwriting discounts and
commissions and transfer taxes. In the case of a piggyback registration, each
holder of Senior Preferred Stock shall pay its pro rata share of the incremental
registration filing fees and shall pay all fees and disbursements of its counsel
(other than a single counsel for the holders of a majority of the shares being
registered by the holders of Senior Preferred Stock) incurred in connection
therewith.
The holders of Junior Preferred Stock and Management Investors have
registration rights substantially similar to the registration rights of the
holders of Senior Preferred Stock. The registration rights agreement allocates
registrable shares among participating holders of Senior Preferred Stock,
holders of Junior Preferred Stock, and Management Investors if less than all the
requested shares are to be included in a registration statement.
Airplane. During 1994, the Company purchased an aircraft for $250,000 from
a company controlled by Mr. Paxson. The Company believes that the terms of such
transaction were at least as favorable as it would have obtained in an arm's
length transaction with an unaffiliated third party.
Home Shopping Network, Inc. In connection with the departure in 1990 of
Mr. Paxson from HSN, he executed a consulting agreement containing various
restrictions upon activities by him that might be considered competitive with
HSN, including activities as an investor in competitive and other enterprises.
Although Mr. Paxson's consulting services to HSN terminated in 1994, certain of
the restrictions survived. As the Company's business has evolved, the possible
effect of the consulting agreement upon Mr. Paxson's role as the Company's chief
executive officer and controlling stockholder became unclear. The Company
considered it advisable to eliminate doubts concerning, among other matters, Mr.
Paxson's role as a chief executive officer and controlling stockholder as the
Company's business develops, and the scope of HSN's rights under the consulting
agreement. Accordingly, on August 25, 1995, the Company and Mr. Paxson agreed
with HSN to, among other things, terminate HSN's rights under the consulting
agreement in consideration of a payment to HSN by the Company of $1,200,000. In
conjunction with this transaction Mr. Paxson advanced $1,200,000 to the Company
in the form of a note bearing interest at 6%. The Company repaid the note in
October 1995. An intangible asset has been recorded for $1,200,000 which will be
amortized through maturity of the agreement.
Shortly before the transaction with HSN, Mr. Paxson agreed with the Company
that upon termination of HSN's rights under the consulting agreement, he will
not compete with the Company for a period ending on December 31, 1999 (the date
that the HSN consulting agreement would have otherwise terminated) or the date
of a change of control (as defined with respect thereto) of the Company.
Whitehead Media. The Company initially financed the acquisition by
Whitehead Media of each of WTVX-TV and WOAC-TV. Whitehead Media subsequently
obtained refinancing from Banque Paribas, an affiliate of a holder of the
Company's Junior Preferred Stock, and Canadian Imperial Bank of Commerce, an
affiliate of one of the Initial Purchasers, the proceeds of which were used to
repay the debt owed by Whitehead Media to the Company and will be used to fund
Whitehead Media's acquisition of WNGM-TV. The third party financing provided to
Whitehead Media is unconditionally guaranteed by Lowell W. Paxson, the chief
executive officer of the Company, and Second Crystal Diamond, Limited
Partnership, an affiliate controlled by Lowell W. Paxson and through which
Lowell W. Paxson beneficially owns and controls a substantial portion of Common
Stock. The Company is or will be, as the case may be, permitted to operate each
of stations WTVX-TV, WOAC-TV and WNGM-TV pursuant to time brokerage agreements
and, as a result of the third party financing to Whitehead Media, has an option
to purchase each of such stations, which options to purchase would otherwise be
prohibited under FCC rules and regulations because each of such stations serves
a market in which the Company has or will own another television station which
also serves the same market.
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<PAGE> 81
KLDT-TV. In connection with CNI securing the rights to acquire television
station KLDT-TV in Dallas, Texas and, prior to such acquisition, operate the
station pursuant to a time brokerage agreement, Lowell W. Paxson initially
loaned CNI $1,000,000 to make a deposit with respect to such acquisition, and
the Company guaranteed the obligations of CNI under the purchase agreements and
the time brokerage agreements. On January 9, 1996, the Company purchased such
note from Lowell W. Paxson at its face value.
Todd Communications, Inc. In 1993, Mr. Paxson contributed a demand note
receivable in the amount of $1,750,000 from Todd Communications, Inc., a company
which owns WFSJ-FM (St. Augustine, Florida) and is beneficially owned by a
member of Mr. Paxson's family. The note receivable accrues interest at the
short-term annual applicable federal rate prescribed by the Internal Revenue
Service with the balance of principal and interest due upon demand. Interest
income received during 1995 on the note aggregated $63,864. The Company also
performs limited sales support and administrative functions for Todd
Communications, Inc., under a joint sales agreement which is billed for efforts
expanded on terms at least as favorable as would be obtained in arm's length
transactions with unaffiliated third parties.
Communications Equity Associates, Inc. J. Patrick Michaels, Jr. is
Chairman of the Board and Chief Executive Officer of CEA. Prior to his becoming
a Director in February 1995, the Company engaged CEA as a financial advisor in
connection with the private placements of the Senior Preferred Stock and Junior
Preferred Stock and the Private Offering, as well as with the Company's various
lending relationships. In connection with such matters, management of the
Company believes that its arrangements with CEA have been, and will continue to
be, on terms comparable to those generally available from unaffiliated third
parties.
S. William Scott, Consulting. S. William Scott has an arrangement with the
Company pursuant to which he provides consulting services to the Company with
respect to the development of its news programming for its radio and television
broadcast business and its radio network business. During 1993, 1994 and 1995,
Mr. Scott was paid $84,000, $84,000 and $80,000, respectively, for such
services. Mr. Scott has been providing such services since prior to his becoming
a Director.
World Traveler Network. Effective January 1, 1996, Mr. Paxson purchased
from World Traveler Network, Inc., a wholly-owned subsidiary of the Company
("WTN"), certain assets of WTN. WTN's business was unprofitable and the Company
has determined to discontinue its operations. Mr. Paxson purchased all of the
assets of WTN except for its accounts receivable for $70,322 in cash, which
price was equal to the book value of such assets. WTN retained its accounts
receivable and accounts payable.
South Carolina Radio Network. Effective January 1, 1996, Mr. Paxson
purchased from the Company certain assets of the Company's South Carolina Radio
Network, an unprofitable business segment which the Company had determined to
discontinue. Mr. Paxson purchased all of the assets of the South Carolina Radio
Network other than cash and accounts receivable for $45,413 in cash paid to the
Company, which price was equal to the book value of such assets. The Company
retained the cash, accounts receivable and accounts payable of the South
Carolina Radio Network operation.
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PRINCIPAL STOCKHOLDERS
The following table sets forth, as of January 15, 1996, information as to
the Company's stock beneficially owned by (i) each director of the Company, (ii)
each executive officer named in the Summary Compensation Table, (iii) all
directors and executive officers of the Company as a group, and (iv) any person
who is known by the Company to be the beneficial owner of more than 5% of the
outstanding shares of Common Stock.
<TABLE>
<CAPTION>
CLASS A CLASS B PERCENTAGE OF
COMMON STOCK COMMON STOCK ECONOMIC PERCENTAGE OF
NAME OF STOCKHOLDERS, --------------------------- -------------------------- OWNERSHIP OF VOTING POWER
DIRECTORS PERCENT OF PERCENT OF ALL COMMON OF ALL COMMON
AND EXECUTIVE OFFICERS(A) SHARES(B) CLASS A SHARES SHARES(B) CLASS B SHARES STOCK STOCK
- ----------------------------- ---------- -------------- --------- -------------- -------------- --------------
<S> <C> <C> <C> <C> <C> <C>
Lowell W. Paxson(c).......... 24,256,555 92.5% 8,311,639 100% 94.5% 98.3%
James B. Bocock(d)........... 665,000 2.5% -- -- * *
Dean M. Goodman(d)........... 143,361 * -- -- * *
Jon Jay Hoker(e)............. 45,850 * -- -- * *
Arthur D. Tek(d)............. 90,000 * -- -- * *
Michael J.
Marocco(f)(g)(h)........... 2,419,252 8.4% 806,417 8.8% 8.6% 8.9%
John A. Kornreich(f)(g)(h)... 2,419,252 8.4% 806,417 8.8% 8.6% 8.9%
Sandler Partnerships(g)(h)... 2,419,252 8.4% 806,417 8.8% 8.6% 8.9%
J. Patrick Michaels,
Jr.(i)..................... 200,000 * -- -- * *
S. William Scott............. -- -- -- -- -- --
All directors and executive
officers as a group(j)..... 27,827,018 94.0% 9,118,056 100% 95.6% 98.6%
</TABLE>
- ---------------
* Less than one percent.
(a) The address of all persons in this table, unless otherwise specified, is c/o
Paxson Communications Corporation, 601 Clearwater Park Road, West Palm
Beach, Florida 33401.
(b) As used in this table, "beneficial ownership" means sole or shared power to
vote or direct the voting of a security, or the sole or shared investment
power with respect to a security (i.e., the power to dispose, or direct the
disposition, of a security). A person is deemed as of any date to have
"beneficial ownership" of any security that such person has a right to
acquire within 60 days after such date. For purposes of computing the
percentage of outstanding shares held by each person named above, any
security that such person has the right to acquire within 60 days of the
date of calculation is deemed to be outstanding, but is not deemed to be
outstanding for purposes of computing the percentage ownership of any other
person. This table does not include 4,853,629.5 shares of non-voting Class C
Common Stock. In addition, for purposes of this table, "beneficial
ownership" does not include the number of shares of Class A Common Stock
issuable upon conversion of Class C Common Stock even though such shares are
convertible under certain circumstances into shares of Class A Common Stock.
(c) Mr. Paxson is the beneficial owner of all of his Class A Common Stock and
all of his Class B Common Stock through his control of Second Crystal
Diamond, L.P. and Paxson Enterprises, Inc.
(d) Reflects vested options under the Company's Stock Incentive Plan.
(e) 45,000 of Mr. Hoker's shares reflect vested options under the Company's
Stock Incentive Plan.
(f) Messrs. Marocco and Kornreich do not own any shares of the Company's Common
Stock. Because of their interests in the general partner of Sandler
Mezzanine Partners, L.P., Sandler Mezzanine Foreign Partners, L.P. and
Sandler Mezzanine T-E Partners, L.P. (the "Sandler Partnerships"), Messrs.
Marocco and Kornreich may be deemed to possess or share beneficial ownership
of the shares of Senior Preferred Stock and Common Stock subject to warrants
held by the Sandler Partnership owned by the Sandler Partnerships. Messrs.
Marocco and Kornreich are also stockholders, directors and officers of
certain corporations that serve as general partners of Sandler Mezzanine
General Partnership, which is the general partner of each of the Sandler
Partnerships. The Sandler Partnership's ownership includes 2,419,252 shares
of Class A Common Stock subject to warrants and 806,417 shares of Class B
Common Stock subject to warrants.
(g) Address is c/o Sandler Media Group, Inc., 767 Fifth Avenue, New York, NY
10281.
(h) Represents shares of Class A Common Stock and Class B Common Stock subject
to warrants held by the Sandler Partnerships.
(i) Address is 101 East Kennedy Boulevard, Suite 3300, Tampa, FL 33602. Mr.
Michaels does not own any shares of Common Stock directly. Because of Mr.
Michaels' interest in certain trusts and a partnership, he is the beneficial
owner of such Class A Common Stock. Mr. Michaels disclaims beneficial
ownership in such Class A Common Stock, except to the extent of his
pecuniary interests in such trusts and partnerships.
(j) Includes 918,272 shares subject to vested options under the Company's Stock
Incentive Plan and shares described in footnote (h).
In addition to its Common Stock, the Company's capital stock consists of
(i) Senior Preferred Stock held by National Union Fire Insurance Company of
Pittsburgh, PA and the three Sandler Partnerships and (ii) Junior Preferred
Stock held by BT Investment Partners, Inc., First Union Corporation of Virginia,
Paribas North America, Inc. and Union Venture Corporation. See "Description of
the Capital Stock."
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DESCRIPTION OF NEW CREDIT FACILITY
On December 19, 1995 the Company entered into a credit agreement and
related documents (the "New Credit Facility Loan Documents") with certain
lenders named therein and Union Bank, as agent on behalf of the lenders, which
established a senior secured revolving line of credit in an aggregate principal
amount of $100 million as the New Credit Facility. The following summary of the
New Credit Facility is based upon the terms of the New Credit Facility Loan
Documents. The following summary does not purport to be complete and is subject
to and qualified in its entirety by reference to the terms and conditions of the
New Credit Facility Loan Documents.
The aggregate available commitment under the New Credit Facility will be
reduced incrementally on a quarterly basis, beginning December 31, 1997. The New
Credit Facility matures on June 30, 2002, unless previously terminated. Prior to
making any advance under the New Credit Facility, the Borrower will be required
to be in compliance with all financial and operating covenants. Certain
acquisitions to be funded under the New Credit Facility are expected to require
approval by 66 2/3% of the lenders thereunder. The lenders under the New Credit
Facility will be paid a commitment fee at the rate of 0.5% per annum on unused
commitments, payable quarterly. In addition, the agent thereunder will receive
other customary fees.
Borrowings under the New Credit Facility will bear interest at a rate equal
to, at the option of the Company, either (i) the Base Rate (which is defined as
the higher of 1/2% plus the Federal Funds rate or the prime rate most recently
announced by the agent under the New Credit Facility), or (ii) LIBOR, in each
case plus an applicable margin determined by reference to the ratio of total
debt to cash flow of the Company.
The obligations of the Company under the New Credit Facility will be
unconditionally guaranteed, jointly and severally by all material subsidiaries
of the Company. The obligations of the Company and such guarantors under the New
Credit Facility will be secured primarily by a first priority pledge of the
stock of all material subsidiaries of the Company and a first priority lien on
all the assets of the Company and such guarantors, with the exception of certain
real estate assets, which will be subject to a negative pledge. The Lenders have
the right to require the Company and Guarantors to secure their obligations
under the New Credit Facility by granting a first priority lien on all real
estate assets of the Company and Guarantors.
The New Credit Facility contains customary conditions precedent to
borrowings thereunder, including, among other things, no adverse change in the
business, assets, operations, prospects, conditions, (financial or otherwise),
or material agreements of the Company and its subsidiaries, taken as a whole.
The New Credit Facility will also contain customary representations and
warranties and indemnities.
The New Credit Facility contains, among other things, covenants restricting
the ability of the Company and its subsidiaries to dispose of assets, pay
dividends, repurchase or redeem capital stock and indebtedness, create liens,
make capital expenditures, make certain investments or acquisitions, enter into
transactions with affiliates and otherwise restrict corporate activities. The
New Credit Facility also contains the following financial covenants: maximum
ratio of total debt to operating cash flow; minimum permitted interest coverage
and a minimum permitted fixed charge coverage ratio.
Events of default under the New Credit Facility include those usual and
customary for transactions of this type, including, among other things, default
in the payment of principal or interest in respect of material amounts of
indebtedness of the Company or its subsidiaries, any non-payment default on such
indebtedness and a change of control, any material breach of the covenants or
representations and warranties included in the New Credit Facility and related
documents, the institution of any bankruptcy proceedings and the failure of any
security agreement related to the New Credit Facility or lien granted thereunder
to be valid and enforceable. Upon the occurrence and continuance of an event of
default under the New Credit Facility, the lenders may terminate their
commitments to lend and declare the then outstanding loans due and payable.
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<PAGE> 84
DESCRIPTION OF THE NOTES
The form of the New Notes and the Original Notes will be identical in all
material respects except that the New Notes will have been registered under the
Securities Act and, therefore, will not bear legends restricting their transfer.
The Original Notes were, and the New Notes will be issued under the Indenture,
dated as of September 28, 1995 (the "Indenture") among the Company and The Bank
of New York, as trustee (the "Trustee"). The terms of the New Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), as
in effect on the date of the Indenture. The New Notes are subject to all such
terms, and holders of the New Notes are referred to the Indenture and the Act
for a statement of them.
The following is a summary of the material terms and provisions of the
Notes. This summary does not purport to be a complete description of the Notes
and is subject to the detailed provisions of, and qualified in its entirety by
reference to, the Notes and the Indenture (including the definitions contained
therein). A copy of the Indenture has been filed as an exhibit to the
Registration Statement of which this Prospectus is a part. Definitions relating
to certain capitalized terms are set forth under "-- Certain Definitions" and
throughout this description. Capitalized terms that are used but not otherwise
defined herein have the meanings assigned to them in the Indenture and such
definitions are incorporated herein by reference.
GENERAL
The Notes are limited in aggregate principal amount to $230,000,000. The
Notes are general unsecured obligations of the Company, subordinated in right of
payment to Senior Indebtedness of the Company and senior in right of payment to
any current or future indebtedness of the Company subordinated thereto.
The Notes are fully and unconditionally guaranteed, on a senior
subordinated basis, as to payment of principal, premium, if any, and interest,
jointly and severally, by the Guarantors (together with each other Restricted
Subsidiary which guarantees payment of the Notes pursuant to the covenant
described under "Limitation on Creation of Subsidiaries").
MATURITY, INTEREST AND PRINCIPAL
The Notes will mature on October 1, 2002. The Notes bear interest at a rate
of 11 5/8% per annum from the date of original issuance until maturity. Interest
is payable semi-annually in arrears on April 1 and October 1, commencing April
1, 1996, to holders of record of the Notes at the close of business on the
immediately preceding March 15, and September 15, respectively. The interest
rate on the Notes is subject to increase, and such Additional Interest is
payable on the payment dates set forth above, in certain circumstances, if the
Notes (or other securities substantially similar to the Notes) are not
registered with the Commission within the prescribed time periods. See "Exchange
Offer; Registration Rights."
REGISTRATION RIGHTS; ADDITIONAL INTEREST
The Company and the Guarantors entered into the Registration Rights
Agreement with the Initial Purchasers pursuant to which they have agreed, for
the benefit of the Holders of the Original Notes, that they will, at their cost,
(i) no later than October 28, 1995 (30 days after the date of original issuance
of the Original Notes), file a registration statement (the "Exchange Offer
Registration Statement") with the Commission with respect to a registered offer
to exchange the Original Notes for the New Notes, which will have terms
substantially identical in all material respects to the Original Notes (except
that the New Notes will not contain terms with respect to transfer
restrictions), and (ii) use their best efforts to cause the Exchange Offer
Registration Statement to be declared effective under the Securities Act no
later than February 25, 1996 (150 days after the date of original issuance of
the Original Notes). Upon this Exchange Offer Registration Statement being
declared effective, the Company will offer the New Notes in exchange for
surrender of the Original Notes. The Company will keep the Exchange Offer open
for not less than 30 days (or longer if required by applicable law) after the
date notice of the Exchange Offer is mailed to the Holders of the Original
Notes. For each Original Note surrendered to the Company pursuant to the
Exchange Offer, the Holder of such Original Note will receive a New Note having
a principal amount at maturity equal to that of
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<PAGE> 85
the surrendered Original Note. Interest for federal income tax purposes on the
New Notes will accrue from September 28, 1995. Under existing Commission
interpretations, the New Notes would in general be freely transferable after the
Exchange Offer without further registration under the Securities Act; provided,
that in the case of Restricted Holders (as defined herein), a prospectus meeting
the requirements of the Securities Act be delivered as required. The Company and
the Guarantors have agreed for a period of 180 days after consummation of the
Exchange Offer to make available a prospectus meeting the requirements of the
Securities Act to any broker-dealer for use in connection with any resale of any
such New Notes acquired as described below. A broker-dealer that delivers such a
prospectus to purchasers in connection with such resales will be subject to
certain of the civil liability provisions under the Securities Act, and will be
bound by the provisions of the Registration Rights Agreement (including certain
indemnification rights and obligations).
Each Holder of Original Notes that wishes to exchange such Original Notes
for New Notes in the Exchange Offer is required to make certain representations,
including representations that (i) any New Notes to be received by it will be
acquired in the ordinary course of its business, (ii) it has no arrangement or
understanding with any person to participate in the distribution of the New
Notes and (iii) it is not an "affiliate," as defined in Rule 405 of the
Securities Act, of the Company or any of the Guarantors, or if it is an
affiliate, it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable.
If the Holder is not a broker-dealer, it is required to represent that it
is not engaged in, and does not intend to engage in, the distribution of the New
Notes. If the Holder is a broker-dealer that will receive New Notes for its own
account in exchange for Original Notes that were acquired as a result of
market-making activities or other trading activities, it will be required to
acknowledge that it will deliver a prospectus in connection with any resale of
such New Notes.
If applicable interpretations of the staff of the Commission do not permit
the Company to effect the Exchange Offer, or if for any other reason the
Exchange Offer is not consummated within 180 days of the date of the
Registration Rights Agreement, the Company and the Guarantors will, at their own
expense, (a) as promptly as practicable, file a shelf registration statement
covering resales of the Original Notes (the "Shelf Registration Statement"), (b)
use their respective best efforts to cause the Shelf Registration Statement to
be declared effective under the Securities Act and (c) use their respective best
efforts to keep effective the Shelf Registration Statement until three years
after its effective date. The Company will, with respect to any Shelf
Registration Statement, provide to each Holder of the Original Notes copies of
the prospectus that are a part of the Shelf Registration Statement, notify each
such Holder when the Shelf Registration Statement for the Original Notes has
become effective and take certain other actions as are required to permit
unrestricted resales of the Original Notes. A Holder of the Original Notes that
sells such Notes pursuant to the Shelf Registration Statement generally would be
required to be named as a selling securityholder in the related prospectus and
to deliver a prospectus to purchasers, will be subject to certain of the civil
liability provisions under the Securities Act in connection with such sales and
will be bound by the provisions of the Registration Rights Agreement that are
applicable to such a Holder (including certain indemnification rights and
obligations).
If the Company and the Guarantors fail to comply with the above provisions
or if such registration statement fails to become effective, then, as liquidated
damages, additional interest shall become payable in respect of the Original
Notes as follows:
if (i) the Exchange Offer Registration Statement or Shelf Registration
Statement is not filed by October 28, 1995 (30 days after the original
issuance of the Original Notes);
(ii) an Exchange Offer Registration Statement or Shelf Registration
Statement is not declared effective by February 25, 1996 (150 days after
the original issuance of the Original Notes); and
(iii) either (A) the Company has not exchanged the New Notes for all
Original Notes validly tendered in accordance with the terms of the
Exchange Offer on or prior to 60 days after the date on which the Exchange
Offer Registration Statement was declared effective or (B) the Exchange
Offer Registration Statement ceases to be effective at any time prior to
the time that the Exchange Offer is consummated or (C) if applicable, the
Shelf Registration Statement has been declared effective and
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<PAGE> 86
such Shelf Registration Statement ceases to be effective at any time prior
to the third anniversary of its effective date;
(each such event referred to in clauses (i) through (iii) above is a
"Registration Default"), the sole remedy available to Holders of the Original
Notes will be the immediate assessment of additional interest ("Additional
Interest") as follows: the per annum interest rate on the Original Notes will
increase by 50 basis points; and the per annum interest rate on the Original
Notes will increase by an additional 25 basis points for each subsequent 90-day
period during which the Registration Default remains uncured, up to a maximum
additional interest rate of 200 basis points per annum in excess of the interest
rate originally borne by the Original Notes. All Additional Interest will be
payable to Holders of the Original Notes in cash on each April 1 and October 1,
commencing with the first such date occurring after any such Additional Interest
commences to accrue, until such Registration Default is cured. After the date on
which such Registration Default is cured, the interest rate on the Original
Notes will revert to the interest rate originally borne by the Original Notes.
The summary herein of certain provisions of the Registration Rights
Agreement does not purport to be complete and is subject to, and is qualified in
its entirety by reference to, all the provisions of the Registration Rights
Agreement, a copy of which is filed as an exhibit to the Registration Statement.
OPTIONAL REDEMPTION
The Notes are redeemable at the option of the Company, in whole or in part,
at any time on or after October 1, 1999 at the following redemption prices
(expressed as a percentage of principal amount), together, in each case, with
accrued and unpaid interest to the redemption date, if redeemed during the
twelve-month period beginning on October 1, of each year listed below:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
----- ----------
<S> <C>
1999...................................................................... 104%
2000...................................................................... 102%
2001 and thereafter....................................................... 100%
</TABLE>
Notwithstanding the foregoing, the Company may redeem in the aggregate up
to 25% of the original principal amount of Notes at any time and from time to
time prior to October 1, 1998 at a redemption price equal to 110% of the
aggregate principal amount so redeemed, plus accrued interest to the redemption
date with the Net Proceeds of either or both of one or more Public Equity
Offerings or Major Asset Sales; provided, that at least $172,500,000 aggregate
principal amount of Notes remain outstanding immediately after the occurrence of
any such redemption pursuant to a Public Equity Offering or a Major Asset Sale
and that any such redemption occurs within 90 days following the closing of any
such Public Equity Offering or Major Asset Sale.
In the event of redemption of fewer than all of the Notes, the Trustee
shall select by lot or in such other manner as it shall deem fair and equitable
the Notes to be redeemed. The Notes will be redeemable in whole or in part upon
not less than 30 nor more than 60 days' prior written notice, mailed by first
class mail to a holder's last address as it shall appear on the register
maintained by the Registrar of the Notes. On and after any redemption date,
interest will cease to accrue on the Notes or portions thereof called for
redemption unless the Company shall fail to redeem any such Note.
SUBORDINATION
The indebtedness represented by the Notes is, to the extent and in the
manner provided in the Indenture, subordinated in right of payment to the prior
indefeasible payment and satisfaction in full in cash of all existing and future
Senior Indebtedness of the Company. As of June 30, 1995, after giving pro forma
effect to the application of the net proceeds of the Private Offering, the
principal amount of outstanding Senior Indebtedness of the Company, on a
consolidated basis, would have been approximately $41.9 million.
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<PAGE> 87
In the event of any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, arrangement, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, whether voluntary or involuntary, or any liquidation,
dissolution or other winding-up of the Company, whether voluntary or involuntary
and whether or not involving insolvency or bankruptcy, or any general assignment
for the benefit of creditors or other marshalling of assets or liabilities of
the Company (except in connection with the merger or consolidation of the
Company or its liquidation or dissolution following the transfer of
substantially all of its assets, upon the terms and conditions permitted under
the circumstances described under "Mergers and Consolidations") (all of the
foregoing referred to herein individually as a "Bankruptcy Proceeding" and
collectively as "Bankruptcy Proceedings"), the holders of Senior Indebtedness of
the Company will be entitled to receive payment and satisfaction in full in cash
of all amounts due on or in respect of all Senior Indebtedness of the Company
before the holders of the Notes are entitled to receive or retain any payment or
distribution of any kind on account of the Notes. In the event that,
notwithstanding the foregoing, the Trustee or any holder of Notes receives any
payment or distribution of assets of the Company of any kind, whether in cash,
property or securities, including, without limitation, by way of set-off or
otherwise, in respect of the Notes before all Senior Indebtedness of the Company
is paid and satisfied in full in cash, then such payment or distribution will be
held by the recipient in trust for the benefit of holders of Senior Indebtedness
and will be immediately paid over or delivered to the holders of Senior
Indebtedness or their representative or representatives to the extent necessary
to make payment in full of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution, or provision therefor,
to or for the holders of Senior Indebtedness. By reason of such subordination,
in the event of liquidation or insolvency, creditors of the Company who are
holders of Senior Indebtedness may recover more, ratably, than other creditors
of the Company, and creditors of the Company who are not holders of Senior
Indebtedness or of the Notes may recover more, ratably, than the holders of the
Notes.
No payment or distribution of any assets or securities of the Company or
any Restricted Subsidiary of any kind or character (including, without
limitation, cash, property and any payment or distribution which may be payable
or deliverable by reason of the payment of any other Indebtedness of the Company
being subordinated to the payment of the Notes by the Company) may be made by or
on behalf of the Company or any Restricted Subsidiary, including, without
limitation, by way of set-off or otherwise, for or on account of the Notes, or
for or on account of the purchase, redemption or other acquisition of the Notes,
and neither the Trustee nor any holder or owner of any Notes shall take or
receive from the Company or any Restricted Subsidiary, directly or indirectly in
any manner, payment in respect of all or any portion of Notes following the
delivery by the representative of the holders of Designated Senior Indebtedness
(the "Representative") to the Trustee of written notice of the occurrence of a
Payment Default, and in any such event, such prohibition shall continue until
such Payment Default is cured, waived in writing or ceases to exist. At such
time as the prohibition set forth in the preceding sentence shall no longer be
in effect, subject to the provisions of the following paragraph, the Company
shall resume making any and all required payments in respect of the Notes,
including any missed payments.
Upon the occurrence of a Non-Payment Event of Default on Designated Senior
Indebtedness, no payment or distribution of any assets of the Company of any
kind may be made by the Company, including, without limitation, by way of
set-off or otherwise, on account of the Notes, or on account of the purchase or
redemption or other acquisition of Notes, for a period (a "Payment Blockage
Period") commencing on the date of receipt by the Trustee of written notice from
the Representative of such Non-Payment Event of Default unless and until
(subject to any blockage of payments that may then be in effect under the
preceding paragraph) the earliest of (x) more than 179 days shall have elapsed
since receipt of such written notice by the Trustee, (y) such Non-Payment Event
of Default shall have been cured or waived in writing or shall have ceased to
exist or such Designated Senior Indebtedness shall have been paid in full or (z)
such Payment Blockage Period shall have been terminated by written notice to the
Company or the Trustee from such Representative, after which, in the case of
clause (x), (y) or (z), the Company shall resume making any and all required
payments in respect of the Notes, including any missed payments. Notwithstanding
any other provision of the Indenture, in no event shall a Payment Blockage
Period commenced in accordance with the provisions of the Indenture described in
this paragraph extend beyond 179 days from the date of the receipt by
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<PAGE> 88
the Trustee of the notice referred to above (such period, an "Initial Blockage
Period"). Any number of additional Payment Blockage Periods may be commenced
during the Initial Blockage Period; provided, however, that no such additional
Payment Blockage Period shall extend beyond the Initial Blockage Period. After
the expiration of the Initial Blockage Period, no Payment Blockage Period may be
commenced until at least 180 consecutive days have elapsed from the last day of
the Initial Blockage Period. Notwithstanding any other provision of the
Indenture, no Non-Payment Event of Default with respect to Designated Senior
Indebtedness which existed or was continuing on the date of the commencement of
any Payment Blockage Period initiated by the Representative shall be, or be
made, the basis for the commencement of a second Payment Blockage Period
initiated by the Representative, whether or not within the Initial Blockage
Period, unless such Non-Payment Event of Default shall have been waived for a
period of not less than 90 consecutive days.
Each Guarantee is, to the extent set forth in the Indenture, subordinated
in right of payment to the prior payment in full of all Senior Indebtedness of
the respective Guarantor, including obligations of such Guarantor with respect
to the New Credit Facility (including any guarantee thereof), and is subject to
the rights of holders of Designated Senior Indebtedness of such Guarantor to
initiate blockage periods, upon terms substantially comparable to the
subordination of the Notes to all Senior Indebtedness of the Company.
If the Company or any Guarantor fails to make any payment on the Notes or
any Guarantee, as the case may be, when due or within any applicable grace
period, whether or not on account of payment blockage provisions, such failure
would constitute an Event of Default under the Indenture and would enable the
holders of the Notes to accelerate the maturity thereof. See "-- Events of
Default."
A Holder of Notes by his acceptance of Notes agrees to be bound by such
provisions and authorizes and expressly directs the Trustee, on his behalf, to
take such action as may be necessary or appropriate to effectuate the
subordination provided for in the Indenture and appoints the Trustee his
attorney-in-fact for such purpose.
CERTAIN COVENANTS
The Indenture contains, among others, the following covenants. Except as
otherwise specified, all of the covenants described below appear in the
Indenture.
Limitation on Additional Indebtedness
The Company will not, and will not permit any Restricted Subsidiary of the
Company to, directly or indirectly, incur (as defined) any Indebtedness
(including Acquired Indebtedness) unless (a) after giving effect to the
incurrence of such Indebtedness and the receipt and application of the proceeds
thereof, the ratio of the Company's total Indebtedness to the Company's Adjusted
EBITDA (determined on a pro forma basis for the last four fiscal quarters of the
Company for which financial statements are available at the date of
determination) is less than 7.0 to 1 if the Indebtedness is incurred prior to
the first anniversary of the Issue Date, 6.5 to 1 if the Indebtedness is
incurred after the first and before the second anniversary of the Issue Date and
5.75 to 1 if the Indebtedness is incurred thereafter; provided, however, that if
the Indebtedness which is the subject of a determination under this provision is
Acquired Indebtedness, or Indebtedness incurred in connection with the
simultaneous acquisition of any Person, business, property or assets, then such
ratio shall be determined by giving effect to (on a pro forma basis, as if the
transaction had occurred at the beginning of the four-quarter period) to both
the incurrence or assumption of such Acquired Indebtedness or such other
Indebtedness by the Company and the inclusion in the Company's Adjusted EBITDA
of the EBITDA of the acquired Person, business, property or assets; and,
provided, further, that in the event the EBITDA of the acquired Person,
business, property or assets reflects an operating loss, no amounts shall be
deducted from the Company's Adjusted EBITDA in making the determinations
described above and (b) no Default or Event of Default shall have occurred and
be continuing at the time or as a consequence of the incurrence of such
Indebtedness.
Notwithstanding the foregoing, the Company and its Restricted Subsidiaries
may incur Permitted Indebtedness; provided, that the Company will not incur any
Permitted Indebtedness that ranks junior in right
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<PAGE> 89
of payment to the Notes that has a maturity or mandatory sinking fund payment
prior to the maturity of the Notes.
Limitation on Restricted Payments
The Company will not make, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, make, any Restricted Payment, unless:
(a) no Default or Event of Default shall have occurred and be
continuing at the time of or immediately after giving effect to such
Restricted Payment;
(b) immediately after giving pro forma effect to such Restricted
Payment, the Company could incur $1.00 of additional Indebtedness (other
than Permitted Indebtedness) under the covenant set forth under
"-- Limitation on Additional Indebtedness"; and
(c) immediately after giving effect to such Restricted Payment, the
aggregate of all Restricted Payments declared or made after the Issue Date
does not exceed the sum of (1) 100% of the Company's Cumulative EBITDA
minus 1.4 times the Company's Cumulative Consolidated Interest Expense, and
(2) 100% of the aggregate Net Proceeds and the fair market value of
securities or other property received by the Company from the issue or
sale, after the Issue Date, of Capital Stock (other than Disqualified
Capital Stock or Capital Stock of the Company issued to any Subsidiary of
the Company) of the Company or any Indebtedness or other securities of the
Company convertible into or exercisable or exchangeable for Capital Stock
(other than Disqualified Capital Stock) of the Company which has been so
converted or exercised or exchanged, as the case may be. For purposes of
determining under this clause (c) the amount expended for Restricted
Payments, cash distributed shall be valued at the face amount thereof and
property other than cash shall be valued at its fair market value
determined, in good faith, by the Company's board of directors.
The provisions of this covenant shall not prohibit: (i) the payment of any
distribution within 60 days after the date of declaration thereof, if at such
date of declaration such payment would comply with the provisions of the
Indenture; (ii) the retirement of any shares of Capital Stock of the Company or
subordinated Indebtedness by conversion into, or by or in exchange for, shares
of Capital Stock (other than Disqualified Capital Stock), or out of, the Net
Proceeds of the substantially concurrent sale (other than to a Subsidiary of the
Company) of other shares of Capital Stock of the Company (other than
Disqualified Capital Stock); (iii) the redemption or retirement of Indebtedness
of the Company subordinated to the Notes in exchange for, by conversion into, or
out of the Net Proceeds of, a substantially concurrent sale or incurrence of
Indebtedness (other than any Indebtedness owed to a Subsidiary) of the Company
that is contractually subordinated in right of payment to the Notes to at least
the same extent as the subordinated Indebtedness being redeemed or retired; (iv)
the retirement of any shares of Disqualified Capital Stock by conversion into,
or by exchange for, shares of Disqualified Capital Stock, or out of the Net
Proceeds of the substantially concurrent sale (other than to a Subsidiary of the
Company) of other shares of Disqualified Capital Stock; (v) as long as no
Default or Event of Default shall have occurred and be continuing, the
retirement of the Senior Preferred Stock in accordance with the mandatory
redemption and put option provisions as in effect on the Issue Date in the
applicable amended and restated certificates of designation; provided, however,
that any amounts paid by the Company with respect to the Senior Preferred Stock
pursuant to such mandatory redemption and put option provisions shall reduce
amounts otherwise available for Restricted Payments; and provided, further, that
the aggregate amount permitted to be applied in respect of such retirement of
Senior Preferred Stock under this clause (v) on any date shall be reduced by the
aggregate amount of dividends (other than dividends payable in Common Stock of
the Company) paid subsequent to the Issue Date on the Common Stock of the
Company ; or (vi) beginning December 31, 1999, and as long as no Default or
Event of Default shall have occurred and be continuing, the payment of cash
dividends on the Junior Preferred Stock at times and in amounts no less
favorable to holders of the Notes than such provisions as are in effect in the
related certificate of designations on the Issue Date; provided, however, that
any cash dividends paid with respect to the Junior Preferred Stock shall reduce
amounts otherwise available for Restricted Payments.
Not later than the date of making any Restricted Payment, the Company shall
deliver to the Trustee an Officers' Certificate stating that such Restricted
Payment is permitted and setting forth the basis upon which the calculations
required by the covenant "Limitation on Restricted Payments" were computed,
which
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calculations may be based upon the Company's latest available financial
statements, and that no Default or Event of Default exists and is continuing and
no Default or Event of Default will occur immediately after giving effect to any
Restricted Payments.
Limitation on Other Senior Subordinated Debt
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, incur, contingently or otherwise, any
Indebtedness (other than the Notes and the Guarantees, as the case may be) that
is both (i) subordinate in right of payment to any Senior Indebtedness of the
Company or its Restricted Subsidiaries, as the case may be, and (ii) senior in
right of payment to the Notes and the Guarantees, as the case may be. For
purposes of this covenant, Indebtedness is deemed to be senior in right of
payment to the Notes and the Guarantees, as the case may be, if it is not
explicitly subordinate in right of payment to Senior Indebtedness at least to
the same extent as the Notes and the Guarantees, as the case may be, are
subordinate to Senior Indebtedness.
Limitations on Investments
The Company will not, and will not permit any of its Restricted
Subsidiaries to, make any Investment other than (i) a Permitted Investment or
(ii) an Investment that is made as a Restricted Payment in compliance with the
"-- Limitation on Restricted Payments" covenant, after the Issue Date.
Limitations on Liens
The Company will not, and will not permit any of its Restricted
Subsidiaries to, create, incur or otherwise cause or suffer to exist or become
effective any Liens of any kind (other than Permitted Liens) upon any property
or asset of the Company or any Restricted Subsidiary or any shares of stock or
debt of any Restricted Subsidiary which owns property or assets, now owned or
hereafter acquired, unless (i) if such Lien secures Indebtedness which is pari
passu with the Notes, then the Notes are secured on an equal and ratable basis
with the obligations so secured until such time as such obligation is no longer
secured by a Lien or (ii) if such Lien secures Indebtedness which is
subordinated to the Notes, any such Lien shall be subordinated to the Lien
granted to the Holders of the Notes to the same extent as such subordinated
Indebtedness is subordinated to the Notes.
Limitation on Transactions with Affiliates
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or suffer to exist any
transaction or series of related transactions (including, without limitation,
the sale, purchase, exchange or lease of assets, property or services) with any
Affiliate (including entities in which the Company or any of its Restricted
Subsidiaries own a minority interest) or holder of 10% or more of the Company's
Common Stock (an "Affiliate Transaction") or extend, renew, waive or otherwise
modify the terms of any Affiliate Transaction entered into prior to the Issue
Date unless (i) such Affiliate Transaction is between or among the Company and
its Wholly-Owned Subsidiaries; or (ii) the terms of such Affiliate Transaction
is fair and reasonable to the Company or such Restricted Subsidiary, as the case
may be, and the terms of such Affiliate Transaction are at least as favorable as
the terms which could be obtained by the Company or such Restricted Subsidiary,
as the case may be, in a comparable transaction made on an arm's-length basis
between unaffiliated parties. In any Affiliate Transaction involving an amount
or having a value in excess of $1 million which is not permitted under clause
(i) above, the Company must obtain a resolution of the board of directors
certifying that such Affiliate Transaction complies with clause (ii) above. In
transactions with a value in excess of $3 million which are not permitted under
clause (i) above, the Company must obtain a written opinion as to the fairness
of such a transaction from an independent investment banking firm.
The foregoing provisions will not apply to (i) any Restricted Payment that
is not prohibited by the provisions described under "-- Limitation on Restricted
Payments" contained herein, (ii) any transaction, approved by the board of
directors of the Company, with an officer or director of the Company or of any
Subsidiary in his or her capacity as officer or director entered into in the
ordinary course of business, including compensation and employee benefit
arrangements with any officer or director of the Company or of any
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Subsidiary that are customary for public companies in the broadcasting industry
or (iii) modifications of the Senior Preferred Stock or the Junior Preferred
Stock.
Limitation on Creation of Subsidiaries
The Company shall not create or acquire, nor permit any of its Restricted
Subsidiaries to create or acquire, any Subsidiary other than (i) a Restricted
Subsidiary existing as of the date of the Indenture, (ii) a Restricted
Subsidiary that is acquired or created after the date thereof, or (iii) an
Unrestricted Subsidiary; provided, however, that each Restricted Subsidiary
acquired or created pursuant to clause (ii) shall at the time it has either
assets or stockholder's equity in excess of $5,000 execute a guarantee,
satisfactory in form and substance to the Trustee (and with such documentation
relating thereto as the Trustee shall require, including, without limitation a
supplement or amendment to the Indenture and opinions of counsel as to the
enforceability of such guarantee), pursuant to which such Restricted Subsidiary
shall become a Guarantor. As of the Issue Date, the Company had no Subsidiaries,
other than the Guarantors. See "-- General."
Limitation on Certain Asset Sales
The Company will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Company or such
Restricted Subsidiary, as the case may be, receives consideration at the time of
such sale or other disposition at least equal to the fair market value thereof
(as determined in good faith by the Company's board of directors, and evidenced
by a board resolution); (ii) not less than 85% of the consideration received by
the Company or its Subsidiaries, as the case may be, is in the form of cash or
Temporary Cash Investments other than in the case where the Company is
exchanging all or substantially all of the assets of one or more media
properties operated by the Company (including by way of the transfer of capital
stock) for all or substantially all of the assets (including by way of the
transfer of capital stock) constituting one or more media properties operated by
another Person provided that at least 85% of the consideration received by the
Company in such exchange, other than the media properties, is in the form of
cash or Temporary Cash Investments; and (iii) the Asset Sale Proceeds received
by the Company or such Restricted Subsidiary are applied (a) first, to the
extent the Company elects, or is required, to prepay, repay or purchase debt
under any then existing Senior Indebtedness of the Company or any Restricted
Subsidiary within 180 days following the receipt of the Asset Sale Proceeds from
any Asset Sale; (b) second, to the extent of the balance of Asset Sale Proceeds
after application as described above, to the extent the Company elects, to an
investment in assets (including Capital Stock or other securities purchased in
connection with the acquisition of Capital Stock or property of another person)
used or useful in businesses similar or ancillary to the business of the Company
or Restricted Subsidiary as conducted at the time of such Asset Sale, provided
that such investment occurs or the Company or a Restricted Subsidiary enters
into contractual commitments to make such investment, subject only to customary
conditions (other than the obtaining of financing), on or prior to the 181st day
following receipt of such Asset Sale Proceeds (the "Reinvestment Date") and
Asset Sale Proceeds contractually committed are so applied within 360 days
following the receipt of such Asset Sale Proceeds; (c) third, to make an offer
for the Notes as described under "-- Optional Redemption" above following a
Major Asset Sale; and (d) fourth, if on the Reinvestment Date with respect to
any Asset Sale, the Available Asset Sale Proceeds exceed $10 million, the
Company shall apply an amount equal to such Available Asset Sale Proceeds to an
offer to repurchase the Notes, at a purchase price in cash equal to 100% of the
principal amount thereof plus accrued and unpaid interest, if any, to the date
of repurchase (an "Excess Proceeds Offer"). If an Excess Proceeds Offer is not
fully subscribed, the Company may retain the portion of the Available Asset Sale
Proceeds not required to repurchase Notes.
If the Company is required to make an Excess Proceeds Offer, the Company
shall mail, within 30 days following the Reinvestment Date, a notice to the
Holders stating, among other things: (1) that such Holders have the right to
require the Company to apply the Available Asset Sale Proceeds to repurchase
such Notes at a purchase price in cash equal to 100% of the principal amount
thereof plus accrued and unpaid interest, if any, to the date of purchase; (2)
the purchase date, which shall be no earlier than 30 days and not later than 60
days from the date such notice is mailed; (3) the instructions, determined by
the Company, that each Holder must follow in order to have such Notes
repurchased; and (4) the calculations used in determining the amount of
Available Asset Sale Proceeds to be applied to the repurchase of such Notes.
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Limitation on Preferred Stock of Restricted Subsidiaries
The Company will not permit any Restricted Subsidiary to issue any
Preferred Stock (except Preferred Stock to the Company or a Restricted
Subsidiary) or permit any Person (other than the Company or a Subsidiary) to
hold any such Preferred Stock unless the Company or such Restricted Subsidiary
would be entitled to incur or assume Indebtedness under the covenant described
under "-- Limitation on Additional Indebtedness" in the aggregate principal
amount equal to the aggregate liquidation value of the Preferred Stock to be
issued.
Limitation on Capital Stock of Restricted Subsidiaries
The Company will not (i) sell, pledge, hypothecate or otherwise convey or
dispose of any Capital Stock of a Restricted Subsidiary (other than under the
New Credit Facility or under the terms of any Secured Senior Debt) or (ii)
permit any of its Restricted Subsidiaries to issue any Capital Stock, other than
to the Company or a wholly-owned Subsidiary of the Company. The foregoing
restrictions shall not apply to an Asset Sale made in compliance with
"-- Limitation on Certain Asset Sales" or the issuance of Preferred Stock in
compliance with the covenant described under "-- Limitation on Additional
Indebtedness."
Limitation on Sale and Lease-Back Transactions
The Company will not, and will not permit any Restricted Subsidiary to,
enter into any Sale and Lease-Back Transaction unless (i) the consideration
received in such Sale and Lease-Back Transaction is at least equal to the fair
market value of the property sold, as determined, in good faith, by the board of
directors of the Company and (ii) the Company could incur the Attributable
Indebtedness in respect of such Sale and Lease-Back Transaction in compliance
with the covenant described under "-- Limitation on Additional Indebtedness."
Payments for Consent
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any holder of any Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of the
Indenture or the Notes unless such consideration is offered to be paid or agreed
to be paid to all holders of the Notes who so consent, waive or agree to amend
in the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
CHANGE OF CONTROL OFFER
Within 30 days of the occurrence of a Change of Control, the Company shall
notify the Trustee in writing of such occurrence and shall make an offer to
purchase (the "Change of Control Offer") the outstanding Notes at a purchase
price equal to 101% of the principal amount thereof plus any accrued and unpaid
interest thereon to the Change of Control Payment Date (as hereinafter defined)
(such purchase price being hereinafter referred to as the "Change of Control
Purchase Price") in accordance with the procedures set forth in this covenant.
Within 30 days of the occurrence of a Change of Control, the Company also
shall (i) cause a notice of the Change of Control Offer to be sent at least once
to the Dow Jones News Service or similar business news service in the United
States and (ii) send by first-class mail, postage prepaid, to the Trustee and to
each holder of the Notes, at the address appearing in the register maintained by
the Registrar of the Notes, a notice stating:
(i) that the Change of Control Offer is being made pursuant to this
covenant and that all Notes tendered will be accepted for payment, and
otherwise subject to the terms and conditions set forth herein;
(ii) the Change of Control Purchase Price and the purchase date (which
shall be a Business Day no earlier than 20 business days from the date such
notice is mailed (the "Change of Control Payment Date"));
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(iii) that any Note not tendered will continue to accrue interest;
(iv) that, unless the Company defaults in the payment of the Change of
Control Purchase Price, any Notes accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change of
Control Payment Date;
(v) that holders accepting the offer to have their Notes purchased
pursuant to a Change of Control Offer will be required to surrender the
Notes to the Paying Agent at the address specified in the notice prior to
the close of business on the Business Day preceding the Change of Control
Payment Date;
(vi) that holders will be entitled to withdraw their acceptance if the
Paying Agent receives, not later than the close of business on the third
Business Day preceding the Change of Control Payment Date, a facsimile
transmission or letter setting forth the name of the holder, the principal
amount of the Notes delivered for purchase, and a statement that such
holder is withdrawing his election to have such Notes purchased;
(vii) that holders whose Notes are being purchased only in part will
be issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered, provided that each Note
purchased and each such new Note issued shall be in an original principal
amount in denominations of $1,000 and integral multiples thereof;
(viii) any other procedures that a holder must follow to accept a
Change of Control Offer or effect withdrawal of such acceptance; and
(ix) the name and address of the Paying Agent.
On the Change of Control Payment Date, the Company shall, to the extent
lawful, (i) accept for payment Notes or portions thereof tendered pursuant to
the Change of Control Offer, (ii) deposit with the Paying Agent money sufficient
to pay the purchase price of all Notes or portions thereof so tendered and (iii)
deliver or cause to be delivered to the Trustee Notes so accepted together with
an Officers' Certificate stating the Notes or portions thereof tendered to the
Company. The Paying Agent shall promptly mail to each holder of Notes so
accepted payment in an amount equal to the purchase price for such Notes, and
the Company shall execute and issue, and the Trustee shall promptly authenticate
and make available for delivery to such holder, a new Note equal in principal
amount to any unpurchased portion of the Notes surrendered; provided that each
such new Note shall be issued in an original principal amount in denominations
of $1,000 and integral multiples thereof.
The Indenture requires that if the New Credit Facility is in effect, or any
amounts are owing thereunder, at the time of the occurrence of a Change of
Control, prior to the mailing of the notice to holders described in the
preceding paragraph, but in any event within 30 days following any Change of
Control, the Company covenants to (i) repay in full all obligations under the
New Credit Facility or offer to repay in full all obligations under the New
Credit Facility and repay the obligations under the New Credit Facility of each
lender who has accepted such offer or (ii) obtain the requisite consent under
the New Credit Facility to permit the repurchase of the Notes as described
above. The Company must first comply with the covenant described in the
preceding sentence before it shall be required to purchase Notes in the event of
a Change of Control; provided that the Company's failure to comply with the
covenant described in the preceding sentence constitutes an Event of Default
described in clause (iii) under "Events of Default" below if not cured within 60
days after the notice required by such clause. As a result of the foregoing, a
holder of the Notes may not be able to compel the Company to purchase the Notes
unless the Company is able at the time to refinance all of the New Credit
Facility or obtain requisite consents under the New Credit Facility. Failure by
the Company to make a Change of Control Offer when required by the Indenture
constitutes a Default under the Indenture and, if not cured within 60 days after
notice, constitutes an Event of Default.
The Indenture provides that, (A) if the Company or any Subsidiary thereof
has issued any outstanding (i) Indebtedness that is subordinated in right of
payment to the Notes or (ii) Preferred Stock (which for these purposes shall
include, as of the Issue Date, the Senior Preferred Stock and the Junior
Preferred Stock), and the Company or such Subsidiary is required to repurchase,
or make an offer to repurchase, such
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indebtedness, or redeem, or make an offer to redeem, such Preferred Stock, in
the event of a Change of Control or to make a distribution with respect to such
subordinated Indebtedness or Preferred Stock in the event of a Change of
Control, the Company shall not consummate any such offer or distribution with
respect to such subordinated Indebtedness or Preferred Stock until such time as
the Company shall have paid the Change of Control Purchase Price in full to the
holders of Notes that have accepted the Company's Change of Control Offer and
shall otherwise have consummated the Change of Control Offer made to holders of
the Notes and (B) the Company will not issue Indebtedness that is subordinated
in right of payment to the Notes or Preferred Stock with change of control
provisions requiring the payment of such Indebtedness or Preferred Stock prior
to the payment of the Notes in the event of a Change of Control under the
Indenture.
In the event that a Change of Control occurs and the holders of Notes
exercise their right to require the Company to purchase Notes, if such purchase
constitutes a "tender offer" for purposes of Rule 14e-1 under the Exchange Act
at that time, the Company will comply with the requirements of Rule 14e-1 as
then in effect with respect to such repurchase.
MERGER, CONSOLIDATION OR SALE OF ASSETS
The Company will not and will not permit any Guarantor to consolidate with,
merge with or into, or transfer all or substantially all of its assets (as an
entirety or substantially as an entirety in one transaction or a series of
related transactions), to any Person unless: (i) the Company or the Guarantor,
as the case may be, shall be the continuing Person, or the Person (if other than
the Company or the Guarantor) formed by such consolidation or into which the
Company or the Guarantor, as the case may be, is merged or to which the
properties and assets of the Company or the Guarantor, as the case may be, are
transferred shall be a corporation organized and existing under the laws of the
United States or any State thereof or the District of Columbia and shall
expressly assume, by a supplemental indenture, executed and delivered to the
Trustee, in form satisfactory to the Trustee, all of the obligations of the
Company or the Guarantor, as the case may be, under the Notes and the Indenture,
and the obligations under the Indenture shall remain in full force and effect;
(ii) immediately before and immediately after giving effect to such transaction,
no Default or Event of Default shall have occurred and be continuing; and (iii)
immediately after giving effect to such transaction on a pro forma basis the
Company or such Person could incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) under the covenant set forth under
"-- Limitation on Additional Indebtedness," provided that a Person that is a
Guarantor on the Issue Date may merge into the Company or another Person that is
a Guarantor on the Issue Date without complying with this clause (iii).
In connection with any consolidation, merger or transfer of assets
contemplated by this provision, the Company shall deliver, or cause to be
delivered, to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an opinion of counsel, each stating that
such consolidation, merger or transfer and the supplemental indenture in respect
thereto comply with this provision and that all conditions precedent herein
provided for relating to such transaction or transactions have been complied
with.
GUARANTEES
The Notes are fully and unconditionally guaranteed on a senior subordinated
basis by the Guarantors. All payments pursuant to the Guarantees by the
Guarantors are subordinated in right of payment to the prior payment in full of
all Senior Indebtedness of the Guarantor, to the same extent and in the same
manner that all payments pursuant to the Notes are subordinated in right of
payment to the prior payment in full of all Senior Indebtedness of the Company.
The obligations of each Guarantor are limited to the maximum amount as
will, after giving effect to all other contingent and fixed liabilities of such
Guarantor (including, without limitation, any guarantees of Senior Indebtedness)
and after giving effect to any collections from or payments made by or on behalf
of any other Guarantor in respect of the obligations of such other Guarantor
under its Guarantee or pursuant to its contribution obligations under the
Indenture, result in the obligations of such Guarantor under the Guarantee not
constituting a fraudulent conveyance or fraudulent transfer under federal or
state law. Each Guarantor that
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makes a payment or distribution under a Guarantee shall be entitled to a
contribution from each other Guarantor in a pro rata amount based on the
Adjusted Net Assets of each Subsidiary Guarantor.
A Guarantor shall be released from all of its obligations under its
Guarantee if all or substantially all of its assets are sold or all of its
Capital Stock is sold, in each case in a transaction in compliance with the
covenant described under "-- Limitation on Certain Asset Sales," or the
Guarantor merges with or into or consolidates with, or transfers all or
substantially all of its assets to, the Company or another Guarantor in a
transaction in compliance with "-- Merger, Consolidation or Sale of Assets," and
such Guarantor has delivered to the Trustee an Officers' Certificate and an
opinion of counsel, each stating that all conditions precedent herein provided
for relating to such transaction have been complied with.
EVENTS OF DEFAULT
The following events are defined in the Indenture as "Events of Default":
(i) default in payment of any principal of, or premium, if any, on the
Notes;
(ii) default for 30 days in payment of any interest on the Notes;
(iii) default by the Company or any Guarantor in the observance or
performance of any other covenant in the Notes or the Indenture for 60 days
after written notice from the Trustee or the holders of not less than 25%
in aggregate principal amount of the Notes then outstanding;
(iv) default in the payment at final maturity of principal in an
aggregate amount of $5,000,000 or more with respect to any Indebtedness of
the Company or any Restricted Subsidiary thereof which default shall not be
cured, waived or postponed pursuant to an agreement with the holders of
such Indebtedness within 60 days after written notice, or the acceleration
of any such Indebtedness aggregating $5,000,000 or more which acceleration
shall not be rescinded or annulled within 20 days after written notice as
provided in the Indenture;
(v) any final judgment or judgments which can no longer be appealed
for the payment of money in excess of $5,000,000 shall be rendered against
the Company or any Restricted Subsidiary thereof, and shall not be
discharged for any period of 60 consecutive days during which a stay of
enforcement shall not be in effect; and
(vi) certain events involving bankruptcy, insolvency or reorganization
of the Company or any Restricted Subsidiary thereof.
The Indenture provides that the Trustee may withhold notice to the holders
of the Notes of any default (except in payment of principal or premium, if any,
or interest on the Notes) if the Trustee considers it to be in the best interest
of the holders of the Notes to do so.
The Indenture provides that if an Event of Default (other than an Event of
Default resulting from certain events of bankruptcy, insolvency or
reorganization of the Company) shall have occurred and be continuing, then the
Trustee or the holders of not less than 25% in aggregate principal amount of the
Notes then outstanding may declare to be immediately due and payable the entire
principal amount of all the Notes then outstanding plus accrued interest to the
date of acceleration and (i) such amounts shall become immediately due and
payable or (ii) if there are any amounts outstanding under the New Credit
Facility, such amounts shall become due and payable upon the first to occur of
an acceleration under the New Credit Facility or five business days after
receipt by the Company and the Representative of notice of the acceleration of
the Notes; provided, however, that after such acceleration but before a judgment
or decree based on acceleration is obtained by the Trustee, the holders of a
majority in aggregate principal amount of outstanding Notes may, under certain
circumstances, rescind and annul such acceleration if all Events of Default,
other than nonpayment of accelerated principal, premium or interest, have been
cured or waived as provided in the Indenture. In case an Event of Default
resulting from certain events of bankruptcy, insolvency or reorganization of the
Company shall occur, the principal, premium and interest amount with respect to
all of the Notes shall be due and payable immediately without any declaration or
other act on the part of the Trustee or the holders of the Notes.
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The holders of a majority in principal amount of the Notes then outstanding
shall have the right to waive any existing default or compliance with any
provision of the Indenture or the Notes and to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, subject to
certain limitations specified in the Indenture.
No holder of any Note will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder, unless such holder shall
have previously given to the Trustee written notice of a continuing Event of
Default and unless also the holders of at least 25% in aggregate principal
amount of the outstanding Notes shall have made written request and offered
reasonable indemnity to the Trustee to institute such proceeding as a trustee,
and unless the Trustee shall not have received from the holders of a majority in
aggregate principal amount of the outstanding Notes a direction inconsistent
with such request and shall have failed to institute such proceeding within 60
days. However, such limitations do not apply to a suit instituted on such Note
on or after the respective due dates expressed in such Note.
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides the Company may elect either (a) to defease and be
discharged from any and all obligations with respect to the Notes (except for
the obligations to register the transfer or exchange of such Notes, to replace
temporary or mutilated, destroyed, lost or stolen Notes, to maintain an office
or agency in respect of the Notes and to hold monies for payment in trust)
("defeasance") or (b) to be released from their obligations with respect to the
Notes under certain covenants contained in the Indenture and described above
under "-- Certain Covenants" ("covenant defeasance"), upon the deposit with the
Trustee (or other qualifying trustee), in trust for such purpose, of money
and/or U.S. Government Obligations which through the payment of principal and
interest in accordance with their terms will provide money, in an amount
sufficient to pay the principal of, premium, if any, and interest on the Notes,
on the scheduled due dates therefor or on a selected date of redemption in
accordance with the terms of the Indenture. Such a trust may only be established
if, among other things, the Company has delivered to the Trustee an Opinion of
Counsel (as specified in the Indenture) (i) to the effect that neither the trust
nor the Trustee will be required to register as an investment company under the
Investment Company Act of 1940, as amended, and (ii) to the effect that holders
of the Notes or persons in their positions will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same amount and in
the same manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred which, in the case of a
defeasance only, must be based upon a private ruling concerning the Notes, a
published ruling of the Internal Revenue Service or a change in applicable
federal income tax law.
MODIFICATION OF INDENTURE
From time to time, the Company, the Guarantors and the Trustee may, without
the consent of holders of the Notes, amend the Indenture or the Notes or
supplement the Indenture for certain specified purposes, including providing for
uncertificated Notes in addition to certificated Notes, and curing any
ambiguity, defect or inconsistency, or making any other change that does not
materially and adversely affect the rights of any holder. The Indenture contains
provisions permitting the Company, the Guarantors and the Trustee, with the
consent of holders of at least a majority in principal amount of the outstanding
Notes, to modify or supplement the Indenture or the Notes, except that no such
modification shall, without the consent of each holder affected thereby, (i)
reduce the amount of Notes whose holders must consent to an amendment,
supplement, or waiver to the Indenture or the Notes, (ii) reduce the rate of or
change the time for payment of interest on any Note, (iii) reduce the principal
of or premium on or change the stated maturity of any Note, (iv) make any Note
payable in money other than that stated in the Note or change the place of
payment from New York, New York, (v) change the amount or time of any payment
required by the Notes or reduce the premium payable upon any redemption of
Notes, or change the time before which no such redemption may be made, (vi)
waive a default on the payment of the principal of, interest on, or redemption
payment with respect to any Note, or (vii) take any other action otherwise
prohibited by the Indenture to be taken without the consent of each holder
affected thereby.
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The consent of the holders is not necessary to approve the particular form
of any proposed amendment. It is sufficient if such consent approves the
substance of the proposed amendment.
REPORTS TO HOLDERS
So long as the Company is subject to the periodic reporting requirements of
the Exchange Act, it will continue to furnish the information required thereby
to the Commission and to the holders of the Notes. The Indenture provides that
even if the Company is entitled under the Exchange Act not to furnish such
information to the Commission or to the holders of the Notes, they will
nonetheless continue to furnish such information to the Commission and holders
of the Notes.
COMPLIANCE CERTIFICATE
The Company will deliver to the Trustee on or before 100 days after the end
of the Company's fiscal year and on or before 50 days after the end of each of
the first, second and third fiscal quarters in each year an Officers'
Certificate stating whether or not the signers know of any Default or Event of
Default that has occurred. If they do, the certificate will describe the Default
or Event of Default and its status.
THE TRUSTEE
The Trustee under the Indenture is the Registrar and Paying Agent with
regard to the Notes. The Indenture provides that, except during the continuance
of an Event of Default, the Trustee will perform only such duties as are
specifically set forth in the Indenture. During the existence of an Event of
Default, the Trustee will exercise such rights and powers vested in it under the
Indenture and use the same degree of care and skill in its exercise as a prudent
person would exercise under the circumstances in the conduct of such person's
own affairs.
TRANSFER AND EXCHANGE
Holders of the Notes may transfer or exchange Notes in accordance with the
Indenture. The Registrar under such Indenture may require a holder, among other
things, to furnish appropriate endorsements and transfer documents, and to pay
any taxes and fees required by law or permitted by the Indenture. The Registrar
is not required to transfer or exchange any Note selected for redemption. Also,
the Registrar is not required to transfer or exchange any Note for a period of
15 days before selection of the Notes to be redeemed.
The Original Notes were issued in a transaction exempt from registration
under the Act and are subject to restrictions on transfer.
The registered holder of a Note may be treated as the owner of it for all
purposes.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
covenants contained in the Indenture. Reference is made to the Indenture for the
full definition of all such terms as well as any other capitalized terms used
herein for which no definition is provided.
"Acquired Indebtedness" means Indebtedness of a Person (including an
Unrestricted Subsidiary) existing at the time such Person becomes a Restricted
Subsidiary or assumed in connection with the acquisition of assets from such
Person.
"Adjusted EBITDA" means for any Person, the sum of (a) EBITDA of such
Person and its Restricted Subsidiaries for the four most recent fiscal quarters
of which internal financial statements are available, minus IN TV EBITDA for the
most recent four fiscal quarter period and (b) IN TV EBITDA for the most recent
quarterly period, multiplied by four.
"Adjusted Net Assets" of a Guarantor at any date shall mean the lesser of
the amount by which (x) the fair value of the property of such Guarantor exceeds
the total amount of liabilities, including, without limitation, contingent
liabilities (after giving effect to all other fixed and contingent liabilities),
but excluding
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liabilities under the Guarantee, of such Guarantor at such date and (y) the
present fair salable value of the assets of such Guarantor at such date exceeds
the amount that will be required to pay the probable liability of such Guarantor
on its debts (after giving effect to all other fixed and contingent liabilities
and after giving effect to any collection from any Subsidiary of such Guarantor
in respect of the obligations of such Subsidiary under the Guarantee), excluding
Indebtedness in respect of the Guarantee, as they become absolute and matured.
"Affiliate" of any specified Person means any other Person which directly
or indirectly through one or more intermediaries controls, or is controlled by,
or is under common control with, such specified Person. For the purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by," and "under common control with"), as used with
respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise. With respect to the Company, Affiliate will also include any
Permitted Holders or Persons controlled by the Permitted Holders.
"Asset Sale" means the sale, transfer or other disposition (other than to
the Company or any of its Restricted Subsidiaries) in any single transaction or
series of related transactions involving assets with a fair market value in
excess of $500,000 of (a) any Capital Stock of or other equity interest in any
Restricted Subsidiary of the Company, (b) all or substantially all of the assets
of the Company or of any Restricted Subsidiary thereof, (c) real property or (d)
all or substantially all of the assets of any media property, or part thereof,
owned by the Company or any Restricted Subsidiary thereof, or a division, line
of business or comparable business segment of the Company or any Restricted
Subsidiary thereof; provided that Asset Sales shall not include sales, leases,
conveyances, transfers or other dispositions to the Company or to a Restricted
Subsidiary or to any other Person if after giving effect to such sale, lease,
conveyance, transfer or other disposition such other Person becomes a Restricted
Subsidiary.
"Asset Sale Proceeds" means, with respect to any Asset Sale, (i) cash
received by the Company or any Restricted Subsidiary from such Asset Sale
(including cash received as consideration for the assumption of liabilities
incurred in connection with or in anticipation of such Asset Sale), after (a)
provision for all income or other taxes measured by or resulting from such Asset
Sale, (b) payment of all brokerage commissions, underwriting, accounting, legal
and other fees and expenses related to such Asset Sale, (c) provision for
minority interest holders in any Restricted Subsidiary as a result of such Asset
Sale and (d) deduction of appropriate amounts to be provided by the Company or a
Restricted Subsidiary as a reserve, in accordance with GAAP, against any
liabilities associated with the assets sold or disposed of in such Asset Sale
and retained by the Company or a Restricted Subsidiary after such Asset Sale,
including, without limitation, pension and other post employment benefit
liabilities and liabilities related to environmental matters or against any
indemnification obligations associated with the assets sold or disposed of in
such Asset Sale, and (ii) promissory notes and other noncash consideration
received by the Company or any Restricted Subsidiary from such Asset Sale or
other disposition upon the liquidation or conversion of such notes or non-cash
consideration into cash.
"Attributable Indebtedness" under the Indenture in respect of a Sale and
Lease-Back Transaction means, as at the time of determination, the greater of
(i) the fair value of the property subject to such arrangement (as determined by
the Board of Directors) and (ii) the present value of the notes (discounted at a
rate of 10%, compounded annually) of the total obligations of the lessee for
rental payments during the remaining term of the lease included in such Sale and
Lease-Back Transaction (including any period for which such lease has been
extended).
"Available Asset Sale Proceeds" means, with respect to any Asset Sale, the
aggregate Asset Sale Proceeds from such Asset Sales that have not been applied
in accordance with clauses (iii)(a), (b) or (c), and which has not yet been the
basis for an Excess Proceeds Offer in accordance with clause (iii)(d) of the
first paragraph of "Certain Covenants -- Limitation on Certain Asset Sales."
"Capital Stock" means, with respect to any Person, any and all shares or
other equivalents (however designated) of capital stock, partnership interests
or any other participation, right or other interest in the
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nature of an equity interest in such Person or any option, warrant or other
security convertible into any of the foregoing.
"Capitalized Lease Obligations" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP, and the amount of such Debt shall be
the capitalized amount of such obligations determined in accordance with GAAP.
A "Change of Control" of the Company will be deemed to have occurred at
such time as (i) any Person (including a Person's Affiliates and associates),
other than a Permitted Holder, becomes the beneficial owner (as defined under
Rule 13d-3 or any successor rule or regulation promulgated under the Exchange
Act) of 50% or more of the total voting or economic power of the Company's
Common Stock, (ii) any Person (including a Person's Affiliates and associates),
other than a Permitted Holder, becomes the beneficial owner of more than 33 1/3%
of the total voting power of the Company's Common Stock, and the Permitted
Holders beneficially own, in the aggregate, a lesser percentage of the total
voting power of the Common Stock of the Company than such other Person and do
not have the right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors of the Company,
(iii) there shall be consummated any consolidation or merger of the Company in
which the Company is not the continuing or surviving corporation or pursuant to
which the Common Stock of the Company would be converted into cash, securities
or other property, other than a merger or consolidation of the Company in which
the holders of the Common Stock of the Company outstanding immediately prior to
the consolidation or merger hold, directly or indirectly, at least a majority of
the Common Stock of the surviving corporation immediately after such
consolidation or merger, (iv) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors of the Company (together with any new directors whose election by such
Board of Directors or whose nomination for election by the shareholders of the
Company has been approved by a majority of the directors then still in office
who either were directors at the beginning of such period or whose election or
recommendation for election was previously so approved) cease to constitute a
majority of the Board of Directors of the Company or (v) any "change in control"
occurs (as defined at such time) with respect to the Senior Preferred Stock, the
Junior Preferred Stock or any issue of Disqualified Capital Stock).
"Common Stock" of any Person means all Capital Stock of such Person that is
generally entitled to (i) vote in the election of directors of such Person or
(ii) if such Person is not a corporation, vote or otherwise participate in the
selection of the governing body, partners, managers or others that will control
the management and policies of such Person.
"Consolidated Interest Expense" means, with respect to any Person, for any
period, the aggregate amount of interest which, in conformity with GAAP, would
be set forth opposite the caption "interest expense" or any like caption on an
income statement for such Person and its Subsidiaries on a consolidated basis
(including, but not limited to, Redeemable Dividends, whether paid or accrued,
on Subsidiary Preferred Stock (as defined below in these "Certain Definitions"),
imputed interest included in Capitalized Lease Obligations, all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing, the net costs associated with hedging
obligations, amortization of other financing fees and expenses, the interest
portion of any deferred payment obligation, amortization of discount or premium,
if any, and all other non-cash interest expense (other than interest amortized
to cost of sales)) plus, without duplication, all net capitalized interest for
such period and all interest incurred or paid under any guarantee of
Indebtedness (including a guarantee of principal, interest or any combination
thereof) of any Person, plus the amount of all dividends or distributions paid
on Disqualified Capital Stock (other than dividends paid or payable in shares of
Capital Stock of the Company).
"Consolidated Net Income" means, with respect to any Person, for any
period, the aggregate of the Net Income of such Person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP;
provided, however, that (a) the Net Income of any Person (the "other Person") in
which the Person in question or any of its Subsidiaries has less than a 100%
interest (which interest does not cause the net income of such other Person to
be consolidated into the net income of the Person in question in accordance with
GAAP) shall be included only to the extent of the amount of dividends or
distributions paid
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to the Person in question or the Subsidiary, (b) the Net Income of any
Subsidiary of the Person in question that is subject to any restriction or
limitation on the payment of dividends or the making of other distributions
(other than pursuant to the Notes or the Indenture) shall be excluded to the
extent of such restriction or limitation, (c)(i) the Net Income of any Person
acquired in a pooling of interests transaction for any period prior to the date
of such acquisition and (ii) any net gain (but not loss) resulting from an Asset
Sale by the Person in question or any of its Subsidiaries other than in the
ordinary course of business shall be excluded, (d) extraordinary, unusual and
non-recurring gains and losses shall be excluded, (e) expenses incurred in 1995
relating to the relocation of the Company's headquarters shall be excluded, (f)
losses associated with discontinued and terminated operations in an amount not
to exceed $750,000 per annum shall be excluded and (g) all non-cash items
(including, without limitation, cumulative effects of changes in GAAP and equity
entitlements granted to employees of the Company and its Restricted
Subsidiaries) increasing and decreasing Consolidated Net Income and not
otherwise included in the definition of EBITDA shall be excluded.
"Cumulative Consolidated Interest Expense" means with respect to any
Person, as of any date of determination, Consolidated Interest Expense from
October 1, 1995 to the end of the Company's most recently ended full fiscal
quarter prior to such date, taken as a single accounting period.
"Cumulative EBITDA" means with respect to any Person, as of any date of
determination, EBITDA from October 1, 1995 to the end of the Company's most
recently ended full fiscal quarter prior to such date, taken as a single
accounting period.
"Designated Senior Indebtedness," as to the Company or any Guarantor, as
the case may be, means any Senior Indebtedness (a) under the New Credit
Facility, or (b) which at the time of determination exceeds $75 million in
aggregate principal amount (or accreted value in the case of Indebtedness issued
at a discount) outstanding or available under a committed facility and (x) which
is specifically designated in the instrument evidencing such Senior Indebtedness
as "Designated Senior Indebtedness" by such Person and (y) as to which the
Trustee has been given written notice of such designation.
"Disqualified Capital Stock" means any Capital Stock of the Company or a
Restricted Subsidiary thereof which, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable at the
option of the holder), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the maturity date of the Notes, for cash or securities constituting
Indebtedness. Without limitation of the foregoing, Disqualified Capital Stock
shall be deemed to include (i) any Preferred Stock of a Restricted Subsidiary of
the Company and (ii) any Preferred Stock of the Company, with respect to either
of which, under the terms of such Preferred Stock, by agreement or otherwise,
such Restricted Subsidiary or the Company is obligated to pay current dividends
or distributions in cash during the period prior to the maturity date of the
Notes; provided, however, that Preferred Stock of the Company or any Restricted
Subsidiary thereof that is issued with the benefit of provisions requiring a
change of control offer to be made for such Preferred Stock in the event of a
change of control of the Company or Restricted Subsidiary, which provisions have
substantially the same effect as the provisions of the Indenture described under
"Change of Control," shall not be deemed to be Disqualified Capital Stock solely
by virtue of such provisions; and, provided, further, that the Senior Preferred
Stock and Junior Preferred Stock in effect on the Issue Date shall not be
considered Disqualified Capital Stock.
"EBITDA" means, for any Person, for any period, an amount equal to (a) the
sum of (i) Consolidated Net Income for such period, plus (ii) the provision for
taxes for such period based on income or profits to the extent such income or
profits were included in computing Consolidated Net Income and any provision for
taxes utilized in computing net loss under clause (i) hereof, plus (iii)
Consolidated Interest Expense for such period (including, for this purpose,
dividends on the Senior Preferred Stock and Junior Preferred Stock outstanding
on the Issue Date and any Redeemable Dividends in each case only to the extent
that such dividends were deducted in determining Net Income), plus (iv)
depreciation for such period on a consolidated basis, plus (v) amortization of
intangibles and broadcast program licenses for such period on a consolidated
basis, plus (vi) for the purpose of the covenant relating to the incurrence of
Indebtedness only, payments made under time brokerage or similar agreements with
broadcast properties to the extent such properties have
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been acquired during the period of determination or are proposed to be acquired
in connection with such incurrence of Indebtedness, minus (b) scheduled payments
relating to broadcast program license liabilities, except that with respect to
the Company each of the foregoing items shall be determined on a consolidated
basis with respect to the Company and its Restricted Subsidiaries only;
provided, however, that, for purposes of calculating EBITDA during any fiscal
quarter, cash income from a particular Investment of such Person shall be
included only if cash income has been received by such Person with respect to
such Investment during each of the previous four fiscal quarters.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles consistently applied
as in effect in the United States from time to time.
"IN TV EBITDA" means EBITDA for the IN TV Network determined on a basis
consistent with the Company's internal financial statements, generated by
stations declared by the board of directors as IN TV properties.
"incur" means, with respect to any Indebtedness or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
guarantee or otherwise become liable in respect of such Indebtedness or other
obligation or the recording, as required pursuant to GAAP or otherwise, of any
such Indebtedness or other obligation on the balance sheet of such person (and
"incurrence," "incurred," "incurable," and "incurring" shall have meanings
correlative to the foregoing); provided that a change in GAAP that results in an
obligation of such Person that exists at such time becoming Indebtedness shall
not be deemed an incurrence of such Indebtedness.
"Indebtedness" means (without duplication), with respect to any Person, any
indebtedness at any time outstanding, secured or unsecured, contingent or
otherwise, which is for borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a portion
thereof), or evidenced by bonds, notes, debentures or similar instruments or
representing the balance deferred and unpaid of the purchase price of any
property (excluding, without limitation, any balances that constitute accounts
payable or trade payables, and other accrued liabilities arising in the ordinary
course of business including, without limitation, any and all programming
broadcast obligations) if and to the extent any of the foregoing indebtedness
would appear as a liability upon a balance sheet of such Person prepared in
accordance with GAAP, and shall also include, to the extent not otherwise
included (i) any Capitalized Lease Obligations, (ii) obligations secured by a
Lien to which the property or assets owned or held by such Person is subject,
whether or not the obligation or obligations secured thereby shall have been
assumed (provided, however, that if such obligation or obligations shall not
have been assumed, the amount of such Indebtedness shall be deemed to be the
lesser of the principal amount of the obligation or the fair market value of the
pledged property or assets), (iii) guarantees of items of other Persons which
would be included within this definition for such other Persons (whether or not
such items would appear upon the balance sheet of the guarantor), (iv) all
obligations for the reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction, (v) in the case of the
Company, Disqualified Capital Stock of the Company or any Restricted Subsidiary
thereof, and (vi) obligations of any such Person under any Interest Rate
Agreement applicable to any of the foregoing (if and to the extent such Interest
Rate Agreement obligations would appear as a liability upon a balance sheet of
such Person prepared in accordance with GAAP). The amount of Indebtedness of any
Person at any date shall be the outstanding balance at such date of all
unconditional obligations as described above and, with respect to contingent
obligations, the maximum liability upon the occurrence of the contingency giving
rise to the obligation, provided (i) that the amount outstanding at any time of
any Indebtedness issued with original issue discount is the principal amount of
such Indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness at such time as determined in conformity with GAAP
and (ii) that Indebtedness shall not include any liability for federal, state,
local or other taxes. Notwithstanding any other provision of the foregoing
definition, any trade payable arising from the purchase of goods or materials or
for services obtained in the ordinary course of business or contingent
obligations arising out of customary indemnification agreements with respect to
the sale of assets or securities shall not be deemed to be "Indebtedness" of the
Company or any Restricted Subsidiaries for
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purposes of this definition. Furthermore, guarantees of (or obligations with
respect to letters of credit supporting) Indebtedness otherwise included in the
determination of such amount shall not also be included.
"Interest Rate Agreement" means, for any Person, any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or other
similar agreement designed to protect the party indicated therein against
fluctuations in interest rates.
"Investments" means, directly or indirectly, any advance, account
receivable (other than an account receivable arising in the ordinary course of
business), loan or capital contribution to (by means of transfers of property to
others, payments for property or services for the account or use of others or
otherwise), the purchase of any stock, bonds, notes, debentures, partnership or
joint venture interests or other securities of, the acquisition, by purchase or
otherwise, of all or substantially all of the business or assets or stock or
other evidence of beneficial ownership of, any Person or the making of any
investment in any Person. Investments shall exclude extensions of trade credit
on commercially reasonable terms in accordance with normal trade practices and
repurchases or redemptions of the Notes by the Company.
"Issue Date" means the date the Notes are first issued by the Company and
authenticated by the Trustee under the Indenture.
"Lien" means with respect to any property or assets of any Person, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement, encumbrance, preference,
priority, or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including
without limitation, any Capitalized Lease Obligation, conditional sales, or
other title retention agreement having substantially the same economic effect as
any of the foregoing).
"Major Asset Sale" means an Asset Sale or series of related Asset Sales
involving assets with a fair market value in excess of $25,000,000.
"Net Income" means, with respect to any Person for any period, the net
income (loss) of such Person determined in accordance with GAAP.
"Net Proceeds" means (a) in the case of any sale of Capital Stock by the
Company or a Major Asset Sale, the aggregate net proceeds received by the
Company, after payment of expenses, commissions and the like incurred in
connection therewith, whether such proceeds are in cash or in property (valued
at the fair market value thereof, as determined in good faith by the board of
directors, at the time of receipt) and (b) in the case of any exchange,
exercise, conversion or surrender of outstanding securities of any kind for or
into shares of Capital Stock of the Company which is not Disqualified Capital
Stock, the net book value of such outstanding securities on the date of such
exchange, exercise, conversion or surrender (plus any additional amount required
to be paid by the holder to the Company upon such exchange, exercise, conversion
or surrender, less any and all payments made to the holders, e.g., on account of
fractional shares and less all expenses incurred by the Company in connection
therewith).
"New Credit Facility" means the credit agreement to be entered into by and
among the Company, the Guarantors, and one or more lenders, as the same may be
amended, extended, increased, renewed, restated, supplemented or otherwise
modified (in whole or in part, and without limitation as to amount, terms,
conditions, covenants and other provisions) from time to time, and any agreement
governing Indebtedness incurred to refinance, replace or refund in whole or in
part the borrowings and then maximum commitments under the New Credit Facility
or such agreement. The Company shall promptly notify the Trustee of any such
refunding, replacement or refinancing of the New Credit Facility.
"Non-Payment Event of Default" means any event (other than a Payment
Default) the occurrence of which entitles one or more Persons to accelerate the
maturity of any Designated Senior Indebtedness.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by the Chief Executive Officer, the President or any Vice President and
the Chief Financial Officer, Controller or any Treasurer of such Person that
shall comply with applicable provisions of the Indenture.
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"Payment Default" means any default, whether or not any requirement for the
giving of notice, the lapse of time or both, or any other condition to such
default becoming an event of default has occurred, in the payment of principal
of (or premium, if any) or interest on or any other amount payable in connection
with Designated Senior Indebtedness.
"Permitted Holders" means collectively Lowell W. Paxson, his spouse,
children or other lineal descendants (whether adoptive or biological) and any
revocable or irrevocable inter vivos or testamentary trust or the probate estate
of any such individual, so long as one or more of the foregoing individuals is
the principal beneficiary of such trust or probate estate.
"Permitted Indebtedness" means:
(i) Indebtedness of the Company or any Restricted Subsidiary arising
under or in connection with the New Credit Facility incurred prior to
December 31, 1996 in an amount not to exceed $42.7 million (including the
$22.7 million under the New Credit Facility anticipated to be used to
consummate the Acquisitions as described in this Prospectus);
(ii) Indebtedness under the Notes and the Guarantees;
(iii) Indebtedness not covered by any other clause of this definition
which is outstanding on the date of the Indenture;
(iv) Indebtedness of the Company to any Restricted Subsidiary and
Indebtedness of any Restricted Subsidiary to the Company or another
Restricted Subsidiary;
(v) Purchase Money Indebtedness and Capitalized Lease Obligations
incurred to acquire property in the ordinary course of business which
Indebtedness and Capitalized Lease Obligations do not in the aggregate
exceed 5% of the Company's consolidated total assets at any one time;
(vi) Interest Rate Agreements;
(vii) additional Indebtedness of the Company not to exceed $5 million
in principal amount outstanding at any time; and
(viii) Refinancing Indebtedness.
"Permitted Investments" means, for any Person, Investments made on or after
the date of the Indenture consisting of:
(i) Investments by the Company, or by a Restricted Subsidiary
thereof, in the Company or a Restricted Subsidiary;
(ii) Temporary Cash Investments;
(iii) Investments by the Company, or by a Restricted Subsidiary
thereof, in a Person (or in all or substantially all of the business or
assets), if as a result of such Investment (a) such Person becomes a
Restricted Subsidiary of the Company, (b) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or a
Restricted Subsidiary thereof or (c) such business or assets are owned by
the Company or a Restricted Subsidiary;
(iv) reasonable and customary loans made to employees not to exceed
$500,000 in the aggregate at any one time outstanding;
(v) an Investment that is made by the Company or a Restricted
Subsidiary thereof in the form of any stock, bonds, notes, debentures,
partnership or joint venture interests or other securities that are issued
by a third party to the Company or Restricted Subsidiary solely as partial
consideration for the consummation of an Asset Sale that is otherwise
permitted under the covenant described under "-- Limitation on Sale of
Assets";
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(vi) time brokerage and other similar agreements under which
separately owned and licensed broadcast properties enter into cooperative
arrangements and which may include an option to acquire the broadcast
property at a future date;
(vii) accounts receivable of the Company and its Restricted
Subsidiaries generated in the ordinary course of business;
(viii) loans and guarantees of loans by third-party lenders to third
parties in connection with the acquisition of media properties, secured by
substantially all of such person's assets (to the extent permitted by FCC
rules), which are made in conjunction with the execution of a time
brokerage agreement; and
(ix) options on media properties having an exercise price of an
amount not in excess of $100,000 plus the forgiveness of any loan referred
to in clause (viii) above, entered into in connection with the execution of
time brokerage agreements.
"Permitted Liens" means (i) Liens on property or assets of, or any shares
of stock of or secured debt of, any corporation existing at the time such
corporation becomes a Restricted Subsidiary of the Company or at the time such
corporation is merged into the Company or any of its Restricted Subsidiaries,
provided that such Liens are not incurred in connection with, or in
contemplation of, such corporation becoming a Restricted Subsidiary of the
Company or merging into the Company or any of its Restricted Subsidiaries, (ii)
Liens securing Refinancing Indebtedness, provided that any such Lien does not
extend to or cover any Property, shares or debt other than the Property, shares
or debt securing the Indebtedness so refunded, refinanced or extended, (iii)
Liens in favor of the Company or any of its Restricted Subsidiaries, (iv) Liens
securing industrial revenue bonds, (v) Liens to secure Purchase Money
Indebtedness that is otherwise permitted under the Indenture, provided that (a)
any such Lien is created solely for the purpose of securing Indebtedness
representing, or incurred to finance, refinance or refund, the cost (including
sales and excise taxes, installation and delivery charges and other direct costs
of, and other direct expenses paid or charged in connection with, such purchase
or construction) of such Property, (b) the principal amount of the Indebtedness
secured by such Lien does not exceed 100% of such costs, and (c) such Lien does
not extend to or cover any Property other than such item of Property and any
improvements on such item, (vi) statutory liens or landlords', carriers',
warehousemen's, mechanics', suppliers', materialmen's, repairmen's or other like
Liens arising in the ordinary course of business which do not secure any
Indebtedness and with respect to amounts not yet delinquent or being contested
in good faith by appropriate proceedings, if a reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have been
made therefor, (vii) other Liens securing obligations incurred in the ordinary
course of business or judgment Liens not giving rise to an Event of Default
which obligations or judgments do not exceed $1,000,000 in the aggregate at any
one time outstanding, (viii) any extensions, substitutions, replacements or
renewals of the foregoing, (ix) Liens for taxes, assessments or governmental
charges that are not delinquent or are being contested in good faith by
appropriate proceedings, (x) Liens securing Capitalized Lease Obligations
permitted to be incurred under clause (v) of the definition of "Permitted
Indebtedness," provided that such Lien does not extend to any property other
than that subject to the underlying lease, (xi) easements or minor defects or
irregularities in title and other similar charges or encumbrances on property
not interfering in any material respect with the Company's use of such property
and (xii) Liens securing Secured Senior Debt.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government (including any agency or political subdivision thereof).
"Preferred Stock" means any Capital Stock of a Person, however designated,
which entitles the holder thereof to a preference with respect to dividends,
distributions or liquidation proceeds of such Person over the holders of other
Capital Stock issued by such Person.
"Property" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person whether or not included in the
most recent consolidated balance sheet of such Person and its Subsidiaries under
GAAP.
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"Public Equity Offering" means a public offering by the Company of shares
of its common stock (however designated and whether voting or non-voting) and
any and all rights, warrants or options to acquire such common stock.
"Purchase Money Indebtedness" means any Indebtedness incurred in the
ordinary course of business by a Person to finance the cost (including the cost
of construction) of an item of property, the principal amount of which
Indebtedness does not exceed the sum of (i) 100% of such cost and (ii)
reasonable fees and expenses of such Person incurred in connection therewith.
"Redeemable Dividend" means, for any dividend or distribution with regard
to Disqualified Capital Stock, the quotient of the dividend or distribution
divided by the difference between one and the maximum statutory federal income
tax rate (expressed as a decimal number between 1 and 0) then applicable to the
issuer of such Disqualified Capital Stock.
"Refinancing Indebtedness" means Indebtedness that refunds, refinances or
extends any Indebtedness of the Company or its Restricted Subsidiaries
outstanding on the Issue Date or other Indebtedness permitted to be incurred by
the Company or its Restricted Subsidiaries pursuant to the terms of the
Indenture, but only to the extent that (i) the Refinancing Indebtedness is
subordinated to the Notes to at least the same extent as the Indebtedness being
refunded, refinanced or extended, if at all, (ii) the Refinancing Indebtedness
is scheduled to mature either (a) no earlier than the Indebtedness being
refunded, refinanced or extended, or (b) after the maturity date of the Notes,
(iii) the portion, if any, of the Refinancing Indebtedness that is scheduled to
mature on or prior to the maturity date of the Notes has a weighted average life
to maturity at the time such Refinancing Indebtedness is incurred that is equal
to or greater than the weighted average life to maturity of the portion of the
Indebtedness being refunded, refinanced or extended that is scheduled to mature
on or prior to the maturity date of the Notes, (iv) such Refinancing
Indebtedness is in an aggregate principal amount that is equal to or less than
the sum of (a) the aggregate principal amount then outstanding under the
Indebtedness being refunded, refinanced or extended, (b) the amount of accrued
and unpaid interest, if any, and premiums owed, if any, not in excess of
preexisting prepayment provisions on such Indebtedness being refunded,
refinanced or extended and (c) the amount of customary fees, expenses and costs
related to the incurrence of such Refinancing Indebtedness, and (v) such
Refinancing Indebtedness is incurred by the same Person that initially incurred
the Indebtedness being refunded, refinanced or extended, except that the Company
may incur Refinancing Indebtedness to refund, refinance or extend Indebtedness
of any Wholly-Owned Subsidiary of the Company.
"Restricted Payment" means any of the following: (i) the declaration or
payment of any dividend or any other distribution or payment on Capital Stock of
the Company or any Restricted Subsidiary of the Company or any payment made to
the direct or indirect holders (in their capacities as such) of Capital Stock of
the Company or any Restricted Subsidiary of the Company (other than (x)
dividends or distributions payable solely in Capital Stock (other than
Disqualified Capital Stock) or in options, warrants or other rights to purchase
Capital Stock (other than Disqualified Capital Stock), and (y) in the case of
Restricted Subsidiaries of the Company, dividends or distributions payable to
the Company or to a Wholly-Owned Subsidiary of the Company), (ii) the purchase,
redemption or other acquisition or retirement for value of any Capital Stock of
the Company or any of its Restricted Subsidiaries (other than Capital Stock
owned by the Company or a Wholly-Owned Subsidiary of the Company, excluding
Disqualified Capital Stock), (iii) the making of any principal payment on, or
the purchase, defeasance, repurchase, redemption or other acquisition or
retirement for value, prior to any scheduled maturity, scheduled repayment or
scheduled sinking fund payment, of any Indebtedness which is subordinated in
right of payment to the Notes other than subordinated Indebtedness acquired in
anticipation of satisfying a scheduled sinking fund obligation, principal
installment or final maturity, (in each case due within one year of the date of
acquisition), (iv) the making of any Investment or guarantee of any Investment
in any Person other than a Permitted Investment, (v) any designation of a
Restricted Subsidiary as an Unrestricted Subsidiary on the basis of the fair
market value of such Subsidiary utilizing standard valuation methodologies and
approved by the board of directors and (vi) forgiveness of any Indebtedness of
an Affiliate of the Company to the Company or a Restricted Subsidiary. For
purposes of determining the amount expended for Restricted Payments, cash
distributed or invested shall be valued at the
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face amount thereof and property other than cash shall be valued at its fair
market value determined by the Company's board of directors in good faith.
"Restricted Subsidiary" means a Subsidiary of the Company other than an
Unrestricted Subsidiary and includes all of the Subsidiaries of the Company
existing as of the Issue Date. The Board of Directors of the Company may
designate any Unrestricted Subsidiary or any Person that is to become a
Subsidiary as a Restricted Subsidiary if immediately after giving effect to such
action (and treating any Acquired Indebtedness as having been incurred at the
time of such action), the Company could have incurred at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant to the
"Limitation on Additional Indebtedness" covenant.
"Sale and Lease-Back Transaction" means any arrangement with any Person
providing for the leasing by the Company or any Restricted Subsidiary of the
Company of any real or tangible personal property, which property has been or is
to be sold or transferred by the Company or such Restricted Subsidiary to such
Person in contemplation of such leasing.
"Secured Senior Debt" means any Senior Indebtedness (a) under the New
Credit Facility or (b) which at the time of determination exceeds $25 million in
aggregate principal amount (or accreted value in the case of Indebtedness issued
at a discount) outstanding or available under a committed facility.
"Senior Indebtedness" means the principal of and premium, if any, and
interest (including, without limitation, interest accruing or that would have
accrued but for the filing of a bankruptcy, reorganization or other insolvency
proceeding whether or not such interest constitutes an allowed claim in such
proceeding) on, and any and all other fees, expense reimbursement obligations,
indemnities and other amounts due pursuant to the terms of all agreements,
documents and instruments providing for, creating, securing or evidencing or
otherwise entered into in connection with (a) all Indebtedness of the Company
owed to lenders under the New Credit Facility, (b) all obligations of the
Company with respect to any Interest Rate Agreement, (c) all obligations of the
Company to reimburse any bank or other person in respect of amounts paid under
letters of credit, acceptances or other similar instruments, (d) all other
Indebtedness of the Company which does not provide that it is to rank pari passu
with or subordinate to the Notes and (e) all deferrals, renewals, extensions and
refundings of, and amendments, modifications and supplements to, any of the
Senior Indebtedness described above. Notwithstanding anything to the contrary in
the foregoing, Senior Indebtedness will not include (i) Indebtedness of the
Company to any of its Subsidiaries, (ii) Indebtedness represented by the Notes,
(iii) any Indebtedness which by the express terms of the agreement or instrument
creating, evidencing or governing the same is junior or subordinate in right of
payment to any item of Senior Indebtedness, (iv) any trade payable arising from
the purchase of goods or materials or for services obtained in the ordinary
course of business or (v) Indebtedness incurred in violation of the Indenture
except if such Indebtedness was incurred under the New Credit Facility based on
financial information and certificates provided by responsible officers of the
Company and relied on in good faith by the lenders thereunder in which event
such Indebtedness shall be deemed to have been incurred in compliance with the
Indenture and constitute Senior Indebtedness.
"Subsidiary" of any specified Person means any corporation, partnership,
joint venture, association or other business entity, whether now existing or
hereafter organized or acquired, (i) in the case of a corporation, of which more
than 50% of the total voting power of the Capital Stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
officers or trustees thereof is held by such first-named Person or any of its
Subsidiaries; or (ii) in the case of a partnership, joint venture, association
or other business entity, with respect to which such first-named Person or any
of its Subsidiaries has the power to direct or cause the direction of the
management and policies of such entity by contract or otherwise or if in
accordance with GAAP such entity is consolidated with the first-named Person for
financial statement purposes.
"Temporary Cash Investments" means (i) Investments in marketable, direct
obligations issued, guaranteed or insured by the United States of America, or of
any governmental agency, instrumentality or political subdivision thereof,
maturing within 365 days of the date of purchase; (ii) Investments in
certificates of deposit issued by a bank organized under the laws of the United
States of America or any state thereof or the District of Columbia, in each case
having capital, surplus and undivided profits totaling more than
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$500,000,000 and rated at least A by Standard & Poor's Corporation and A-2 by
Moody's Investors Service, Inc., maturing within 365 days of purchase; (iii)
Investments not exceeding 365 days in duration in money market funds that invest
substantially all of such funds' assets in the Investments described in the
preceding clauses (i) and (ii); or (iv) any security maturing not more than 180
days after the date of acquisition, backed by stand-by or direct pay letters of
credit issued by a bank meeting the qualifications described in clause (ii)
above.
"Unrestricted Subsidiary" means (a) any Subsidiary of an Unrestricted
Subsidiary and (b) any Subsidiary of the Company which is classified after the
Issue Date as an Unrestricted Subsidiary by a resolution adopted by the Board of
Directors of the Company; provided that a Subsidiary organized or acquired after
the Issue Date may be so classified as an Unrestricted Subsidiary only if such
classification is in compliance with the covenant set forth under "Limitation on
Restricted Payments." The Trustee shall be given prompt notice by the Company of
each resolution adopted by the Board of Directors of the Company under this
provision, together with a copy of each such resolution adopted.
"Wholly-Owned Subsidiary" means any Restricted Subsidiary all of the
outstanding voting securities (other than directors' qualifying shares) of which
are owned, directly or indirectly, by the Company.
DESCRIPTION OF THE CAPITAL STOCK
GENERAL
The Company's capital stock consists of 197,500,000 shares of common stock
with a par value of $.001 per share, and 1,000,000 shares of preferred stock,
with a par value of $.001 per share. Of the 197,500,000 shares of common stock
that the Company is authorized to issue: (i) 150,000,000 shares are designated
as Class A common stock (the "Class A Common Stock"); (ii) 35,000,000 shares are
designated as Class B common stock (the "Class B Common Stock"); and (iii)
12,500,000 shares are designated as Class C non-voting common stock (the "Class
C Common Stock," and with the Class A Common Stock and the Class B Common Stock,
the "Common Stock"). Of the 1,000,000 shares of preferred stock that the Company
is authorized to issue: (a) 2,000 shares have been designated as 15% Cumulative
Compounding Redeemable Preferred Stock (the "Initial Senior Preferred Stock");
(b) 714.286 shares have been designated as Series B 15% Cumulative Compounding
Redeemable Preferred Stock (the "Series B Preferred Stock," and with the Initial
Senior Preferred Stock, the "Senior Preferred Stock"); and (c) 33,000 shares
have been designated as Junior Cumulative Compounding Redeemable Preferred Stock
(the "Junior Preferred Stock," and with the Senior Preferred Stock, the
"Preferred Stock"). Currently, 26,226,826 shares of Class A Common Stock,
8,311,639 shares of Class B Common Stock, no shares of Class C Common Stock,
2,000 shares of Initial Senior Preferred Stock, 714.286 shares of Series B
Preferred Stock, and 33,000 shares of Junior Preferred Stock are outstanding. In
addition, 18,831,215 shares of Class A Common Stock are reserved for issuance
with respect to: (a) the conversion of shares of Class B Common Stock to Class A
Common Stock; (b) the conversion of shares of Class C Common to Class A Common
Stock; (c) the exercise of warrants issued in connection with the issuance of
the Initial Senior Preferred Stock and the Junior Preferred Stock, and (d) the
exercise of certain rights under the Company's Stock Incentive Plan.
COMMON STOCK
Holders of shares of Class A Common Stock and Class B Common Stock will
vote as a single class on all matters submitted to a vote of the stockholders of
the Company, with each share of Class A Common Stock entitled to one vote and
each share of Class B Common Stock entitled to ten votes, except as otherwise
provided by law. Holders of Class C Common Stock shall have no right to vote on
any matter voted on by the stockholders of the Company, except as may be
provided by law or as provided in limited circumstances in the Company's
certificate of incorporation. In all other respects, all shares of Common Stock
have identical rights, preferences and privileges. Each share of Class B Common
Stock and, under certain circumstances, Class C Common Stock, is convertible at
the option of its holder into one share of Class A Common Stock.
100
<PAGE> 108
SENIOR PREFERRED STOCK
The holders of the Senior Preferred Stock are entitled to cumulative
dividends from their respective dates of issue through December 15, 2000 at the
per annum rate of 15% of the liquidation price of such share. The liquidation
price for each share of Senior Preferred Stock is defined as the sum of $7,000
plus all accrued and unpaid dividends with respect to such share. The Company
has the option to defer the payment of accrued dividends until the Senior
Preferred Stock is redeemed. As of June 30, 1995, the Company has not paid any
cash dividends on the Senior Preferred Stock, and there are $3,641,301 in
accrued and unpaid dividends on the Senior Preferred Stock. The consent of the
holders of a majority of the outstanding shares of each class of Senior
Preferred Stock is required to, among other things, enter into an agreement that
would prevent the Company from performing its obligations with respect to the
Senior Preferred Stock. The Company is obligated to redeem on December 15, 2000
all the shares of the Senior Preferred Stock then outstanding, at a redemption
price equal to the liquidation price for such shares, plus the amount of all
unpaid dividends thereon, as of the redemption date, payable in cash. Holders of
shares of the Senior Preferred Stock are entitled to require the Company to
redeem their shares of Senior Preferred Stock upon the occurrence of certain
events, including a change in control of the Company.
JUNIOR PREFERRED STOCK
The holders of the Junior Preferred Stock are entitled to cumulative
dividends until December 22, 2001 at the per annum rate of 12% of the
liquidation price of such share. The liquidation price for each share of Junior
Preferred Stock is defined as the sum of $1,000 plus all accrued and unpaid
dividends with respect to such share. For each year subsequent to December 22,
2001, the per annum rate shall increase by 1%. In addition, the dividend rate
may be increased under certain circumstances, such as a change in control of the
Company. Until December 22, 1999, the Company has the option to defer the
payment of accrued dividends on the Junior Preferred Stock. As of June 30, 1995,
the Company has not paid any cash dividends on the Junior Preferred Stock, and
there are $2,138,476 in accrued and unpaid dividends on the Junior Preferred
Stock. The consent of the holders of a majority of the outstanding shares of
Junior Preferred Stock is required to, among other things, enter into an
agreement that would prevent the Company from performing its obligations with
respect to the Junior Preferred Stock. Subject to the rights of the Senior
Preferred Stock, the Company is obligated to redeem on December 22, 2003 out of
unrestricted funds legally available therefor, all the shares of the Junior
Preferred Stock then outstanding, at a redemption price equal to the liquidation
price for such shares, plus the amount of all unpaid dividends thereon, as of
the redemption date, payable in cash. Holders of shares of the Junior Preferred
Stock are entitled to require the Company to redeem their shares of Junior
Preferred Stock upon the occurrence of certain events, including a change in
control (as defined with respect thereto) of the Company at 113% of the
liquidation price through December 22, 2002 and 114% of the liquidation price
thereafter.
In addition, each share of Junior Preferred Stock is redeemable, at the
option of the Company, at $1,030 plus unpaid, deferred, and accrued dividends
prior to December 22, 1997, $1,020 plus unpaid, deferred and accrued dividends
from December 22, 1997 through December 22, 1998, and $1,000 plus unpaid,
deferred and accrued dividends per share thereafter.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
TAX CONSEQUENCES TO THE HOLDERS
The following is a summary of certain United States federal income tax
consequences of exchanging Original Notes for New Notes, and of acquiring,
owning and disposing of the Notes. The summary is based upon advice from the
Company's legal counsel, based upon provisions of the Internal Revenue Code (the
"Code"), applicable Treasury Department Regulations, judicial authority and
current administrative rulings and practice, all of which are subject to change
at any time by legislative, judicial or administrative action. Any such changes
may be applied retroactively in a manner that could adversely affect a Holder of
the Notes. Further, there can be no assurance that the Internal Revenue Service
(the "IRS") will not take a contrary view, and no rulings from the IRS have been
or will be sought as to any of the matters discussed below. The
101
<PAGE> 109
discussion assumes the Holders will hold the Notes as capital assets within the
meaning of Section 1221 of the Code.
This summary is for general information only and does not purport to
address specific tax consequences that may be relevant to particular persons
(including, for example, foreign persons, financial institutions,
broker-dealers, insurance companies, tax-exempt organizations or persons in
special situations). In addition, the discussion does not address any aspect of
state, local or foreign taxation.
HOLDERS OF THE NOTES ARE URGED TO CONSULT THEIR TAX ADVISORS CONCERNING THE
UNITED STATES FEDERAL INCOME TAX CONSEQUENCES TO THEM OF EXCHANGING ORIGINAL
NOTES FOR NEW NOTES AND OWNING AND DISPOSING OF THE NOTES AS WELL AS THE
APPLICATION OF STATE, LOCAL AND FOREIGN INCOME AND OTHER TAX LAWS.
EXCHANGE OF ORIGINAL NOTES FOR NEW NOTES
Under general principles of tax law (without taking the Proposed
Regulations discussed below into account), an exchange of property is treated as
an "exchange" for federal income tax purposes if the properties differ
materially in kind or in extent. Because the New Notes are substantially
identical to the Original Notes and the Exchange Offer is specifically
contemplated by the Indenture pursuant to which the Original Notes were issued,
the Original Notes and the New Notes should not be considered to differ
materially in kind or in extent. The Treasury Department issued proposed
regulations (the "Proposed Regulations") on December 2, 1992, addressing the
federal income tax consequences of modifications of debt instruments, the
principles of which would also apply to transactions such as the Exchange Offer.
Under the rules contained in the Proposed Regulations, the exchange of New Notes
for Original Notes (the "Exchange") would not constitute an "exchange" for
federal income tax purposes. The IRS has stated that the Proposed Regulations
will be amended or modified before issued in final form. If the effective dates
set forth in the Proposed Regulations are retained in the final of Treasury
Department regulations (the "Final Regulations"), the Final Regulations will not
apply to the exchange of the Original Notes for the New Notes. There is no
assurance that the Final Regulations will be substantially similar to the
Proposed Regulations, however.
Consequently, under general principles of tax law, but subject to the
potential that Final Regulations could take a contrary view, the Exchange should
not be considered an "exchange" for federal income tax purposes and the New
Notes should be considered a continuation of the Original Notes. A Holder should
not recognize income or loss in connection with the exchange of Original Notes
for New Notes. A Holder's basis and holding period in the New Notes should be
the same as its basis and holding period in the Original Notes.
The Company intends to treat the Exchange as a transaction that is not an
"exchange" for federal income tax purposes.
ORIGINAL ISSUE DISCOUNT AND INTEREST
The Original Notes were, and the New Notes will be, issued with what is
considered a de minimis amount of original issue discount ("OID") for federal
income tax purposes. Accordingly, Holders of the Notes generally will be
required to include OID in gross income only as stated principal payments are
made. A Holder may elect to include OID in gross income by using the constant
yield method, subject to special rules for Notes that have either market
discount or amortizable bond premium with respect to the Holder.
The amount of OID with respect to a Note is equal to the excess of its
"stated redemption price at maturity" over its issue price. The stated
redemption price at maturity of a Note will be the sum of all payments to be
made on the Note except the portion of each interest payment that does not
exceed interest computed at the initial stated interest rate ("qualified stated
interest"). Qualified stated interest must be reported as income in accordance
with the Holder's method of accounting for tax purposes.
A Holder who purchases a Note from another Holder at a premium need not
include any of the de minimis OID in gross income. If such Holder purchases the
Note at a discount, such discount is taken into account under the "Market
Discount" rules discussed elsewhere.
102
<PAGE> 110
Acquisition Premium and Bond Premium
The amount of OID required to be included in gross income by a Holder that
acquires a Note subsequent to its original issuance at a price in excess of its
adjusted issue price may be affected by the Code provisions governing
acquisition premium or bond premium. The adjusted issue price of a Note at the
beginning of any accrual period is generally the issue price of the Note plus
the amount of OID previously included in income of all Holders (without regard
to reduction of such OID by any acquisition premium). Therefore, Holders who
acquire Notes after their original issuance should consult their own tax
advisors as to the application of the Code provisions governing any acquisition
premium or bond premium to their particular situations.
If a Holder's initial tax basis in a Note exceeds the "amount payable on
maturity" (such excess being the "bond premium"), the Holder may elect, under
Section 171 of the Code, to amortize the bond premium over the period from the
acquisition date to the maturity date of such Note and, except as Treasury
Regulations may otherwise provide, reduce the amount of interest included in
income in respect of the Note by such amount. A Holder who elects to amortize
bond premium must reduce its adjusted basis in the Note by the amount of such
allowable amortization. An election to amortize bond premium would apply to
amortizable bond premium on all taxable bonds (including a Note) held at or
acquired after the beginning of the Holders' taxable year as to which the
election is made, and may be revoked only with the consent of the IRS.
Market Discount
A Holder of a Note generally will be required to treat any gain recognized
on the sale, exchange, redemption or other disposition of a Note as ordinary
income to the extent of any accrued market discount. "Market discount" is
defined for federal income tax purposes generally as the excess of the stated
redemption price at maturity (adjusted to take into account the effects of OID)
over the tax basis in the hands of the holder immediately after acquisition of
the Note. Under a de minimis exception, the amount of market discount is
considered to be zero if it is less than 0.25% of the stated redemption price at
maturity multiplied by the number of complete years from acquisition to
maturity. Market discount generally will accrue ratably. A Holder of a Note
acquired at a market discount also may be required to defer the deduction of all
or a portion of the interest on any indebtedness incurred or maintained to carry
the Note until it is disposed of in a taxable transaction.
A Holder of a Note acquired at a market discount may elect to include the
market discount in income as interest as it accrues, in which case the foregoing
rules would not apply. This election would apply to all bonds with market
discount acquired by the electing Holder on or after the first day of the first
taxable year to which the election applies. The election may be revoked only
with the consent of the IRS.
Sale, Exchange, Redemption or Retirement
Upon the sale, exchange, redemption, retirement or other disposition of a
Note, a Holder generally will recognize gain or loss equal to the difference
between the amount realized on the disposition and the Holder's adjusted tax
basis in the Note. Subject to the market discount rules discussed above, gain or
loss recognized by a Holder on the disposition of a Note will be long-term
capital gain or loss provided that the Note was a capital asset in the hands of
the Holder and had been held for more than one year.
BACKUP WITHHOLDING
A Holder may be subject to backup withholding at the rate of 31% with
respect to interest and OID paid on a Note and gross proceeds upon sale or
retirement of a Note unless such Holder (a) is a corporation or other exempt
recipient and, when required, demonstrates this fact or (b) provides, when
required, a correct taxpayer identification number, certifies that backup
withholding is not in effect and otherwise complies with applicable requirements
of the backup withholding rules. Furthermore, a Holder that does not provide the
Company with the Holder's correct taxpayer identification number may be subject
to penalties imposed by the IRS. Any amounts withheld as backup withholding will
be creditable against the Holder's federal income tax liability.
103
<PAGE> 111
TAX EFFECTS TO THE COMPANY
The exchange of original Notes for New Notes will have no tax effect on the
Company.
PLAN OF DISTRIBUTION
Each broker-dealer that received New Notes for its own account pursuant to
the Exchange Offer ("Restricted Holder") must acknowledge that it will deliver a
prospectus in connection with any resale of such New Notes. This Prospectus, as
it may be amended or supplemented from time to time, may be used by a Restricted
Holder in connection with resales of New Notes received in exchange for Original
Notes where such Original Notes were acquired as a result of market-making
activities or other trading activities. For a period of 180 days after the
Expiration Date, the Company will use reasonable efforts to make this Prospectus
available to any Restricted Holder for use in connection with any such resale,
provided that such Restricted Holder indicates in the Letter of Transmittal that
is a broker-dealer. In addition, until April 23, 1996, all Restricted Holders
effecting transactions in the New Notes may be required to deliver a Prospectus.
The Company will not receive any proceeds from any sale of Original Notes
by Restricted Holders. Original Notes received by Restricted Holders for their
own account pursuant to the Exchange Offer may be sold from time to time in one
or more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the New Notes or a combination of such methods
of resale, at market prices prevailing at the time of resale, or at prices
related to such prevailing market prices on negotiated prices. Any such resale
may be made directly to purchasers or to or through Restricted Holders who may
receive compensation in the form of commissions or concessions from any such
Restricted Holder and/or the purchasers of any New Notes. Any Restricted Holder
that resells New Notes that were received by it for its own account pursuant to
the Exchange Offer and any person that participates in the distribution of such
New Notes may be deemed to be an "underwriter" within the meaning of the
Securities Act and any profit on any such resale of New Notes and any
commissions or concessions received by any such Restricted Holders may be deemed
to be underwriting compensation under the Securities Act. The Letter of
Transmittal states that by acknowledging that it will deliver and by delivering
a prospectus, a Restricted Holder will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date, the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any Restricted Holder that requests such
documents in the Letter of Transmittal.
By acceptance of this Exchange Offer, each Restricted Holder that receives
New Notes pursuant to the Exchange Offer agrees that, upon receipt of notice
from the Company of the happening of any event which makes any statement in the
Prospectus untrue in any material respect or which requires the making of any
changes in the Prospectus in order to make the statements therein not misleading
(which notice the Company agrees to deliver promptly to such Restricted Holder),
such Restricted Holder will suspend use of the Prospectus until the Company has
amended or supplemented the Prospectus to correct such misstatement or omission
and has furnished copies of the amended or supplemented Prospectus to such
Restricted Holder. If the Company gives any such notice to suspend the use of
the Prospectus, it shall extend the 180-day period referred to above by the
number of days during the period from and including the date of the giving of
such notice up to and including when Restricted Holders shall have received
copies of the supplemental or amended Prospectus necessary to permit resales of
New Notes.
104
<PAGE> 112
LEGAL OPINIONS
Certain legal matters with respect to the issuance of New Notes will be
passed upon for the Company by its counsel, Holland & Knight (a partnership
including professional associations).
EXPERTS
The consolidated financial statements as of December 31, 1994 and 1993 and
for each of the two years in the period ended December 31, 1994, the financial
statements of KZKI-TV (a division of Sandino Telecasters, Inc.) as of and for
the year ended January 31, 1995, the financial statements of Paugus Television,
Inc. (WGOT-TV), Delaware Valley Broadcasters (WTGI-TV) and WTVX-TV, Krypton
Broadcasting of Ft. Pierce, Inc. as of and for the year ended December 31, 1994
and the combined financial statements of San Jacinto Television Corporation and
DuPont Investment Group, 85 Ltd. as of and for the year ended December 31, 1994
included in this Prospectus have been so included in reliance on the reports of
Price Waterhouse LLP, independent certified public accountants, given on
authority of said firm as experts in auditing and accounting (the reports
related to the financial statements of KZKI-TV (a division of Sandino
Telecasters, Inc.), Paugus Television, Inc. (WGOT-TV), the combined financial
statements of San Jacinto Television Corporation and DuPont Investment Group, 85
Ltd. contain explanatory paragraphs relating to the entities' ability to
continue as going concerns as described in Note 1 to such financial statements
and combined financial statements). Price Waterhouse LLP has not examined,
compiled or applied agreed upon procedures to the Pro Forma Financial Data
included in this Offering Prospectus and, consequently, assumes no
responsibility for the Pro Forma Financial Data and does not express an opinion
or any other form of assurance with respect thereto.
The consolidated financial statements for the year ending December 31, 1992
included in this Prospectus have been so included in reliance on the report of
by Ryals, Brimmer, Burek & Keelan, independent certified public accountants
given on authority of said firm as experts in auditing and accounting.
105
<PAGE> 113
PAXSON COMMUNICATIONS CORPORATION
INDEX OF FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
PAXSON COMMUNICATIONS CORPORATION
Consolidated Financial Statements -- December 31, 1994, 1993 and 1992
Report of Independent Certified Public Accountants............................................. F-2
Consolidated Balance Sheets.................................................................... F-3
Consolidated Statements of Operations.......................................................... F-5
Consolidated Statements of Changes in Common Stockholders' Equity.............................. F-6
Consolidated Statements of Cash Flows.......................................................... F-7
Notes to Consolidated Financial Statements..................................................... F-9
PAXSON COMMUNICATIONS CORPORATION
Unaudited Interim Consolidated Financial Statements -- September 30, 1995 and 1994
Consolidated Balance Sheets September 30, 1995 and December 31, 1994........................... F-28
Consolidated Statements of Operations for the Nine Months Ended................................ F-29
Consolidated Statements of Operations for the Three Months Ended............................... F-30
Consolidated Statements of Changes in Common Stockholders' Equity.............................. F-31
Consolidated Statements of Cash Flows.......................................................... F-32
Notes to Consolidated Financial Statements..................................................... F-33
KZKI-TV (A DIVISION OF SANDINO TELECASTERS, INC.)
Financial Statements -- January 31, 1995
Report of Independent Certified Public Accountants............................................. F-35
Balance Sheet.................................................................................. F-36
Statements of Operations....................................................................... F-37
Statements of Changes in Divisional Deficit.................................................... F-38
Statements of Cash Flows....................................................................... F-39
Notes to Financial Statements.................................................................. F-40
PAUGUS TELEVISION, INC. (WGOT-TV)
Financial Statements -- December 31, 1994
Report of Independent Certified Public Accountants............................................. F-43
Balance Sheet.................................................................................. F-44
Statement of Operations........................................................................ F-45
Statement of Changes in Stockholders' Deficit.................................................. F-46
Statement of Cash Flows........................................................................ F-47
Notes to Financial Statements.................................................................. F-48
DELAWARE VALLEY BROADCASTERS (WTGI-TV)
Financial Statements -- December 31, 1994
Report of Independent Certified Public Accountants............................................. F-52
Balance Sheet.................................................................................. F-53
Statement of Operations........................................................................ F-54
Statement of Changes in Partner's Deficit...................................................... F-55
Statement of Cash Flows........................................................................ F-56
Notes to Financial Statements.................................................................. F-57
SAN JACINTO TELEVISION CORPORATION AND DUPONT INVESTMENT GROUP, 85 LTD.
Combined Financial Statements -- December 31, 1994
Report of Independent Certified Public Accountants............................................. F-61
Combined Balance Sheet......................................................................... F-62
Combined Statement of Operations............................................................... F-63
Combined Statement of Changes in Combined Deficit.............................................. F-64
Combined Statement of Cash Flows............................................................... F-65
Notes to Combined Financial Statements......................................................... F-66
KRYPTON BROADCASTING OF FT. PIERCE, INC. (WTVX-TV)
Financial Statements -- December 31, 1994
Report of Independent Certified Public Accountants............................................. F-71
Balance Sheet.................................................................................. F-72
Statement of Operations........................................................................ F-73
Statement of Changes in Shareholder's Equity................................................... F-74
Statement of Cash Flows........................................................................ F-75
Notes to Financial Statements.................................................................. F-76
</TABLE>
F-1
<PAGE> 114
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors and Stockholders
of Paxson Communications Corp.
In our opinion, the accompanying consolidated balance sheets and the
related consolidated statements of operations, of changes in common
stockholders' equity and of cash flows present fairly, in all material respects,
the financial position of Paxson Communications Corp. and its subsidiaries (the
"Company") at December 31, 1994 and 1993, and the results of their operations
and their cash flows for each of the two years in the period ended December 31,
1994, in conformity with generally accepted accounting principles. These
financial statements are the responsibility of the Company's management; our
responsibility is to express an opinion on these financial statements based on
our audits. We conducted our audits of these statements in accordance with
generally accepted auditing standards which require that we plan and perform the
audit to obtain reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by
management, and evaluating the overall financial statement presentation. We
believe that our audits provide a reasonable basis for the opinion expressed
above. The financial statements of the Company for the year ended December 31,
1992 were audited by other independent accountants whose report dated June 20,
1994 expressed an unqualified opinion on those statements.
/s/ Price Waterhouse LLP
- --------------------------------------
PRICE WATERHOUSE LLP
Tampa, Florida
March 15, 1995
F-2
<PAGE> 115
PAXSON COMMUNICATIONS CORP.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------------------
1994 1993
------------- ------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents.................................... $ 21,571,658 $ 7,019,747
Accounts receivable, less allowance for doubtful accounts of
$556,950 and $212,244, respectively....................... 13,569,198 6,366,719
Related party note receivable................................ 1,750,000 1,750,000
Prepaid expenses and other current assets.................... 1,579,954 1,423,335
Current deferred income taxes................................ 194,940 --
Current program rights....................................... 1,980,000 --
------------- ------------
Total current assets................................. 40,645,750 16,559,801
Property and equipment, net.................................... 45,350,430 20,900,713
Intangible assets, net......................................... 53,350,967 25,362,841
Other assets, net.............................................. 13,078,346 3,751,253
Program rights, net............................................ 244,888 --
------------- ------------
Total assets......................................... $ 152,670,381 $ 66,574,608
=========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable and accrued liabilities..................... $ 5,123,691 $ 1,088,409
Current portion of program rights payable.................... 986,562 --
Current portion of long-term debt............................ 6,393,415 401,632
Current deferred income taxes................................ -- 2,175,191
------------- ------------
Total current liabilities............................ 12,503,668 3,665,232
Program rights payable......................................... 562,770 --
Long-term debt................................................. 76,013,542 32,206,770
Deferred income taxes.......................................... 1,474,940 784,809
Minority interest.............................................. 1,217,314 --
</TABLE>
The accompanying Notes to Consolidated Financial Statements are
an integral part of the consolidated financial statements.
F-3
<PAGE> 116
PAXSON COMMUNICATIONS CORP.
CONSOLIDATED BALANCE SHEETS -- (CONTINUED)
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------------
1994 1993
------------ -----------
<S> <C> <C>
Redeemable Cumulative Compounding Senior preferred stock,
$0.001 par value; 15% dividend rate per annum, 2,000 shares
authorized, issued and outstanding in 1994 and 1993.......... 14,060,054 11,634,907
Redeemable Class A & B common stock warrants................... 1,735,979 2,163,633
Redeemable Cumulative Compounding Series B preferred stock,
$0.001 par value; 15% dividend rate per annum, 714.286 shares
authorized, issued and outstanding in 1994................... 1,274,671 --
Redeemable Cumulative Compounding Junior preferred stock,
$0.001 par value; 12% dividend rate per annum, 33,000 shares
authorized, issued and outstanding in 1994................... 26,808,053 --
Common stock, $0.001 par value; 1,500 shares authorized; 1,200
shares issued and outstanding in 1993........................ -- 1
Class A common stock, $0.001 par value; one vote per share;
150,000,000 shares authorized, 26,042,561 and 23,686,461 (pro
forma) shares issued and outstanding, in 1994 and 1993,
respectively................................................. 26,042 --
Class B common stock, $0.001 par value; ten votes per share,
35,000,000 shares authorized, 8,311,640 and 7,895,487 (pro
forma) shares issued and outstanding, in 1994 and 1993,
respectively................................................. 8,312 --
Class C common stock, $0.001 par value; non-voting; 12,500,000
shares authorized, 0 shares issued and outstanding........... -- --
Class C common stock warrants.................................. 5,338,952 --
Stock subscription notes receivable............................ (77,666) --
Additional paid-in capital..................................... 20,647,647 16,895,623
Accumulated deficit............................................ (8,923,897) (776,367)
Commitments and contingencies (Notes 15 and 16)
------------ -----------
Total liabilities and stockholders' equity........... $152,670,381 $66,574,608
=========== ==========
</TABLE>
The accompanying Notes to Consolidated Financial Statements are
an integral part of the consolidated financial statements.
F-4
<PAGE> 117
PAXSON COMMUNICATIONS CORP.
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
FOR THE YEARS ENDED DECEMBER 31,
--------------------------------------------
1994 1993 1992
----------- ------------ -----------
<S> <C> <C> <C>
Revenue:
Local and national advertising............................. $56,668,983 $ 29,405,559 $15,342,982
Retail and other........................................... 2,779,215 1,655,155 967,422
Trade...................................................... 2,619,245 1,001,317 751,433
----------- ------------ -----------
Total revenue................................................ 62,067,443 32,062,031 17,061,837
----------- ------------ -----------
Operating expenses:
Direct..................................................... 16,221,385 8,645,094 4,505,274
Programming................................................ 8,750,624 5,291,237 2,259,450
Sales and promotion........................................ 5,753,025 3,507,480 2,357,020
Technical.................................................. 2,113,117 1,543,583 1,560,304
General and administrative................................. 11,689,343 7,323,352 5,742,974
Trade...................................................... 2,426,118 1,029,105 544,583
Retail..................................................... 568,372 834,314 418,535
Time brokerage agreement fees.............................. 503,698 698,463 533,548
Sports rights fees......................................... 2,379,516 -- --
Program rights amortization................................ 820,754 -- --
Depreciation and amortization.............................. 12,403,528 9,350,633 5,977,301
----------- ------------ -----------
Total operating expenses..................................... 63,629,480 38,223,261 23,898,989
----------- ------------ -----------
Loss from operations......................................... (1,562,037) (6,161,230) (6,837,152)
Other income (expense):
Interest expense, net...................................... (4,874,710) (2,052,406) (1,262,308)
Gain (loss) on sale of radio broadcasting station.......... 28,105 427,397 (40,282)
Other income (expense), net................................ (33,432) (205,614) 175,163
----------- ------------ -----------
Loss before benefit (provision) for income taxes and
extraordinary item......................................... (6,442,074) (7,991,853) (7,964,579)
Benefit (provision) for income taxes......................... 1,680,000 (2,960,000) --
----------- ------------ -----------
Net loss before extraordinary item and change in accounting
principle.................................................. (4,762,074) (10,951,853) (7,964,579)
Extraordinary item........................................... -- (457,147) --
Cumulative effect of a change in accounting principle........ -- -- 109,540
----------- ------------ -----------
Net loss..................................................... (4,762,074) (11,409,000) (7,855,039)
Dividends and accretion on preferred stock and common stock
warrants................................................... (3,385,456) (151,367) --
----------- ------------ -----------
Net loss attributable to common stock and common stock
equivalents................................................ $(8,147,530) $(11,560,367) $(7,855,039)
============ ============= ============
Pro forma per share data (Note 1):
Pro forma net loss before extraordinary item............... $ (0.14) $ (0.35)
Extraordinary item........................................... -- (0.01)
----------- ------------
Pro forma net loss........................................... (0.14) (0.36)
Dividends and accretion on preferred stock and common stock
warrants................................................... (0.10) (0.01)
----------- ------------
Pro forma net loss attributable to common stock and common
stock equivalents.......................................... $ (0.24) $ (0.37)
============ =============
Pro forma weighted average shares outstanding -- primary and
fully diluted.............................................. 33,430,116 31,581,948
============ =============
</TABLE>
The accompanying Notes to Consolidated Financial Statements are
an integral part of the consolidated financial statements.
F-5
<PAGE> 118
PAXSON COMMUNICATIONS CORP.
CONSOLIDATED STATEMENTS OF CHANGES IN COMMON
STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
CLASS C STOCK
COMMON STOCK COMMON SUBSCRIPTION ADDITIONAL
---------------------------- COMMON STOCK NOTES PAID-IN ACCUMULATED
CLASS A CLASS B CLASS C STOCK WARRANTS RECEIVABLE CAPITAL DEFICIT
-------- -------- ------- ------ ---------- ------------ ----------- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at January 1, 1992..... $ 1 $10,850,892 $ (1,428,008)
Stockholder capital
contributions................ 16,760,110
Stockholder capital
distributions................ (4,000,000)
Net loss....................... (7,855,039)
-------- -------- ------- ------ ---------- ------------ ----------- ------------
Balance at December 31, 1992... 1 23,611,002 (9,283,047)
Stockholder capital
contributions................ 13,351,668
Net loss prior to
reorganization on December
15, 1993..................... (10,784,000)
Reclassification of
undistributed deficit prior
to reorganization............ (20,067,047) 20,067,047
Dividends on redeemable
preferred stock.............. (97,808)
Accretion on Senior redeemable
preferred stock.............. (15,144)
Accretion on Class A & B common
stock warrants............... (38,415)
Net loss subsequent to
reorganization on December
15, 1993..................... (625,000)
-------- -------- ------- ------ ---------- ------------ ----------- ------------
Balance at December 31, 1993... 1 16,895,623 (776,367)
Recapitalization of common
stock........................ $15,791 $5,264 (1) (21,054)
Stock issued for ANG
acquisition.................. 1,570 277 $(77,666) 3,784,530
Net proceeds from issuance of
common stock warrants........ $5,338,952
Dividends on redeemable
preferred stock.............. (2,216,137)
Accretion on Senior preferred
stock........................ (325,147)
Accretion on Series B preferred
stock........................ (7,968)
Accretion on Junior preferred
stock........................ (15,648)
Accretion on Class A & B common
stock warrants............... (820,556)
Net loss....................... (4,762,074)
Stock dividend................. 8,681 2,771 (11,452)
-------- -------- ------- ------ ---------- ------------ ----------- ------------
Balance at December 31, 1994... $26,042 $8,312 $ 0 $ 0 $5,338,952 $(77,666) $20,647,647 $ (8,923,897)
======== ======= ======= ======== ========== =========== ============ =============
</TABLE>
The accompanying Notes to Consolidated Financial Statements are
an integral part of the consolidated financial statements.
F-6
<PAGE> 119
PAXSON COMMUNICATIONS CORP.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
FOR THE YEARS ENDED DECEMBER 31,
----------------------------------------------
1994 1993 1992
------------ ------------ ------------
<S> <C> <C> <C>
Cash flows from operating activities:
Net loss....................................... $ (4,762,074) $(11,409,000) $ (7,855,039)
Adjustments to reconcile net loss to net cash
provided by (used in) operating activities:
Depreciation and amortization.................. 12,403,528 9,350,633 5,977,301
Program rights amortization.................... 820,754 -- --
(Gain) loss on sale of assets.................. (28,105) (427,397) 40,282
Provision for doubtful accounts................ 344,706 89,681 109,900
(Benefit) provision for income taxes........... (1,680,000) 2,960,000 --
Loss on extinguishment of long-term debt....... -- 457,147 --
Change in accounting principle................. -- -- (109,540)
Decrease (increase) in accounts receivable..... (1,683,664) 470,942 (6,374,819)
Decrease (increase) in prepaid expenses and
other current assets........................ 234,301 1,308,404 (2,554,721)
Decrease in intangible assets.................. -- 175,452 125,007
Increase in other assets....................... (392,504) (20,731) (166,432)
(Decrease) increase in accounts payable and
accrued liabilities......................... (177,542) (109,491) 893,373
------------ ------------ ------------
Net cash provided by (used in) operating
activities.................................. 5,079,400 2,845,640 (9,914,688)
------------ ------------ ------------
Cash flows from investing activities:
Acquisitions of broadcasting properties........ (56,143,061) (32,145,000) (19,360,000)
Deposits on broadcasting properties............ (4,291,241) -- --
Deposits on buildings and equipment............ (642,890) -- --
Proceeds from sale of radio broadcasting
station..................................... 200,000 5,010,000 --
Purchases of property and equipment............ (5,916,512) (1,962,553) (1,273,388)
Increase in related party note receivable...... -- (1,750,000) --
------------ ------------ ------------
Net cash used for investing activities......... (66,793,704) (30,847,553) (20,633,388)
------------ ------------ ------------
Cash flows from financing activities:
Proceeds from long-term debt................... 50,000,000 38,100,000 19,000,000
Payments of long-term debt..................... (401,500) (27,001,362) (12,019)
Payments of loan origination costs and interest
rate caps................................... (5,030,352) (3,730,836) (640,237)
Payments for program rights.................... (335,646) -- --
Net proceeds from issuance of redeemable
preferred stock............................. 26,694,761 11,521,955 --
Net proceeds from issuance of common stock
warrants.................................... 5,338,952 2,125,218 --
Net stockholder capital contributions.......... -- 13,351,668 12,760,110
------------ ------------ ------------
Net cash provided by financing activities...... 76,266,215 34,366,643 31,107,854
------------ ------------ ------------
Increase in cash and cash equivalents............ 14,551,911 6,364,730 559,778
Cash and cash equivalents at beginning of year... 7,019,747 655,017 95,239
------------ ------------ ------------
Cash and cash equivalents at end of year......... $ 21,571,658 $ 7,019,747 $ 655,017
=========== =========== ===========
</TABLE>
The accompanying Notes to Consolidated Financial Statements are
an integral part of the consolidated financial statements.
F-7
<PAGE> 120
PAXSON COMMUNICATIONS CORP.
CONSOLIDATED STATEMENTS OF CASH FLOWS -- (CONTINUED)
<TABLE>
<CAPTION>
FOR THE YEARS ENDED DECEMBER 31,
----------------------------------------------
1994 1993 1992
------------ ------------ ------------
<S> <C> <C> <C>
Supplemental disclosures of cash flow
information:
Cash paid for interest......................... $ 4,765,800 $ 2,321,400 $ 1,129,331
=========== =========== ===========
Cash paid for income taxes..................... -- -- --
=========== =========== ===========
Non-cash operating and financing activities:
Issuance of common stock in connection with the
merger with ANG............................. $ 3,786,377 -- --
=========== =========== ===========
Dividends on redeemable preferred stock........ $ 2,216,137 $ 97,808 --
=========== =========== ===========
Accretion on redeemable securities............. $ 1,169,319 $ 53,559 --
=========== =========== ===========
Issuance of Series B preferred stock........... $ 1,248,209 -- --
=========== =========== ===========
Trade revenue.................................. $ 2,619,245 $ 1,001,317 $ 751,433
=========== =========== ===========
Trade expense.................................. $ 2,426,118 $ 1,029,105 $ 544,583
=========== =========== ===========
</TABLE>
The accompanying Notes to Consolidated Financial Statements are
an integral part of the consolidated financial statements.
F-8
<PAGE> 121
PAXSON COMMUNICATIONS CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1994 AND 1993
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
Basis of Presentation
Paxson Communications Corp. (the "Company"), a Delaware corporation, was
organized in December 1993 for the purpose of owning and operating radio and
television broadcasting stations and networks. The radio broadcasting activities
were previously operated by Paxson Enterprises, Inc. and related Paxson
Affiliates from the beginning of 1991 (all under common control of Mr. Lowell W.
Paxson, collectively referred to herein as "Enterprises"). On December 15, 1993,
Enterprises reorganized and consolidated the radio broadcasting activities
within the Company in exchange for 1,200 shares of Company common stock. The
Company accounted for the reorganization and consolidation in a manner similar
to the pooling of interests accounting method as the transactions took place
within entities under common control. Accordingly, all financial data, prior to
December 15, 1993, have been consolidated to include the operating results of
Enterprises' radio broadcasting stations, and the undistributed deficit prior to
the reorganization has been reclassified to additional paid-in capital.
On April 14, 1994, the Company acquired 68.1% of the common voting stock of
The American Network Group, Inc. ("ANG"), a publicly traded company, for $2.5
million. As a result, the Company has consolidated the financial results of ANG
since April 14, 1994. On November 4, 1994, a majority of the non-affiliated ANG
stockholders approved a merger, whereby ANG merged into the Company and,
accordingly, the holders of ANG common stock received the Company's Class A
common stock in exchange for ANG common stock outstanding. Additionally, upon
commencement of the merger, the Company shares exchanged for the ANG shares,
which were previously publicly traded, were listed on the NASDAQ Small-Cap
Exchange. These publicly traded shares represent approximately 3% of the
Company's Class A common shares outstanding and less than 1% of the Company's
voting power.
In connection with the merger with ANG, the Company amended its capital
structure to provide two classes of common voting stock, Class A common stock
and Class B common stock. Upon consummation of the recapitalization, the
Company's unclassified common stock outstanding was converted into 15,790,974
shares of Class A common stock and 5,263,658 shares of Class B common stock. The
pro forma effect of this conversion on the related Company common shares has
been included in the Company's balance sheet assuming the recapitalization
occurred at December 31, 1993. The pro forma net loss per share data has been
presented on the Company's statement of operations based on the weighted average
common shares outstanding after giving effect to the recapitalization.
On December 22, 1994, the Company amended its capital structure to
designate its preferred stock as 1,000,000 shares including: Senior preferred
stock -- 15% Cumulative Compounding Redeemable Stock; Series B preferred
stock -- 15% Cumulative Compounding Redeemable Stock, and Junior preferred stock
- -12% Cumulative Compounding Redeemable Stock and its common stock as 192,500,000
shares including: Class A common stock, one vote per share, 150,000,000 shares
authorized (increased from 45,000,000 shares); Class B common stock, ten votes
per share, 30,000,000 shares authorized (increased from 7,000,000 shares); and
Class C common stock, non-voting, 12,500,000 shares authorized. Additionally,
the Company announced a stock dividend for its common stock of an additional
one-half share for each common share outstanding for holders of record on
January 1, 1995. Accordingly, all Company common stock data has been
retroactively restated for the effects of the stock dividend for all periods
presented.
F-9
<PAGE> 122
PAXSON COMMUNICATIONS CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994 AND 1993
Operations
At December 31, 1994, the Company owns and operates fifteen radio stations,
seven radio networks and two television stations and operates (under time
brokerage agreements) one radio station and three television stations located
primarily in the Southeastern United States as follows:
<TABLE>
<CAPTION>
RADIO HOLDINGS:
RADIO MARKET STATION FORMAT OWNED SINCE
- --------------------- --------------------- ------------------------------- --------------
<S> <C> <C> <C>
Miami, FL WLVE-FM New Adult Jazz 1993
WZTA-FM Classic Rock 1992
WINZ-AM News and Sports 1992
Tampa, FL WHPT-FM Rock/Adult Contemporary 1991
WHNZ-AM News and Sports 1991
Orlando, FL WMGF-FM Soft Adult Contemporary 1993
WJRR-FM Album Oriented Rock 1993
WWNZ-AM News 1992
WWZN-AM Sports 1994
Jacksonville, FL WROO-FM Country 1991
WAIA-FM Classic Rock 1993
WNZS-AM Sports 1993
WZNZ-AM News 1993
Cookeville, TN WGSQ-FM Country 1994
WPTN-AM News/Talk 1994
</TABLE>
<TABLE>
<CAPTION>
RADIO NETWORKS:
MARKET NETWORK AFFILIATION OWNED SINCE
- --------------------- --------------------- ------------------------------- --------------
<S> <C> <C> <C>
Florida Florida Radio -- 1993
Florida Sports University of Florida 1994
Tennessee Tennessee Radio -- 1994
South Carolina South Carolina Radio -- 1994
Pennsylvania Penn State Sports Pennsylvania State 1994
University
Virginia Virginia Sports Virginia Polytechnic Institute 1994
Georgia Georgia Sports University of Georgia 1994
</TABLE>
<TABLE>
<CAPTION>
TELEVISION HOLDINGS:
TELEVISION MARKET STATION AFFILIATION OWNED SINCE
- --------------------- --------------------- ------------------------------- --------------
<S> <C> <C> <C>
West Palm Beach, FL WPBF-TV ABC 1994
Atlanta, GA WTLK-TV Independent 1994
</TABLE>
<TABLE>
<CAPTION>
TIME BROKERAGE RADIO STATION:
RADIO MARKET STATION FORMAT BROKERED SINCE
- --------------------- --------------------- ------------------------------- --------------
<S> <C> <C> <C>
Tampa, FL WNZE-AM Sports 1994
</TABLE>
<TABLE>
<CAPTION>
TIME BROKERAGE TELEVISION STATION:
TELEVISION MARKET STATION AFFILIATION BROKERED SINCE
- --------------------- --------------------- ------------------------------- --------------
<S> <C> <C> <C>
Miami, FL WCTD-TV Independent 1994
Tampa, FL WFCT-TV Independent 1994
Orlando, FL WIRB-TV Independent 1994
</TABLE>
F-10
<PAGE> 123
PAXSON COMMUNICATIONS CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994 AND 1993
Principles of Consolidation
The consolidated financial statements include accounts of the Company and
its subsidiaries. All intercompany balances and transactions have been
eliminated.
Cash and Cash Equivalents
Cash and cash equivalents are highly liquid investments with original
maturities of three months or less.
Property and Equipment
Purchases of property and equipment, including additions and improvements
and expenditures for repairs and maintenance that significantly add to
productivity or extend the economic lives of the assets, are capitalized at cost
and depreciated on a straight-line basis over their estimated useful lives as
follows:
<TABLE>
<S> <C>
Broadcasting towers and equipment............................. 6-13 years
Office furniture and equipment................................ 6-10 years
Buildings and building improvements........................... 40 years
Leasehold improvements........................................ Term of lease
Vehicles and other............................................ 5 years
</TABLE>
Maintenance, repairs, and minor replacements of these items are charged to
expense as incurred. The Company periodically assesses its property and
equipment and other long term assets for impairment.
Intangible Assets
Intangible assets are stated at cost and are being amortized using the
straight-line method over the estimated useful life as follows:
<TABLE>
<S> <C>
FCC licenses.................................................. 25 years
Covenants not to compete...................................... Contract term
Favorable lease and other radio contracts..................... Contract term
Goodwill...................................................... 25 years
</TABLE>
Excess Costs Over Acquired Net Assets
The excess cost over acquired net assets has been capitalized as goodwill
and is being amortized on a straightline basis over 25 years. The Company
periodically reviews the valuation of goodwill for impairment.
Other Assets
Loan origination costs and interest rate cap agreements are stated at cost
and are amortized over the life of the loan or agreement using the effective
interest method. Interest rate cap agreements are amortized to interest expense.
Escrow funds represent funds held in escrow on acquisitions pending FCC
approval. Other assets are stated at cost.
Program Rights
The Company obtains licenses for program rights which allow the Company to
broadcast program material in accordance with contractual agreements. Pursuant
to a licensing agreement, an asset is recorded for the program rights acquired
and a liability is recorded for the obligation incurred, at the gross amount of
the liability. Program rights are amortized on a method that approximates the
straight-line basis over the related term. Program rights which will not be
aired are charged to expense. Current program rights represent
F-11
<PAGE> 124
PAXSON COMMUNICATIONS CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994 AND 1993
programs which will be amortized during the next year; current liabilities
represent program rights which will be paid within the next year under
contractual arrangements.
Minority Interest
Minority interest represents the third party limited partners' interest in
the radio broadcasting stations located in Cookeville, Tennessee and minority
shareholders' interest in a start-up travel agency.
Redeemable Preferred Stock -- Senior, Series B & Junior and Redeemable
Common Stock Warrants
The differences between the fair value of the redeemable preferred stock
(Senior, Series B and Junior) at their date of issue and their redemption values
are being accreted using the effective interest method. The differences between
the fair value of the redeemable common stock warrants (Class A and B) at their
date of issue and their redemption values are being accreted on a straight line
method.
Stock Subscription Notes Receivable
In conjunction with the merger with ANG, the Company acquired and reissued
stock subscription notes receivable in exchange for shares of the Company Class
A common stock.
Revenue Recognition
Revenue is recognized as advertising air time is broadcast.
Trade and Barter Agreements
The Company enters into trade and barter agreements which give rise to
sales of advertising air time in exchange for products, services and
programming. Sales from trade and barter agreements are recognized at the fair
market value of products, services or programs received as the related
advertising air time is broadcast. Products, services and programs received are
expensed when used or when programs are broadcast. If the Company uses trade
products or services before advertising air time is provided, a trade liability
is recognized.
Time Brokerage Agreements
The Company operates certain stations under time brokerage agreements
("TBA's"). Under TBA's, the stations' operating revenues and expenses are
controlled by the Company and, accordingly, are reflected in the Company's
financial statements over the term of the TBA. A monthly time brokerage fee is
paid to the licensees of these stations.
Income Taxes
Provisions are made to record deferred income taxes in recognition of items
reported differently for financial reporting purposes than for federal and state
income tax purposes. The Company records deferred income taxes using the
liability method in accordance with Statement of Financial Accounting Standards
No. 109, "Accounting for Income Taxes".
Prior to the reorganization and consolidation on December 15, 1993,
Enterprises operated in the form of partnerships and S corporations for federal
and state income tax purposes. Therefore, all income and loss for that period
was taxed at the partner and stockholder level and no provision for income taxes
was recorded.
The Company and its subsidiaries have filed consolidated tax returns for
all periods subsequent to December 15, 1993.
F-12
<PAGE> 125
PAXSON COMMUNICATIONS CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994 AND 1993
A pro forma provision (benefit) for income taxes to reflect the effect on
the Statement of Operations had Enterprises filed a consolidated income tax
return for all periods, prior to the aforementioned reorganization and
consolidation on December 15, 1993, is as follows:
<TABLE>
<CAPTION>
FOR THE YEARS ENDED DECEMBER
31,
-----------------------------
1993 1992
----------- -----------
<S> <C> <C>
Tax benefit for net operating loss.......................... $(3,159,146) $(2,940,799)
Valuation allowance for net operating loss carryforward..... 3,159,146 2,940,799
----------- -----------
Provision for income taxes.................................. $ 0 $ 0
========== ==========
</TABLE>
Change in Accounting Principle
In 1992, depreciation was computed on all property and equipment using the
straight line method. The straight line method was adopted to recognize
depreciation expense in accordance with the estimated use of depreciable assets
over their service lives. In 1991, depreciation amounts were computed using the
declining balance method. As a result of this change, net loss before the
cumulative effect of a change in accounting principle increased by approximately
$669,000 for the year ended December 31, 1992. The cumulative effect on the
prior year, 1991, of the change in depreciation method was $109,540.
F-13
<PAGE> 126
PAXSON COMMUNICATIONS CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994 AND 1993
2. ACQUISITIONS AND DISPOSITIONS:
Acquisitions
In 1994 and 1993, the Company purchased the assets of the following radio
broadcasting stations, radio networks and television broadcasting stations.
<TABLE>
<CAPTION>
ACQUISITION/TBS
DATE STATION/NETWORK MARKET ACQUISITION PRICE
- --------------- -------------------------- -------------------- -----------------
<S> <C> <C> <C>
December 1994 WGTO-AM(1) Orlando, FL $ 1,550,000
December 1994 WIRB-TV* Orlando, FL *
August 1994 WNZE-AM(2) Tampa, FL $ 1,100,000
August 1994 WFCT-TV* Tampa, FL $ 1,120,000
July 1994 WPBF-TV West Palm Beach, FL $32,500,000
July 1994 WTLK-TV*** Atlanta, GA $ 9,500,000
April 1994 WGSQ-FM Cookeville, TN **
April 1994 WPTN-AM Cookeville, TN **
April 1994 Florida Sports Network Florida **
April 1994 Tennessee Radio Network Tennessee **
South Carolina Radio
April 1994 Network South Carolina **
April 1994 Penn State Sports Network Pennsylvania **
April 1994 Virginia Sports Network Virginia **
April 1994 Georgia Sports Network Georgia **
April 1994 WCTD-TV* Miami, FL $ 3,300,000
May 1993 WMGF-FM*** Orlando, FL $ 6,250,000
May 1993 WJRR-FM*** Orlando, FL $ 6,700,000
May 1993 WWZN-AM***(3) Orlando, FL $ 250,000
May 1993 WA1A-FM*** Jacksonville, FL $ 2,000,000
May 1993 WZNZ-AM*** Jacksonville, FL $ 500,000
May 1993 WNZS-AM Jacksonville, FL $ 450,000
March 1993 WLVE-FM Miami, FL $14,950,000
March 1993 Florida Radio Network Florida $ 1,100,000
</TABLE>
- ---------------
(1) Renamed WWZN-AM by the Company in December 1994.
(2) Acquisition closed in February 1995.
(3) Sold by the Company in November 1994.
* The Company operates under a time brokerage agreement and does not own the
FCC licenses.
** Acquired in conjunction with the merger with ANG (Note 1).
*** Previously operated under a time brokerage agreement.
F-14
<PAGE> 127
PAXSON COMMUNICATIONS CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994 AND 1993
Dispositions
In 1994 and 1993, the Company disposed of the assets of the following radio
broadcasting stations.
<TABLE>
<CAPTION>
DISPOSITION DISPOSITION
DATE STATION MARKET PRICE GAIN
- -------------- -------- ------------ ----------- ---------
<S> <C> <C> <C> <C>
November 1994 WWZN-AM Orlando, FL $ 300,000 $ 28,105
March 1993 WWNZ-FM Orlando, FL $ 5,010,000 $ 427,397
</TABLE>
Pro Forma Financial Information (unaudited)
The following pro forma financial information represents the unaudited pro
forma results of operations as if the aforementioned acquisitions had been
completed at the beginning of 1993 and 1994, after giving effect to certain
adjustments, including increased depreciation and amortization of property and
equipment and intangible assets and interest expense for acquisition debt. These
pro forma results have been prepared for comparative purposes only and do not
purport to be indicative of the results of operations which would have been
achieved had these acquisitions been completed as of these dates, nor are the
results indicative of the Company's future results of operations.
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER
31,
------------------------------
1993
------------
1994 (UNAUDITED)
-----------
(UNAUDITED)
<S> <C> <C>
Revenues............................................... $71,013,521 $ 56,199,603
----------- ------------
Income (loss) from operations.......................... $(2,733,637) $ (8,892,846)
----------- ------------
Net loss attributable to common stock and common stock
equivalents.......................................... $(8,649,191) $(21,812,057)
----------- ------------
Net loss per share attributable to common stock and
common stock equivalents............................. $ (0.26) $ (0.69)
----------- ------------
Pro forma weighted average shares outstanding.......... 33,430,116 31,581,948
========== ===========
</TABLE>
3. RELATED PARTIES:
During 1994 and 1993, the Company entered into certain operating and
financing transactions with related parties as described below.
The Christian Network
The Company has entered into several agreements with The Christian Network,
Inc. ("CNI"), a not-for-profit ministry founded by Mr. Paxson.
In December 1994, CNI entered into a time brokerage agreement with the
owners of a television broadcasting station, WIRB-TV, Melbourne, Florida. CNI
assigned its rights and obligations under the time brokerage agreement to the
Company. Additionally, CNI entered into an asset purchase agreement in which CNI
would purchase substantially all the tangible, real and intangible assets of the
station for $3,800,000. The Company has guaranteed CNI's obligations under the
asset purchase agreement. The transaction will take place upon FCC approval.
In April 1994, CNI purchased WCTD-TV, an independent television
broadcasting station in Miami, Florida, for $4,400,000. The Company acquired
certain of the WCTD-TV broadcasting assets for $3,300,000, as part of the CNI
acquisition, as well as an option to acquire the station from CNI. The option is
exercisable over a five year period upon payment to CNI of $100,000 plus the
remaining principal on its third party
F-15
<PAGE> 128
PAXSON COMMUNICATIONS CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994 AND 1993
$1,100,000 note payable. The note amortizes monthly over a five year period
concurrent with the option agreement. The Company leases the broadcasting assets
it acquired to CNI for operation at WCTD-TV under a five year lease agreement
for approximately $5,000 per month. Additionally, the Company purchases up to
twelve hours per day of broadcasting time on WCTD-TV from CNI under a five-year
time brokerage agreement for approximately $35,000 per month.
In June 1994, the Company and CNI agreed to assist Bradenton Broadcast
Television Company Ltd., ("BBTC") in the construction and operation of an
independent television broadcasting station WFCT-TV, in Bradenton, Florida
serving the Tampa Bay, Florida market. CNI leases the Company related studio
facilities under a five year agreement for approximately $150,000 per annum. The
Company has an option to purchase the station license for approximately
$191,000. The Company leases certain broadcasting assets to BBTC for fees of
$60,000 per annum. Additionally, the Company entered into a partial time
brokerage agreement with BBTC and CNI, whereby the Company purchases up to
twelve hours per day of broadcasting time from BBTC for a monthly fee of
approximately $3,500. The station began broadcasting on August 1, 1994.
Todd Communications
Mr. Paxson contributed a demand note receivable with Todd Communications,
Inc., a related party owner of WFSJ-FM (St. Augustine, Florida), formerly
WSTF-FM, in the amount of $1,750,000. The note receivable accrues interest at
the short-term annual Applicable Federal Rate prescribed by the Internal Revenue
Service, with the balance of principal and interest due upon demand. Interest
income received related to the note aggregated $70,900 for the year ended
December 31, 1994. The Company performs limited sales support and administrative
functions for Todd Communications, Inc. which is billed for efforts expended.
Marketing Magic
During 1994, the Company formed a travel agency, The World Travelers
Network, with Marketing Magic. During 1994, Marketing Magic brokered advertising
space and time and other goods and services to the Company through both trade
and cash transactions of approximately $1,500,000.
4. PROPERTY AND EQUIPMENT:
Property and equipment consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------------
1994 1993
----------- -----------
<S> <C> <C>
Broadcasting towers and equipment................. $39,445,071 $15,745,386
Office furniture and equipment.................... 5,075,412 3,727,183
Buildings and leasehold improvements.............. 4,302,476 3,064,918
Land and land improvements........................ 3,142,532 2,238,257
Vehicles and other................................ 3,877,851 1,233,168
----------- -----------
55,843,342 26,008,912
Accumulated depreciation.......................... (10,492,912) (5,108,199)
----------- -----------
Property and equipment, net....................... $45,350,430 $20,900,713
========== ==========
</TABLE>
Depreciation expense aggregated $5,433,038, $2,804,157 and $1,979,491 for
the three years ended December 31, 1994.
F-16
<PAGE> 129
PAXSON COMMUNICATIONS CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994 AND 1993
5. INTANGIBLE ASSETS:
Intangible assets consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------------
1994 1993
----------- -----------
<S> <C> <C>
FCC licenses...................................... $42,332,125 $17,262,192
Covenants not to compete.......................... 11,811,375 11,147,875
Favorable lease and other contracts............... 6,514,507 6,111,100
Goodwill.......................................... 7,819,778 58,643
----------- -----------
68,477,785 34,579,810
Accumulated amortization.......................... (15,126,818) (9,216,969)
----------- -----------
Intangible assets, net............................ $53,350,967 $25,362,841
========== ==========
</TABLE>
Amortization expense aggregated $5,940,575, $5,927,744 and $3,866,024 for
the three years ended December 31, 1994.
6. OTHER ASSETS:
Other assets consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------------
1994 1993
----------- ----------
<S> <C> <C>
Loan origination costs............................. $ 7,739,288 $3,730,836
Escrow funds for station acquisitions.............. 4,291,241 --
Interest rate caps, net............................ 983,803 290,219
Deposits on building and equipment................. 642,890 --
Organization costs................................. 407,672 331,036
Other assets....................................... 724,835 80,651
----------- ----------
14,789,729 4,432,742
Accumulated amortization........................... (1,711,383) (681,489)
----------- ----------
Other assets, net.................................. $13,078,346 $3,751,253
========== =========
</TABLE>
Amortization expense aggregated $1,029,915, $618,732 and $131,786 for the
three years ended December 31, 1994.
7. PROGRAM RIGHTS:
Program rights relate to the broadcast operations of WPBF-TV, purchased in
July 1994, and consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
1994
------------
<S> <C>
Program rights.................................. $ 3,045,642
Accumulated amortization........................ (820,754)
------------
2,224,888
Less current program rights..................... (1,980,000)
------------
$ 244,888
==========
</TABLE>
F-17
<PAGE> 130
PAXSON COMMUNICATIONS CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994 AND 1993
Program rights amortization expense aggregated $820,754 for the year ended
December 31, 1994.
8. PROGRAM RIGHTS PAYABLE:
Program rights payable represent the obligation incurred to secure the
right to broadcast program material in accordance with a contractual agreement.
Future minimum annual payments under these contractual agreements as of December
31, 1994, are as follows:
<TABLE>
<S> <C>
1995............................................. $ 986,562
1996............................................. 431,008
1997............................................. 131,762
----------
$1,549,332
=========
</TABLE>
9. LONG-TERM DEBT:
Long-term debt consists of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------------
1994 1993
----------- -----------
<S> <C> <C>
Revolving credit loans, total commitment of $150,000,000,
interest at LIBOR plus 2.75% (averaged 8.06% at December
31, 1994) payable quarterly, principal payments due
quarterly from December 31, 1995 to June 30, 2001......... $82,000,000 $32,000,000
Note payable, $1,100,000 principal, interest at 8.5% payable
monthly, principal payments of $100,000 due monthly
through April 1994........................................ -- 400,000
Mortgage note payable, $211,000 principal, interest at
9.75%, principal and interest payment of $1,813 due
monthly from January 1991 to December 1998, remaining
balance due December 1998................................. 206,902 208,402
Mortgage note payable, $200,055 principal, interest at 10%,
principal and interest payment of $3,000 due monthly from
January 1995 to April 1999, remaining balance due April
1999...................................................... 200,055 --
----------- -----------
82,406,957 32,608,402
Less current portion........................................ (6,393,415) (401,632)
----------- -----------
$76,013,542 $32,206,770
========== ==========
</TABLE>
On March 31, 1993, the Company executed an agreement with certain foreign
and domestic banks for revolving credit loans totalling $32,000,000. The
agreement was amended in December 1993 and in July 1994 to increase the facility
to include term and revolving loan commitments to $40,000,000 and $150,000,000,
respectively. Interest on the facility accrues at an initial rate of LIBOR plus
2.75%, decreasing to LIBOR plus 1.75% based on operating cash flows achieved
(interest at December 31, 1994 accrued at LIBOR plus 2.75%). Principal payments
are due from December 1995 to June 2001. These term and revolving credit loans
are secured by certain radio and television broadcasting assets and subsidiary
guarantees. Additionally, the credit agreement limits the distribution of cash
dividends from the radio and television broadcasting subsidiaries to other
Company entities.
The term and revolving credit agreement contains a number of covenants (all
of which the Company was in compliance with at December 31, 1994) that, among
other things, require the Company to maintain interest rate cap protection for
75% of the loan balance, maintain specified financial ratios and place certain
limitations on asset sales and purchases, incurrences of additional indebtedness
and liens related to leases,
F-18
<PAGE> 131
PAXSON COMMUNICATIONS CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994 AND 1993
changes in business or capital structure, and transactions with affiliates. The
credit agreement requires a maximum commitment fee of 0.375% per annum on the
daily average amount of available revolving credit commitments.
In December 1994, in conjunction with the purchase of WWZN-AM, Orlando,
Florida, formerly WGTO-AM, the Company assumed a mortgage of $200,055, with
monthly payments due until April 1999.
In March 1993, the Company extinguished a $21,300,000 credit agreement.
Loan origination costs of $457,147 associated with the debt have been retired
and reflected as an extraordinary item.
Aggregate maturities of long-term debt at December 31, 1994 for the next
five years are as follows:
<TABLE>
<S> <C>
1995............................................ $ 6,393,415
1996............................................ 10,645,339
1997............................................ 21,772,464
1998............................................ 24,973,954
1999............................................ 18,621,785
------------
$ 82,406,957
==========
</TABLE>
10. INCOME TAXES:
As a result of the reorganization and consolidation on December 15, 1993,
the tax status of the Company changed to a taxable entity requiring the
cumulative change in tax status to be computed as of that date and be reflected
in the current year tax provision for continuing operations reflecting the
cumulative differences between the tax basis and book basis of assets and
liabilities.
Significant components of the (benefit) provision for income taxes are as
follows:
<TABLE>
<CAPTION>
FOR THE YEARS
ENDED DECEMBER 31,
--------------------------
1994 1993
----------- ----------
<S> <C> <C>
Current tax (benefit) expense
Federal............................................... -- --
State................................................. -- --
----------- ----------
Total current.................................... -- --
----------- ----------
Deferred tax (benefit) expense
Federal............................................... $(1,503,200) $2,674,000
State................................................. (176,800) 286,000
----------- ----------
Total deferred............................................. (1,680,000) 2,960,000
----------- ----------
Total (benefit) provision.................................. $(1,680,000) $2,960,000
========== =========
</TABLE>
F-19
<PAGE> 132
PAXSON COMMUNICATIONS CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994 AND 1993
Significant components of the Company's deferred tax liabilities (assets)
are as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------------
1994 1993
----------- ----------
<S> <C> <C>
Deferred taxes -- current:
Assets
Doubtful accounts allowance and other......................... $ (194,940) $ (159,173)
Net operating loss carryforward............................... -- (235,187)
Liabilities
Unrecognized cash to accrual adjustments...................... -- 2,334,364
----------- ----------
(194,940) 1,940,004
Deferred tax asset valuation allowance for net operating loss
carryforwards................................................ -- 235,187
----------- ----------
Deferred tax (asset) liability -- current.......................... (194,940) 2,175,191
----------- ----------
Deferred taxes -- noncurrent:
Assets
Net operating loss carryforward.......................... (4,126,507) --
Liability
Tax over book depreciation and amortization................... 1,474,940 784,809
Deferred tax asset valuation allowance for net
operating loss carryforwards................................ 4,126,507 --
----------- ----------
Deferred tax liability -- non-current......................... 1,474,940 784,809
----------- ----------
$ 1,280,000 $2,960,000
========== =========
</TABLE>
A valuation allowance is provided when it is more likely than not that some
portion of the deferred tax asset will not be realized. A valuation allowance
has been provided for the net operating loss carryforwards. A portion of the net
operating losses were acquired in the acquisition of ANG. Future recognition of
the benefit from these losses will be applied first to reduce goodwill related
to the acquisition, then to reduce other non-current intangible assets related
to the acquisition and then to reduce income tax expense.
The reconciliation of income tax benefit attributable to continuing
operations, computed at U.S. Federal Statutory tax rates, to provision for
income taxes is:
<TABLE>
<CAPTION>
FOR THE YEARS ENDED
DECEMBER 31,
---------------------------
1994 1993
----------- -----------
<S> <C> <C>
Tax benefit at U.S. Federal Statutory tax rates................... $(2,190,305) $(2,717,230)
State income tax benefit, net of federal benefit.................. (257,682) (290,104)
Tax benefits attributable to losses recognized for book purposes
in period that Enterprises operated as non-taxable entities..... -- 3,397,783
Deferred taxes attributable to income recognized on accrual basis
for book purposes, in period that Enterprises operated as
non-taxable entities, but recognized for tax purposes after
reorganization.................................................. -- 2,334,364
Non-deductible items.............................................. 83,000 --
Valuation allowance for net operating loss carryforwards.......... 684,987 235,187
----------- -----------
(Benefit) provision for income taxes.............................. $(1,680,000) $ 2,960,000
========== ==========
</TABLE>
F-20
<PAGE> 133
PAXSON COMMUNICATIONS CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994 AND 1993
The following table summarizes the Company's total (benefit) provision for
income taxes:
<TABLE>
<CAPTION>
FOR THE YEARS ENDED
DECEMBER 31,
--------------------------
1994 1993
----------- ----------
<S> <C> <C>
Tax (benefit) provision before extraordinary item.................. $(1,680,000) $2,960,000
Extraordinary item................................................. -- --
----------- ----------
$(1,680,000) $2,960,000
========== =========
</TABLE>
Extraordinary item in 1993 relates to debt retirements in the period before
the Company reorganized on December 15, 1993 which are taxable at the
stockholder level and, accordingly, are not tax effected.
The Company has net operating loss carryforwards for income tax purposes of
approximately $10.8 million at December 31, 1994. Net operating losses expire
through 2009. A portion of the net operating losses relate to ANG and are
limited to annual utilization as a result of the change in ownership.
11. EMPLOYEE BENEFIT PLANS:
Savings and Profit Sharing Plan
In October 1991, the Company established retirement savings and cafeteria
plans pursuant to Sections 401(k) and 125 of the Internal Revenue Code which
cover substantially all of the Company's employees. Employer contributions to
the retirement savings plan are discretionary. The Company elected not to make
retirement savings contributions for the three plan years ended December 31,
1994. Under the cafeteria plan, employees may elect to participate in health,
dental, life and disability insurance benefit plans funded through employee
payroll deductions.
Stock Incentive Plan
On November 4, 1994, the Company instituted a stock incentive plan to
provide incentives to officers and employees through the issuance of options and
restricted stock. The options may be either in the form of incentive or
non-qualified stock options. The issuance, exercise price, exercise dates and
number of options are determined at the discretion of the Company's compensation
committee. The aggregate number of Company Class A common shares available for
issuance is 2,143,575 shares (after giving effect for the January 1, 1995 stock
dividend). At December 31, 1994, no options had been issued under this plan. On
February 13, 1995, options were authorized to be granted under the stock
incentive plan which would allow for the purchase of Class A common shares at an
exercise price of $3.42 per share. Subsequent to grant, such options may be
exercised by the officers or employees upon vesting.
12. REDEEMABLE PREFERRED STOCK:
Redeemable Senior Preferred Stock
Redeemable Senior preferred stock consists of 2,000 15% cumulative
compounding shares, par value of $0.001 per share, stated value of $7,000 per
share, issued with 225 detachable redeemable common stock purchase warrants
(exercisable into 3,116,865 shares of Company Class A common stock and 1,038,955
shares of Company Class B common stock after giving effect to the Company's
recapitalization and stock dividends, at $0.01 per share), issued on December
15, 1993 in exchange for $14,000,000. The holder of preferred stock is entitled
to preferential cumulative dividends at a rate of 15% per share, per annum,
payable quarterly commencing on December 31, 1993. These shares have
preferential liquidation rights and are entitled to elect 25% of the Company's
Board of Directors.
F-21
<PAGE> 134
PAXSON COMMUNICATIONS CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994 AND 1993
The Senior preferred shares are redeemable, at the option of the holder, on
or after the seventh anniversary of the issue date (December 15, 2000) at $7,000
per share plus all accrued and unpaid dividends to date. The shares may also be
redeemed, at the option of the Company, on or after the fourth anniversary of
the issue date (December 15, 1997) at $7,000 per share plus all accrued and
unpaid dividends to date. The shares also provide redemption features in the
event of certain changes in ownership control of the Company, bankruptcy, and
twelve month dividend arrearages after the fifth anniversary of issue date
(December 15, 1998).
Cumulative preferred dividends in arrears aggregated $2,197,808 and $97,808
at December 31, 1994 and 1993, respectively.
Redeemable Series B Preferred Stock
Redeemable Series B preferred stock consists of 714.286 15% Cumulative
Compounding shares, par value of $0.001 per share, stated value of $7,000 per
share, issued on December 22, 1994 as a result of the call of 94.6223 detachable
redeemable common stock purchase warrants into 1,310,779 shares of Class A
common stock and 436,926 shares of Class B common stock which were then
surrendered for Series B preferred stock. The holder of Series B preferred stock
is entitled to cumulative dividends at a rate of 15% per share, per annum,
payable quarterly commencing on December 31, 1994. Series B preferred stock
ranks prior to all classes of Junior preferred stock and junior to Senior
preferred stock.
The Series B preferred shares are redeemable, at the option of the holder,
on or after December 15, 2000 at $7,000 per share plus all accrued and unpaid
dividends to date. The shares may also be redeemed at the option of the Company,
on or after December 15, 1997 at $7,000 per share plus all accrued and unpaid
dividends to date.
Cumulative Series B preferred dividends in arrears aggregated $18,493 at
December 31, 1994.
Redeemable Junior Preferred Stock
Redeemable Junior preferred stock consists of 33,000 cumulative compounding
shares, par value of $0.001 per share, stated value of $1,000 per share, issued
with 3,235,753 Class C common stock warrants, issued on December 22, 1994 in
exchange for $33,000,000. The holder of Junior preferred stock is entitled to
cumulative dividends at a rate of 12% per annum prior to the seventh anniversary
of the issue date (December 22, 2001), 13% per annum from the seventh through
the eighth anniversary (December 22, 2002), and 14% per annum after the eighth
anniversary, payable semi-annually commencing on December 31, 1999.
The Junior preferred shares are redeemable, at the option of the Company,
at $1,030 plus unpaid, deferred, and accrued dividends prior to the third
anniversary (December 22, 1997), $1,020 plus unpaid, deferred, and accrued
dividends after the third and prior to the fourth anniversary (December 22,
1998), and $1,000 plus unpaid, deferred, and accrued dividends per share on or
after the fourth anniversary. A mandatory redemption is scheduled on the ninth
anniversary (December 22, 2003).
Cumulative Junior preferred dividends in arrears aggregated $97,644 at
December 31, 1994.
13. COMMON STOCK WARRANTS:
Redeemable Common Stock Warrants
In connection with the 1993 redeemable senior Preferred Stock issuance, the
Company issued 225 detachable redeemable common stock purchase warrants
entitling the holder to purchase one common share per warrant at an exercise
price of $0.01 per share. These purchase warrants represent an aggregate
purchase
F-22
<PAGE> 135
PAXSON COMMUNICATIONS CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994 AND 1993
interest of 15% of the Company which must be maintained in the event of
subsequent changes in the Company's capital structure.
The stock purchase warrants include a put provision requiring the Company
to repurchase any warrants, at the option of the holder, at the fair market
value per share on or after the seventh anniversary of issue date (December 15,
2000).
On December 22, 1994, 94.6223 of the 120 callable warrants were called by
the Company into 1,310,779 shares of Class A common stock and 436,926 shares of
Class B common stock and were then surrendered for the Redeemable Series B
preferred stock. The remaining 130.3777 redeemable common stock purchase
warrants entitle the holders to purchase 2,709,129 Class A common shares and
903,044 Class B common shares (after giving effect to the stock dividend), or
approximately 9% of all common shares.
Class C Common Stock Warrants
In connection with the Redeemable Junior Preferred Stock issuance on
December 22, 1994, the Company issued 4,853,630 detachable Class C common stock
purchase warrants (after giving effect to the stock dividend), entitling the
holder to purchase one Class C common share per warrant at an exercise price of
$0.001 per share. These purchase warrants represent an aggregate purchase
interest of 10% of all currently outstanding common shares.
14. COMMON STOCK:
On December 15, 1993, in connection with the reorganization and
consolidation of its radio broadcasting activities, the Company authorized 1,500
shares and issued 1,200 shares of unclassified common stock.
In November 1994, in connection with the merger with ANG, the Company
amended its capital structure to provide two classes of common voting stock,
Class A common stock, and Class B common stock. Upon consummation of the
recapitalization, the Company's unclassified common stock outstanding was
converted into 15,790,974 shares of Class A common stock and 5,263,658 shares of
Class B common stock. Upon consummation of the merger, the holders of ANG common
stock received the Company's Class A common stock in exchange for ANG common
stock outstanding. Additionally, the Company's Class A common shares exchanged
for the ANG shares, which were previously publicly traded, were listed on the
NASDAQ Small-Cap Exchange. These publicly traded shares represent approximately
3% of the Company's Class A common shares outstanding and less than 1% of the
Company's voting power.
On December 22, 1994, the Company amended its capital structure to
designate a third class of non-voting common stock and amended authorized shares
of: Class A common stock, one vote per share, 150,000,000 shares authorized
(increased from 45,000,000 shares); Class B common stock, ten votes per share,
35,000,000 shares authorized (increased from 7,000,000 shares); and Class C
common stock, non-voting, 12,500,000 shares authorized. Additionally, the
Company announced a stock dividend for its common stock of an additional
one-half share for each common share outstanding for holders of record on
January 1, 1995.
Voting rights allow the voting common stockholders to elect up to 75% of
the Company's Board of Directors, but do not allow the common stockholders to
change the rights and privileges of the preferred stockholders without a
majority affirmative vote of the preferred stockholders. Class A common stock
and Class B common stock will vote as a single class in all matters submitted to
a vote of the stockholders with each share of Class A common stock entitled to
one vote and each share of Class B common stock entitled to ten votes. Each
share of Class B common stock is convertible, at the option of its holder, into
one share of Class A common stock at any time.
F-23
<PAGE> 136
PAXSON COMMUNICATIONS CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994 AND 1993
15. COMMITMENTS AND CONTINGENCIES:
The Company incurred total expenses of $2,405,745, for the year ended
December 31, 1994, under operating leases for radio broadcasting facilities and
equipment and employment agreements. Future minimum annual payments under these
non-cancelable operating leases and agreements, as of December 31, 1994, are as
follows:
<TABLE>
<S> <C>
1995.......................................... $ 2,413,078
1996.......................................... 2,054,570
1997.......................................... 1,938,186
1998.......................................... 1,696,972
1999.......................................... 1,264,769
Thereafter.................................... 1,356,414
-----------
$10,723,989
==========
</TABLE>
The Company has entered into commitments for radio broadcast rights related
to sporting events that are not currently available for broadcast and are
therefore not included in the financial statements. The Company incurred total
expenses of $2,379,516 and had total commitments of approximately $5,589,300 as
of and for the year ended December 31, 1994.
On December 31, 1992, the Company entered into an agreement to purchase the
assets of WEZY-FM, a radio broadcasting station in Lakeland, Florida. The
purchase was contingent upon obtaining land for a new tower/transmitter site and
regulatory approval for its construction. In January 1995, the Company received
all required approvals for a tower site and will close and begin construction in
the first half of 1995. The previous owner will operate the station under a time
brokerage agreement until the tower is complete. The total purchase price is
$4,750,000.
16. SUBSEQUENT EVENTS:
Purchases:
WTGI-TV, Philadelphia, Pennsylvania
On February 3, 1995, the Company purchased the assets of WTGI-TV, an
independent television broadcasting station in Wilmington, Delaware, serving the
Philadelphia, Pennsylvania market for $10,200,000.
F-24
<PAGE> 137
PAXSON COMMUNICATIONS CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994 AND 1993
Asset Purchase Agreements
Subsequent to year end, the Company entered into several agreements to
purchase the assets of television and radio broadcasting stations. Applications
to transfer the Federal Communications Commission licenses in connection with
the purchases have been filed. The Company is waiting for approval to close the
following transactions:
<TABLE>
<CAPTION>
PURCHASE
STATION MARKET PRICE
- --------- --------------------------- ------------
<S> <C> <C>
KZKI-TV Los Angeles, CA $ 18,000,000
KLXV-TV San Francisco, CA $ 5,000,000
WTWS-TV Hartford/New Haven, CT(1) $ 2,700,000
Channel
68 Dallas, TX(2) $ 2,000,000
KTFH-TV Houston, TX(3) $ 7,900,000
WGOT-TV Boston, MA $ 3,050,000
WFTL-AM Miami, FL $ 2,000,000
</TABLE>
- ---------------
(1) Approval received, scheduled to close in March 1995.
(2) Station not currently on the air. The Company estimates spending $2,000,000
in build-out costs before broadcasting can begin.
(3) Operated under a time brokerage agreement since March 1, 1995.
Other
In September 1994, the Company entered into an agreement with Whitehead
Media, Inc. ("Whitehead"), in which the Company agreed to loan Whitehead
$17,175,000 to purchase WTVX-TV, West Palm Beach, Florida. Whitehead has signed
an asset purchase agreement for WTVX-TV and has filed an application with the
FCC for transfer of the license. Under the agreement, the Company would operate
WTVX-TV under a time brokerage agreement.
17. SEGMENT DATA:
Since closing the acquisition of WPBF-TV in July 1994, the Company operates
two principal business segments consisting of radio and television. The radio
segment includes fifteen stations for which the Company is the licensee, and one
station operated under a time brokerage agreement, all of which operate in five
different markets. The radio segment also operates seven radio networks. The
television segment includes two stations for which the Company is the licensee
and three stations which are operated under time brokerage agreements; all of
which operate in five different markets. The other segment includes corporate
and ancillary service company activities.
F-25
<PAGE> 138
PAXSON COMMUNICATIONS CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994 AND 1993
Selected financial information for these segments is presented below:
<TABLE>
<CAPTION>
1994 1993 1992
------------ ----------- -----------
<S> <C> <C> <C>
RADIO
Total revenue.......................................... $ 50,323,875 $31,058,472 $16,480,445
Operating expenses, less depreciation and
amortization......................................... 38,919,088 25,012,435 14,746,078
Depreciation and amortization.......................... 9,118,001 9,128,847 5,760,756
------------ ----------- -----------
Income (loss) from operations.......................... $ 2,286,786 $(3,082,810) $(4,026,389)
=========== ========== ==========
Cumulative effect of change in accounting principle.... -- -- $ 105,572
=========== ========== ==========
Total identifiable assets.............................. $ 71,126,358 $61,686,096 $35,193,821
=========== ========== ==========
Capital expenditures................................... $ 2,490,960 $ 1,962,553 $ 429,531
=========== ========== ==========
TELEVISION
Total revenue.......................................... $ 10,844,820 -- --
Operating expenses, less depreciation and
amortization......................................... 8,524,316 -- --
Depreciation and amortization.......................... 2,888,176 -- --
------------ ----------- -----------
Loss from operations................................... $ (567,672) -- --
=========== ========== ==========
Cumulative effect of change in accounting principle.... -- -- --
=========== ========== ==========
Total identifiable assets.............................. $ 55,784,331 -- --
=========== ========== ==========
Capital expenditures................................... $ 3,185,280 -- --
=========== ========== ==========
OTHER
Total revenue.......................................... $ 898,748 $ 1,003,559 $ 581,392
Operating expenses, less depreciation and
amortization......................................... 3,782,548 3,860,193 3,175,610
Depreciation and amortization.......................... 397,351 221,876 216,545
------------ ----------- -----------
Loss from operations................................... $ (3,281,151) $(3,078,420) $(2,810,763)
=========== ========== ==========
Cumulative effect of change in accounting principle.... -- -- $ 3,968
=========== ========== ==========
Total identifiable assets.............................. $ 25,759,692 $ 4,888,512 $ 1,873,263
=========== ========== ==========
Capital expenditures................................... $ 240,272 -- $ 843,857
=========== ========== ==========
CONSOLIDATED
Total revenue.......................................... $ 62,067,443 $32,062,031 $17,061,837
Operating expenses, less depreciation and
amortization......................................... 51,225,952 28,872,628 17,921,688
Depreciation and amortization.......................... 12,403,528 9,350,633 5,977,301
------------ ----------- -----------
Loss from operations................................... $ (1,562,037) $(6,161,230) $(6,837,152)
=========== ========== ==========
Cumulative effect of change in accounting principle.... -- -- $ 109,540
=========== ========== ==========
Total identifiable assets.............................. $152,670,381 $66,574,608 $37,067,084
=========== ========== ==========
Capital expenditures................................... $ 5,916,512 $ 1,962,553 $ 1,273,388
=========== ========== ==========
</TABLE>
F-26
<PAGE> 139
PAXSON COMMUNICATIONS CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994 AND 1993
18. QUARTERLY RESULTS OF OPERATIONS (UNAUDITED)
<TABLE>
<CAPTION>
SEPTEMBER DECEMBER
MARCH 31, JUNE 30, 30, 31,
1994 QUARTER QUARTER QUARTER QUARTER
- -------------------------------------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Total revenue......................... $ 9,365,158 $12,148,603 $18,327,456 $22,226,226
Operating expenses, less depreciation
and amortization.................... 8,324,334 10,268,884 14,219,712 18,413,022
Depreciation and amortization......... 2,410,146 2,855,767 3,292,245 3,845,370
----------- ----------- ----------- -----------
Income (loss) from operations......... $(1,369,322) $ (976,048) $ 815,499 $ (32,166)
========== ========== ========== ==========
Net loss before extraordinary item.... $(1,798,625) $ (318,376) $ (672,445) $(1,972,628)
========== ========== ========== ==========
Net loss.............................. $(1,798,625) $ (318,376) $ (672,445) $(1,972,628)
========== ========== ========== ==========
Pro forma per share data (Note 1):
Pro forma net loss before
extraordinary item............... $ (0.06) $ (0.01) $ (0.02) $ (0.06)
Pro forma net loss.................. $ (0.06) $ (0.01) $ (0.02) $ (0.06)
Pro forma weighted average common
shares outstanding.................. 31,581,948 32,506,032 33,430,116 33,430,116
========== ========== ========== ==========
Stock Price:
High................................ -- -- -- $ 16.00*
Low................................. -- -- -- $ 10.17*
1993
- --------------------------------------
Total revenue......................... $ 6,034,575 $ 8,920,029 $ 7,758,618 $ 9,348,809
Operating expenses, less depreciation
and amortization.................... 6,186,466 8,524,197 6,720,123 7,441,842
Depreciation and amortization......... 1,894,865 2,142,004 2,163,065 3,150,699
----------- ----------- ----------- -----------
Loss from operations.................. $(2,046,756) $(1,746,172) $(1,124,570) $(1,243,732)
========== ========== ========== ==========
Net loss before extraordinary item.... $(2,131,761) $(2,406,988) $(1,672,633) $(4,740,471)
========== ========== ========== ==========
Net loss.............................. $(2,131,761) $(2,406,988) $(1,672,633) $(5,197,618)
========== ========== ========== ==========
Pro forma per share data (Note 1):
Pro forma net loss before
extraordinary item............... $ (0.07) $ (0.08) $ (0.05) $ (0.15)
Pro forma net loss.................. $ (0.07) $ (0.08) $ (0.05) $ (0.16)
Pro forma weighted average common
shares outstanding.................. 31,581,948 31,581,948 31,581,948 31,581,948
========== ========== ========== ==========
Stock Price:
High................................ -- -- -- --
Low................................. -- -- -- --
</TABLE>
- ---------------
The Company's common stock is traded on the Nasdaq Stock Market under the
symbol PAXN.
* Stock price after giving effect to the January 1, 1995 stock dividend (Note
1).
F-27
<PAGE> 140
PAXSON COMMUNICATIONS CORPORATION
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1995 1994
------------- ------------
(UNAUDITED)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents............................................. $ 57,945,458 $ 21,571,658
Accounts receivable, less allowance for doubtful accounts of $836,403
and $556,950 respectively........................................... 14,172,666 13,569,198
Prepaid expenses and other current assets............................. 1,558,525 1,579,954
Current deferred income taxes......................................... 194,940 194,940
Current program rights................................................ 1,182,436 1,980,000
------------- ------------
Total current assets........................................... 75,054,025 38,895,750
Property and equipment, net............................................. 75,063,826 45,350,430
Intangible assets, net.................................................. 87,686,913 53,350,967
Investments in broadcast properties..................................... 28,013,671 --
Other assets, net....................................................... 15,244,694 13,078,346
Related party notes receivable.......................................... 2,500,000 1,750,000
Program rights, net..................................................... 366,344 244,888
------------- ------------
Total assets................................................... $283,929,473 $152,670,381
============== =============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable and accrued liabilities.............................. $ 6,047,737 $ 5,123,691
Current portion of program rights payable............................. 1,055,599 986,562
Related party note payable............................................ 1,200,000 --
Current portion of long-term debt..................................... 333,009 6,393,415
------------- ------------
Total current liabilities...................................... 8,636,345 12,503,668
Program rights payable.................................................. 637,043 562,770
Long-term debt.......................................................... 2,664,786 76,013,542
Deferred income taxes................................................... 605,145 1,474,940
Minority interest....................................................... -- 1,217,314
Senior subordinated notes, net.......................................... 227,311,106 --
Redeemable Cumulative Compounding Senior preferred stock, $0.001 par
value; 15% dividend rate per annum, 2,000 shares authorized, issued
and outstanding....................................................... 16,138,416 14,060,054
Redeemable Class A & B common stock warrants............................ 4,378,925 1,735,979
Redeemable Cumulative Compounding Series B preferred stock, $0.001 par
value; 15% dividend rate per annum, 714.286 shares authorized,
issued and outstanding................................................ 2,083,167 1,274,671
Redeemable Cumulative Compounding Junior preferred stock, $0.001 par
value; 12% dividend rate per annum, 33,000 shares authorized, issued
and outstanding....................................................... 30,399,729 26,808,053
Class A common stock, $0.001 par value; one vote per share; 150,000,000
shares authorized, 26,157,226 shares issued and outstanding........... 26,157 26,042
Class B common stock, $0.001 par value; ten votes per share, 30,000,000
shares authorized, 8,311,640 shares issued and outstanding............ 8,312 8,312
Class C common stock, $0.001 par value; non-voting; 12,500,000 shares
authorized, 0 shares issued and outstanding........................... -- --
Class C common stock warrants........................................... 5,338,952 5,338,952
Stock subscription notes receivable..................................... (71,833 ) (77,666)
Additional paid-in capital.............................................. 33,904,823 20,647,647
Deferred option plan compensation....................................... (2,179,102 ) --
Accumulated deficit..................................................... (45,952,498 ) (8,923,897)
Commitments and contingencies...........................................
------------- ------------
Total liabilities and stockholders' equity..................... $283,929,473 $152,670,381
============== =============
</TABLE>
The accompanying Notes to Consolidated Financial Statements
are an integral part of the consolidated financial statements.
F-28
<PAGE> 141
PAXSON COMMUNICATIONS CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
FOR THE NINE MONTHS
ENDED SEPTEMBER 30,
-------------------------------
1995 1994
------------ ------------
(UNAUDITED)
<S> <C> <C>
Revenue:
Local and national advertising.............................. $ 65,333,616 $ 36,450,956
Retail and other............................................ 3,837,003 1,557,979
Trade....................................................... 2,353,098 1,832,282
------------ ------------
Total revenue....................................... 71,523,717 39,841,217
Operating expenses:
Direct...................................................... 17,624,276 11,108,734
Programming................................................. 9,358,796 5,620,889
Sales and promotion......................................... 6,767,364 3,875,130
Technical................................................... 3,674,362 1,428,195
General and administrative.................................. 15,912,555 7,906,908
Trade....................................................... 2,081,962 1,514,811
Time brokerage agreement fees............................... 757,369 365,678
Sports rights fees.......................................... 1,509,565 539,875
Option plan compensation.................................... 9,809,105 --
Program rights amortization................................. 1,291,754 452,710
Depreciation and amortization............................... 13,079,041 8,558,158
------------ ------------
Total operating expenses............................ 81,866,149 41,371,088
------------ ------------
Loss from operations.......................................... (10,342,432) (1,529,871)
Other income (expense):
Interest expense, net....................................... (7,853,189) (3,190,568)
Other income, net........................................... (45,773) 161,993
------------ ------------
Loss before income tax benefit................................ (18,241,394) (4,558,446)
Income tax benefit............................................ 960,000 1,769,000
------------ ------------
Loss before extraordinary item................................ (17,281,394) (2,789,446)
Extraordinary item............................................ (10,625,727) --
------------ ------------
Net loss...................................................... (27,907,121) (2,789,446)
------------ ------------
Dividends and accretion on preferred stock and
common stock warrants....................................... (9,121,480) (2,407,459)
------------ ------------
Net loss attributable to common stock and
common stock equivalents.................................... $(37,028,601) $ (5,196,905)
=========== ===========
Net loss per share before extraordinary item.................. $ (.50) $ (.09)
Extraordinary item............................................ (.31) --
------------ ------------
Net loss per share............................................ (.81) (.09)
Dividends and accretion on preferred stock and common stock
warrants per share.......................................... (.27) (.07)
------------ ------------
Net loss attributable to common stock and common stock
equivalents per share....................................... $ (1.08) $ (.16)
=========== ===========
Weighted average shares outstanding primary and fully
diluted..................................................... 34,404,800 32,506,032
=========== ===========
</TABLE>
The accompanying Notes to Consolidated Financial Statements
are an integral part of the consolidated financial statements.
F-29
<PAGE> 142
PAXSON COMMUNICATIONS CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
FOR THE THREE MONTHS ENDED
SEPTEMBER 30,
----------------------------
1995 1994
------------ -----------
(UNAUDITED)
<S> <C> <C>
Revenue:
Local and national advertising................................. $ 24,878,716 $16,735,366
Retail and other............................................... 1,339,280 561,654
Trade.......................................................... 949,373 1,030,436
------------ -----------
Total revenue.......................................... 27,167,369 18,327,456
Operating expenses:
Direct......................................................... 6,069,426 4,831,072
Programming.................................................... 3,418,730 2,625,192
Sales and promotion............................................ 2,294,178 1,457,709
Technical...................................................... 1,527,073 564,822
General and administrative..................................... 5,922,881 3,105,159
Trade.......................................................... 888,119 502,495
Time brokerage agreement fees.................................. 207,422 140,678
Sports rights fees............................................. 490,210 539,875
Option plan compensation....................................... 404,976 --
Program rights amortization.................................... 514,697 452,710
Depreciation and amortization.................................. 5,024,785 3,292,245
------------ -----------
Total operating expenses......................................... 26,762,497 17,511,957
------------ -----------
Income from operations........................................... 404,872 815,499
Other income (expense):
Interest expense, net.......................................... (3,544,543) (1,799,853)
Other income, net.............................................. (32,010) (61,091)
------------ -----------
Loss before income tax benefit................................... (3,171,681) (1,045,445)
Income tax benefit............................................... 320,000 373,000
------------ -----------
Loss before extraordinary item................................... (2,851,681) (672,445)
Extraordinary item............................................... (10,625,727) --
------------ -----------
Net loss......................................................... (13,477,408) (672,445)
------------ -----------
Dividends and accretion on preferred stock and common stock
warrants....................................................... (3,257,319) (820,400)
------------ -----------
Net loss attributable to common stock and common stock
equivalents.................................................... $(16,734,727) $(1,492,845)
=========== ==========
Net loss per share before extraordinary item..................... $ (.08) $ (.02)
Extraordinary item............................................... (.31) --
------------ -----------
Net loss per share............................................... (.39) (.02)
Dividends and accretion on preferred stock and common stock
equivalents per share.......................................... (.10) (.02)
------------ -----------
Net loss attributable to common stock and common stock
equivalents per share.......................................... $ (.49) $ (.04)
=========== ==========
Weighted average shares outstanding primary and fully diluted.... 34,458,766 33,430,116
=========== ==========
</TABLE>
The accompanying Notes to Consolidated Financial Statements
are an integral part of the consolidated financial statements.
F-30
<PAGE> 143
PAXSON COMMUNICATIONS CORPORATION
CONSOLIDATED STATEMENTS OF CHANGES IN
COMMON STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
CLASS C STOCK DEFERRED
COMMON STOCK COMMON SUBSCRIPTION ADDITIONAL OPTION
--------------------------- COMMON STOCK NOTES PAID-IN PLAN ACCUMULATED
CLASS A CLASS B CLASS C STOCK WARRANTS RECEIVABLE CAPITAL COMPENSATION DEFICIT
------- ------- ------- ------- ---------- ------------ ----------- ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at December
31, 1993.........
Recapitalization of
common stock..... $15,791 $5,264 $ 1 $16,895,623 $ (776,367)
Stock issued for
ANG
acquisition...... 1,570 277 (1 ) $(77,666) (21,054)
Net proceeds from
issuance of
common stock
warrants......... $5,338,952 3,784,530
Dividends on
redeemable
preferred
stock............ (2,216,137)
Accretion on
redeemable
securities....... (1,169,319)
Net Loss........... (4,762,074)
Stock dividend..... 8,681 2,771 (11,452)
------- ------- ------- ------- ---------- ------------ ----------- ------------ ------------
Balance at December
31, 1994......... 26,042 8,312 $ 0 0 5,338,952 (77,666) 20,647,647 $ 0 (8,923,897)
Stock issued for
Cookeville
acquisition
(unaudited)...... 95 1,199,905
Deferred Option
Plan Compensation
(unaudited)...... 11,988,207 (11,988,207 )
Option plan
compensation
(unaudited)...... 9,809,105
Stock options
exercised
(unaudited)...... 20 69,064
Note repayments
(unaudited)...... 5,833
Dividends on
redeemable
preferred stock
(unaudited)...... (5,507,650)
Accretion on
redeemable
securities
(unaudited)...... (3,613,830)
Net loss
(unaudited)...... (27,907,121)
------- ------- ------- ------- ---------- ------------ ----------- ------------ ------------
Balance at
September 30,
1995
(unaudited)...... $26,157 $8,312 $ 0 $ 0 $5,338,952 $(71,833) $33,904,823 $(2,179,102 ) $(45,952,498)
======= ======= ======= ======== ========= =========== ========== ============ ============
</TABLE>
The accompanying Notes to Consolidated Financial Statements
are an integral part of the consolidated financial statements.
F-31
<PAGE> 144
PAXSON COMMUNICATIONS CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
FOR THE NINE MONTHS
ENDED SEPTEMBER 30,
---------------------------
1995 1994
------------ -----------
(UNAUDITED)
<S> <C> <C>
Cash flow from operating activities:
Net loss.............................................................. $(27,907,121) $(2,789,446)
Adjustments to reconcile net loss to net cash provided by operating
activities:
Depreciation and amortization......................................... 13,079,041 8,558,158
Option plan compensation.............................................. 9,809,105 --
Program rights amortization........................................... 1,291,754 992,585
Provision for doubtful accounts....................................... 653,602 271,938
Income tax benefit.................................................... (960,000) (1,769,000)
Loss on sale of assets................................................ 98,556 --
Minority interest in net loss......................................... -- (6,425)
Extraordinary loss on write-off of loan costs......................... 10,625,727 --
Increase in accounts receivable....................................... (1,257,071) (1,623,908)
Decrease (increase) in prepaid expenses and other current assets...... 21,432 (312,638)
Increase in intangible assets......................................... (1,200,000) --
Increase in other assets.............................................. (1,056,165) (1,005,814)
Increase in accounts payable and accrued liabilities.................. 924,046 1,060,230
------------ -----------
Net cash provided by operating activities............................. 4,122,906 3,375,680
------------ -----------
Cash flows from investing activities:
Acquisitions of broadcast properties.................................. (53,847,917) (55,052,599)
Deposits on broadcast properties...................................... (2,660,000) (1,220,000)
Increase in related party note receivable............................. (750,000) --
Proceeds from sale of fixed assets.................................... 716,820 --
Investments in broadcast properties................................... (28,013,671) --
Purchase of property and equipment.................................... (18,864,364) (4,604,001)
------------ -----------
Net cash used for investing activities................................ (103,419,132) (60,876,600)
------------ -----------
Cash flows from financing activities:
Increase in related party note payable................................ 1,200,000 7,700,000
Proceeds from long-term debt.......................................... 317,539,000 50,000,000
Payments of long-term debt............................................ (169,639,157) (401,111)
Payments of loan origination costs.................................... (13,032,399) (3,428,451)
Proceeds from exercise of common stock options........................ 69,084 --
Repayments of stock subscription notes receivable..................... 5,833 --
Payments for program rights........................................... (472,335) (257,200)
------------ -----------
Net cash provided by financing activities............................. 135,670,026 53,613,238
------------ -----------
Increase (decrease) in cash and cash equivalents........................ 36,373,800 (3,887,682)
------------ -----------
Cash and cash equivalents at beginning of period........................ 21,571,658 7,019,747
------------ -----------
Cash and cash equivalents at end of period.............................. $ 57,945,458 $ 3,132,065
============= ============
Supplemental disclosures of cash flow information:
Cash paid for interest................................................ $ 8,188,957 $ 2,770,489
============= ============
Cash paid for income taxes............................................ -- --
============= ============
Non-cash operating and financing activities:
Issuance of Common stock for Cookeville acquisition................... $ 1,200,000 $ --
============= ============
Dividends on redeemable preferred stock............................... $ 5,507,650 $ 1,571,425
============= ============
Accretion on redeemable securities.................................... $ 3,613,830 $ 836,034
============= ============
Trade revenue......................................................... $ 2,353,098 $ 1,832,282
============= ============
Trade expense......................................................... $ 2,081,962 $ 1,514,811
============= ============
</TABLE>
The accompanying Notes to Consolidated Financial Statements
are an integral part of the consolidated financial statements.
F-32
<PAGE> 145
PAXSON COMMUNICATIONS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
BASIS OF PRESENTATION
Paxson Communications Corporation's (the "Company") financial information
contained in the financial statements and notes thereto as of September 30, 1995
and for the nine month and three month periods ended September 30, 1995 and
1994, are unaudited. In the opinion of management, all adjustments necessary for
the fair presentation of such financial information have been included. These
adjustments are of a normal recurring nature. There have been no changes in
accounting policies since the period ended December 31, 1994. The composition of
accounts has significantly changed since December 31, 1994 to reflect the
operations of acquisitions discussed below, the issuance of $230,000,000 of
11 5/8% senior subordinated notes ("the Notes"), the extraordinary expense
related to write-off of loan origination costs, inclusion of the stock incentive
plan options and the reclassification of related party notes receivable amounts
to long term assets. The Notes have been presented net of original issue
discount. The Company has classified the notes receivable amounts advanced in
conjunction with its financing of certain acquisitions of television properties
for which it has long-term time brokerage agreements as Investments in broadcast
properties. This classification reflects the Company's intent to purchase
certain assets of the station from the licensee and the long-term nature of the
time brokerage relationships.
Certain information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting principles
have been condensed or omitted. These financial statements, footnotes, and
discussions should be read in conjunction with the December 31, 1994 financial
statements and related footnotes and discussions contained in the Company's Form
10-K, filed with the United States Securities and Exchange Commission on March
31, 1995, Form 10-Q filed on May 12, 1995, Form 10-Q/A filed August 30, 1995,
the definitive proxy statement filed by the Company on May 4, 1995 for the
annual meeting of stock holders held June 1, 1995, Forms 8-K filed June 1, 1995
and August 19, 1995 and Forms 8-K/A filed July 31, 1995 and October 18, 1995. In
conjunction with the issuance of the Notes the Company filed a Form S-4 with the
Securities and Exchange Commission on October 27, 1995.
PRO FORMA FINANCIAL INFORMATION
The following represents the unaudited pro forma results of operations as
if the acquisitions and time brokerage arrangements described in Item 2 of Part
I had been completed at the beginning of 1995 and 1994, after giving effect to
certain adjustments, including increased depreciation and amortization of
property and equipment and intangible assets and interest expense for
acquisition debt. These pro forma results have been prepared for comparative
purposes only and do not purport to be indicative of the results of operations
which would have been achieved had these acquisitions been completed as of these
dates, nor are the results indicative of the Company's future results of
operations.
<TABLE>
<CAPTION>
FOR THE NINE MONTHS
ENDED SEPTEMBER 30,
-----------------------------
1995 1994
------------ ------------
(UNAUDITED)
<S> <C> <C>
Revenues........................................................ $ 80,791,755 $ 61,969,565
=========== ===========
Broadcast cash flow............................................. $ 21,185,459 $ 11,686,549
=========== ===========
Loss from operations............................................ $ (5,941,957) $(10,700,389)
=========== ===========
Net loss attributable to common stock and common stock
equivalents................................................... $(54,670,222) $(32,717,865)
=========== ===========
Net loss attributable to common stock and common stock
equivalents per share......................................... $ (1.59) $ (1.01)
=========== ===========
Pro forma weighted average shares outstanding primary and fully
diluted....................................................... 34,404,800 32,506,032
=========== ===========
</TABLE>
F-33
<PAGE> 146
PAXSON COMMUNICATIONS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
<TABLE>
<CAPTION>
FOR THE THREE MONTHS
ENDED SEPTEMBER 30,
-----------------------------
1995 1994
------------ ------------
(UNAUDITED)
<S> <C> <C>
Revenues........................................................ $ 28,575,947 $ 20,962,178
=========== ===========
Broadcast cash flow............................................. $ 8,815,139 $ 5,803,914
=========== ===========
Loss from operations............................................ $ (885,814) $ (1,593,871)
=========== ===========
Net loss attributable to common stock and common stock
equivalents................................................... $(32,422,596) $(22,435,631)
=========== ===========
Net loss attributable to common stock and common stock
equivalents per share......................................... $ (.94) $ (.67)
=========== ===========
Pro forma weighted average shares outstanding primary
and fully diluted............................................. 34,458,766 33,430,116
=========== ===========
</TABLE>
"Broadcast cash flow" is defined as Income (loss) from operations plus
non-cash expenses and non-broadcast operating results, less scheduled broadcast
rights payments and non-cash revenues. The Company has included broadcast cash
flow data because such data is commonly used as a measure of performance for
broadcast companies and is also used by investors to measure the Company's
ability to service debt. Broadcast cash flow is not, and should not be used as
an indicator or alternative to operating income, net income or cash flow as
reflected in the Consolidated Financial Statements as it is not a measure of
financial performance under generally accepted accounting principles.
F-34
<PAGE> 147
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors and Stockholders
of KZKI-TV (a division of Sandino Telecasters)
In our opinion, the accompanying balance sheet and the related statements
of operations, of changes in divisional deficit and of cash flows present
fairly, in all material respects, the financial position of KZKI-TV (a division
of Sandino Telecasters), (the "Station") at January 31, 1995 and the results of
its operations and its cash flows for the year then ended in conformity with
generally accepted accounting principles. These financial statements are the
responsibility of the Station's management; our responsibility is to express an
opinion on these financial statements based on our audit. We conducted our audit
of these statements in accordance with generally accepted auditing standards
which require that we plan and perform the audit to obtain reasonable assurance
about whether the financial statements are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements, assessing the accounting principles
used and significant estimates made by management, and evaluating the overall
financial statement presentation. We believe that our audit provides a
reasonable basis for the opinion expressed above.
The accompanying financial statements have been prepared assuming that the
Station will continue as a going concern. As discussed in Note 1 to the
financial statements, the Station has incurred cumulative net losses and has
significant notes payable which are due on demand, which raise substantial doubt
about the Station's ability to continue as a going concern. Management's plans
in regard to these matters are also described in Note 1. The financial
statements do not include any adjustments that might result from the outcome of
this uncertainty.
/s/ Price Waterhouse LLP
- --------------------------------------
PRICE WATERHOUSE LLP
Tampa, Florida
July 17, 1995
F-35
<PAGE> 148
KZKI-TV (A DIVISION OF SANDINO TELECASTERS)
BALANCE SHEET
<TABLE>
<CAPTION>
JANUARY
MAY 17, 31,
1995 1995
----------- ----------
(UNAUDITED)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents......................................... $ 22,053 $ 91,180
Accounts receivable............................................... 3,289 6,695
Prepaid expenses and other assets................................. 3,733 10,813
----------- ----------
Total current assets...................................... 29,075 108,688
Property and equipment, net......................................... 2,008,203 2,180,634
Intangible assets, net.............................................. 6,685,736 6,792,333
----------- ----------
Total assets $ 8,723,014 $9,081,655
========= =========
LIABILITIES AND DIVISIONAL DEFICIT
Current liabilities:
Accounts payable and accrued liabilities.......................... $ 30,399 $ 41,261
Unearned revenue.................................................. 34,915 71,074
Related party payables
Accrued interest............................................... 2,920,897 2,650,378
Notes payable.................................................. 8,872,874 9,572,874
----------- ----------
Total current liabilities................................. 11,859,085 12,335,587
----------- ----------
Divisional deficit.................................................. (3,136,071) (3,253,932)
----------- ----------
Commitments and contingencies (see Note 6)
Total liabilities and divisional deficit.................. $ 8,723,014 $9,081,655
========= =========
</TABLE>
The accompanying Notes to Financial Statements
are an integral part of the financial statements.
F-36
<PAGE> 149
KZKI-TV (A DIVISION OF SANDINO TELECASTERS)
STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
FOR THE FOR THE
PERIOD ENDED YEAR ENDED
MAY 17, JANUARY 31,
1995 1995
------------ -----------
(UNAUDITED)
<S> <C> <C>
Revenue:
Network programming................................................ $ 330,413 $ 871,701
Paid programming and other......................................... 688,142 840,210
------------ -----------
Total revenue.............................................. 1,018,555 1,711,911
------------ -----------
Operating expenses:
Technical.......................................................... 113,671 395,512
Direct............................................................. 15,150 64,363
Programming........................................................ 9,758 22,215
General and administrative......................................... 212,568 558,220
Depreciation and amortization...................................... 279,028 743,396
------------ -----------
Total operating expenses................................... 630,175 1,783,706
------------ -----------
Income (loss) from operations........................................ 388,380 (71,795)
Related party interest expense....................................... (270,519) (855,800)
------------ -----------
Net income (loss).......................................... $ 117,861 $ (927,595)
========== =========
</TABLE>
The accompanying Notes to Financial Statements
are an integral part of the financial statements.
F-37
<PAGE> 150
KZKI-TV
(A DIVISION OF SANDINO TELECASTERS)
STATEMENT OF CHANGES IN DIVISIONAL DEFICIT
<TABLE>
<S> <C>
Balance at February 1, 1994..................................................... $(2,326,337)
Net loss........................................................................ (927,595)
-----------
Balance at January 31, 1995..................................................... (3,253,932)
Net income through May 17, 1995 (unaudited)..................................... 117,861
-----------
Balance at May 17, 1995 (unaudited)............................................. $(3,136,071)
==========
</TABLE>
The accompanying Notes to Financial Statements are
an integral part of the financial statements.
F-38
<PAGE> 151
KZKI-TV
(A DIVISION OF SANDINO TELECASTERS)
STATEMENT OF CASH FLOWS
<TABLE>
<CAPTION>
FOR THE FOR THE
PERIOD ENDED YEAR ENDED
MAY 17, JANUARY 31,
1995 1995
------------ -----------
(UNAUDITED)
<S> <C> <C>
Cash flows from operating activities:
Net income (loss)................................................. $ 117,861 $ (927,595)
Adjustments to reconcile net income (loss) to net cash provided
by operating activities:
Depreciation and amortization..................................... 279,028 743,396
Decrease (increase) in accounts receivable........................ 3,406 (5,297)
Decrease (increase) in prepaid expenses and other assets.......... 7,080 (7,069)
(Decrease) increase in accounts payable and accrued liabilities... (10,862) 31,209
(Decrease) increase in unearned revenue........................... (36,159) 56,228
Increase in related party accrued interest........................ 270,519 855,800
------------ -----------
Net cash provided by operating activities......................... 630,873 746,672
------------ -----------
Cash flows from investing activities:
Purchases of property and equipment............................... -- (204,410)
------------ -----------
Cash flows from financing activities:
Proceeds from related party note payable.......................... -- 418,588
Payments of related party note payable............................ (700,000) (935,000)
------------ -----------
Net cash used for financing activities............................ (700,000) (516,412)
------------ -----------
(Decrease) increase in cash and cash equivalents.................... (69,127) 25,850
Cash and cash equivalents at beginning of year...................... 91,180 65,330
------------ -----------
Cash and cash equivalents at end of period.......................... $ 22,053 $ 91,180
========== =========
Supplemental disclosure of cash flow information:
Cash paid for interest............................................ $ 0 $ 0
========== =========
Cash paid for income taxes........................................ $ 0 $ 0
========== =========
</TABLE>
The accompanying Notes to Financial Statements are
an integral part of the financial statements.
F-39
<PAGE> 152
KZKI-TV
(A DIVISION OF SANDINO TELECASTERS)
NOTES TO FINANCIAL STATEMENTS
JANUARY 31, 1995
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
KZKI-TV (A division of Sandino Telecasters) (the "Station"), is engaged in
the operation of a television broadcasting station in the Los Angeles,
California market. Sandino Telecasters operates the television station under a
license granted by the Federal Communications Commission.
The Station has incurred cumulative net losses through January 31, 1995
totaling approximately $3,254,000. Additionally, the Station owes approximately
$12,223,000 on demand notes payable and accrued interest to a related party. The
Station does not have sufficient means to repay the notes payable if called (see
Note 4). These conditions raise substantial doubt regarding the Station's
ability to continue as a going concern. Owners plan to liquidate the Station's
liabilities through a sale of the Station's assets (see Note 7).
Cash and cash equivalents
Cash and cash equivalents are highly liquid investments with original
maturities of three months or less.
Property and equipment
Purchases of property and equipment, including additions and improvements
and expenditures for repairs and maintenance that significantly add to
productivity or extend the economic lives of the assets, are capitalized at cost
and depreciated on a straight-line basis over their estimated useful lives as
follows:
<TABLE>
<S> <C>
Broadcasting tower and equipment.............................. 10 years
Leasehold improvements........................................ Term of lease
Office furniture and equipment................................ 6 years
</TABLE>
Maintenance, repairs, and minor replacements of these items are charged to
expense as incurred.
Intangible assets
Intangible assets consists of the FCC license which is stated at cost and
is being amortized using the straight-line method over the estimated useful life
of 25 years.
Revenue recognition
Revenue is recognized as advertising air time is broadcast.
Income taxes
The Station's operating results have been included in the tax return filed
by Sandino Telecasters. A provision for intercompany income taxes, which
approximates the income tax provision calculated for Station income on a
standalone basis was calculated to be $0 based upon cumulative net losses.
Interim financial data
The interim financial data of the Station is unaudited; however, in the
opinion of Station management, the interim financial data includes all
adjustments, consisting of only normal recurring adjustments, necessary for a
fair presentation of results of the interim period. The results of operations
for the period from February 1, 1995 through May 17, 1995 are not necessarily
indicative of the results that could be expected for the entire fiscal year
ending January 31, 1996.
F-40
<PAGE> 153
KZKI-TV
(A DIVISION OF SANDINO TELECASTERS)
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
JANUARY 31, 1995
2. PROPERTY AND EQUIPMENT:
Property and equipment consists of the following:
<TABLE>
<CAPTION>
JANUARY 31,
1995
----------
<S> <C>
Broadcasting tower and equipment................................. $2,171,897
Leasehold improvements........................................... 473,413
Office furniture and equipment................................... 33,002
----------
2,678,312
Accumulated depreciation......................................... (497,678)
----------
Property and equipment, net...................................... $2,180,634
=========
Depreciation expense for the year................................ $ 459,396
=========
</TABLE>
3. INTANGIBLE ASSETS:
Intangible assets consist of the following:
<TABLE>
<CAPTION>
JANUARY 31,
1995
-----------
<S> <C>
FCC licenses................................................. $ 7,100,000
Accumulated amortization..................................... (307,667)
-----------
Intangible assets, net....................................... $ 6,792,333
=========
Amortization expense for the year............................ $ 284,000
=========
</TABLE>
4. RELATED PARTY NOTES PAYABLE:
Related party notes payable consist of the following:
<TABLE>
<CAPTION>
JANUARY 31,
1995
-----------
<S> <C>
Note payable, prime + 1% interest compounded annually,
interest and principal due on demand....................... $ 7,100,000
Revolving credit note payable, prime + 1% interest compounded
annually, interest and principal due on demand............. 2,472,874
-----------
$ 9,572,874
=========
</TABLE>
In 1991, the Station borrowed $7,100,000 from Astrum Management Group
("Astrum"), a minority shareholder of Sandino Telecasters, in order to purchase
the FCC license and begin operations (see Note 5). The note accrues interest at
prime + 1% and is due on demand. At January 31, 1995, accrued interest payable
on the note was $2,319,638; no interest or principal repayments have been made
to date.
Additionally, the Station entered into a revolving credit agreement with
Astrum, whereby Astrum funded initial construction of the Station and continues
to fund working capital shortfalls. The working capital note accrues interest at
prime + 1% and is due on demand. At January 31, 1995, accrued interest payable
on the note was $330,740; no interest repayments have been made to date.
F-41
<PAGE> 154
KZKI-TV
(A DIVISION OF SANDINO TELECASTERS)
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
JANUARY 31, 1995
5. RELATED PARTY TRANSACTIONS:
The Station has entered into several agreements with related parties. As
discussed in Note 4, the Station has significant outstanding notes payable and
accrued interest payable with Astrum, a minority shareholder of Sandino
Telecasters. Additionally, Astrum provides financial management and accounting
services for the Station. The value of these services based on estimated hours
expended by Astrum was approximately $6,000, for the year ended January 31,
1995. All other overhead, debt and interest allocations have been appropriately
reflected in the Station's financial statements.
6. COMMITMENTS AND CONTINGENCIES:
The Station incurred expenses of approximately $44,922 for the year ended
January 31, 1995 under a non-cancelable operating lease for office space.
Additionally, the Station incurred expenses of approximately $10,695 for a
special use permit from the U.S. Department of Forestry for use of the land
surrounding the station's tower. Future minimum annual payments under the
operating lease as of January 31, 1995, are $31,820, due during fiscal year
1996.
7. SUBSEQUENT EVENT:
On May 17, 1995, the Owners sold the Station's assets to Paxson
Communications Corporation for approximately $18,000,000.
F-42
<PAGE> 155
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors and Stockholders
of Paugus Television, Inc.
In our opinion, the accompanying balance sheet and the related statements
of operations, of changes in stockholders' deficit and of cash flows present
fairly, in all material respects, the financial position of Paugus Television,
Inc. (the "Company"), at December 31, 1994 and the results of its operations and
its cash flows for the year then ended in conformity with generally accepted
accounting principles. These financial statements are the responsibility of the
Company's management; our responsibility is to express an opinion on these
financial statements based on our audit. We conducted our audit of these
statements in accordance with generally accepted auditing standards which
require that we plan and perform the audit to obtain reasonable assurance about
whether the financial statements are free of material misstatement. An audit
includes examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements, assessing the accounting principles
used and significant estimates made by management, and evaluating the overall
financial statement presentation. We believe that our audit provides a
reasonable basis for the opinion expressed above.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. As discussed in Note 1 to the
accompanying financial statements, the Company has incurred cumulative net
losses from operations and has significant notes payable which are due on demand
that raise substantial doubt about its ability to continue as a going concern.
Management's plans in regard to these matters are also described in Note 1 to
the accompanying financial statements. The financial statements do not include
any adjustments that might result from the outcome of this uncertainty.
/s/ Price Waterhouse LLP
- --------------------------------------
PRICE WATERHOUSE LLP
Tampa, Florida
August 21, 1995
F-43
<PAGE> 156
PAUGUS TELEVISION, INC. (WGOT-TV)
BALANCE SHEET
<TABLE>
<CAPTION>
MAY 17, DECEMBER 31,
1995 1994
------------ ------------
(UNAUDITED)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents..................................... $ 42,148 $ 14,127
Accounts receivable, less allowance for doubtful accounts of
$14,948 and $23,965, respectively.......................... 92,659 124,510
Prepaid expenses and other assets............................. 35,120 21,319
Current program rights........................................ 42,971 68,754
------------ ------------
Total current assets.................................. 212,898 228,710
Property and equipment, net..................................... 111,526 202,203
Intangible assets, net.......................................... 574,923 587,318
Program rights, net............................................. 34,671 34,671
------------ ------------
Total assets.......................................... $ 934,018 $ 1,052,902
=========== ===========
LIABILITIES AND STOCKHOLDERS' DEFICIT
Current liabilities:
Accounts payable and accrued liabilities...................... $ 8,121 $ 135,340
Other payables................................................ 168,306 182,051
Current program rights payable................................ 106,060 111,594
Related party payables:
Accrued interest payable................................... 1,217,469 1,043,505
Notes payable.............................................. 6,931,243 6,767,800
------------ ------------
Total current liabilities............................. 8,431,199 8,240,290
Program rights payable.......................................... 21,400 36,089
------------ ------------
Total liabilities..................................... 8,452,599 8,276,379
Stockholders' deficit:
Common stock, $1 par, 300 shares authorized, 284.38 shares
issued and outstanding..................................... 284 284
Additional paid-in capital.................................... 2,843,516 2,843,516
Retained deficit.............................................. (10,362,381) (10,067,277)
------------ ------------
Total stockholders' deficit........................... (7,518,581) (7,223,477)
------------ ------------
Commitments and contingencies (see Note 8)
Total liabilities and stockholders' deficit........... $ 934,018 $ 1,052,902
=========== ===========
</TABLE>
The accompanying Notes to Financial Statements are
an integral part of the financial statements.
F-44
<PAGE> 157
PAUGUS TELEVISION, INC. (WGOT-TV)
STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
FOR THE FOR THE
PERIOD ENDED YEAR ENDED
MAY 17, DECEMBER 31,
1995 1994
------------ ------------
(UNAUDITED)
<S> <C> <C>
Revenue:..........................................................
Local and national advertising.................................. $ 296,586 $ 877,165
Trade........................................................... 62,834 305,821
Production and other............................................ 240,395 38,698
------------ ------------
Total revenue..................................................... 599,815 1,221,684
------------ ------------
Operating expenses:
Technical....................................................... 82,967 194,241
News............................................................ 49,670 193,583
Direct.......................................................... 87,086 184,081
Sales........................................................... 54,992 141,393
Production...................................................... 54,769 131,089
Programming and promotion....................................... 81,278 116,631
General and administrative...................................... 113,831 534,430
Trade........................................................... 58,495 275,352
Program rights amortization..................................... 25,784 174,034
Depreciation and amortization................................... 101,729 203,456
------------ ------------
Total operating expenses.......................................... 710,601 2,148,290
------------ ------------
Loss from operations.............................................. (110,786) (926,606)
Other income (expense):
Related party interest expense.................................. (174,155) (331,815)
Loss on sale of assets.......................................... -- (13,146)
Other expense, net.............................................. (10,163) (37,951)
------------ ------------
Net loss.......................................................... $ (295,104) $ (1,309,518)
========== ==========
</TABLE>
The accompanying Notes to Financial Statements are
an integral part of the financial statements.
F-45
<PAGE> 158
PAUGUS TELEVISION INC. (WGOT-TV)
STATEMENT OF CHANGES IN STOCKHOLDERS' DEFICIT
<TABLE>
<CAPTION>
STOCKHOLDERS' DEFICIT
---------------------------------------------------
ADDITIONAL
COMMON PAID-IN RETAINED
STOCK CAPITAL DEFICIT TOTAL
------ ---------- ------------ -----------
<S> <C> <C> <C> <C>
Balance at January 1, 1994................... $284 $2,843,516 $ (8,757,759) $(5,913,959)
Net loss..................................... (1,309,518) (1,309,518)
------ ---------- ------------ -----------
Balance at December 31, 1994................. 284 2,843,516 (10,067,277) (7,223,477)
Net loss through May 17, 1995 (unaudited).... (295,104) (295,104)
------ ---------- ------------ -----------
Balance at May 17, 1995 (unaudited).......... $284 $2,843,516 $(10,362,381) $(7,518,581)
====== ========= =========== ==========
</TABLE>
The accompanying Notes to Financial Statements are
an integral part of the financial statements.
F-46
<PAGE> 159
PAUGUS TELEVISION, INC. (WGOT-TV)
STATEMENT OF CASH FLOWS
<TABLE>
<CAPTION>
FOR THE
YEAR
FOR THE ENDED
PERIOD ENDED DECEMBER
MAY 17, 31,
1995 1994
------------ -----------
(UNAUDITED)
<S> <C> <C>
Cash flows from operating activities:
Net loss........................................................ $ (295,104) $(1,309,518)
Adjustments to reconcile net loss to net cash used for operating
activities:
Depreciation and amortization................................... 101,729 203,456
Program rights amortization..................................... 25,784 174,034
Allowance for doubtful accounts................................. (9,017) 708
Loss on sale of assets.......................................... -- 13,146
Decrease (increase) in accounts receivable...................... 40,868 (62,644)
(Increase) decrease in prepaid expenses and other assets........ (13,801) 157,833
(Decrease) increase in accounts payable and accrued
liabilities.................................................. (127,219) 8,466
Decrease in other payables...................................... (13,745) (193,227)
Increase in related party accrued interest...................... 173,964 322,947
------------ -----------
Net cash used for operating activities.......................... (116,541) (684,799)
------------ -----------
Cash flows from investing activities:
Purchases of property and equipment............................. -- (43,374)
Sale of property and equipment.................................. 1,342 42,000
------------ -----------
Net cash used for investing activities.......................... 1,342 (1,374)
------------ -----------
Cash flows from financing activities:
Payments for program rights..................................... (20,223) (142,581)
Proceeds from related party notes payable....................... 163,443 791,888
------------ -----------
Net cash provided by financing activities....................... 143,220 649,307
------------ -----------
Increase (decrease) in cash and cash equivalents.................. 28,021 (36,866)
Cash and cash equivalents at beginning of year.................... $ 14,127 $ 50,993
------------ -----------
Cash and cash equivalents at end of period........................ $ 42,148 $ 14,127
========== ==========
Supplemental disclosure of cash flow information:
Cash paid for interest.......................................... $ 0 $ 0
========== ==========
Non-cash operating activities:
Trade revenue................................................... $ 62,834 $ 305,821
========== ==========
Trade expense................................................... $ 58,495 $ 275,352
========== ==========
</TABLE>
The accompanying Notes to Financial Statements are
an integral part of the financial statements.
F-47
<PAGE> 160
PAUGUS TELEVISION, INC. (WGOT-TV)
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1994
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
Paugus Television, Inc. (the "Company"), a Delaware Corporation, was
organized in 1988 for the purpose of owning and operating a television station,
WGOT-TV, in Manchester, New Hampshire, serving the Boston, Massachusetts market.
The Company has incurred substantial cumulative net losses through December
31, 1994 totalling approximately $10,067,000. Additionally, the Company owes
approximately $7,811,000 on demand notes payable and accrued interest to a
related party. The Company does not have sufficient means to repay the notes
payable (see Note 6). These conditions raise substantial doubt regarding the
Company's ability to continue as a going concern. Management plans to liquidate
the Company's liabilities through a sale of the Company's assets (see Note 9).
Property and equipment
Purchases of property and equipment, including additions and improvements
and expenditures for repairs and maintenance that significantly add to
productivity or extend the economic lives of the assets, are capitalized at cost
and depreciated on a straight-line basis over their estimated useful lives as
follows:
<TABLE>
<S> <C>
Broadcasting tower and equipment.............................. 7 years
Office furniture equipment and other.......................... 5 years
Leasehold improvements........................................ Term of lease
</TABLE>
Maintenance, repairs, and minor replacements of these items are charged to
expense as incurred.
Intangible assets
Intangible assets are stated at cost and are being amortized using the
straight-line method over the estimated useful life as follows:
<TABLE>
<S> <C>
Goodwill...................................................... 25 years
Favorable lease agreement..................................... Term of lease
Organization costs............................................ 5 years
</TABLE>
Program rights
The Company obtains licenses for program rights which allow the Company to
broadcast program material in accordance with contractual agreements. Pursuant
to a licensing agreement, an asset is recorded for the program rights acquired
and a liability is recorded for the obligation incurred, at the gross amount of
the liability. Program rights are amortized on a method that approximates the
straight-line basis over the related term. Program rights which will not be
aired are charged to expense. Current program rights represent programs which
will be amortized during the next year, current liabilities represent program
rights which will be paid within the year under contractual agreement.
Income taxes
Provisions are made to record deferred income taxes in recognition of items
reported differently for financial reporting purposes than for federal and state
income tax purposes. The Company records deferred income taxes using the
liability method in accordance with Statement of Financial Accounting Standards
No. 109, "Accounting for Income Taxes".
F-48
<PAGE> 161
PAUGUS TELEVISION, INC. (WGOT-TV)
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994
Revenue recognition
Revenue is recognized as advertising air time is broadcast.
Trade agreements
The Company enters into trade agreements which give rise to sales of
advertising air time in exchange for products and services. Sales from trade
agreements are recognized at the fair market value of products or services
received as advertised air time is broadcast. Products and services received are
expensed when used in the broadcast operations. If the Company uses exchanged
products or services before advertising air time is provided, a trade liability
is recognized.
Interim financial data
The interim financial data of the Company is unaudited; however, in the
opinion of the Company's management, the interim data includes all adjustments,
consisting of only normal recurring adjustments, necessary for a fair statement
of results for the interim periods. The results of operations for the period
ended May 17, 1995 are not necessarily indicative of the results that can be
expected for the entire fiscal year ending December 31, 1995.
2. PROPERTY AND EQUIPMENT:
Property and equipment consists of the following:
<TABLE>
<CAPTION>
DECEMBER
31,
1994
-----------
<S> <C>
Broadcasting tower and equipment................................ $ 1,138,870
Office furniture, equipment and other........................... 188,992
Leasehold improvements.......................................... 122,491
-----------
1,450,353
Accumulated depreciation........................................ (1,248,150)
Property and equipment, net..................................... $ 202,203
==========
Depreciation expense for the year............................... $ 170,537
==========
</TABLE>
3. INTANGIBLE ASSETS:
Intangible assets consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
1994
------------
<S> <C>
Goodwill........................................................ $ 734,245
Favorable lease agreement....................................... 119,500
Organization costs.............................................. 14,705
------------
868,450
Accumulated amortization........................................ (281,132)
------------
Intangible assets, net.......................................... $ 587,318
------------
Amortization expense for the year............................... $ 32,919
==========
</TABLE>
F-49
<PAGE> 162
PAUGUS TELEVISION, INC. (WGOT-TV)
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994
4. PROGRAM RIGHTS:
Program rights consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
1994
------------
<S> <C>
Program rights............................................... $ 305,751
Accumulated amortization..................................... (202,326)
------------
103,425
Less current program rights.................................. (68,754)
------------
$ 34,671
==========
Amortization expense for the year............................ $ 174,034
==========
</TABLE>
5. PROGRAM RIGHTS PAYABLE:
Program rights payable represent the obligation incurred to secure the
right to broadcast program material in accordance with a contractual agreement.
Future minimum annual payments under these contractual agreements as of December
31, 1994, are as follows:
<TABLE>
<S> <C>
1995......................................................... $111,594
1996......................................................... 36,089
------------
$147,683
==========
</TABLE>
6. RELATED PARTY NOTES PAYABLE:
Related party notes payable consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
1994
------------
<S> <C>
Note payable to stockholder, interest at Federal Funds Rate +1%,
principal and interest due on demand.................................. $3,853,650
Note payable to stockholder, interest at Federal Funds Rate +1%,
principal and interest due on demand.................................. 2,914,150
------------
$6,767,800
==========
</TABLE>
The Company has entered into multiple note payable agreements with its
primary stockholders, the Perceival Lowell Trust and the Roger L. Putnam Trust
(the "Trusts") whereby the Trusts fund working capital shortfalls on a monthly
basis. The notes payable are secured by all assets of the Company, including the
FCC license, accrue interest at the Federal Funds rate +1% and are due on
demand. At December 31, 1994, accrued interest payable on the notes was $569,047
and $474,458, respectively. No principal or interest payments were made for the
year ended December 31, 1994.
F-50
<PAGE> 163
PAUGUS TELEVISION, INC. (WGOT-TV)
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994
7. INCOME TAXES:
Deferred tax assets and liabilities consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
1994
------------
<S> <C>
Assets
Fixed assets.......................................................... $ 9,432
Allowance for doubtful accounts....................................... 9,255
Net operating loss carryforwards...................................... 4,038,004
Valuation allowance................................................... (4,049,045)
Liabilities
Intangible assets..................................................... (7,646)
------------
$ 0
==========
</TABLE>
A valuation allowance is provided when it is more likely than not that some
portion of the deferred tax asset will not be realized. A valuation allowance
has been provided for the net operating loss carryforwards.
8. COMMITMENTS AND CONTINGENCIES:
The Company incurred expenses of approximately $94,652 for the year ended
December 31, 1994 under non-cancelable operating leases for office equipment and
tower space. Future minimum annual payments under these non-cancelable operating
leases as of December 31, 1994, are as follows:
<TABLE>
<CAPTION>
PAYMENT
--------
<S> <C>
1995.............................................................. $ 95,320
1996.............................................................. 15,600
--------
$110,920
========
</TABLE>
9. SUBSEQUENT EVENT:
On May 17, 1995, the Company sold the assets to Paxson Communications
Corporation for approximately $3,100,000.
F-51
<PAGE> 164
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors and Partners of
Delaware Valley Broadcasters Limited Partnership (WTGI-TV)
In our opinion, the accompanying balance sheet and the related statements
of operations, of changes in partners' deficit and of cash flows present fairly,
in all material respects, the financial position of Delaware Valley Broadcasters
Limited Partnership (WTGI-TV, the "Partnership") at December 31, 1994 and the
results of its operations and its cash flows for the year then ended in
conformity with generally accepted accounting principles. These financial
statements are the responsibility of the Partnership's management; our
responsibility is to express an opinion on these financial statements based on
our audit. We conducted our audit of these statements in accordance with
generally accepted auditing standards which require that we plan and perform the
audit to obtain reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by
management, and evaluating the overall financial statement presentation. We
believe that our audit provides a reasonable basis for the opinion expressed
above.
The accompanying financial statements have been prepared assuming that the
Partnership will continue as a going concern, which contemplates the realization
of assets and the liquidation of liabilities in the ordinary course of business.
On February 25, 1987, the Partnership filed a voluntary petition for
reorganization under Chapter 11 of the United States Bankruptcy Code, thereby
raising substantial doubt about their ability to continue as a going concern.
Management's plans in regard to the bankruptcy matters are described in Note 1
to the accompanying financial statements. The financial statements do not
include any adjustments that might result from the outcome of this uncertainty.
/s/ Price Waterhouse LLP
- ----------------------------
PRICE WATERHOUSE LLP
Tampa, Florida
August 21, 1995
F-52
<PAGE> 165
DELAWARE VALLEY BROADCASTERS LIMITED PARTNERSHIP (WTGI-TV)
BALANCE SHEET
<TABLE>
<CAPTION>
FEBRUARY 3, DECEMBER 31,
1995 1994
------------ ------------
(UNAUDITED)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents..................................... $ 62,644 $ 74,952
Accounts receivable, less allowance for doubtful accounts of
$53,119 (unaudited) and $44,727, respectively.............. 364,299 364,373
Other current assets.......................................... 51,213 53,171
------------ ------------
Total current assets.................................. 478,156 492,496
Property and equipment, net (Note 2)............................ 778,838 795,578
Intangible assets, net.......................................... 95,160 96,773
------------ ------------
Total assets.......................................... $ 1,352,154 $ 1,384,847
=========== ===========
LIABILITIES AND PARTNERS' DEFICIT
Current Liabilities:
Accounts payable and accrued liabilities...................... $ 282,384 $ 307,926
Unearned revenue.............................................. 31,487 64,670
Current notes payable (Note 4)................................ 40,431 57,410
Liabilities subject to Chapter 11 proceedings (Note 6)........ 1,956,618 1,956,618
Related party liabilities (Notes 5 and 6):
Accrued interest........................................... 142,263 140,533
Management fees payable.................................... 2,079,894 2,069,753
Accrued interest subject to Chapter 11 proceedings......... 2,662,317 2,619,257
Liabilities subject to Chapter 11 proceedings.............. 4,980,425 4,980,425
Note payable............................................... 156,000 156,000
------------ ------------
Total current liabilities............................. 12,331,819 12,352,592
Partners' deficit............................................... (10,979,665) (10,967,745)
------------ ------------
Commitments and contingencies (Note 7)
Total liabilities and partners' deficit............... $ 1,352,154 $ 1,384,847
=========== ===========
</TABLE>
The accompanying Notes to Financial Statements are
an integral part of the financial statements.
F-53
<PAGE> 166
DELAWARE VALLEY BROADCASTERS LIMITED PARTNERSHIP (WTGI-TV)
STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
FOR THE FOR THE
PERIOD ENDED YEAR ENDED
FEBRUARY 3, DECEMBER 31,
1995 1994
------------ ------------
(UNAUDITED)
<S> <C> <C>
Revenue:
Local and national advertising................................. $341,684 $2,664,362
Network and other.............................................. 26,922 364,862
Trade.......................................................... 1,810 81,959
------------ ------------
Total revenue.................................................... 370,416 3,111,183
------------ ------------
Operating expenses:
Direct......................................................... 85,878 648,539
Technical...................................................... 50,016 408,204
Sales and promotions........................................... 21,489 246,106
Programming.................................................... 16,913 263,352
General and administrative..................................... 98,230 1,033,570
Trade.......................................................... 1,207 121,177
Depreciation and amortization.................................. 32,613 391,355
------------ ------------
Total operating expenses......................................... 306,346 3,112,303
Income (loss) from operations.................................... 64,070 (1,120)
Interest expense, net (Note 1)................................... (44,790) (460,605)
Management fees (Note 5)......................................... (31,200) (318,526)
Reorganization expenses (Note 1)................................. (186,407)
------------ ------------
Net loss......................................................... $(11,920) $ (966,658)
========== ==========
</TABLE>
The accompanying Notes to Financial Statements are
an integral part of the financial statements.
F-54
<PAGE> 167
DELAWARE VALLEY BROADCASTERS LIMITED PARTNERSHIP (WTGI-TV)
STATEMENT OF CHANGES IN PARTNERS' DEFICIT
<TABLE>
<CAPTION>
SPECIAL
GENERAL LIMITED LIMITED
PARTNERS PARTNERS PARTNER TOTAL
-------- ------------ -------- ------------
<S> <C> <C> <C> <C>
Balance at January 1, 1994..................... $(90,010) $ (9,901,076) $(10,001) $(10,001,087)
Net loss....................................... (8,700) (956,991) (967) (966,658)
-------- ------------ -------- ------------
Balance at December 31, 1994................... (98,710) (10,858,067) (10,968) (10,967,745)
Net loss through February 3, 1995
(unaudited).................................. (107) (11,801) (12) (11,920)
-------- ------------ -------- ------------
Balance at February 3, 1995 (unaudited)........ $(98,817) $(10,869,868) $(10,980) $(10,979,665)
======== =========== ======== ===========
</TABLE>
The accompanying Notes to Financial Statements are
an integral part of the financial statements.
F-55
<PAGE> 168
DELAWARE VALLEY BROADCASTERS LIMITED PARTNERSHIP (WTGI-TV)
STATEMENT OF CASH FLOWS
<TABLE>
<CAPTION>
FOR THE FOR THE
PERIOD ENDED YEAR ENDED
FEBRUARY 3, DECEMBER 31,
1995 1994
------------ ------------
(UNAUDITED)
<S> <C> <C>
Cash flows from operating activities:
Net loss......................................................... $(11,920) $ (966,658)
Adjustments to reconcile net loss to net cash provided by operating
activities:
Depreciation and amortization.................................... 32,613 391,355
Allowance for doubtful accounts.................................. 8,392 34,363
Increase in accounts receivable.................................. (8,318) (114,771)
(Increase) decrease in prepaid expenses and other current
assets........................................................ 1,958 (11,085)
Increase (decrease) in accounts payable and accrued
liabilities................................................... (25,542) 135,869
Increase (decrease) in other liabilities......................... (33,183) 87,710
Increase in related party accrued interest....................... 1,730 5,920
Increase in related party management fees payable................ 10,141 233,547
Increase in related party accrued interest subject to Chapter 11
proceedings................................................... 43,060 403,581
------------ ------------
Net cash provided by operating activities........................ 18,931 199,831
------------ ------------
Cash flows from investing activities:
Purchases of property and equipment.............................. (14,260) (49,252)
------------ ------------
Net cash used for investing activities........................... (14,260) (49,252)
------------ ------------
Cash flows from financing activities:
Payments on note payable......................................... (16,979) (113,568)
------------ ------------
Net cash used for financing activities........................... (16,979) (113,568)
------------ ------------
Increase (decrease) in cash and cash equivalents................... (12,308) 37,011
Cash and cash equivalents at beginning of year..................... 74,952 37,941
------------ ------------
Cash and cash equivalents at end of period......................... $ 62,644 $ 74,952
========== ==========
Supplemental disclosure of cash flow information:
Cash paid for interest........................................... $ -- $ 51,104
========== ==========
Non-cash operating activities:
Trade revenue.................................................... $ 1,810 $ 81,959
========== ==========
Trade expense.................................................... $ 1,207 $ 121,177
========== ==========
</TABLE>
The accompanying Notes to Financial Statements are
an integral part of the financial statements.
F-56
<PAGE> 169
DELAWARE VALLEY BROADCASTERS LIMITED PARTNERSHIP (WTGI-TV)
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1994
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
The Delaware Valley Broadcasters Limited Partnership (the "Partnership")
was organized in March 1984 for the purpose of constructing, owning and
operating a television broadcasting station in Wilmington, Delaware. The
Partnership consists of two general partners, 44 limited partners and a special
limited partner. Delaware Valley Broadcasters, Inc., a general partner, performs
the duties of the managing partner for which a fee is paid (Note 5).
On February 25, 1987, the Partnership filed a voluntary petition for
reorganization under Chapter 11 of the United States Bankruptcy Code in
Wilmington, Delaware. On May 1, 1989, the Plan of Reorganization which had been
submitted by the Partnership was accepted by the creditors and confirmed by the
Court. Subsequently, the Partnership was unable to realize the financing
anticipated by the Plan of Reorganization and therefore defaulted on payments.
On September 23, 1993, the Partnership refiled under Chapter 11 of the United
States Bankruptcy Code in Philadelphia, Pennsylvania. This secondary filing in
Pennsylvania was dismissed and remanded back to Delaware with a Court Order
mandating the Delaware Court to oversee the sale of the station.
The financial statements of the Partnership have been prepared on a
"going-concern" basis which contemplates the realization of assets and the
liquidation of liabilities in the ordinary course of business. However, as a
result of the Chapter 11 filing and the Court mandated sale, such realization of
assets and liquidation of liabilities are subject to a significant number of
uncertainties including management's plan to liquidate the Partnership's
liabilities through the Court approved sale of the Company's assets (Note 8).
Reorganization expenses included in the Statement of Operations for the
year ended December 31, 1994 is comprised of professional fees of $186,407.
Partnership ownership and allocations
The Partnership ownership interest consists of the following:
<TABLE>
<S> <C>
General Partners.................................................. 0.9%
Limited Partners.................................................. 99.0%
Special Limited Partner........................................... 0.1%
-----
100.0%
=====
</TABLE>
All items of income, loss or gain are allocated to the Partners' capital
accounts in proportion to their ownership interest.
Cash and cash equivalents
Cash and cash equivalents are highly liquid investments with original
maturities of three months or less.
Property and equipment
Purchases of property and equipment, including additions and improvements
and expenditures for repairs and maintenance that significantly add to
productivity or extend the economic lives of the assets, are capitalized at cost
and depreciated on a straight-line basis over their estimated useful lives as
follows:
<TABLE>
<S> <C>
Broadcasting tower and equipment................................. 5-15 years
Building and improvements........................................ 32 years
Transmitters..................................................... 5 years
Office furniture and equipment................................... 5-7 years
</TABLE>
F-57
<PAGE> 170
DELAWARE VALLEY BROADCASTERS LIMITED PARTNERSHIP (WTGI-TV)
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994
Maintenance, repairs, and minor replacements of these items are charged to
expense as incurred.
Intangible assets
Intangible assets consist of the FCC license which is stated at cost and is
being amortized using the straight-line method over the estimated useful life of
15 years.
Income taxes
Income or loss of the Partnership is included in the tax returns of the
individual partners. Accordingly, federal income taxes are not recognized by the
Partnership.
Related party transactions
The Partnership pays an annual management fee to a general partner who acts
as the stations' managing partner and to the special limited partner who acts as
the stations' administrative contractor (Note 5).
Additionally, a significant amount of liabilities subject to Chapter 11
proceedings and accrued interest is owed to either limited or general partners.
Interest expense on liabilities to related parties aggregated $442,064 for the
year ended December 31, 1994 (Note 6).
Revenue recognition
Revenue is recognized as advertising air time is broadcast.
Trade agreements
The Partnership enters into trade agreements which give rise to sales of
advertising air time in exchange for products and services. Sales from trade
agreements are recognized at the fair market value of products or services
received as advertising air time is broadcast. Products and services received
are expensed when used in the broadcast operations. If the Partnership uses
exchanged products or services before advertising air time is provided, a trade
liability is recognized.
Interim financial data
The interim financial data of the Company is unaudited; however, in the
opinion of the Company, the interim data includes all adjustments, consisting of
only normal recurring adjustments necessary for a fair statement of results of
the interim periods. The results of operations for the period from January 1,
1995 through February 3, 1995 are not necessarily indicative of the results that
can be expected for the entire fiscal year ending December 31, 1995.
F-58
<PAGE> 171
DELAWARE VALLEY BROADCASTERS LIMITED PARTNERSHIP (WTGI-TV)
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994
2. PROPERTY AND EQUIPMENT:
Property and equipment consists of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
1994
------------
<S> <C>
Broadcasting tower and equipment............................ $ 3,527,199
Building, land and improvements............................. 418,169
Office furniture and equipment.............................. 175,500
Transmitters................................................ 62,572
------------
4,183,440
Accumulated depreciation.................................... (3,387,862)
------------
Property and equipment, net................................. $ 795,578
==========
</TABLE>
Depreciation expense aggregated $372,000 for the year ended December 31,
1994.
3. INTANGIBLE ASSETS:
Intangible assets consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
1994
------------
<S> <C>
FCC license.................................................. $ 290,319
Accumulated amortization..................................... (193,546)
------------
Intangible assets, net....................................... $ 96,773
==========
</TABLE>
Amortization expense aggregated $19,355 for the year ended December 31,
1994.
4. CURRENT NOTES PAYABLE:
Current notes payable at December 31, 1994 consists of a mortgage note
payable secured by the station's tower and land. Although the Partnership has
been making payments on the mortgage note payable of approximately $7,500 a
month, the balance is currently past due and is classified as a current
liability.
5. RELATED PARTY TRANSACTIONS:
At December 31, 1994, the Partnership has a $156,000 demand note payable to
a general partner. In 1988, the Court approved the execution of an agreement
with a general partner, whereby a general partner loaned the Partnership
$156,000 at 16% interest per annum, to fund current working capital needs. This
note payable has been given post-petition payment priority by the court and is
due on demand, and therefore classified as a current payable.
Delaware Valley Broadcasters, Inc., a general partner, performs the duties
of the managing partner, as outlined in the limited partnership agreement (the
"Partnership Agreement"). The Partnership Agreement specifies that the
Partnership will pay the managing partner a fee consisting of $100,000 per year
plus 5% of gross revenues. Under the terms of this agreement the Partnership
accrued an aggregate of $250,725 due to the general partner for the year ended
December 31, 1994.
Weatherly Private Capital ("Weatherly"), the special limited partner,
performs the duties of administrative contractor, who, as outlined in the
Weatherly Agreement, prepared and underwrote the limited partnership offering
and performs on-going investor relations and financial consulting. The Weatherly
Agreement specifies that the Partnership will pay Weatherly an annual management
fee of 2% of the original
F-59
<PAGE> 172
DELAWARE VALLEY BROADCASTERS LIMITED PARTNERSHIP (WTGI-TV)
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994
capital raised for ongoing duties. The Partnership accrued $67,800 due to
Weatherly for the year ended December 31, 1994.
Management fees payable consists of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
1994
------------
<S> <C>
Delaware Valley Broadcasters, Inc. (Managing general
partner)................................................... $1,527,353
Weatherly Private Capital (Special limited partner).......... 542,400
------------
$2,069,753
==========
</TABLE>
6. LIABILITIES SUBJECT TO CHAPTER 11 PROCEEDINGS:
The principal categories of claims classified in the Balance Sheet as
liabilities subject to Chapter 11 proceedings at December 31, 1994 are as
follows:
<TABLE>
<CAPTION>
DECEMBER 31,
1994
------------
<S> <C>
Accounts payable and accrued expenses........................ $1,336,618
Notes payable................................................ 220,000
Program license contracts.................................... 400,000
------------
$1,956,618
==========
Related party:
Secured notes payable...................................... $3,882,828
Notes payable.............................................. 1,097,597
------------
$4,980,425
==========
</TABLE>
Reorganization expenses included in the statement of operations consist
primarily of professional fees related directly to the bankruptcy proceedings
(Note 1).
7. COMMITMENTS AND CONTINGENCIES:
The Partnership incurred lease expense of approximately $127,575 for the
year ended December 31, 1994, under a non-cancelable operating leases for office
facilities. Future minimum annual payments under this non-cancelable operating
lease as of December 31, 1994, is $65,475 for the year ended December 31, 1995.
8. SUBSEQUENT EVENT:
On February 3, 1995, the Partnership sold all the assets, as specified in
the asset purchase agreement, to Paxson Communications Corporation for
approximately $10,200,000.
F-60
<PAGE> 173
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors, Stockholders and Partners
of San Jacinto Television Corporation and DuPont Investment Group, 85 Ltd.
In our opinion, the accompanying combined balance sheet and the related
combined statements of operations, of changes in combined deficit and of cash
flows present fairly, in all material respects, the combined financial position
of San Jacinto Television Corporation and DuPont Investment Group, 85 Ltd.,
(collectively referred to as the "Company") at December 31, 1994 and the results
of their operations and their cash flows for the year then ended in conformity
with generally accepted accounting principles. These financial statements are
the responsibility of the Company's management; our responsibility is to express
an opinion on these financial statements based on our audit. We conducted our
audit of these statements in accordance with generally accepted auditing
standards which require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements, assessing the
accounting principles used and significant estimates made by management, and
evaluating the overall financial statement presentation. We believe that our
audit provides a reasonable basis for the opinion expressed above.
The accompanying combined financial statements have been prepared assuming
that the Company will continue as a going concern. As discussed in Note 1 to the
combined financial statements, the Company has incurred recurring losses from
operations that raise substantial doubt about its ability to continue as a going
concern. Management's plans in regard to these matters are also described in
Note 1. The combined financial statements do not include any adjustments that
might result from the outcome of this uncertainty.
/s/ Price Waterhouse LLP
- --------------------------------------
PRICE WATERHOUSE LLP
Tampa, Florida
August 21, 1995
F-61
<PAGE> 174
SAN JACINTO TELEVISION CORPORATION AND DUPONT INVESTMENT GROUP, 85 LTD.
COMBINED BALANCE SHEET
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
1995 1994
----------- ------------
(UNAUDITED)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents........................................ $ 325,801 $ 314,951
Accounts receivable, less allowance for doubtful accounts of
$102,655 and $65,234, respectively............................ 115,115 172,313
Prepaid expenses................................................. 13,592 14,070
----------- ------------
Total current assets..................................... 454,508 501,334
Property and equipment, net........................................ 1,196,011 1,264,598
Intangible assets, net............................................. 641,867 647,500
----------- ------------
Total assets............................................. $ 2,292,386 $2,413,432
========= ==========
LIABILITIES AND COMBINED DEFICIT
Current liabilities:
Accounts payable and accrued liabilities......................... $ 55,450 $ 28,999
Notes payable to shareholders.................................... 500,000 500,000
Liabilities subject to Plan of Reorganization (Note 1, 5)........ 2,364,898 2,605,077
----------- ------------
Total current liabilities................................ 2,920,348 3,134,076
----------- ------------
Combined deficit:
Stockholders' deficit (San Jacinto Television Corporation)....... (252,276) (386,834)
Partners' deficit (DuPont Investment Group, 85 Ltd.)............. (375,686) (333,810)
----------- ------------
Total combined deficit................................... (627,962) (720,644)
Commitments and contingencies (Note 6)
----------- ------------
Total liabilities and combined deficit................... $ 2,292,386 $2,413,432
========= ==========
</TABLE>
The accompanying Notes to Combined Financial Statements are
an integral part of the combined financial statements.
F-62
<PAGE> 175
SAN JACINTO TELEVISION CORPORATION AND DUPONT INVESTMENT GROUP, 85 LTD.
COMBINED STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
FOR THE
SIX MONTHS FOR THE
ENDED YEAR ENDED
JUNE 30, DECEMBER 31,
1995 1994
---------- ------------
(UNAUDITED)
<S> <C> <C>
Revenue:
Local and national advertising.................................... $259,907 $1,601,023
Network and other................................................. 104,624 616,677
Trade............................................................. 99,142 447,044
Time brokerage fees............................................... 184,332 --
---------- ------------
Total revenue............................................. 648,005 2,664,744
---------- ------------
Operating expenses:
Direct............................................................ 76,788 425,066
Sales and promotions.............................................. 73,572 330,745
Technical......................................................... 15,308 175,219
Programming....................................................... 3,810 47,616
General and administrative........................................ 149,444 818,811
Trade............................................................. 93,826 423,075
Depreciation and amortization..................................... 92,357 225,276
---------- ------------
Total operating expenses.................................. 505,105 2,445,808
---------- ------------
Income from operations.............................................. 142,900 218,936
Other income (expense):
Loss on sale of assets............................................ -- (69,996)
Interest expense, net............................................. (45,522) (105,862)
Reorganization income, net (Note 1)............................... -- 512,312
---------- ------------
Net income.......................................................... $ 97,378 $ 555,390
======== ==========
</TABLE>
The accompanying Notes to Combined Financial Statements are
an integral part of the combined financial statements.
F-63
<PAGE> 176
SAN JACINTO TELEVISION CORPORATION AND DUPONT INVESTMENT GROUP, 85 LTD.
COMBINED STATEMENT OF CHANGES IN COMBINED DEFICIT
<TABLE>
<CAPTION>
DUPONT INVESTMENT GROUP, 85
SAN JACINTO TELEVISION CORPORATION LTD.
STOCKHOLDERS' DEFICIT PARTNERS' DEFICIT
-------------------------------------------- -------------------------------
COMMON ACCUMULATED TREASURY GENERAL LIMITED
STOCK DEFICIT STOCK TOTAL PARTNER PARTNER TOTAL
------ ----------- -------- ----------- ------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at January 1, 1994....... $1,591 $(1,078,475) $(10,000) $(1,086,884) $ $ (89,150) $ (89,150)
Distribution to partners......... (100,000) (100,000)
Net income (loss)................ 700,050 700,050 (144,660) (144,660)
------ ----------- -------- ----------- ------- --------- ---------
Balance at December 31, 1994..... 1,591 (378,425) (10,000) (386,834) (333,810) (333,810)
Distribution to partners
(unaudited).................... (4,696) (4,696)
Net income (loss) (unaudited).... 134,558 134,558 (37,180) (37,180)
------ ----------- -------- ----------- ------- --------- ---------
Balance at June 30, 1995
(unaudited).................... $1,591 $ (243,867) $(10,000) $ (252,276) $ $(375,686) $(375,686)
======== ============ ========= ============ ======= ========== ==========
</TABLE>
The accompanying Notes to Combined Financial Statements are
an integral part of the combined financial statements.
F-64
<PAGE> 177
SAN JACINTO TELEVISION CORPORATION AND DUPONT INVESTMENT GROUP, 85 LTD.
COMBINED STATEMENT OF CASH FLOWS
<TABLE>
<CAPTION>
FOR THE FOR THE
SIX MONTHS YEAR ENDED
ENDED DECEMBER 31,
JUNE 30, 1995 1994
------------- ------------
(UNAUDITED)
<S> <C> <C>
Cash flows from operating activities:
Net income....................................................... $ 97,378 $ 555,390
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation and amortization.................................... 92,357 225,276
Allowance for doubtful accounts.................................. 37,421 42,768
Negotiated settlements........................................... -- (579,543)
Decrease (increase) in accounts receivable....................... 19,777 (59,075)
Decrease in prepaid expenses..................................... 478 14,879
Increase in accounts payable and accrued liabilities............. 26,451 3,184
Decrease in liabilities subject to Plan of Reorganization........ (240,179) (112,715)
------------- ------------
Net cash provided by operating activities........................ 33,683 90,164
------------- ------------
Cash flows from investing activities:
Purchases of property and equipment.............................. (18,137) (115,885)
Sale of property and equipment................................... -- 84,377
------------- ------------
Net cash used for investing activities........................... (18,137) (31,508)
------------- ------------
Cash flows from financing activities:
Distribution to partners......................................... (4,696) (100,000)
------------- ------------
Net cash used for financing activities........................... (4,696) (100,000)
------------- ------------
Decrease in cash and cash equivalents.............................. 10,850 (41,344)
Cash and cash equivalents at beginning of year..................... 314,951 356,295
------------- ------------
Cash and cash equivalents at end of year........................... $ 325,801 $ 314,951
========== ==========
Supplemental disclosure of cash flow information:
Cash paid for interest........................................... $ 10,382 $ 57,862
========== ==========
Non-cash operating activities:
Trade revenue.................................................... $ 99,142 $ 447,044
========== ==========
Trade expense.................................................... $ 93,826 $ 423,075
========== ==========
</TABLE>
The accompanying Notes to Combined Financial Statements are
an integral part of the combined financial statements.
F-65
<PAGE> 178
SAN JACINTO TELEVISION CORPORATION AND DUPONT INVESTMENT GROUP, 85 LTD.
NOTES TO COMBINED FINANCIAL STATEMENTS
DECEMBER 31, 1994
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
San Jacinto Television Corporation, ("San Jacinto"), was organized in
September 1984 for the purpose of constructing, owning and operating a
television station, KTFH-TV, in Houston, Texas. DuPont Investment Group, 85
Ltd., ("DuPont"), a limited partnership and majority shareholder of San Jacinto,
purchased a low power station, K33DB, in 1989 from which San Jacinto
simultaneously rebroadcasts its signal to cover the Southern region of Houston.
The financial positions, results of operations and of cash flows of San Jacinto
and DuPont (collectively referred to as the "Company"), which reflect the
broadcast operations of the station, are combined for financial statement
purposes.
On February 7, 1989, San Jacinto filed a voluntary petition for
reorganization under Chapter 11 of the United States Bankruptcy Code. On
December 9, 1993, the Plan of Reorganization which had been submitted by San
Jacinto was accepted by the creditors and confirmed by the Bankruptcy Court. The
Plan of Reorganization provides for the repayment of pre-petition liabilities
over a four year period, funded by operating cash flows.
The combined financial statements of the Company have been prepared on a
"going-concern" basis which contemplates the realization of assets and the
liquidation of liabilities in the ordinary course of business. However, as a
result of the Chapter 11 filing of San Jacinto and approved Plan of
Reorganization, such realization of assets and liquidation of liabilities are
subject to a significant number of uncertainties, including funding the Plan of
Reorganization from positive cash flows. Company management plans to liquidate
the Company liabilities through a sale of the Company assets (See Note 8).
Reorganization income included in the Statement of Operations for the six
months ended June 30, 1995 and the year ended December 31, 1994, respectively,
is comprised of the following:
<TABLE>
<CAPTION>
FOR THE
SIX MONTHS FOR THE
ENDED YEAR ENDED
JUNE 30, DECEMBER 31,
1995 1994
----------- ------------
(UNAUDITED)
<S> <C> <C>
Income from negotiated settlements........................... $ $ (579,543)
Professional fees............................................ -- 67,231
----------- ------------
$ $ (512,312)
========= ==========
</TABLE>
Income from negotiated settlements represents debt forgiveness via
negotiations and discounting by certain creditors in exchange for accelerated
payment by the Company.
Partnership allocations
All items of income or loss are allocated to the limited partner.
Principles of combination
The combined financial statements include accounts of San Jacinto and
DuPont. All intercompany balances and transactions have been eliminated.
Cash and cash equivalents
Cash and cash equivalents are highly liquid investments with original
maturities of three months or less.
F-66
<PAGE> 179
SAN JACINTO TELEVISION CORPORATION AND DUPONT INVESTMENT GROUP, 85 LTD.
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994
Property and equipment
Purchases of property and equipment, including additions and improvements
and expenditures for repairs and maintenance that significantly add to
productivity or extend the economic lives of the assets, are capitalized at cost
and depreciated on a straight-line basis over their estimated useful lives as
follows:
<TABLE>
<S> <C>
Broadcasting tower and equipment........................... 6-13 years
Office furniture equipment and other....................... 6-10 years
Building................................................... 40 years
Leasehold improvements..................................... Term of lease
</TABLE>
Maintenance, repairs, and minor replacements of these items are charged to
expense as incurred.
Intangible assets
Intangible assets consist of FCC licenses which are stated at cost and are
being amortized using the straight-line method over the estimated useful life of
25 years.
Revenue recognition
Revenue from broadcast operations is recognized as advertising air time is
broadcast.
Trade agreements
The Company enters into trade agreements which give rise to sales of
advertising air time in exchange for products and services. Sales from trade
agreements are recognized at the fair market value of products or services
received as advertised air time is broadcast. Products and services received are
expensed when used in the broadcast operations. If the Company uses exchanged
products or services before advertising air time is provided, a trade liability
is recognized.
Income taxes
San Jacinto is a C-Corporation for federal income tax purposes and has
experienced cumulative net losses of $378,425 as of December 31, 1994. Income or
loss of DuPont, is included in the tax returns of the individual partners.
Accordingly, federal income taxes are not recognized by the Partnership (see
Note 7).
Treasury stock
Treasury stock is accounted for under the cost method. Currently, San
Jacinto holds 80 shares of $1 par value in Treasury at its acquisition cost of
$10,000.
Interim financial data
The interim financial data of the Company is unaudited; however, in the
opinion of the Company, the interim data includes all adjustments, consisting of
only normal recurring adjustments necessary for a fair presentation of results
of the interim periods. The results of operations for the six months ended June
30, 1995 are not necessarily indicative of the results that can be expected for
the entire fiscal year ending December 31, 1995.
Effective March 1, 1995, the Company and Paxson Communications Corporation,
("Paxson"), entered into a time brokerage agreement whereby Paxson provides
programming for the station for total fees of $184,332 for the period March 1,
1995 through June 30, 1995.
F-67
<PAGE> 180
SAN JACINTO TELEVISION CORPORATION AND DUPONT INVESTMENT GROUP, 85 LTD.
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994
2. PROPERTY AND EQUIPMENT:
Property and equipment consists of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
1994
------------
<S> <C>
Broadcasting tower and equipment........................................ $1,845,473
Land.................................................................... 152,827
Building and leasehold improvements..................................... 125,895
Office furniture and equipment.......................................... 95,566
------------
2,219,761
Accumulated depreciation................................................ (955,163)
------------
Property and equipment, net............................................. $1,264,598
==========
Depreciation expense for the year....................................... $ 191,476
==========
</TABLE>
3. INTANGIBLE ASSETS:
Intangible assets consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
1994
------------
<S> <C>
FCC licenses............................................................ $ 848,500
Accumulated amortization................................................ (201,000)
------------
Intangible assets, net.................................................. $ 647,500
==========
Amortization expense for the year....................................... $ 33,800
==========
</TABLE>
4. NOTES PAYABLE TO SHAREHOLDERS:
Notes payable to shareholders consists of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
1994
------------
<S> <C>
Shareholder notes payable, (12% interest due annually, principal
payments past due since December 31, 1991)............................ $360,000
Shareholder notes payable, (12% interest due annually, principal
payments past due since December 31, 1993)............................ 140,000
------------
$500,000
==========
</TABLE>
Notes payable to shareholders accrue interest at 12% per annum, with
principal payments due on December 31, 1991 and 1993, respectively. Notes
payable have past their stated maturities and are therefore classified as
current liabilities. Interest paid monthly to shareholders on the outstanding
past due balances, aggregated $57,862 for the year ended December 31, 1994.
F-68
<PAGE> 181
SAN JACINTO TELEVISION CORPORATION AND DUPONT INVESTMENT GROUP, 85 LTD.
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994
5. LIABILITIES SUBJECT TO PLAN OF REORGANIZATION:
The principal categories of claims classified in the Combined Balance Sheet
as liabilities subject to Plan of Reorganization at December 31, 1994 are as
follows:
<TABLE>
<CAPTION>
DECEMBER 31,
1994
------------
<S> <C>
Unsecured claims........................................................ $1,692,839
Notes payable........................................................... 753,243
Administrative claims................................................... 158,995
------------
$2,605,077
==========
</TABLE>
6. COMMITMENTS AND CONTINGENCIES:
The Company incurred expenses of approximately $44,012 for the year ended
December 31, 1994 under non-cancelable operating leases for office equipment and
tower space. Future minimum annual payments under these non-cancelable operating
leases as of December 31, 1994, are as follows:
<TABLE>
<CAPTION>
PAYMENT
-------
<S> <C>
1995....................................................................... $45,892
1996....................................................................... 41,792
1997....................................................................... 2,894
-------
$90,578
=======
</TABLE>
7. INCOME TAXES:
Significant components of the Company's deferred tax liabilities (assets)
are as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
1994
------------
<S> <C>
Deferred taxes
Assets
Doubtful accounts allowance and other.............................. $ (24,117)
Net operating loss carryforward.................................... (190,046)
Liabilities........................................................... --
------------
(214,163)
Deferred tax asset valuation allowance............................. 214,163
------------
Deferred tax (asset) liability.......................................... $ 0
==========
</TABLE>
A valuation allowance is provided when it is more likely than not that some
portion of the deferred tax asset will not be realized. A valuation allowance
has been provided for the net deferred asset.
F-69
<PAGE> 182
SAN JACINTO TELEVISION CORPORATION AND DUPONT INVESTMENT GROUP, 85 LTD.
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994
The reconciliation of income tax benefit attributable to continuing
operations, computed at U.S. Federal Statutory tax rates, to provision for
income taxes is:
<TABLE>
<CAPTION>
FOR THE YEAR ENDED
DECEMBER 31,
1994
------------------
<S> <C>
Tax at U.S. Federal Statutory tax rates............................. $ 188,833
State income tax.................................................... 24,993
Partnership income/(loss) effect.................................... 55,694
Permanent differences............................................... 25,884
Utilization of net operating losses................................. (295,404)
------------------
$ 0
==============
</TABLE>
8. SUBSEQUENT EVENT:
On January 20, 1995, the Company entered into an asset purchase agreement
to sell substantially all of the operating assets and related intangible assets
to Paxson for approximately $7,900,000. On March 1, 1995, Paxson began operating
the station under a time brokerage agreement ("TBA"). Under a TBA, the stations'
operating revenues and expenses are operated by Paxson in exchange for a monthly
time brokerage fee.
F-70
<PAGE> 183
[PRICE WATERHOUSE LETTERHEAD]
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Trustee of
WTVX-TV, Krypton Broadcasting of Ft. Pierce, Inc.
In our opinion, the accompanying balance sheet and the related statements
of operations, of changes in accumulated shareholders' deficit and of cash flows
present fairly, in all material respects, the financial position of WTVX-TV,
Krypton Broadcasting of Ft. Pierce, Inc. (the "Company") at December 31, 1994
and the results of its operations and its cash flows for the year then ended in
conformity with generally accepted accounting principles. These financial
statements are the responsibility of the Company's management; our
responsibility is to express an opinion on these financial statements based on
our audit. We conducted our audit of these statements in accordance with
generally accepted auditing standards which require that we plan and perform the
audit to obtain reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by
management, and evaluating the overall financial statement presentation. We
believe that our audit provides a reasonable basis for the opinion expressed
above.
/s/ PRICE WATERHOUSE LLP
- --------------------------------------
Price Waterhouse LLP
Tampa, Florida
October 11, 1995
F-71
<PAGE> 184
WTVX-TV, KRYPTON BROADCASTING OF FT. PIERCE, INC.
BALANCE SHEET
<TABLE>
<CAPTION>
AUGUST 4, DECEMBER 31,
1995 1994
----------- ------------
(UNAUDITED)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents....................................... $ 870,689 $ 592,898
Accounts receivable, net of allowance for doubtful accounts
of $56,794 and $68,491....................................... 707,061 824,324
Current program rights.......................................... 30,816 82,318
Other current assets............................................ 67,180 44,129
----------- -----------
Total current assets.................................... 1,675,746 1,543,669
Property and equipment, net....................................... 4,382,814 4,485,318
Intangible assets, net............................................ 1,959,868 1,994,077
Program rights, net............................................... 31,130 51,436
----------- -----------
Total assets............................................ $ 8,049,558 $ 8,074,500
=========== ===========
LIABILITIES AND SHAREHOLDER'S DEFICIT
Liabilities:
Accounts payable and accrued liabilities........................ $ 132,786 $ 127,640
Current program rights payable.................................. 67,104 128,217
Accrued interest................................................ 1,660,227 1,128,077
Liabilities subject to Chapter 11 proceedings................... 3,647,033 3,647,033
----------- -----------
Total current liabilities............................... 5,507,150 5,030,967
Program rights payable............................................ 4,775 33,983
Debt.............................................................. 8,535,260 8,535,260
----------- -----------
Total liabilities....................................... 14,047,185 13,600,210
Commitments and contingencies (Note 8)
Shareholder's deficit............................................. (5,997,627) (5,525,710)
----------- -----------
Total liabilities and shareholder's deficit............. $ 8,049,558 $ 8,074,500
=========== ===========
</TABLE>
The accompanying Notes to Financial Statements are
an integral part of the financial statements.
F-72
<PAGE> 185
WTVX-TV, KRYPTON BROADCASTING OF FT. PIERCE, INC.
STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
FOR THE FOR THE
PERIOD ENDED YEAR ENDED
AUGUST 4, DECEMBER 31,
1995 1994
------------ ------------
(UNAUDITED)
<S> <C> <C>
Revenue:
Local and national advertising................................. $2,580,512 $4,167,639
Production and other........................................... 17,853 58,398
Trade and barter............................................... 430,875 792,036
Tower rent..................................................... 94,992 172,292
------------ ------------
Total revenue.......................................... 3,124,232 5,190,365
------------ ------------
Operating expenses:
Direct......................................................... 522,928 845,679
Technical...................................................... 378,343 513,743
Sales and promotions........................................... 795,345 844,417
Programming.................................................... 184,690 487,165
General and administrative..................................... 295,974 445,116
Trade and barter............................................... 433,256 787,155
Program rights amortization.................................... 71,808 149,607
Depreciation and amortization.................................. 293,514 521,147
------------ ------------
Total operating expenses............................... 2,975,858 4,594,029
Income from operations........................................... 148,374 596,336
Interest expense................................................. (532,150) (747,547)
Reorganization expenses (Note 1)................................. (98,371) (131,431)
Other income..................................................... 10,230 7,143
------------ ------------
Loss before income taxes......................................... (471,917) (275,499)
Provision for intercompany income taxes.......................... -- --
------------ ------------
Net loss............................................... $ (471,917) $ (275,499)
========== ==========
</TABLE>
The accompanying Notes to Financial Statements are
an integral part of the financial statements.
F-73
<PAGE> 186
WTVX-TV, KRYPTON BROADCASTING OF FT. PIERCE, INC.
STATEMENT OF CHANGES IN SHAREHOLDER'S DEFICIT
<TABLE>
<S> <C>
Balance at January 1, 1994...................................................... $(5,250,211)
Net loss........................................................................ (275,499)
-----------
Balance at December 31, 1994.................................................... (5,525,710)
Net loss through August 4, 1995 (unaudited)..................................... (471,917)
-----------
Balance at August 4, 1995 (unaudited)........................................... $(5,997,627)
==========
</TABLE>
The accompanying Notes to Financial Statements are
an integral part of the financial statements.
F-74
<PAGE> 187
WTVX-TV, KRYPTON BROADCASTING OF FT. PIERCE, INC.
STATEMENT OF CASH FLOWS
<TABLE>
<CAPTION>
FOR THE FOR THE
PERIOD ENDED YEAR ENDED
AUGUST 4, DECEMBER 31,
1995 1994
------------ ------------
(UNAUDITED)
<S> <C> <C>
Cash flows from operating activities:
Net loss......................................................... $ (471,917) $ (275,499)
Adjustments to reconcile net loss to net cash provided by
operating activities:
Depreciation and amortization.................................... 293,514 521,147
Program rights amortization...................................... 71,808 149,607
Allowance for doubtful accounts.................................. (11,697) 39,267
(Increase)/decrease in accounts receivable....................... 128,960 (169,954)
(Increase) in other current assets............................... (23,051) (16,765)
Increase/(decrease) in accounts payable and accrued
liabilities................................................... 5,146 (28,022)
Increase in accrued interest..................................... 532,150 747,547
--------- ---------
Net cash provided by operating activities........................ 524,913 967,328
--------- ---------
Cash flows from investing activities:
Purchases of property and equipment.............................. (156,801) (346,703)
--------- ---------
Net cash used for investing activities........................... (156,801) (346,703)
--------- ---------
Cash flows from financing activities:
Payment of program rights payable................................ (90,321) (199,195)
--------- ---------
Net cash used for financing activities........................... (90,321) (199,195)
--------- ---------
Increase in cash and cash equivalents.............................. 277,791 421,430
Cash and cash equivalents at beginning of period................... 592,898 171,468
--------- ---------
Cash and cash equivalents at end of period......................... $ 870,689 $ 592,898
========= =========
Supplemental disclosure of cash flow information:
Cash paid for interest........................................... $ 0 $ 0
========= =========
Non-cash operating activities:
Trade and barter revenue......................................... $ 430,875 $ 792,036
========= =========
Trade and barter expense......................................... $ 433,256 $ 787,155
========= =========
</TABLE>
The accompanying Notes to Financial Statements are
an integral part of the financial statements.
F-75
<PAGE> 188
WTVX-TV, KRYPTON BROADCASTING OF FT. PIERCE, INC.
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1994
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
WTVX-TV, Krypton Broadcasting of Ft. Pierce, Inc. (the "Company"),
operating as a subsidiary of Krypton International Corporation, is engaged in
the operation of a television broadcasting station in Ft. Pierce, Florida,
serving the West Palm Beach, Florida market.
On June 1, 1993, the Company filed a voluntary petition for reorganization
under Chapter 11 of the United States Bankruptcy Code in Miami, Florida. On
August 4, 1995, the Company sold all the assets, as specified in the related
asset purchase agreement, to Whitehead Media Corporation for approximately
$17,175,000, which exceeded recorded net assets.
Reorganization expenses included in the Statement of Operations for the
year ended December 31, 1994 is comprised of professional and attorney fees of
$131,431.
Cash and cash equivalents
Cash and cash equivalents are highly liquid investments with original
maturities of three months or less. Cash and cash equivalents are recorded at
fair value.
Property and equipment
Purchases of property and equipment, including additions and improvements
and expenditures for repairs and maintenance that significantly add to
productivity or extend the economic lives of the assets, are capitalized at cost
and depreciated on a straight-line basis over their estimated useful lives as
follows:
<TABLE>
<S> <C>
Broadcasting tower and equipment......................................... 7-40 years
Building and improvements................................................ 40 years
Office furniture, equipment and other.................................... 7 years
Vehicles................................................................. 5 years
</TABLE>
Maintenance, repairs, and minor replacements of these items are charged to
expense as incurred.
Intangible assets
Intangible assets consist of the FCC license, which is stated at cost and
is being amortized using the straight-line method over 25 years.
Program rights
The Company obtains licenses for program rights which allow the Company to
broadcast program material in accordance with contractual agreements. Pursuant
to a licensing agreement, an asset is recorded for the program rights acquired
and a liability is recorded for the obligation incurred, at the gross amount of
the liability. Program rights are amortized on a method that approximates the
straight-line basis over the related term. Program rights which will not be
aired are charged to expense. Current program rights represent programs which
will be amortized during the next year; current liabilities represent program
rights which will be paid within the year under contractual agreements. Program
rights payable represent the obligation incurred to secure the right to
broadcast program material in accordance with a contractual agreement.
F-76
<PAGE> 189
WTVX-TV, KRYPTON BROADCASTING OF FT. PIERCE, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994
Income taxes
The Company's operating results have been included in the consolidated tax
returns of Krypton International Corporation, and a provision for intercompany
income taxes, which approximates the income tax provision calculated for the
Company on a standalone basis, has been included in the financial statements.
Revenue recognition
Revenue is recognized as advertising air time is broadcast.
Trade agreements
The Company enters into trade agreements which give rise to sales of
advertising air time in exchange for products and services. Sales from trade
agreements are recognized at the fair market value of products or services
received as advertising air time is broadcast. Products and services received
are expensed when used in the broadcast operations. If the Company uses
exchanged products or services before advertising air time is provided, a trade
liability is recognized.
Interim financial data
The interim financial data of the Company is unaudited; however, in the
opinion of the Company, the interim data includes all adjustments, consisting of
only normal recurring adjustments necessary for a fair statement of results of
the interim periods. The results of operations for the period ended August 4,
1995 are not necessarily indicative of the results that can be expected for the
entire fiscal year ending December 31, 1995.
2. PROPERTY AND EQUIPMENT
Property and equipment consists of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
1994
------------
<S> <C>
Broadcasting tower and equipment........................................ $ 5,097,621
Building, land and improvements......................................... 704,823
Office furniture, equipment and other................................... 219,986
Vehicles................................................................ 26,145
------------
6,048,575
Less accumulated depreciation........................................... (1,563,257)
------------
Property and equipment, net............................................. $ 4,485,318
==========
Depreciation expense for the year....................................... $ 427,309
==========
</TABLE>
F-77
<PAGE> 190
WTVX-TV, KRYPTON BROADCASTING OF FT. PIERCE, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994
3. INTANGIBLE ASSETS
Intangible assets consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
1994
------------
<S> <C>
FCC license............................................................. $2,356,473
Less accumulated amortization........................................... (362,396)
------------
Intangible assets, net.................................................. $1,994,077
==========
Amortization expense for the year....................................... $ 93,838
==========
</TABLE>
4. PROGRAM RIGHTS:
Program rights consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
1994
------------
<S> <C>
Program rights......................................................... $231,925
Less accumulated amortization.......................................... (98,171)
------------
133,754
Less current program rights............................................ 82,318
------------
$ 51,436
==========
Amortization expense for the year...................................... $149,607
==========
</TABLE>
5. LIABILITIES SUBJECT TO CHAPTER 11 PROCEEDINGS:
The principal categories of claims classified in the Balance Sheet as
liabilities subject to Chapter 11 proceedings at December 31, 1994 are as
follows:
<TABLE>
<CAPTION>
DECEMBER 31,
1994
------------
<S> <C>
Accounts payable....................................................... $ 392,102
Accrued interest....................................................... 650,932
Program license contracts.............................................. 2,603,999
------------
$3,647,033
==========
</TABLE>
Reorganization expenses included in the statement of operations consist
primarily of professional and attorney fees related directly to the bankruptcy
proceedings (Note 1).
F-78
<PAGE> 191
WTVX-TV, KRYPTON BROADCASTING OF FT. PIERCE, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1994
6. INCOME TAXES:
Deferred tax assets and liabilities consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
1994
------------
<S> <C>
Assets:
Intangible assets..................................................... $ 24,231
Allowance for doubtful accounts....................................... 25,773
Net operating loss carryforwards...................................... 780,419
Valuation allowance................................................... $ (830,423)
--------
$ 0
========
</TABLE>
A valuation allowance is provided when it is more likely than not that some
portion of the deferred tax asset will not be realized. A valuation allowance
has been provided for the deferred tax assets.
7. DEBT:
A portion of the Krypton International Corporation's debt and interest
costs which are directly related to WTVX-TV were allocated to the Company based
on the original purchase price of the station. Debt allocated at December 31,
1994 was approximately $8,535,000. Interest expense allocated for the year ended
December 31, 1994 was approximately $748,000. There are no other costs pushed
down by Krypton International Corporation as there are no others which are
directly related to the Company.
8. COMMITMENTS AND CONTINGENCIES:
The Company incurred expenses of approximately $64,900 for the year ended
December 31, 1994 under non-cancelable operating leases for office equipment and
office space. Future minimum annual payments under these non-cancelable
operating leases as of December 31, 1994, are as follows:
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
------------
<S> <C>
1995............................................................ $ 44,668
1996............................................................ 4,538
1997............................................................ 3,492
1998............................................................ 873
1999............................................................ --
------------
$ 53,571
==========
</TABLE>
F-79
<PAGE> 192
- ------------------------------------------------------
- ------------------------------------------------------
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH THIS PROSPECTUS
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY OTHER PERSON. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER
TO BUY TO ANY PERSON IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS
NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE OR EXCHANGE
MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE
HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT
THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE
DATE HEREOF.
------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Certain Definitions and Market and
Industry Data....................... i
Available Information................. ii
Prospectus Summary.................... 1
Risk Factors.......................... 12
The Exchange Offer.................... 19
The Company........................... 27
The Guarantors........................ 27
The Acquisitions...................... 27
Use of Proceeds....................... 30
Capitalization........................ 31
Pro Forma Financial Information....... 32
Selected Historical and Pro Forma
Financial Data...................... 37
Management's Discussion and Analysis
of Financial Condition and Results
of Operations....................... 40
Business.............................. 45
Legal Proceedings..................... 65
Management............................ 66
Certain Transactions.................. 70
Principal Stockholders................ 75
Description of New Credit Facility.... 76
Description of the Notes.............. 77
Description of the Capital Stock...... 100
Certain Federal Income Tax
Consideration....................... 101
Plan of Distribution.................. 104
Legal Opinions........................ 105
Experts............................... 105
Index of Financial Statements......... F-1
</TABLE>
------------------
Until April 23, 1996, (90 days after the date of this Prospectus) all
dealers effecting transactions in the New Notes, whether or not participating in
this distribution, may be required to deliver a Prospectus. This is in addition
to the obligations of dealers to deliver a Prospectus when selling New Notes
received in exchange for Original Notes held for their account. See "Plan of
Distribution."
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
$230,000,000
LOGO
PAXSON COMMUNICATIONS
CORPORATION
11 5/8% SENIOR SUBORDINATED
NOTES DUE 2002
-----------------
PROSPECTUS
-----------------
JANUARY 24, 1996
- ------------------------------------------------------
- ------------------------------------------------------
<PAGE> 193
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Paxson Communications Corporation (the "Company" or "PCC") and two other
Registrants that are its direct or indirect subsidiaries are Delaware
corporations (collectively referred to as the "Delaware Corporations"). The
Delaware Corporations' Certificates of Incorporation and Bylaws contain
provisions limiting the personal liability of its directors for monetary damages
resulting from breaches of their duty of care to the extent permitted by Section
102(b)(7) of the Delaware General Corporation Law. The Delaware Corporations'
Certificates of Incorporation and Bylaws also contain provisions making
indemnification of the Delaware Corporations' directors and officers mandatory
to the fullest extent permitted by the Delaware General Corporation Law,
including circumstances in which indemnification is otherwise discretionary.
The Delaware General Corporation Law permits the indemnification by a
Delaware corporation of its directors, officers, employees and other agents
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement in connection with specified actions, suits or proceedings,
whether civil, criminal, administrative or investigative (other than derivative
actions which are by or in the right of the corporation) if they acted in good
faith and in a manner they reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceedings, had no reasonable cause to believe their conduct was illegal. A
similar standard of care is applicable in the case of derivative actions, except
that indemnification only extends to expenses (including attorneys' fees)
incurred in connection with defense or settlement of such an action and require
court approval before there can be any indemnification where the person seeking
indemnification has been found liable to the corporation.
Eight of the Registrants are Florida limited partnerships. Such
Registrants' Agreements of Limited Partnership contain provisions indemnifying
the general partner for any loss, expense (including attorneys' fees) or damage
incurred by reason of any act or omission by it in good faith on behalf of the
partnership and in a manner that it reasonably believes to be within the scope
of authority granted to it under the limited partnership agreement and in the
best interest of the partnership (but not, in any event, any loss, expense or
damage incurred by a general partner by reason of gross negligence or willful
misconduct).
The Florida Revised Uniform Limited Partnership Act (the "Limited
Partnership Act") provides general partners of a limited partnership the same
rights and powers, except as provided in the Limited Partnership Act or in the
partnership agreement, as a partner in a general partnership. The Florida
Uniform Partnership Act provides that the partnership must indemnify every
partner for payments made and personal liabilities reasonably incurred in the
ordinary and proper conduct of the partnership's business or for the
preservation of its business or property.
All of the remaining Registrants are direct or indirect subsidiaries of
Paxson Communications Corporation and are Florida corporations (collectively
referred to as the "Florida Corporations"). The Florida Corporations' Bylaws
contain provisions making indemnification of the Florida Corporations' officers
and directors mandatory to the fullest extent permitted by Florida law. The
Florida Business Corporation Act permits the indemnification by a Florida
corporation of its directors, officers, employees and other agents against
liability in connection with any proceeding, including any appeal thereof (other
than derivative actions which are by or in the right of the corporation), if
they acted in good faith and in a manner they 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 their conduct
was illegal.
II-1
<PAGE> 194
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------- -----------------------------------------------------------------------------------
<S> <C> <C>
3.1.1 -- Certificate of Incorporation of the Company**
3.1.2 -- The Company's Certificate of Designations of PCC's 15% Cumulative Compounding
Redeemable Preferred Stock*
3.1.3 -- The Company's Certificate of Designations of PCC's Series B 15% Cumulative
Compounding Redeemable Preferred Stock**
3.1.4 -- The Company's Certificate of Designations of PCC's Junior Cumulative Compounding
Redeemable Preferred Stock**
3.1.5 -- Bylaws of the Company*
3.2.1 -- Articles of Incorporation of Paxson Communications of Florida, Inc.+
3.2.2 -- Bylaws of Paxson Communications of Florida, Inc.+
3.3.1 -- Articles of Incorporation of Paxson Communications LP, Inc.+
3.3.2 -- Bylaws of Paxson Communications LP, Inc.
3.4.1 -- Articles of Incorporation of Paxson Communications Management Company+
3.4.2 -- Bylaws of Paxson Communications Management Company
3.5.1 -- Articles of Incorporation of Paxson Communications Marketing, Inc.+
3.5.2 -- Bylaws of Paxson Communications Marketing, Inc.
3.6.1 -- Articles of Incorporation of Paxson Communications Networks, Inc.+
3.6.2 -- Bylaws of Paxson Communications Networks, Inc.
3.7.1 -- Articles of Incorporation of Excel Marketing Enterprises, Inc.+
3.7.2 -- Bylaws of Excel Marketing Enterprises, Inc.+
3.8.1 -- Articles of Incorporation of Paxson Outdoor, Inc.+
3.8.2 -- Bylaws of Paxson Outdoor, Inc.+
3.9.1 -- Articles of Incorporation of Paxson Networks, Inc.+
3.9.2 -- Bylaws of Paxson Networks, Inc.
3.10.1 -- Articles of Incorporation of Paxson Communications Television, Inc.+
3.10.2 -- Bylaws of Paxson Communications Television, Inc.
3.11.1 -- Limited Partnership Agreement of Paxson Broadcasting of Jacksonville, Limited
Partnership+
3.11.2 -- Certificate of Limited Partnership of Paxson Broadcasting of Jacksonville, Limited
Partnership
3.12.1 -- Limited Partnership Agreement of Paxson Broadcasting Of Miami, Limited Partnership+
3.12.2 -- Certificate of Limited Partnership of Paxson Broadcasting of Miami, Limited
Partnership
3.13.1 -- Limited Partnership Agreement of Paxson Broadcasting Of Orlando, Limited
Partnership+
3.13.2 -- Certificate of Limited Partnership of Paxson Broadcasting of Orlando, Limited
Partnership
3.14.1 -- Limited Partnership Agreement of Paxson Broadcasting of Tampa, Limited Partnership+
3.14.2 -- Certificate of Limited Partnership of Paxson Broadcasting of Tampa, Limited
Partnership
3.15.1 -- Limited Partnership Agreement of Paxson Tampa License Limited Partnership+
3.15.2 -- Certificate of Limited Partnership of Paxson Tampa License Limited Partnership
3.16.1 -- Limited Partnership Agreement of Paxson Jacksonville License Limited Partnership+
3.16.2 -- Certificate of Limited Partnership of Paxson Jacksonville License Limited
Partnership
3.17.1 -- Limited Partnership Agreement of Paxson Miami License Limited Partnership+
</TABLE>
II-2
<PAGE> 195
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------- -----------------------------------------------------------------------------------
<S> <C> <C>
3.17.2 -- Certificate of Limited Partnership of Paxson Miami License Limited Partnership
3.18.1 -- Limited Partnership Agreement of Paxson Orlando License Limited Partnership+
3.18.2 -- Certificate of Limited Partnership of Paxson Orlando License Limited Partnership
3.19.1 -- Articles of Incorporation of Paxson Communications of Atlanta-14, Inc.+
3.19.2 -- Bylaws of Paxson Communications of Atlanta-14, Inc.
3.20.1 -- Articles of Incorporation of Paxson Atlanta License, Inc.+
3.20.2 -- Bylaws of Paxson Atlanta License, Inc.
3.21.1 -- Articles of Incorporation of Paxson Communications of Boston-60, Inc.+
3.21.2 -- Bylaws of Paxson Communications of Boston-60, Inc.
3.22.1 -- Articles of Incorporation of Paxson Boston License, Inc.+
3.22.2 -- Bylaws of Paxson Boston License, Inc.
3.23.1 -- Articles of Incorporation of Paxson Communications of Dallas-68, Inc.+
3.23.2 -- Bylaws of Paxson Communications of Dallas-68, Inc.
3.24.1 -- Articles of Incorporation of Paxson Dallas License, Inc.+
3.24.2 -- Bylaws of Paxson Dallas License, Inc.
3.25.1 -- Articles of Incorporation of Paxson Communications of New London-26, Inc.+
3.25.2 -- Bylaws of Paxson Communications of New London-26, Inc.
3.26.1 -- Articles of Incorporation of Paxson New London License, Inc.+
3.26.2 -- Bylaws of Paxson New London License, Inc.
3.27.1 -- Articles of Incorporation of Paxson Communications of Philadelphia-61, Inc.+
3.27.2 -- Bylaws of Paxson Communications of Philadelphia-61, Inc.
3.28.1 -- Articles of Incorporation of Paxson Philadelphia License, Inc.+
3.28.2 -- Bylaws of Paxson Philadelphia License, Inc.
3.29.1 -- Articles of Incorporation of Paxson Communications of Miami-35, Inc.+
3.29.2 -- Bylaws of Paxson Communications of Miami-35, Inc.
3.30.1 -- Articles of Incorporation of Paxson Communications of San Jose-65, Inc.+
3.30.2 -- Bylaws of Paxson Communications of San Jose-65, Inc.
3.31.1 -- Articles of Incorporation of Paxson San Jose License, Inc.+
3.31.2 -- Bylaws of Paxson San Jose License, Inc.
3.32.1 -- Articles of Incorporation of Paxson Communications of Tampa-66, Inc.+
3.32.2 -- Bylaws of Paxson Communications of Tampa-66, Inc.
3.33.1 -- Articles of Incorporation of Paxson Communications of West Palm Beach-25, Inc.+
3.33.2 -- Bylaws of Paxson Communications of West Palm Beach-25, Inc.
3.34.1 -- Articles of Incorporation of Paxson West Palm Beach License, Inc.+
3.34.2 -- Bylaws of Paxson West Palm Beach License, Inc.
3.35.1 -- Articles of Incorporation of Paxson Communications of Los Angeles-30, Inc.+
3.35.2 -- Bylaws of Paxson Communications of Los Angeles-30, Inc.
3.36.1 -- Articles of Incorporation of Paxson Los Angeles License, Inc.+
3.36.2 -- Bylaws of Paxson Los Angeles License, Inc.
3.37.1 -- Articles of Incorporation of Paxson Communications of Minneapolis-41, Inc.+
3.37.2 -- Bylaws of Paxson Communications of Minneapolis-41, Inc.
</TABLE>
II-3
<PAGE> 196
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------- -----------------------------------------------------------------------------------
<S> <C> <C>
3.38.1 -- Articles of Incorporation of Paxson Communications of St. Louis-13, Inc.+
3.38.2 -- Bylaws of Paxson Communications of St. Louis-13, Inc.
3.39.1 -- Articles of Incorporation of Paxson Minneapolis License, Inc.+
3.39.2 -- Bylaws of Paxson Minneapolis License, Inc.
3.40.1 -- Articles of Incorporation of Paxson Communications of Cookeville, Inc.+
3.40.2 -- Bylaws of Paxson Communications of Cookeville, Inc.
3.41.1 -- Articles of Incorporation of Paxson Cookeville License, Inc.+
3.41.2 -- Bylaws of Paxson Cookeville License, Inc.
3.42.1 -- Articles of Incorporation of Paxson Communications of Ft. Pierce-34, Inc.+
3.42.2 -- Bylaws of Paxson Communications of Ft. Pierce-34, Inc.
3.43.1 -- Articles of Incorporation of Paxson Communications of Orlando-56, Inc.+
3.43.2 -- Bylaws of Paxson Communications of Orlando-56, Inc.
3.44.1 -- Articles of Incorporation of Paxson Communications of Houston-49, Inc.+
3.44.2 -- Bylaws of Paxson Communications of Houston-49, Inc.
3.45.1 -- Articles of Incorporation of Paxson Houston License, Inc.+
3.45.2 -- Bylaws of Paxson Houston License, Inc.
3.46.1 -- Certificate of Incorporation of Infomall TV Network, Inc.+
3.46.2 -- Bylaws of Infomall TV Network, Inc.+
3.47.1 -- Articles of Incorporation of Paxson St. Louis License, Inc.+
3.47.2 -- Bylaws of Paxson St. Louis License, Inc.
3.48.1 -- Certificate of Incorporation of Infomall Cable Network, Inc.+
3.48.2 -- Bylaws of Infomall Cable Network, Inc.
3.49.1 -- Articles of Incorporation of Paxson Communications of Cleveland-67, Inc.+
3.49.2 -- Bylaws of Paxson Communications of Cleveland-67, Inc.
3.50.1 -- Articles of Incorporation of Paxson Communications of Washington-60, Inc.+
3.50.2 -- Bylaws of Paxson Communications of Washington-60, Inc.
3.51.1 -- Articles of Incorporation of Paxson Washington License, Inc.+
3.51.2 -- Bylaws of Paxson Washington License, Inc.
3.52.1 -- Articles of Incorporation of Paxson Communications of Phoenix-13, Inc.+
3.52.2 -- Bylaws of Paxson Communications of Phoenix-13, Inc.
3.53.1 -- Articles of Incorporation of Paxson Phoenix License, Inc.+
3.53.2 -- Bylaws of Paxson Phoenix License, Inc.
3.54.1 -- Articles of Incorporation of Infomall Los Angeles, Inc.+
3.54.2 -- Bylaws of Infomall Los Angeles, Inc.
3.55.1 -- Articles of Incorporation of Paxson Communications of Milwaukee-55, Inc.+
3.55.2 -- Bylaws of Paxson Communications of Milwaukee-55, Inc.
3.56.1 -- Articles of Incorporation of Paxson Communications of Denver-59, Inc.+
3.56.2 -- Bylaws of Paxson Communications of Denver-59, Inc.
3.57.1 -- Articles of Incorporation of Paxson Communications of New York-43, Inc.+
3.57.2 -- Bylaws of Paxson Communications of New York-43, Inc.
3.58.1 -- Articles of Incorporation of Paxson New York License, Inc.+
</TABLE>
II-4
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<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------- -----------------------------------------------------------------------------------
<S> <C> <C>
3.58.2 -- Bylaws of Paxson New York License, Inc.
3.59.1 -- Articles of Incorporation of Paxson Communications of Akron-23, Inc.+
3.59.2 -- Bylaws of Paxson Communications of Akron-23, Inc.
3.60.1 -- Articles of Incorporation of Paxson Akron License, Inc.+
3.60.2 -- Bylaws of Paxson Akron License, Inc.
3.61.1 -- Articles of Incorporation of Paxson Communications of Dayton-26, Inc.+
3.61.2 -- Bylaws of Paxson Communications of Dayton-26, Inc.
4.1 -- Indenture dated as of September 28, 1995 among the Company, The Bank of New York,
as Trustee, and the Guarantors named therein (the "Indenture")+
4.2.1 -- Form of Original Note No. 1 for $115,000,000, CUSIP No. 704231-AA-7, with Guarantee
of Guarantors listed therein+
4.2.2 -- Form of Original Note No. 2 for $115,000,000, CUSIP No. 704231-AA-7, with Guarantee
of Guarantors listed therein+
4.3 -- Form of New Note with Form of New Guarantee+
4.4 -- Registration Rights Agreement dated as of September 28, 1995 by and among the
Company, the Guarantors named therein and each of the Purchasers referred to
therein+
5 -- Legal Opinion of Holland & Knight
8 -- Legal Opinion of Holland & Knight regarding Tax Matters
9 -- Amended and Restated Stockholders Agreement, dated as of December 22, 1994, by and
among PCC and stockholders thereof**
10.1 -- Securities Purchase Agreement, dated as of September 22, 1995, by and among PCC,
the Guarantors named therein and the Initial Purchasers named therein+
10.2 -- Stock Purchase Agreement, dated as of December 15, 1993, by and among PCC and
certain purchasers of PCC securities**
10.3 -- Stock Purchase Agreement dated as of December 22, 1994, by and among PCC and
certain purchasers of PCC securities**
10.4 -- Amended and Restated Stockholders Agreement dated as of December 22, 1994, by and
among PCC and certain stockholders thereof (incorporated by reference to Exhibit 9)
10.5 -- Exchange and Consent Agreement dated as of December 22, 1994 by and among PCC and
certain stockholders thereof**
10.9 -- Asset Purchase Agreement, dated as of March 10, 1994, by and between
Phipps-Potamkin Television Partners and PCC*
10.10 -- Asset Purchase Agreement, dated as of March 31, 1994, by and between Paxson
Communications of Atlanta-14, Inc. and TV-14, Inc.*
10.11 -- Time Brokerage Agreement dated as of March 31, 1994, by and between TV-14, Inc. and
Paxson Communications of Atlanta-14, Inc.*
10.12 -- Asset Purchase Agreement between Delaware Valley Broadcasters Limited Partnership
and PCC dated October 14, 1994**
10.13 -- Asset Purchase Agreement between Paxson Communications of New London-26, Inc. and
R&R Media Corp. dated November 25, 1994**
10.14 -- Asset Purchase Agreement between PCC and Sandino Telecasters, Inc. dated December
5, 1994**
10.15 -- Asset Purchase Agreement by and among Paxson Communications of San Jose-65, Inc.
and Friendly Bible Church, Inc. and United Christian Broadcasting, Inc. dated
December 21, 1994**
</TABLE>
II-5
<PAGE> 198
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------- -----------------------------------------------------------------------------------
<S> <C> <C>
10.16 -- Asset Purchase Agreement by and among Channel 56 of Orlando, Inc., Treasure Coast
Communications, Inc. and PCC dated December 23, 1994**
10.17 -- Asset Purchase Agreement by and among PCC and San Jacinto Television Corp. and
DuPont Investment Group 85, Ltd. dated January 20, 1995**
10.18 -- Asset Purchase Agreement by and among Paxson Communications of Boston-60, Inc. and
Paugus Television, Inc. and The Roger L. Putnam Trust and The Estate of Percival
Lowell**
10.19 -- Warrant Agreement dated as of December 15, 1993 by and among PCC and William Watson
as Warrant Agent*
10.20 -- Asset Purchase Agreement by and among Paxson Broadcasting of Tampa, L.P. and Largo
Broadcasting Company dated July 20, 1994**
10.21 -- Asset Purchase Agreement between Paxson Broadcasting of Orlando, L.P. and Florida
Media, Inc. dated September 23, 1994**
10.22 -- Asset Purchase Agreement between PCC and Tri-Talk Radio, L.C. dated February 24,
1995**
10.23 -- Agreement between United Broadcast Group, Ltd. and Paxson Communications of
Dallas-68, Inc. dated December 14, 1994 and related Joint Request for Approval of
Settlement Agreement**
10.24 -- Warrant Agreement dated as of December 22, 1994 by and among PCC and William Watson
as Warrant Agent**
10.25 -- Form of Employment Agreement dated as of June 30, 1994, by and between PCC and
Lowell W. Paxson*
10.26 -- Paxson Communications Corp. Profit Sharing Plan*
10.27 -- Form of Paxson Communications Corp. Stock Incentive Plan*
10.29 -- Asset Purchase Agreement, dated as of March 31, 1995, by and among The Christian
Network, Inc. and LeSea Broadcasting Corporation and PCC***
10.30 -- Stock Purchase Agreement, dated as of April 30, 1995, by and among Channel 59 of
Denver, Inc. and David M. Drucker and Charles Ergen and PCC***
10.31 -- Asset Purchase Agreement, dated as of April 30, 1995, by and among Channel 59 of
Denver, Inc. and Echonet Corporation and PCC***
10.32 -- First Letter Agreement, dated as of December 2, 1994, to Asset Purchase Agreement
by and between Paxson Communications Corp. and Sandino Telecasters, Inc., dated as
of December 5, 1994****
10.33 -- Second Letter Agreement, dated as of December 5, 1994, to Asset Purchase Agreement
by and between Paxson Communications Corp. and Sandino Telecasters, Inc., dated as
of December 5, 1994****
10.34 -- Third Amendment, dated as of May 17, 1995, to Asset Purchase Agreement by and
between Paxson Communications Corp. and Sandino Telecasters, Inc., dated as of
December 5, 1994****
10.35 -- First Amendment, dated as of May 17, 1995, to Asset Purchase Agreement by and
between Paxson Communications of Boston-60, Inc., Paugus Television, Inc., The
Roger L. Putnam Trust and The Estate of Percival Lowell, dated as of January 20,
1995****
10.36 -- Asset Purchase Agreement, dated January 31, 1995, between Gary A. Rosen in his
capacity as Bankruptcy Trustee for Flying A Communications, Inc. and Paxson
Communications Corp.*****
10.37 -- Real Estate Sale and Purchase Agreement, dated as of May 18, 1995, by and between
F&M Bank -- Martinsburg and Paxson Communications of Washington-60, Inc.*****
</TABLE>
II-6
<PAGE> 199
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------- -----------------------------------------------------------------------------------
<S> <C> <C>
10.38 -- Asset Purchase Agreement, dated as of June 1, 1995, by and between Channel 26 of
Dayton, Inc. and Video Mall Communications, Inc. for Television Station WTJC-TV,
Springfield, Ohio*****
10.39.1 -- Asset Purchase Agreement, dated as of May 23, 1995, by and among Whitehead Media,
Inc., Morton J. Kent and Canton, Inc. for Television Station WOAC(TV) Canton,
Ohio*****
10.39.2 -- Option Agreement dated December 29, 1995 by and among Whitehead Media, Inc.,
Whitehead Media of Ohio, Inc., and Paxson Communications of Cleveland-67, Inc. for
WOAC (TV), Channel 67, Canton, Ohio
10.39.3 -- Time Brokerage Agreement, dated October 30, 1995 between Whitehead Media, Inc. and
Paxson Communications of Cleveland-67, Inc. for WOAC (TV), Channel 67, Canton, Ohio
10.39.4 -- Amendment to Time Brokerage Agreement, dated December 29, 1995 between Whitehead
Media, Inc. and Paxson Communications of Cleveland-67, Inc. for WOAC (TV), Channel
67, Canton, Ohio
10.44.1 -- Time Brokerage Agreement, dated September 22, 1994, effective as of August 4, 1995,
between Whitehead Media, Inc. and Paxson Communications Corporation for Television
Station WTVX-TV Fort Pierce, Florida******
10.44.2 -- Option Agreement dated December 29, 1995 by and among Whitehead Media Inc.,
Whitehead Media of Florida, Inc., and Paxson Communications of Ft. Pierce-34, Inc.
for Television Station WTVX-TV Fort Pierce, Florida
10.45.1 -- Amendment to Time Brokerage Agreement, dated as of April 19, 1995, between
Whitehead Media, Inc. and Paxson Communications Corporation for Television Station
WTVX-TV Fort Pierce, Florida******
10.45.2 -- Amendment To Time Brokerage Agreement, dated December 29, 1995 by and between
Whitehead Media, Inc. and Paxson Communications of Ft. Pierce-34, Inc. for
Television Station WTVX-TV, Ft. Pierce, Florida
10.46 -- Non-compete Agreement dated August 18, 1995 between Paxson Communications
Corporation and Lowell W. Paxson+
10.47 -- Asset Purchase Agreement dated as of August 23, 1995 by and among Valuevision
International, Inc., VVI Bridgeport, Inc., VVI Akron, Inc., and Paxson
Communications Corporation+
10.48 -- Time Brokerage Agreement dated August 31, 1995 by and between Channel 56 of
Orlando, Inc. and Paxson Communications of Orlando-56 Inc. for Television Station
WIRB(TV), Melbourne, Florida+
10.49 -- Loan Agreement dated August 31, 1995 among Paxson Communications of Orlando-56,
Inc. and Channel 56 of Orlando, Inc.+
10.50 -- Time Brokerage Agreement dated August 31, 1995 by and between UHF Channel 59 Corp.
and Paxson Communications of Denver-59, Inc. for Television Station KUBD(TV),
Denver, Colorado+
10.51 -- Loan Agreement dated August 31, 1995 by and between Paxson Communications of
Denver-59, Inc. and Channel 59 of Denver, Inc.+
10.52 -- Option Agreement dated August 31, 1995 by and among Paxson Communications of
Denver-59, Inc., Channel 59 of Denver, Inc., and UHF Channel 59 Corp.+
10.53 -- Asset Purchase Agreement dated August 31, 1995 by and between Channel 13 of
Flagstaff, Inc., Michael C. Gelfand, and Del Ray Television Company, Inc.+
10.54 -- Asset Purchase Agreement dated October 2, 1995 by and between Whitehead Media, Inc.
and NGM Television Partners, Limited for Television Station WNGM-TV, Athens,
Georgia+
</TABLE>
II-7
<PAGE> 200
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------- -----------------------------------------------------------------------------------
<S> <C> <C>
10.55.1 -- Time Brokerage Agreement dated October 16, 1995 by and between Channel 26 of
Dayton, Inc. and Paxson Communications of Dayton-26, Inc. for Television Station
WTJC(TV), Springfield, Ohio+
10.55.2 -- Option Agreement dated December 29, 1995, by and between Whitehead Media, Inc.,
Whitehead Media of Georgia, Inc., and Paxson Communications of Atlanta-14, Inc. for
WNGM (TV), Channel 34, Athens, Georgia
10.55.3 -- Time Brokerage Agreement dated December 29, 1995 by and between Whitehead Media of
Georgia, Inc. and Paxson Communications of Atlanta-14, Inc. for WNGM (TV), Athens,
Georgia
10.56 -- Loan Agreement dated October 6, 1995 by and among Paxson Communications of
Dayton-26, Inc. and Channel 26 of Dayton, Inc.+
10.57 -- Option Agreement dated October 6, 1995 by and between Paxson Communications of
Dayton-26, Inc. and Channel 26 of Dayton, Inc.+
10.58 -- Asset Purchase Agreement dated August 25, 1995 by and between Channel 13 of St.
Louis, Inc. and McEntee Broadcasting, Inc., for Television Station WCEE-TV, Mt.
Vernon, Illinois+
10.59 -- Credit Agreement dated as of December 19, 1995, among PCC, the Lenders named
therein, Union Bank, as Agent
12 -- Statement re: Computation of Ratios+
21 -- List of Subsidiaries
23 -- Consent of Holland & Knight (contained in Exhibit 5)
23.1 -- Consent of Price Waterhouse LLP, independent certified public accountants
23.2 -- Consent of Ryals, Brimmer, Burek & Keelan, independent certified public accountants
24 -- Powers of Attorney (included on signature pages of Registration Statement)+
25 -- Statement of Eligibility of Trustee, The Bank of New York, on Form T-1+
99.1 -- Form of Letter of Transmittal
99.2 -- Form of Notice of Guaranteed Delivery+
99.3 -- Exchange Agent Agreement+
</TABLE>
- ---------------
<TABLE>
<C> <S>
* Filed with the Company's Registration Statement of Form S-4, dated September 26,
1994, Registration No. 33-84416 and incorporated herein by reference.
** Filed with the Company's Annual Report on Form 10-K, dated March 31, 1995 and
incorporated herein by reference.
*** Filed with the Company's Quarterly Report on Form 10-Q, dated May 12, 1995 and
incorporated herein by reference.
**** Filed with the Company's Report on Form 8-K dated June 1, 1995 and incorporated
herein by reference.
***** Filed with the Company's Quarterly Report on Form 10-Q, dated August 14, 1995 and
incorporated herein by reference.
****** Filed with the Company's Report on Form 8-K, dated August 21, 1995 and incorporated
herein by reference.
+ Previously filed.
</TABLE>
(b) Financial Statement Schedules
All financial statement schedules are omitted because they are either not
applicable or the required information is included in the financial statements
or notes thereto appearing elsewhere in this Registration Statement.
(c) Not Applicable.
II-8
<PAGE> 201
ITEM 22. UNDERTAKINGS.
(a) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
(b)(1) The undersigned Registrants hereby undertake as follows: that prior
to any public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this registration statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
issuer undertakes that such reoffering prospectus will contain the information
called for by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the information called
for by the other items of the applicable form.
(2) The Registrants undertake that every prospectus: (i) that is filed
pursuant to paragraph (1) immediately preceding, or (ii) that purports to meet
the requirements of Section 10(a)(3) of the Act and is used in connection with
an offering of securities subject to Rule 415, will be filed as a part of an
amendment to the registration statement and will not be used until such
amendment is effective, and that, for purposes of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) The undersigned Registrants hereby undertake:
(1) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Item 4, 10(b), 11 or 13 of this
form, within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt means.
This includes information contained in documents filed subsequent to the
effective date of the Registration Statement through the date of responding
to the request.
(2) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein,
that was not subject of and included in the Registration Statement when it
became effective.
II-9
<PAGE> 202
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
PAXSON COMMUNICATIONS CORPORATION, a Delaware corporation, has duly caused this
Amendment No. 1 to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of West Palm Beach, State of
Florida on January 23, 1996.
PAXSON COMMUNICATIONS
CORPORATION
By: /s/ ARTHUR D. TEK
------------------------------------
Arthur D. Tek
Vice President, Treasurer and
Chief Financial Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS AMENDMENT TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- --------------------------------------------- ------------------------------ -----------------
<C> <S> <C>
/s/ LOWELL W. PAXSON* Chairman of the Board, Chief January 23, 1996
- --------------------------------------------- Executive Officer, and
Lowell W. Paxson Director (Principal
Executive Officer)
/s/ ARTHUR D. TEK Vice President, Chief January 23, 1996
- --------------------------------------------- Financial Officer, and
Arthur D. Tek Director (Principal
Financial Officer)
/s/ KENNETH M. GAMACHE* Controller (Principal January 23, 1996
- --------------------------------------------- Accounting Officer)
Kenneth M. Gamache
/s/ JAMES B. BOCOCK* President, Chief Operating January 23, 1996
- --------------------------------------------- Officer, and Director
James B. Bocock
/s/ MICHAEL J. MAROCCO* Director January 23, 1996
- ---------------------------------------------
Michael J. Marocco
/s/ JOHN A. KORNREICH* Director January 23, 1996
- ---------------------------------------------
John A. Kornreich
/s/ J. PATRICK MICHAELS, JR.* Director January 23, 1996
- ---------------------------------------------
J. Patrick Michaels, Jr.
/s/ S. WILLIAM SCOTT* Director January 23, 1996
- ---------------------------------------------
S. William Scott
*By: ARTHUR D. TEK
- ---------------------------------------------
Arthur D. Tek,
Attorney-in-Fact
</TABLE>
II-10
<PAGE> 203
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrants listed directly below have duly caused this Amendment No. 1 to
Registration Statement to be signed on each their behalfs, respectively, by the
undersigned, thereunto duly authorized in the City of West Palm Beach, State of
Florida on January 23, 1996.
<TABLE>
<S> <C>
PAXSON COMMUNICATIONS TELEVISION, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS OF FLORIDA, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS LP, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS MANAGEMENT
COMPANY
(a Florida corporation)
PAXSON COMMUNICATIONS MARKETING, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS NETWORKS, INC.
(a Florida corporation)
PAXSON OUTDOOR, INC.
(a Florida corporation)
PAXSON NETWORKS, INC.
(a Florida corporation)
EXCEL MARKETING ENTERPRISES, INC.
(a Florida corporation)
INFOMALL CABLE NETWORK, INC.
(a Delaware corporation)
INFOMALL TV NETWORK, INC.
(a Delaware corporation)
INFOMALL LOS ANGELES, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS OF AKRON-23, INC.
(a Florida corporation)
PAXSON AKRON LICENSE, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS OF ATLANTA-14, INC.
(a Florida corporation)
PAXSON ATLANTA LICENSE, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS OF BOSTON-60, INC.
(a Florida corporation)
PAXSON BOSTON LICENSE, INC.
(a Florida corporation)
</TABLE>
II-11
<PAGE> 204
<TABLE>
<S> <C>
PAXSON COMMUNICATIONS OF
CLEVELAND-67, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS OF
COOKEVILLE, INC.
(a Florida corporation)
PAXSON COOKEVILLE LICENSE, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS OF DALLAS-68, INC.
(a Florida corporation)
PAXSON DALLAS LICENSE, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS OF DAYTON-26, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS OF DENVER-59, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS OF
FT. PIERCE-34, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS OF
HOUSTON-49, INC.
(a Florida corporation)
PAXSON HOUSTON LICENSE, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS OF
LOS ANGELES-30, INC.
(a Florida corporation)
PAXSON LOS ANGELES LICENSE, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS OF MIAMI-35, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS OF
MILWAUKEE-55, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS OF
MINNEAPOLIS-45, INC.
(a Florida corporation)
PAXSON MINNEAPOLIS LICENSE, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS OF
NEW LONDON-26, INC.
(a Florida corporation)
PAXSON NEW LONDON LICENSE, INC.
(a Florida corporation)
</TABLE>
II-12
<PAGE> 205
<TABLE>
<S> <C>
PAXSON COMMUNICATIONS OF
NEW YORK-43, INC.
(a Florida corporation)
PAXSON NEW YORK LICENSE, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS OF
ORLANDO-56, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS OF
PHILADELPHIA-61, INC.
(a Florida corporation)
PAXSON PHILADELPHIA LICENSE, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS OF PHOENIX-13, INC.
(a Florida corporation)
PAXSON PHOENIX LICENSE, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS OF ST. LOUIS, INC.
(a Florida corporation)
PAXSON ST. LOUIS LICENSE, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS OF SAN JOSE-65, INC.
(a Florida corporation)
PAXSON SAN JOSE LICENSE, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS OF TAMPA-66, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS OF
WASHINGTON-60, INC.
(a Florida corporation)
PAXSON WASHINGTON LICENSE, INC.
(a Florida corporation)
PAXSON COMMUNICATIONS OF WEST PALM
BEACH-25, INC.
(a Florida corporation)
PAXSON WEST PALM BEACH LICENSE, INC.
(a Florida corporation)
By: /s/ ARTHUR D. TEK
--------------------------------------
Name: Arthur D. Tek
Title: Vice President
</TABLE>
II-13
<PAGE> 206
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS AMENDMENT TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- --------------------------------------------- ------------------------------ -----------------
<S> <C> <C>
/s/ LOWELL W. PAXSON* Chairman of the Board and January 23, 1996
- --------------------------------------------- Director (Principal
Lowell W. Paxson Executive Officer)
/s/ ARTHUR D. TEK Treasurer (Principal Financial January 23, 1996
- --------------------------------------------- Officer)
Arthur D. Tek
/s/ KENNETH M. GAMACHE* Controller (Principal January 23, 1996
- --------------------------------------------- Accounting Officer)
Kenneth M. Gamache
*By: ARTHUR D. TEK
- ---------------------------------------------
Arthur D. Tek,
Attorney-in-Fact
</TABLE>
II-14
<PAGE> 207
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrants listed directly below have duly caused this Amendment No. 1 to the
Registration Statement to be signed on each their behalfs, respectively, by the
undersigned, thereunto duly authorized in the City of West Palm Beach, State of
Florida on January 23, 1996.
PAXSON BROADCASTING OF
JACKSONVILLE, LIMITED PARTNERSHIP
(a Florida partnership)
PAXSON JACKSONVILLE LICENSE
LIMITED PARTNERSHIP
(a Florida partnership)
PAXSON BROADCASTING OF MIAMI,
LIMITED PARTNERSHIP
(a Florida partnership)
PAXSON MIAMI LICENSE LIMITED
PARTNERSHIP
(a Florida partnership)
PAXSON BROADCASTING OF ORLANDO,
LIMITED PARTNERSHIP
(a Florida partnership)
PAXSON ORLANDO LICENSE LIMITED
PARTNERSHIP
(a Florida partnership)
PAXSON BROADCASTING OF TAMPA,
LIMITED PARTNERSHIP
(a Florida partnership)
PAXSON TAMPA LICENSE LIMITED
PARTNERSHIP
(a Florida partnership)
By: Paxson Communications of Florida,
Inc., their general partner
By: /s/ ARTHUR D. TEK
------------------------------------
Name: Arthur D. Tek
Title: Vice President
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS AMENDMENT TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- --------------------------------------------- ---------------------------- -------------------
<C> <S> <C>
/s/ LOWELL W. PAXSON* Chairman of the Board and January 23, 1996
- --------------------------------------------- sole Director
Lowell W. Paxson
*By: ARTHUR D. TEK
- ---------------------------------------------
Arthur D. Tek,
Attorney-in-Fact
</TABLE>
II-15
<PAGE> 1
EXHIBIT 3.3.2
<PAGE> 2
EXHIBIT 3.3.2
AMENDED & RESTATED BYLAWS
OF
PAXSON COMMUNICATIONS LP, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
-1-
<PAGE> 3
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting that is not within the purpose of the meeting unless the shareholders
object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The
-2-
<PAGE> 4
list shall be available at the meeting and any shareholder, his agent or
attorney is entitled to inspect the list at any time during the meeting or its
adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
-3-
<PAGE> 5
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
-4-
<PAGE> 6
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
-5-
<PAGE> 7
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for
-6-
<PAGE> 8
monies due and payable to the Corporation from any source whatsoever, and
deposit monies in the name of the Corporation in the banks, trust companies,
or other depositaries as shall be selected by the board of directors, and (c)
in general perform all the duties incident to the office of treasurer and other
duties as from time to time may be assigned to him by the chairman of the
board, the president, or the board of directors. If required by the board of
directors, the treasurer shall give a bond for the faithful discharge of his
duties in the sum and with the surety or sureties that the board of directors
determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of
-7-
<PAGE> 9
directors upon which he does not serve, duly designated according to law, as
to matters within its designated authority, if the director reasonably believes
that the committee is competent. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which the person, his
heirs, or personal representatives may be entitled. The Corporation may, upon
the affirmative vote of a majority of its board of directors, purchase
insurance for the purpose of indemnifying these persons. The insurance may be
for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
-8-
<PAGE> 10
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
-9-
<PAGE> 1
EXHIBIT 3.4.2
<PAGE> 2
EXHIBIT 3.4.2
AMENDED & RESTATED BYLAWS
OF
PAXSON COMMUNICATIONS MANAGEMENT COMPANY
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
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SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting that is not within the purpose of the meeting unless the shareholders
object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The
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list shall be available at the meeting and any shareholder, his agent or
attorney is entitled to inspect the list at any time during the meeting or its
adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
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SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effectove date.
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SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
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assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for
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monies due and payable to the Corporation from any source whatsoever, and
deposit monies in the name of the Corporation in the banks, trust companies,
or other depositaries as shall be selected by the board of directors, and (c)
in general perform all the duties incident to the office of treasurer and other
duties as from time to time may be assigned to him by the chairman of the
board, the president, or the board of directors. If required by the board of
directors, the treasurer shall give a bond for the faithful discharge of his
duties in the sum and with the surety or sureties that the board of directors
determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of
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directors upon which he does not serve, duly designated according to law, as
to matters within its designated authority, if the director reasonably believes
that the committee is competent. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which the person, his
heirs, or personal representatives may be entitled. The Corporation may, upon
the affirmative vote of a majority of its board of directors, purchase
insurance for the purpose of indemnifying these persons. The insurance may be
for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
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ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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EXHIBIT 3.5.2
<PAGE> 2
EXHIBIT 3.5.2
AMENDED & RESTATED BYLAWS
OF
PAXSON COMMUNICATIONS MARKETING, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
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SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting that is not within the purpose of the meeting unless the shareholders
object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The
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list shall be available at the meeting and any shareholder, his agent or
attorney is entitled to inspect the list at any time during the meeting or its
adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
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SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take
office until the effective date.
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SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
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assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for
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monies due and payable to the Corporation from any source whatsoever, and
deposit monies in the name of the Corporation in the banks, trust companies,
or other depositaries as shall be selected by the board of directors, and (c)
in general perform all the duties incident to the office of treasurer and other
duties as from time to time may be assigned to him by the chairman of the
board, the president, or the board of directors. If required by the board of
directors, the treasurer shall give a bond for the faithful discharge of his
duties in the sum and with the surety or sureties that the board of directors
determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of
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directors upon which he does not serve, duly designated according to law, as
to matters within its designated authority, if the director reasonably believes
that the committee is competent. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which the person, his
heirs, or personal representatives may be entitled. The Corporation may, upon
the affirmative vote of a majority of its board of directors, purchase
insurance for the purpose of indemnifying these persons. The insurance may be
for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
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ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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EXHIBIT 3.6.2
<PAGE> 2
EXHIBIT 3.6.2
AMENDED & RESTATED BYLAWS
OF
PAXSON COMMUNICATIONS NETWORKS, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
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SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting that is not within the purpose of the meeting unless the shareholders
object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The
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list shall be available at the meeting and any shareholder, his agent or
attorney is entitled to inspect the list at any time during the meeting or its
adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
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SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take
office until the effective date.
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SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
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assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for
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monies due and payable to the Corporation from any source whatsoever, and
deposit monies in the name of the Corporation in the banks, trust companies,
or other depositaries as shall be selected by the board of directors, and (c)
in general perform all the duties incident to the office of treasurer and
other duties as from time to time may be assigned to him by the chairman of
the board, the president, or the board of directors. If required by the board
of directors, the treasurer shall give a bond for the faithful discharge of his
duties in the sum and with the surety or sureties that the board of directors
determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of
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directors upon which he does not serve, duly designated according to law, as
to matters within its designated authority, if the director reasonably believes
that the committee is competent. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which the person, his
heirs, or personal representatives may be entitled. The Corporation may, upon
the affirmative vote of a majority of its board of directors, purchase
insurance for the purpose of indemnifying these persons. The insurance may be
for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
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ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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EXHIBIT 3.9.2
<PAGE> 2
EXHIBIT 3.9.2
AMENDED & RESTATED BYLAWS
OF
PAXSON NETWORKS, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to
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notice shall be equivalent to giving notice. Attendance by a shareholder
entitled to vote at a meeting, in person or by proxy, shall constitute a waiver
of (a) notice of the meeting, except when the shareholder attends a meeting
solely for the purpose, expressed at the beginning of the meeting, of objecting
to the transaction of any business because the meeting is not lawfully called
or convened, and (b) an objection to consideration of a particular matter at
the meeting that is not within the purpose of the meeting unless the
shareholders object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
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If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
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SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
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SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
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assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for
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monies due and payable to the Corporation from any source whatsoever, and
deposit monies in the name of the Corporation in the banks, trust companies, or
other depositaries as shall be selected by the board of directors, and (c) in
general perform all the duties incident to the office of treasurer and other
duties as from time to time may be assigned to him by the chairman of the
board, the president, or the board of directors. If required by the board of
directors, the treasurer shall give a bond for the faithful discharge of his
duties in the sum and with the surety or sureties that the board of directors
determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of
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directors upon which he does not serve, duly designated according to law, as to
matters within its designated authority, if the director reasonably believes
that the committee is competent. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which the person, his
heirs, or personal representatives may be entitled. The Corporation may, upon
the affirmative vote of a majority of its board of directors, purchase
insurance for the purpose of indemnifying these persons. The insurance may be
for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
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ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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<PAGE> 1
EXHIBIT 3.10.2
<PAGE> 2
EXHIBIT 3.10.2
BYLAWS
OF
PAXSON COMMUNICATIONS TELEVISION, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a
<PAGE> 3
meeting, in person or by proxy, shall constitute a waiver of (a) notice of the
meeting, except when the shareholder attends a meeting solely for the purpose,
expressed at the beginning of the meeting, of objecting to the transaction of
any business because the meeting is not lawfully called or convened, and (b) an
objection to consideration of a particular matter at the meeting that is not
within the purpose of the meeting unless the shareholders object to considering
the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
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<PAGE> 4
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
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<PAGE> 5
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
-4-
<PAGE> 6
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
-5-
<PAGE> 7
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for
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<PAGE> 8
monies due and payable to the Corporation from any source whatsoever, and
deposit monies in the name of the Corporation in the banks, trust companies, or
other depositaries as shall be selected by the board of directors, and (c) in
general perform all the duties incident to the office of treasurer and other
duties as from time to time may be assigned to him by the chairman of the
board, the president, or the board of directors. If required by the board of
directors, the treasurer shall give a bond for the faithful discharge of his
duties in the sum and with the surety or sureties that the board of directors
determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of
-7-
<PAGE> 9
directors upon which he does not serve, duly designated according to law, as to
matters within its designated authority, if the director reasonably believes
that the committee is competent. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which the person, his
heirs, or personal representatives may be entitled. The Corporation may, upon
the affirmative vote of a majority of its board of directors, purchase
insurance for the purpose of indemnifying these persons. The insurance may be
for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
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<PAGE> 10
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
-9-
<PAGE> 1
EXHIBIT 3.11.2
<PAGE> 2
EXHIBIT 3.11.2
AMENDED AND RESTATED
CERTIFICATE OF LIMITED PARTNERSHIP
The undersigned general partner represents that Paxson Broadcasting of
Jacksonville, Limited Partnership has been formed as a limited partnership
pursuant to the Florida Revised Uniform Limited Partnership Act (1986) (the
"Act"), and that the undersigned has executed this Amended and Restated
Certificate of Limited Partnership pursuant to Section 620.109 of the Act and
states herein as follows:
I. Name
The name of the limited partnership is Paxson Broadcasting of
Jacksonville, Limited Partnership.
II. Records of the Partnership
The address of the office of the Partnership at which place the
records shall be maintained is as follows:
c/o Paxson Communications of Florida, Inc.
18401 U.S. Highway 19, North
Clearwater, Florida 34624
III. Registered Agent
The address of the registered office of the partnership and the name
of the registered agent for service of process located at that office is as
follows:
Lowell W. Paxson
700 Spottis Woode Lane
Clearwater, Florida 34616
IV. General Partner
Effective December 15, 1993, Paxson Enterprises, Inc. withdrew as the
general partner of the partnership and Paxson Communications of Florida, Inc.
was admitted as a general partner. The name and business address of the general
partner of the partnership is as follows:
Paxson Communications of Florida, Inc.
18401 U.S. Highway 19, North
Clearwater, Florida 34624
1
<PAGE> 3
The partners have elected to continue the business of the partnership pursuant
to the terms of the partnership agreement.
V. Mailing Address
The mailing address of the partnership is as follows:
18401 U.S. Highway 19, North
Clearwater, Florida 34624
VI. Dissolution
The latest date on which the partnership is to dissolve is December
31, 2066.
WHEREFORE, the undersigned, the General Partner of the partnership,
has executed this Amended and Restated Certificate of Limited Partnership on
this 15 day of December, 1993. The original certificate was filed with the
Secretary of State on June 27, 1991.
PAXSON COMMUNICATIONS OF FLORIDA, INC.,
a Florida corporation
By: /s/ Lowell W. Paxson
--------------------------------------
Lowell W. Paxson, President
2
<PAGE> 1
EXHIBIT 3.12.2
<PAGE> 2
EXHIBIT 3.12.2
AMENDED AND RESTATED
CERTIFICATE OF LIMITED PARTNERSHIP
The undersigned general partner represents that Paxson Broadcasting of
Miami, Limited Partnership has been formed as a limited partnership pursuant to
the Florida Revised Uniform Limited Partnership Act (1986) (the "Act"), and
that the undersigned has executed this Amended and Restated Certificate of
Limited Partnership pursuant to Section 620.109 of the Act and states herein as
follows:
I. Name
The name of the limited partnership is Paxson Broadcasting of Miami,
Limited Partnership.
II. Records of the Partnership
The address of the office of the Partnership at which place the
records shall be maintained is as follows:
c/o Paxson Communications of Florida, Inc.
18401 U.S. Highway 19, North
Clearwater, Florida 34624
III. Registered Agent
The address of the registered office of the partnership and the name
of the registered agent for service of process located at that office is as
follows:
Lowell W. Paxson
700 Spottis Woode Lane
Clearwater, Florida 34616
IV. General Partner
Effective December 15, 1993, Paxson Enterprises, Inc. withdrew as the
general partner of the partnership and Paxson Communications of Florida, Inc.
was admitted as a general partner. The name and business address of the
general partner of the partnership is as follows:
Paxson Communications of Florida, Inc.
18401 U.S. Highway 19, North
Clearwater, Florida 34624
<PAGE> 3
The partners have elected to continue the business of the partnership pursuant
to the terms of the partnership agreement.
V. Mailing Address
The mailing address of the partnership is as follows:
18401 U.S. Highway 19, North
Clearwater, Florida 34624
VI. Dissolution
The latest date on which the partnership is to dissolve is December 31, 2066.
WHEREFORE, the undersigned, the General Partner of the partnership,
has executed this Amended and Restated Certificate of Limited Partnership on
this 15 day of December, 1993. The original certificate was filed with the
Secretary of State on November 26, 1991.
PAXSON COMMUNICATIONS OF FLORIDA,
INC., a Florida corporation
By: /s/ Lowell W. Paxson
-----------------------------
Lowell W. Paxson, President
<PAGE> 1
EXHIBIT 3.13.2
<PAGE> 2
EXHIBIT 3.13.2
AMENDED AND RESTATED
CERTIFICATE OF LIMITED PARTNERSHIP
The undersigned general partner represents that Paxson Broadcasting of
Orlando, Limited Partnership has been formed as a limited partnership pursuant
to the Florida Revised Uniform Limited Partnership Act (1986) (the "Act"), and
that the undersigned has executed this Amended and Restated Certificate of
Limited Partnership pursuant to Section 620.109 of the Act and states herein as
follows:
I. Name
The name of the limited partnership is Paxson Broadcasting of Orlando,
Limited Partnership.
II. Records of the Partnership
The address of the office of the Partnership at which place the
records shall be maintained is as follows:
c/o Paxson Communications of Florida, Inc.
18401 U.S. Highway 19, North
Clearwater, Florida 34624
III. Registered Agent
The address of the registered office of the partnership and the name
of the registered agent for service of process located at that office is as
follows:
Lowell W. Paxson
700 Spottis Woode Lane
Clearwater, Florida 34616
IV. General Partner
Effective December 15, 1993, Paxson Enterprises, Inc. withdrew as the
general partner of the partnership and Paxson Communications of Florida, Inc.
was admitted as a general partner. The name and business address of the
general partner of the partnership is as follows:
Paxson Communications of Florida, Inc.
18401 U.S. Highway 19, North
Clearwater, Florida 34624
The partners have elected to continue the business of the partnership pursuant
to the terms of the partnership agreement.
1
<PAGE> 3
V. Mailing Address
The mailing address of the partnership is as follows:
18401 U.S. Highway 19, North
Clearwater, Florida 34624
VI. Dissolution
The latest date on which the partnership is to dissolve is December 31, 2066.
WHEREFORE, the undersigned, the General Partner of the partnership,
has executed this Amended and Restated Certificate of Limited Partnership on
this 15 day of December, 1993. The original certificate was filed with the
Secretary of State on November 26, 1991.
PAXSON COMMUNICATIONS OF FLORIDA,
INC., a Florida corporation
By: /s/ Lowell W. Paxson
------------------------------
Lowell W. Paxson, President
2
<PAGE> 1
EXHIBIT 3.14.2
<PAGE> 2
EXHIBIT 3.14.2
AMENDED AND RESTATED
CERTIFICATE OF LIMITED PARTNERSHIP
The undersigned general partner represents that Paxson Broadcasting of
Tampa, Limited Partnership has been formed as a limited partnership pursuant to
the Florida Revised Uniform Limited Partnership Act (1986) (the "Act"), and
that the undersigned has executed this Amended and Restated Certificate of
Limited Partnership pursuant to Section 620.109 of the Act and states herein as
follows:
I. Name
The name of the limited partnership is Paxson Broadcasting of Tampa,
Limited Partnership.
II. Records of the Partnership
The address of the office of the Partnership at which place the
records shall be maintained is as follows:
c/o Paxson Communications of Florida, Inc.
18401 U.S. Highway 19, North
Clearwater, Florida 34624
III. Registered Agent
The address of the registered office of the partnership and the name
of the registered agent for service of process located at that office is as
follows:
Lowell W. Paxson
700 Spottis Woode Lane
Clearwater, Florida 34616
IV. General Partner
Effective December 15, 1993, Paxson Enterprises, Inc. withdrew as the
general partner of the partnership and Paxson Communications of Florida, Inc.
was admitted as a general partner. The name and business address of the
general partner of the partnership is as follows:
Paxson Communications of Florida, Inc.
18401 U.S. Highway 19, North
Clearwater, Florida 34624
The partners have elected to continue the business of the partnership pursuant
to the terms of the partnership agreement.
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V. Mailing Address
The mailing address of the partnership is as follows:
18401 U.S. Highway 19, North
Clearwater, Florida 34624
VI. Dissolution
The latest date on which the partnership is to dissolve is December 31, 2066.
WHEREFORE, the undersigned, the General Partner of the partnership,
has executed this Amended and Restated Certificate of Limited Partnership on
this 15 day of December, 1993. The original certificate was filed with the
Secretary of State on June 27, 1991.
PAXSON COMMUNICATIONS OF FLORIDA,
INC., a Florida corporation
By: /s/ Lowell W. Paxson
-----------------------------
Lowell W. Paxson, President
2
<PAGE> 1
EXHIBIT 3.15.2
<PAGE> 2
EXHIBIT 3.15.2
AMENDED AND RESTATED
CERTIFICATE OF LIMITED PARTNERSHIP
The undersigned general partner represents that Paxson Tampa License
Limited Partnership has been formed as a limited partnership pursuant to the
Florida Revised Uniform Limited Partnership Act (1986) (the "Act"), and that
the undersigned has executed this Amended and Restated Certificate of Limited
Partnership pursuant to Section 620.109 of the Act and states herein as
follows:
I. Name
The name of the limited partnership is Paxson Tampa License
Limited Partnership.
II. Records of the Partnership
The address of the office of the Partnership at which place the
records shall be maintained is as follows:
c/o Paxson Communications of Florida, Inc.
18401 U.S. Highway 19, North
Clearwater, Florida 34624
III. Registered Agent
The address of the registered office of the partnership and the name
of the registered agent for service of process located at that office is as
follows:
Lowell W. Paxson
700 Spottis Woode Lane
Clearwater, Florida 34616
IV. General Partner
Effective December 15, 1993, Paxson Enterprises, Inc. withdrew as the
general partner of the partnership and Paxson Communications of Florida, Inc.
was admitted as a general partner. The name and business address of the
general partner of the partnership is as follows:
Paxson Communications of Florida, Inc.
18401 U.S. Highway 19, North
Clearwater, Florida 34624
The partners have elected to continue the business of the partnership pursuant
to the terms of the partnership agreement.
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V. Mailing Address
The mailing address of the partnership is as follows:
18401 U.S. Highway 19, North
Clearwater, Florida 34624
VI. Dissolution
The latest date on which the partnership is to dissolve is December 31, 2066.
WHEREFORE, the undersigned, the General Partner of the partnership,
has executed this Amended and Restated Certificate of Limited Partnership on
this 15 day of December, 1993. The original certificate was filed with the
Secretary of State on March 10, 1993.
PAXSON COMMUNICATIONS OF
FLORIDA, INC., a Florida
corporation
By: /s/ Lowell W. Paxson
-----------------------------------
Lowell W. Paxson, President
2
<PAGE> 1
EXHIBIT 3.16.2
<PAGE> 2
EXHIBIT 3.16.2
AMENDED AND RESTATED
CERTIFICATE OF LIMITED PARTNERSHIP
The undersigned general partner represents that Paxson Jacksonville
License Limited Partnership has been formed as a limited partnership pursuant
to the Florida Revised Uniform Limited Partnership Act (1986) (the "Act"), and
that the undersigned has executed this Amended and Restated Certificate of
Limited Partnership pursuant to Section 620.109 of the Act and states herein as
follows:
I. Name
The name of the limited partnership is Paxson Jacksonville License
Limited Partnership.
II. Records of the Partnership
The address of the office of the Partnership at which place the
records shall be maintained is as follows:
c/o Paxson Communications of Florida, Inc.
18401 U.S. Highway 19, North
Clearwater, Florida 34624
III. Registered Agent
The address of the registered office of the partnership and the name
of the registered agent for service of process located at that office is as
follows:
Lowell W. Paxson
700 Spottis Woode Lane
Clearwater, Florida 34616
IV. General Partner
Effective December 15, 1993, Paxson Enterprises, Inc. withdrew as the
general partner of the partnership and Paxson Communications of Florida, Inc.
was admitted as a general partner. The name and business address of the general
partner of the partnership is as follows:
Paxson Communications of Florida, Inc.
18401 U.S. Highway 19, North
Clearwater, Florida 34624
The partners have elected to continue the business of the partnership pursuant
to the terms of the partnership agreement.
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V. Mailing Address
The mailing address of the partnership is as follows:
18401 U.S. Highway 19, North
Clearwater, Florida 34624
VI. Dissolution
The latest date on which the partnership is to dissolve is December 31, 2066.
WHEREFORE, the undersigned, the General Partner of the partnership,
has executed this Amended and Restated Certificate of Limited Partnership on
this 15 day of December, 1993. The original certificate was filed with the
Secretary of State on March 10, 1993.
PAXSON COMMUNICATIONS OF
FLORIDA, INC., a Florida
corporation
By: /s/ Lowell W. Paxson
------------------------------
Lowell W. Paxson, President
2
<PAGE> 1
EXHIBIT 3.17.2
<PAGE> 2
EXHIBIT 3.17.2
AMENDED AND RESTATED
CERTIFICATE OF LIMITED PARTNERSHIP
The undersigned general partner represents that Paxson Miami License
Limited Partnership has been formed as a limited partnership pursuant to the
Florida Revised Uniform Limited Partnership Act (1986) (the "Act"), and that
the undersigned has executed this Amended and Restated Certificate of Limited
Partnership pursuant to Section 620.109 of the Act and states herein as
follows:
I. Name
The name of the limited partnership is Paxson Miami License Limited
Partnership.
II. Records of the Partnership
The address of the office of the Partnership at which place the
records shall be maintained is as follows:
c/o Paxson Communications of Florida, Inc.
18401 U.S. Highway 19, North
Clearwater, Florida 34624
III. Registered Agent
The address of the registered office of the partnership and the name
of the registered agent for service of process located at that office is as
follows:
Lowell W. Paxson
700 Spottis Woode Lane
Clearwater, Florida 34616
IV. General Partner
Effective December 15, 1993, Paxson Enterprises, Inc. withdrew as the
general partner of the partnership and Paxson Communications of Florida, Inc.
was admitted as a general partner. The name and business address of the
general partner of the partnership is as follows:
Paxson Communications of Florida, Inc.
18401 U.S. Highway 19, North
Clearwater, Florida 34624
The partners have elected to continue the business of the partnership pursuant
to the terms of the partnership agreement.
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<PAGE> 3
V. Mailing Address
The mailing address of the partnership is as follows:
18401 U.S. Highway 19, North
Clearwater, Florida 34624
VI. Dissolution
The latest date on which the partnership is to dissolve is December 31, 2066.
WHEREFORE, the undersigned, the General Partner of the partnership,
has executed this Amended and Restated Certificate of Limited Partnership on
this 15 day of December, 1993. The original certificate was filed with the
Secretary of State on March 10, 1993.
PAXSON COMMUNICATIONS OF
FLORIDA, INC., a Florida
corporation
By: /s/ Lowell W. Paxson
-----------------------------
Lowell W. Paxson, President
2
<PAGE> 1
EXHIBIT 3.18.2
<PAGE> 2
EXHIBIT 3.18.2
AMENDED AND RESTATED
CERTIFICATE OF LIMITED PARTNERSHIP
The undersigned general partner represents that Paxson Orlando License
Limited Partnership has been formed as a limited partnership pursuant to the
Florida Revised Uniform Limited Partnership Act (1986) (the "Act"), and that
the undersigned has executed this Amended and Restated Certificate of Limited
Partnership pursuant to Section 620.109 of the Act and states herein as
follows:
I. Name
The name of the limited partnership is Paxson Orlando License Limited
Partnership.
II. Records of the Partnership
The address of the office of the Partnership at which place the
records shall be maintained is as follows:
c/o Paxson Communications of Florida, Inc.
18401 U.S. Highway 19, North
Clearwater, Florida 34624
III. Registered Agent
The address of the registered office of the partnership and the name
of the registered agent for service of process located at that office is as
follows:
Lowell W. Paxson
700 Spottis Woode Lane
Clearwater, Florida 34616
IV. General Partner
Effective December 15, 1993, Paxson Enterprises, Inc. withdrew as the
general partner of the partnership and Paxson Communications of Florida, Inc.
was admitted as a general partner. The name and business address of the
general partner of the partnership is as follows:
Paxson Communications of Florida, Inc.
18401 U.S. Highway 19, North
Clearwater, Florida 34624
The partners have elected to continue the business of the partnership pursuant
to the terms of the partnership agreement.
<PAGE> 3
V. Mailing Address
The mailing address of the partnership is as follows:
18401 U.S. Highway 19, North
Clearwater, Florida 34624
VI. Dissolution
The latest date on which the partnership is to dissolve is December
31, 2066.
WHEREFORE, the undersigned, the General Partner of the partnership,
has executed this Amended and Restated Certificate of Limited Partnership on
this 15 day of December, 1993. The original certificate was filed with the
Secretary of State on March 10, 1993.
PAXSON COMMUNICATIONS OF FLORIDA, INC., a Florida corporation
By: /s/ Lowell W. Paxson
----------------------------
Lowell W. Paxson, President
<PAGE> 1
EXHIBIT 3.19.2
<PAGE> 2
EXHIBIT 3.19.2
AMENDED & RESTATED BYLAWS
OF
PAXSON COMMUNICATIONS OF ATLANTA--14, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting
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that is not within the purpose of the meeting unless the shareholders object to
considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
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<PAGE> 4
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
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<PAGE> 5
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting
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<PAGE> 6
constitutes a waiver of notice of the meeting and all objections to the time
and place of the meeting, or the manner in which it has been called or
convened, except when the director states, at the beginning of the meeting, or
promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman
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<PAGE> 7
of the board and president. Any vice president may sign, with the secretary or
assistant secretary, certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
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ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of directors upon which he does not serve, duly
designated according to law, as to matters within its designated authority, if
the director reasonably believes that the committee is competent. The
foregoing right of indemnification or reimbursement shall not be exclusive of
other rights to which the person, his heirs, or personal representatives may be
entitled. The Corporation may, upon the affirmative vote of a majority of its
board of directors, purchase insurance for the purpose of indemnifying these
persons. The insurance may be for the benefit of all directors, officers, or
employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction
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or stating that the Corporation will furnish to any shareholder, upon request
and without charge, a full statement of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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EXHIBIT 3.20.2
<PAGE> 2
EXHIBIT 3.20.2
AMENDED & RESTATED BYLAWS
OF
PAXSON ATLANTA LICENSE, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting
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that is not within the purpose of the meeting unless the shareholders object to
considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
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either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
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SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting
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constitutes a waiver of notice of the meeting and all objections to the time
and place of the meeting, or the manner in which it has been called or
convened, except when the director states, at the beginning of the meeting, or
promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman
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of the board and president. Any vice president may sign, with the secretary or
assistant secretary, certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
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ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of directors upon which he does not serve, duly
designated according to law, as to matters within its designated authority, if
the director reasonably believes that the committee is competent. The
foregoing right of indemnification or reimbursement shall not be exclusive of
other rights to which the person, his heirs, or personal representatives may be
entitled. The Corporation may, upon the affirmative vote of a majority of its
board of directors, purchase insurance for the purpose of indemnifying these
persons. The insurance may be for the benefit of all directors, officers, or
employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction
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or stating that the Corporation will furnish to any shareholder, upon request
and without charge, a full statement of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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EXHIBIT 3.21.2
<PAGE> 2
EXHIBIT 3.21.2
BYLAWS
OF
PAXSON COMMUNICATIONS OF BOSTON-60, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting
<PAGE> 3
that is not within the purpose of the meeting unless the shareholders object to
considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
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either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
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SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting
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constitutes a waiver of notice of the meeting and all objections to the time
and place of the meeting, or the manner in which it has been called or
convened, except when the director states, at the beginning of the meeting, or
promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman
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of the board and president. Any vice president may sign, with the secretary or
assistant secretary, certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
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ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of directors upon which he does not serve, duly
designated according to law, as to matters within its designated authority, if
the director reasonably believes that the committee is competent. The
foregoing right of indemnification or reimbursement shall not be exclusive of
other rights to which the person, his heirs, or personal representatives may be
entitled. The Corporation may, upon the affirmative vote of a majority of its
board of directors, purchase insurance for the purpose of indemnifying these
persons. The insurance may be for the benefit of all directors, officers, or
employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction
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or stating that the Corporation will furnish to any shareholder, upon request
and without charge, a full statement of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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EXHIBIT 3.22.2
<PAGE> 2
EXHIBIT 3.22.2
BYLAWS
OF
PAXSON BOSTON LICENSE, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting
<PAGE> 3
that is not within the purpose of the meeting unless the shareholders object to
considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
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either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
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SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting
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constitutes a waiver of notice of the meeting and all objections to the time
and place of the meeting, or the manner in which it has been called or
convened, except when the director states, at the beginning of the meeting, or
promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman
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of the board and president. Any vice president may sign, with the secretary or
assistant secretary, certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
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ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of directors upon which he does not serve, duly
designated according to law, as to matters within its designated authority, if
the director reasonably believes that the committee is competent. The
foregoing right of indemnification or reimbursement shall not be exclusive of
other rights to which the person, his heirs, or personal representatives may be
entitled. The Corporation may, upon the affirmative vote of a majority of its
board of directors, purchase insurance for the purpose of indemnifying these
persons. The insurance may be for the benefit of all directors, officers, or
employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction
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or stating that the Corporation will furnish to any shareholder, upon request
and without charge, a full statement of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
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ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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EXHIBIT 3.23.2
<PAGE> 2
EXHIBIT 3.23.2
BYLAWS
OF
PAXSON COMMUNICATIONS OF DALLAS-68, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the
<PAGE> 3
meeting, of objecting to the transaction of any business because the meeting is
not lawfully called or convened, and (b) an objection to consideration of a
particular matter at the meeting that is not within the purpose of the meeting
unless the shareholders object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply
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with the requirements of this section does not affect the validity of any
action taken at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
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SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
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SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold
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any two or more offices. The failure to elect the chairman of the board,
president, secretary, or treasurer shall not affect the existence of the
Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office
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of treasurer and other duties as from time to time may be assigned to him by
the chairman of the board, the president, or the board of directors. If
required by the board of directors, the treasurer shall give a bond for the
faithful discharge of his duties in the sum and with the surety or sureties
that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of directors upon which he does not serve, duly
designated according to law, as to matters within its designated authority, if
the director reasonably believes that the committee is competent. The
foregoing right of indemnification or reimbursement shall not be exclusive of
other rights to
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which the person, his heirs, or personal representatives may be entitled. The
Corporation may, upon the affirmative vote of a majority of its board of
directors, purchase insurance for the purpose of indemnifying these persons.
The insurance may be for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
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ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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EXHIBIT 3.24.2
<PAGE> 2
EXHIBIT 3.24.2
BYLAWS
OF
PAXSON DALLAS LICENSE, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting
<PAGE> 3
that is not within the purpose of the meeting unless the shareholders object to
considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
2
<PAGE> 4
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
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SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting
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<PAGE> 6
constitutes a waiver of notice of the meeting and all objections to the time
and place of the meeting, or the manner in which it has been called or
convened, except when the director states, at the beginning of the meeting, or
promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman
5
<PAGE> 7
of the board and president. Any vice president may sign, with the secretary or
assistant secretary, certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
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<PAGE> 8
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of directors upon which he does not serve, duly
designated according to law, as to matters within its designated authority, if
the director reasonably believes that the committee is competent. The
foregoing right of indemnification or reimbursement shall not be exclusive of
other rights to which the person, his heirs, or personal representatives may be
entitled. The Corporation may, upon the affirmative vote of a majority of its
board of directors, purchase insurance for the purpose of indemnifying these
persons. The insurance may be for the benefit of all directors, officers, or
employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction
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or stating that the Corporation will furnish to any shareholder, upon request
and without charge, a full statement of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
8
<PAGE> 1
EXHIBIT 3.25.2
<PAGE> 2
EXHIBIT 3.25.2
BYLAWS
OF
PAXSON COMMUNICATIONS OF NEW LONDON-26, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a
<PAGE> 3
meeting, in person or by proxy, shall constitute a waiver of (a) notice of the
meeting, except when the shareholder attends a meeting solely for the purpose,
expressed at the beginning of the meeting, of objecting to the transaction of
any business because the meeting is not lawfully called or convened, and (b) an
objection to consideration of a particular matter at the meeting that is not
within the purpose of the meeting unless the shareholders object to considering
the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
2
<PAGE> 4
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
3
<PAGE> 5
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
4
<PAGE> 6
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
5
<PAGE> 7
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for
6
<PAGE> 8
monies due and payable to the Corporation from any source whatsoever, and
deposit monies in the name of the Corporation in the banks, trust companies, or
other depositaries as shall be selected by the board of directors, and (c) in
general perform all the duties incident to the office of treasurer and other
duties as from time to time may be assigned to him by the chairman of the
board, the president, or the board of directors. If required by the board of
directors, the treasurer shall give a bond for the faithful discharge of his
duties in the sum and with the surety or sureties that the board of directors
determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of
7
<PAGE> 9
directors upon which he does not serve, duly designated according to law, as to
matters within its designated authority, if the director reasonably believes
that the committee is competent. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which the person, his
heirs, or personal representatives may be entitled. The Corporation may, upon
the affirmative vote of a majority of its board of directors, purchase
insurance for the purpose of indemnifying these persons. The insurance may be
for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
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<PAGE> 10
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
9
<PAGE> 1
EXHIBIT 3.26.2
<PAGE> 2
EXHIBIT 3.26.2
BYLAWS
OF
PAXSON NEW LONDON LICENSE, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a
<PAGE> 3
meeting, in person or by proxy, shall constitute a waiver of (a) notice of the
meeting, except when the shareholder attends a meeting solely for the purpose,
expressed at the beginning of the meeting, of objecting to the transaction of
any business because the meeting is not lawfully called or convened, and (b) an
objection to consideration of a particular matter at the meeting that is not
within the purpose of the meeting unless the shareholders object to considering
the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
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<PAGE> 4
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
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<PAGE> 5
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
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SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
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assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for
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monies due and payable to the Corporation from any source whatsoever, and
deposit monies in the name of the Corporation in the banks, trust companies, or
other depositaries as shall be selected by the board of directors, and (c) in
general perform all the duties incident to the office of treasurer and other
duties as from time to time may be assigned to him by the chairman of the
board, the president, or the board of directors. If required by the board of
directors, the treasurer shall give a bond for the faithful discharge of his
duties in the sum and with the surety or sureties that the board of directors
determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of
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directors upon which he does not serve, duly designated according to law, as to
matters within its designated authority, if the director reasonably believes
that the committee is competent. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which the person, his
heirs, or personal representatives may be entitled. The Corporation may, upon
the affirmative vote of a majority of its board of directors, purchase
insurance for the purpose of indemnifying these persons. The insurance may be
for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
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ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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EXHIBIT 3.27.2
<PAGE> 2
EXHIBIT 3.27.2
BYLAWS
OF
PAXSON COMMUNICATIONS OF PHILADELPHIA-61, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a
<PAGE> 3
meeting, in person or by proxy, shall constitute a waiver of (a) notice of the
meeting, except when the shareholder attends a meeting solely for the purpose,
expressed at the beginning of the meeting, of objecting to the transaction of
any business because the meeting is not lawfully called or convened, and (b) an
objection to consideration of a particular matter at the meeting that is not
within the purpose of the meeting unless the shareholders object to considering
the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
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If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
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SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
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SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
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<PAGE> 7
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for
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<PAGE> 8
monies due and payable to the Corporation from any source whatsoever, and
deposit monies in the name of the Corporation in the banks, trust companies, or
other depositaries as shall be selected by the board of directors, and (c) in
general perform all the duties incident to the office of treasurer and other
duties as from time to time may be assigned to him by the chairman of the
board, the president, or the board of directors. If required by the board of
directors, the treasurer shall give a bond for the faithful discharge of his
duties in the sum and with the surety or sureties that the board of directors
determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of
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<PAGE> 9
directors upon which he does not serve, duly designated according to law, as to
matters within its designated authority, if the director reasonably believes
that the committee is competent. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which the person, his
heirs, or personal representatives may be entitled. The Corporation may, upon
the affirmative vote of a majority of its board of directors, purchase
insurance for the purpose of indemnifying these persons. The insurance may be
for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
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<PAGE> 10
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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EXHIBIT 3.28.2
<PAGE> 2
EXHIBIT 3.28.2
BYLAWS
OF
PAXSON PHILADELPHIA LICENSE, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a
<PAGE> 3
meeting, in person or by proxy, shall constitute a waiver of (a) notice of the
meeting, except when the shareholder attends a meeting solely for the purpose,
expressed at the beginning of the meeting, of objecting to the transaction of
any business because the meeting is not lawfully called or convened, and (b) an
objection to consideration of a particular matter at the meeting that is not
within the purpose of the meeting unless the shareholders object to considering
the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
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<PAGE> 4
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
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<PAGE> 5
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
4
<PAGE> 6
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
5
<PAGE> 7
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for
6
<PAGE> 8
monies due and payable to the Corporation from any source whatsoever, and
deposit monies in the name of the Corporation in the banks, trust companies, or
other depositaries as shall be selected by the board of directors, and (c) in
general perform all the duties incident to the office of treasurer and other
duties as from time to time may be assigned to him by the chairman of the
board, the president, or the board of directors. If required by the board of
directors, the treasurer shall give a bond for the faithful discharge of his
duties in the sum and with the surety or sureties that the board of directors
determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of
7
<PAGE> 9
directors upon which he does not serve, duly designated according to law, as to
matters within its designated authority, if the director reasonably believes
that the committee is competent. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which the person, his
heirs, or personal representatives may be entitled. The Corporation may, upon
the affirmative vote of a majority of its board of directors, purchase
insurance for the purpose of indemnifying these persons. The insurance may be
for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
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<PAGE> 10
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
9
<PAGE> 1
EXHIBIT 3.29.2
<PAGE> 2
EXHIBIT 3.29.2
AMENDED & RESTATED BYLAWS
OF
PAXSON COMMUNICATIONS OF MIAMI-35, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
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SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting that is not within the purpose of the meeting unless the shareholders
object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The
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list shall be available at the meeting and any shareholder, his agent or
attorney is entitled to inspect the list at any time during the meeting or its
adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors
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or shareholders, but no decrease shall have the effect of shortening the term
of any incumbent director, unless the shareholders remove the director.
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made
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<PAGE> 6
effective at a later date, the board of directors may fill the pending vacancy
before the effective date if the board of directors provided that the successor
does not take office until the effective date.
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of
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directors and thereafter at the first meeting of the board following the annual
meeting of the shareholders in each year. The board from time to time may
elect or appoint other officers, assistant officers, and agents, who shall have
the authority and perform the duties prescribed by the board. An elected or
duly appointed officer may, in turn, appoint one or more officers or assistant
officers, unless the board of directors disapproves or rejects the appointment.
All officers shall hold office until their successors have been appointed and
have qualified or until their earlier resignation, removal from office, or
death. One person may simultaneously hold any two or more offices. The
failure to elect the chairman of the board, president, secretary, or treasurer
shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
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perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial
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<PAGE> 9
data, in each case prepared or presented by (1) one or more officers or
employees of the Corporation whom the director, officer, employee, or agent
reasonably believes to be reliable and competent in the matters presented, (2)
counsel, public accountants, or other persons as to matters that the director,
officer, employee, or agent believes to be within that person's professional or
expert competence, or (3) in the case of a director, a committee of the board
of directors upon which he does not serve, duly designated according to law, as
to matters within its designated authority, if the director reasonably believes
that the committee is competent. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which the person, his
heirs, or personal representatives may be entitled. The Corporation may, upon
the affirmative vote of a majority of its board of directors, purchase
insurance for the purpose of indemnifying these persons. The insurance may be
for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
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ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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<PAGE> 1
EXHIBIT 3.30.2
<PAGE> 2
EXHIBIT 3.30.2
BYLAWS
OF
PAXSON COMMUNICATIONS OF SAN JOSE-65, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If
<PAGE> 3
mailed, the notice shall be considered delivered when it is deposited in the
United States mail, postage prepaid, addressed to the shareholder at his
address as it appears on the records of the Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting that is not within the purpose of the meeting unless the shareholders
object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the
2
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board of directors fixes a new record date. The board of directors shall fix a
new record date if the meeting is adjourned to a date more than 120 days after
the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting
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stock of which is owned or controlled by this Corporation, directly or
indirectly, at any meeting shall not be counted in determining the total number
of outstanding shares at any time. The chairman of the board, the president,
any vice president, the secretary, and the treasurer of a corporate shareholder
are presumed to possess, in that order, authority to vote shares standing in
the name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is
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elected and until his successor is elected and qualifies or until his earlier
resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
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majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
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ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the
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secretary or assistant secretary, certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any
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person as an officer, agent, or employee of the Corporation does not create any
contract rights. The board of directors may fill a vacancy, however occurring,
in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of directors upon which he does not serve, duly
designated according to law, as to matters within its designated authority, if
the director reasonably believes that the committee is competent. The
foregoing right of indemnification or reimbursement shall not be exclusive of
other rights to which the person, his heirs, or personal representatives may be
entitled. The
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Corporation may, upon the affirmative vote of a majority of its board of
directors, purchase insurance for the purpose of indemnifying these persons.
The insurance may be for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
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ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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EXHIBIT 3.31.2
<PAGE> 2
EXHIBIT 3.31.2
BYLAWS
OF
PAXSON SAN JOSE LICENSE, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If
<PAGE> 3
mailed, the notice shall be considered delivered when it is deposited in the
United States mail, postage prepaid, addressed to the shareholder at his
address as it appears on the records of the Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting that is not within the purpose of the meeting unless the shareholders
object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the
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board of directors fixes a new record date. The board of directors shall fix a
new record date if the meeting is adjourned to a date more than 120 days after
the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting
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stock of which is owned or controlled by this Corporation, directly or
indirectly, at any meeting shall not be counted in determining the total number
of outstanding shares at any time. The chairman of the board, the president,
any vice president, the secretary, and the treasurer of a corporate shareholder
are presumed to possess, in that order, authority to vote shares standing in
the name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is
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elected and until his successor is elected and qualifies or until his earlier
resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
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majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
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ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the
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secretary or assistant secretary, certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any
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person as an officer, agent, or employee of the Corporation does not create any
contract rights. The board of directors may fill a vacancy, however occurring,
in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of directors upon which he does not serve, duly
designated according to law, as to matters within its designated authority, if
the director reasonably believes that the committee is competent. The
foregoing right of indemnification or reimbursement shall not be exclusive of
other rights to which the person, his heirs, or personal representatives may be
entitled. The
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Corporation may, upon the affirmative vote of a majority of its board of
directors, purchase insurance for the purpose of indemnifying these persons.
The insurance may be for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
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ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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EXHIBIT 3.32.2
<PAGE> 2
EXHIBIT 3.32.2
AMENDED & RESTATED BYLAWS
OF
PAXSON COMMUNICATIONS OF TAMPA-66, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by
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or at the direction of the chairman of the board, president, the secretary, or
the officer or other persons calling the meeting. If mailed, the notice shall
be considered delivered when it is deposited in the United States mail, postage
prepaid, addressed to the shareholder at his address as it appears on the
records of the Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting that is not within the purpose of the meeting unless the shareholders
object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination
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of the shareholders entitled to vote at any meeting has been made, that
determination shall apply to any adjournment of the meeting, unless the board
of directors fixes a new record date. The board of directors shall fix a new
record date if the meeting is adjourned to a date more than 120 days after the
date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
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Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting
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of shareholders and at each annual meeting thereafter the shareholders shall
elect directors to hold office until the next succeeding annual meeting. Each
director shall hold office for the term for which he is elected and until his
successor is elected and qualifies or until his earlier resignation, removal
from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
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SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
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ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the
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secretary or assistant secretary, certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any
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person as an officer, agent, or employee of the Corporation does not create any
contract rights. The board of directors may fill a vacancy, however occurring,
in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of directors upon which he does not serve, duly
designated according to law, as to matters within its designated authority, if
the director reasonably believes that the committee is competent. The
foregoing right of indemnification or reimbursement shall not be exclusive of
other rights to which the person, his heirs, or personal representatives may be
entitled. The
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Corporation may, upon the affirmative vote of a majority of its board of
directors, purchase insurance for the purpose of indemnifying these persons.
The insurance may be for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
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ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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EXHIBIT 3.33.2
<PAGE> 2
EXHIBIT 3.33.2
AMENDED & RESTATED BYLAWS
OF
PAXSON COMMUNICATIONS OF WEST PALM BEACH-25, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by
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or at the direction of the chairman of the board, president, the secretary, or
the officer or other persons calling the meeting. If mailed, the notice shall
be considered delivered when it is deposited in the United States mail, postage
prepaid, addressed to the shareholder at his address as it appears on the
records of the Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting that is not within the purpose of the meeting unless the shareholders
object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination
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of the shareholders entitled to vote at any meeting has been made, that
determination shall apply to any adjournment of the meeting, unless the board
of directors fixes a new record date. The board of directors shall fix a new
record date if the meeting is adjourned to a date more than 120 days after the
date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
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Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting
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of shareholders and at each annual meeting thereafter the shareholders shall
elect directors to hold office until the next succeeding annual meeting. Each
director shall hold office for the term for which he is elected and until his
successor is elected and qualifies or until his earlier resignation, removal
from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
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SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
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ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the
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<PAGE> 9
secretary or assistant secretary, certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any
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person as an officer, agent, or employee of the Corporation does not create any
contract rights. The board of directors may fill a vacancy, however occurring,
in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of directors upon which he does not serve, duly
designated according to law, as to matters within its designated authority, if
the director reasonably believes that the committee is competent. The
foregoing right of indemnification or reimbursement shall not be exclusive of
other rights to which the person, his heirs, or personal representatives may be
entitled. The
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Corporation may, upon the affirmative vote of a majority of its board of
directors, purchase insurance for the purpose of indemnifying these persons.
The insurance may be for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
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ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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<PAGE> 1
EXHIBIT 3.34.2
<PAGE> 2
EXHIBIT 3.34.2
AMENDED & RESTATED BYLAWS
OF
PAXSON WEST PALM BEACH LICENSE, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by
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or at the direction of the chairman of the board, president, the secretary, or
the officer or other persons calling the meeting. If mailed, the notice shall
be considered delivered when it is deposited in the United States mail, postage
prepaid, addressed to the shareholder at his address as it appears on the
records of the Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting that is not within the purpose of the meeting unless the shareholders
object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination
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of the shareholders entitled to vote at any meeting has been made, that
determination shall apply to any adjournment of the meeting, unless the board
of directors fixes a new record date. The board of directors shall fix a new
record date if the meeting is adjourned to a date more than 120 days after the
date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
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Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting
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of shareholders and at each annual meeting thereafter the shareholders shall
elect directors to hold office until the next succeeding annual meeting. Each
director shall hold office for the term for which he is elected and until his
successor is elected and qualifies or until his earlier resignation, removal
from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
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SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
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ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the
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secretary or assistant secretary, certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any
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person as an officer, agent, or employee of the Corporation does not create any
contract rights. The board of directors may fill a vacancy, however occurring,
in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of directors upon which he does not serve, duly
designated according to law, as to matters within its designated authority, if
the director reasonably believes that the committee is competent. The
foregoing right of indemnification or reimbursement shall not be exclusive of
other rights to which the person, his heirs, or personal representatives may be
entitled. The
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Corporation may, upon the affirmative vote of a majority of its board of
directors, purchase insurance for the purpose of indemnifying these persons.
The insurance may be for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
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ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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EXHIBIT 3.35.2
<PAGE> 2
EXHIBIT 3.35.2
BYLAWS
OF
PAXSON COMMUNICATIONS OF LOS ANGELES-30 INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by
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or at the direction of the chairman of the board, president, the secretary, or
the officer or other persons calling the meeting. If mailed, the notice shall
be considered delivered when it is deposited in the United States mail, postage
prepaid, addressed to the shareholder at his address as it appears on the
records of the Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting that is not within the purpose of the meeting unless the shareholders
object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination
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of the shareholders entitled to vote at any meeting has been made, that
determination shall apply to any adjournment of the meeting, unless the board
of directors fixes a new record date. The board of directors shall fix a new
record date if the meeting is adjourned to a date more than 120 days after the
date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
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Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting
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of shareholders and at each annual meeting thereafter the shareholders shall
elect directors to hold office until the next succeeding annual meeting. Each
director shall hold office for the term for which he is elected and until his
successor is elected and qualifies or until his earlier resignation, removal
from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
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SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
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ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the
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secretary or assistant secretary, certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any
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person as an officer, agent, or employee of the Corporation does not create any
contract rights. The board of directors may fill a vacancy, however occurring,
in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of directors upon which he does not serve, duly
designated according to law, as to matters within its designated authority, if
the director reasonably believes that the committee is competent. The
foregoing right of indemnification or reimbursement shall not be exclusive of
other rights to which the person, his heirs, or personal representatives may be
entitled. The
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Corporation may, upon the affirmative vote of a majority of its board of
directors, purchase insurance for the purpose of indemnifying these persons.
The insurance may be for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
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ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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EXHIBIT 3.36.2
<PAGE> 2
EXHIBIT 3.36.2
BYLAWS
OF
PAXSON LOS ANGELES LICENSE, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by
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or at the direction of the chairman of the board, president, the secretary, or
the officer or other persons calling the meeting. If mailed, the notice shall
be considered delivered when it is deposited in the United States mail, postage
prepaid, addressed to the shareholder at his address as it appears on the
records of the Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting that is not within the purpose of the meeting unless the shareholders
object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination
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of the shareholders entitled to vote at any meeting has been made, that
determination shall apply to any adjournment of the meeting, unless the board
of directors fixes a new record date. The board of directors shall fix a new
record date if the meeting is adjourned to a date more than 120 days after the
date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
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Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting
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of shareholders and at each annual meeting thereafter the shareholders shall
elect directors to hold office until the next succeeding annual meeting. Each
director shall hold office for the term for which he is elected and until his
successor is elected and qualifies or until his earlier resignation, removal
from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
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SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
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ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the
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secretary or assistant secretary, certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any
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person as an officer, agent, or employee of the Corporation does not create any
contract rights. The board of directors may fill a vacancy, however occurring,
in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of directors upon which he does not serve, duly
designated according to law, as to matters within its designated authority, if
the director reasonably believes that the committee is competent. The
foregoing right of indemnification or reimbursement shall not be exclusive of
other rights to which the person, his heirs, or personal representatives may be
entitled. The
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Corporation may, upon the affirmative vote of a majority of its board of
directors, purchase insurance for the purpose of indemnifying these persons.
The insurance may be for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
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ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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<PAGE> 1
EXHIBIT 3.37.2
<PAGE> 2
EXHIBIT 3.37.2
BYLAWS
OF
PAXSON COMMUNICATIONS OF MINNEAPOLIS-41, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by
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<PAGE> 3
or at the direction of the chairman of the board, president, the secretary, or
the officer or other persons calling the meeting. If mailed, the notice shall
be considered delivered when it is deposited in the United States mail, postage
prepaid, addressed to the shareholder at his address as it appears on the
records of the Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting that is not within the purpose of the meeting unless the shareholders
object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination
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<PAGE> 4
of the shareholders entitled to vote at any meeting has been made, that
determination shall apply to any adjournment of the meeting, unless the board
of directors fixes a new record date. The board of directors shall fix a new
record date if the meeting is adjourned to a date more than 120 days after the
date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
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<PAGE> 5
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting
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<PAGE> 6
of shareholders and at each annual meeting thereafter the shareholders shall
elect directors to hold office until the next succeeding annual meeting. Each
director shall hold office for the term for which he is elected and until his
successor is elected and qualifies or until his earlier resignation, removal
from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
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SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
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<PAGE> 8
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the
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<PAGE> 9
secretary or assistant secretary, certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any
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<PAGE> 10
person as an officer, agent, or employee of the Corporation does not create any
contract rights. The board of directors may fill a vacancy, however occurring,
in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of directors upon which he does not serve, duly
designated according to law, as to matters within its designated authority, if
the director reasonably believes that the committee is competent. The
foregoing right of indemnification or reimbursement shall not be exclusive of
other rights to which the person, his heirs, or personal representatives may be
entitled. The
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Corporation may, upon the affirmative vote of a majority of its board of
directors, purchase insurance for the purpose of indemnifying these persons.
The insurance may be for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
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ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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<PAGE> 1
EXHIBIT 3.38.2
<PAGE> 2
EXHIBIT 3.38.2
BYLAWS
OF
PAXSON COMMUNICATIONS OF MINNEAPOLIS-45, INC.
n/k/a PAXSON COMMUNICATIONS OF ST. LOUIS, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a
<PAGE> 3
meeting, in person or by proxy, shall constitute a waiver of (a) notice of the
meeting, except when the shareholder attends a meeting solely for the purpose,
expressed at the beginning of the meeting, of objecting to the transaction of
any business because the meeting is not lawfully called or convened, and (b) an
objection to consideration of a particular matter at the meeting that is not
within the purpose of the meeting unless the shareholders object to considering
the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
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If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
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SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
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SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
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assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for
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monies due and payable to the Corporation from any source whatsoever, and
deposit monies in the name of the Corporation in the banks, trust companies, or
other depositaries as shall be selected by the board of directors, and (c) in
general perform all the duties incident to the office of treasurer and other
duties as from time to time may be assigned to him by the chairman of the
board, the president, or the board of directors. If required by the board of
directors, the treasurer shall give a bond for the faithful discharge of his
duties in the sum and with the surety or sureties that the board of directors
determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of
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directors upon which he does not serve, duly designated according to law, as to
matters within its designated authority, if the director reasonably believes
that the committee is competent. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which the person, his
heirs, or personal representatives may be entitled. The Corporation may, upon
the affirmative vote of a majority of its board of directors, purchase
insurance for the purpose of indemnifying these persons. The insurance may be
for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
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ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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EXHIBIT 3.39.2
<PAGE> 2
EXHIBIT 3.39.2
BYLAWS
OF
PAXSON MINNEAPOLIS LICENSE, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
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SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting that is not within the purpose of the meeting unless the shareholders
object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The
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list shall be available at the meeting and any shareholder, his agent or
attorney is entitled to inspect the list at any time during the meeting or its
adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors
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or shareholders, but no decrease shall have the effect of shortening the term
of any incumbent director, unless the shareholders remove the director.
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made
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effective at a later date, the board of directors may fill the pending vacancy
before the effective date if the board of directors provided that the successor
does not take office until the effective date.
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of
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directors and thereafter at the first meeting of the board following the annual
meeting of the shareholders in each year. The board from time to time may
elect or appoint other officers, assistant officers, and agents, who shall have
the authority and perform the duties prescribed by the board. An elected or
duly appointed officer may, in turn, appoint one or more officers or assistant
officers, unless the board of directors disapproves or rejects the appointment.
All officers shall hold office until their successors have been appointed and
have qualified or until their earlier resignation, removal from office, or
death. One person may simultaneously hold any two or more offices. The
failure to elect the chairman of the board, president, secretary, or treasurer
shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
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perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial
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data, in each case prepared or presented by (1) one or more officers or
employees of the Corporation whom the director, officer, employee, or agent
reasonably believes to be reliable and competent in the matters presented, (2)
counsel, public accountants, or other persons as to matters that the director,
officer, employee, or agent believes to be within that person's professional or
expert competence, or (3) in the case of a director, a committee of the board
of directors upon which he does not serve, duly designated according to law, as
to matters within its designated authority, if the director reasonably believes
that the committee is competent. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which the person, his
heirs, or personal representatives may be entitled. The Corporation may, upon
the affirmative vote of a majority of its board of directors, purchase
insurance for the purpose of indemnifying these persons. The insurance may be
for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
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ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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<PAGE> 1
EXHIBIT 3.40.2
<PAGE> 2
EXHIBIT 3.40.2
BYLAWS
OF
PAXSON COMMUNICATIONS OF COOKEVILLE, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a
<PAGE> 3
meeting, in person or by proxy, shall constitute a waiver of (a) notice of the
meeting, except when the shareholder attends a meeting solely for the purpose,
expressed at the beginning of the meeting, of objecting to the transaction of
any business because the meeting is not lawfully called or convened, and (b) an
objection to consideration of a particular matter at the meeting that is not
within the purpose of the meeting unless the shareholders object to considering
the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
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If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
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SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
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SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
5
<PAGE> 7
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for
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monies due and payable to the Corporation from any source whatsoever, and
deposit monies in the name of the Corporation in the banks, trust companies, or
other depositaries as shall be selected by the board of directors, and (c) in
general perform all the duties incident to the office of treasurer and other
duties as from time to time may be assigned to him by the chairman of the
board, the president, or the board of directors. If required by the board of
directors, the treasurer shall give a bond for the faithful discharge of his
duties in the sum and with the surety or sureties that the board of directors
determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of
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directors upon which he does not serve, duly designated according to law, as to
matters within its designated authority, if the director reasonably believes
that the committee is competent. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which the person, his
heirs, or personal representatives may be entitled. The Corporation may, upon
the affirmative vote of a majority of its board of directors, purchase
insurance for the purpose of indemnifying these persons. The insurance may be
for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
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ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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EXHIBIT 3.41.2
<PAGE> 2
EXHIBIT 3.41.2
BYLAWS
OF
PAXSON COOKEVILLE LICENSE, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
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SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting that is not within the purpose of the meeting unless the shareholders
object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The
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list shall be available at the meeting and any shareholder, his agent or
attorney is entitled to inspect the list at any time during the meeting or its
adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors
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or shareholders, but no decrease shall have the effect of shortening the term
of any incumbent director, unless the shareholders remove the director.
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made
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<PAGE> 6
effective at a later date, the board of directors may fill the pending vacancy
before the effective date if the board of directors provided that the successor
does not take office until the effective date.
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of
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directors and thereafter at the first meeting of the board following the annual
meeting of the shareholders in each year. The board from time to time may
elect or appoint other officers, assistant officers, and agents, who shall have
the authority and perform the duties prescribed by the board. An elected or
duly appointed officer may, in turn, appoint one or more officers or assistant
officers, unless the board of directors disapproves or rejects the appointment.
All officers shall hold office until their successors have been appointed and
have qualified or until their earlier resignation, removal from office, or
death. One person may simultaneously hold any two or more offices. The
failure to elect the chairman of the board, president, secretary, or treasurer
shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
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perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial
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data, in each case prepared or presented by (1) one or more officers or
employees of the Corporation whom the director, officer, employee, or agent
reasonably believes to be reliable and competent in the matters presented, (2)
counsel, public accountants, or other persons as to matters that the director,
officer, employee, or agent believes to be within that person's professional or
expert competence, or (3) in the case of a director, a committee of the board
of directors upon which he does not serve, duly designated according to law, as
to matters within its designated authority, if the director reasonably believes
that the committee is competent. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which the person, his
heirs, or personal representatives may be entitled. The Corporation may, upon
the affirmative vote of a majority of its board of directors, purchase
insurance for the purpose of indemnifying these persons. The insurance may be
for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
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ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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EXHIBIT 3.42.2
<PAGE> 2
EXHIBIT 3.42.2
BYLAWS
OF
PAXSON COMMUNICATIONS OF FT. PIERCE-34, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a
<PAGE> 3
meeting, in person or by proxy, shall constitute a waiver of (a) notice of the
meeting, except when the shareholder attends a meeting solely for the purpose,
expressed at the beginning of the meeting, of objecting to the transaction of
any business because the meeting is not lawfully called or convened, and (b) an
objection to consideration of a particular matter at the meeting that is not
within the purpose of the meeting unless the shareholders object to considering
the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
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If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
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SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
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<PAGE> 6
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
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assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for
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monies due and payable to the Corporation from any source whatsoever, and
deposit monies in the name of the Corporation in the banks, trust companies, or
other depositaries as shall be selected by the board of directors, and (c) in
general perform all the duties incident to the office of treasurer and other
duties as from time to time may be assigned to him by the chairman of the
board, the president, or the board of directors. If required by the board of
directors, the treasurer shall give a bond for the faithful discharge of his
duties in the sum and with the surety or sureties that the board of directors
determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of
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directors upon which he does not serve, duly designated according to law, as to
matters within its designated authority, if the director reasonably believes
that the committee is competent. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which the person, his
heirs, or personal representatives may be entitled. The Corporation may, upon
the affirmative vote of a majority of its board of directors, purchase
insurance for the purpose of indemnifying these persons. The insurance may be
for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
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ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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EXHIBIT 3.43.2
<PAGE> 2
EXHIBIT 3.43.2
BYLAWS
OF
PAXSON COMMUNICATIONS OF ORLANDO-56, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a
<PAGE> 3
meeting, in person or by proxy, shall constitute a waiver of (a) notice of the
meeting, except when the shareholder attends a meeting solely for the purpose,
expressed at the beginning of the meeting, of objecting to the transaction of
any business because the meeting is not lawfully called or convened, and (b) an
objection to consideration of a particular matter at the meeting that is not
within the purpose of the meeting unless the shareholders object to considering
the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
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If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
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SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
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SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
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assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for
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monies due and payable to the Corporation from any source whatsoever, and
deposit monies in the name of the Corporation in the banks, trust companies, or
other depositaries as shall be selected by the board of directors, and (c) in
general perform all the duties incident to the office of treasurer and other
duties as from time to time may be assigned to him by the chairman of the
board, the president, or the board of directors. If required by the board of
directors, the treasurer shall give a bond for the faithful discharge of his
duties in the sum and with the surety or sureties that the board of directors
determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of
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directors upon which he does not serve, duly designated according to law, as to
matters within its designated authority, if the director reasonably believes
that the committee is competent. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which the person, his
heirs, or personal representatives may be entitled. The Corporation may, upon
the affirmative vote of a majority of its board of directors, purchase
insurance for the purpose of indemnifying these persons. The insurance may be
for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
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ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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EXHIBIT 3.44.2
<PAGE> 2
EXHIBIT 3.44.2
BYLAWS
OF
PAXSON COMMUNICATIONS OF HOUSTON-49, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a
<PAGE> 3
meeting, in person or by proxy, shall constitute a waiver of (a) notice of the
meeting, except when the shareholder attends a meeting solely for the purpose,
expressed at the beginning of the meeting, of objecting to the transaction of
any business because the meeting is not lawfully called or convened, and (b) an
objection to consideration of a particular matter at the meeting that is not
within the purpose of the meeting unless the shareholders object to considering
the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
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If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
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SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
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SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
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assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for
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monies due and payable to the Corporation from any source whatsoever, and
deposit monies in the name of the Corporation in the banks, trust companies, or
other depositaries as shall be selected by the board of directors, and (c) in
general perform all the duties incident to the office of treasurer and other
duties as from time to time may be assigned to him by the chairman of the
board, the president, or the board of directors. If required by the board of
directors, the treasurer shall give a bond for the faithful discharge of his
duties in the sum and with the surety or sureties that the board of directors
determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of
7
<PAGE> 9
directors upon which he does not serve, duly designated according to law, as to
matters within its designated authority, if the director reasonably believes
that the committee is competent. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which the person, his
heirs, or personal representatives may be entitled. The Corporation may, upon
the affirmative vote of a majority of its board of directors, purchase
insurance for the purpose of indemnifying these persons. The insurance may be
for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
8
<PAGE> 10
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
9
<PAGE> 1
EXHIBIT 3.45.2
<PAGE> 2
EXHIBIT 3.45.2
BYLAWS
OF
PAXSON HOUSTON LICENSE, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a
<PAGE> 3
meeting, in person or by proxy, shall constitute a waiver of (a) notice of the
meeting, except when the shareholder attends a meeting solely for the purpose,
expressed at the beginning of the meeting, of objecting to the transaction of
any business because the meeting is not lawfully called or convened, and (b) an
objection to consideration of a particular matter at the meeting that is not
within the purpose of the meeting unless the shareholders object to considering
the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
2
<PAGE> 4
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
3
<PAGE> 5
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
4
<PAGE> 6
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
5
<PAGE> 7
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary or any assistant
secretary shall have the power to sign contracts and other instruments for the
Corporation and shall (a) keep the minutes of the proceedings of the
shareholders and the board of directors in one or more books provided for that
purpose, (b) see that all notices are duly given in accordance with the
provisions of these bylaws or as required by law, (c) maintain custody of the
corporate records and the corporate seal, attest the signatures of officers who
execute documents on behalf of the Corporation, authenticate records of the
Corporation, and assure that the seal is affixed to all documents of which
execution on behalf of the Corporation under its seal is duly authorized, (d)
keep a register of the post office address of each shareholder that shall be
furnished to the secretary by the shareholder, (e) sign with the chairman of
the board, the president, or a vice president, certificates for shares of stock
of the Corporation, the issuance of which have been authorized by resolution of
the board of directors, (f) have general charge of the stock transfer books of
the Corporation, and (g) in general perform all duties incident to the office
of secretary and other duties as from time to time may be prescribed by the
chairman of the board, the president, or the board of directors.
6
<PAGE> 8
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to
7
<PAGE> 9
matters that the director, officer, employee, or agent believes to be within
that person's professional or expert competence, or (3) in the case of a
director, a committee of the board of directors upon which he does not serve,
duly designated according to law, as to matters within its designated
authority, if the director reasonably believes that the committee is competent.
The foregoing right of indemnification or reimbursement shall not be exclusive
of other rights to which the person, his heirs, or personal representatives may
be entitled. The Corporation may, upon the affirmative vote of a majority of
its board of directors, purchase insurance for the purpose of indemnifying
these persons. The insurance may be for the benefit of all directors,
officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
8
<PAGE> 10
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
9
<PAGE> 1
EXHIBIT 3.47.2
<PAGE> 2
EXHIBIT 3.47.2
BYLAWS
OF
PAXSON ST. LOUIS LICENSE, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the
<PAGE> 3
meeting, of objecting to the transaction of any business because the meeting is
not lawfully called or convened, and (b) an objection to consideration of a
particular matter at the meeting that is not within the purpose of the meeting
unless the shareholders object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
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SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next
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succeeding annual meeting. Each director shall hold office for the term for
which he is elected and until his successor is elected and qualifies or until
his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
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SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of
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stock, bonds, deeds, and contracts for the Corporation, and shall preside at
all meetings of the shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary or any assistant
secretary shall have the power to sign contracts and other instruments for the
Corporation and shall (a) keep the minutes of the proceedings of the
shareholders and the board of directors in one or more books provided for that
purpose, (b) see that all notices are duly given in accordance with the
provisions of these bylaws or as required by law, (c) maintain custody of the
corporate records and the corporate seal, attest the signatures of officers who
execute documents on behalf of the Corporation, authenticate records of the
Corporation, and assure that the seal is affixed to all documents of which
execution on behalf of the Corporation under its seal is duly authorized, (d)
keep a register of the post office address of each shareholder that shall be
furnished to the secretary by the shareholder, (e) sign with the chairman of
the board, the president, or a vice president, certificates for shares of stock
of the Corporation, the issuance of which have been authorized by resolution of
the board of directors, (f) have general charge of the stock transfer books of
the Corporation, and (g) in general perform all duties incident to the office
of secretary and other duties as from time to time may be prescribed by the
chairman of the board, the president, or the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
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<PAGE> 8
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of directors upon which he does not serve, duly
designated according to law, as to matters within its designated authority, if
the director reasonably believes that the committee is competent. The
foregoing right of indemnification or reimbursement shall not be exclusive of
other rights to which the person, his heirs, or personal representatives may be
entitled. The Corporation may, upon the affirmative vote of a majority of its
board of directors, purchase insurance for the purpose of indemnifying these
persons. The insurance may be for the benefit of all directors, officers, or
employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to
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every applicable securities law, each certificate shall bear an appropriate
legend restricting the transfer of the shares evidenced by that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
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<PAGE> 10
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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<PAGE> 1
EXHIBIT 3.48.2
<PAGE> 2
EXHIBIT 3.48.2
BYLAWS
OF
THE INFOMALL CABLE NETWORK, INC.
ARTICLE I
Name of Corporation
Section 1: This corporation shall be known as THE INFOMALL CABLE NETWORK, INC.
ARTICLE II
Stockholders
Section 1. Annual Meetings: The annual meeting of the stockholders shall be
held in the month of April at a date and time to be specified by the Board of
Directors. Said meeting shall be for the purpose of electing directors for the
ensuing year and for the transaction of such other business as may come before
the meeting. If the annual meeting shall not be held by oversight or
otherwise, the Board of Directors shall cause a special meeting to be held as
soon thereafter as possible.
Section 2. Special Meetings: Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by law, may be called by the
Chairman, President, by the Board of Directors, or by written request of the
holders of not less than one-half of all the outstanding shares of the
corporation entitled to vote at the meeting.
Section 3. Place of Meeting: Meetings of shareholders may be held either
within or outside the State of Delaware.
Section 4. Notice of Meeting: Written notice stating the site, date and hour
of the meeting and, in case of a special meeting, the purposes for which the
meeting is called, shall be delivered not less than ten days nor more than
sixty days before the date of the meeting, either personally or by first-class
mail, at the direction of the Chairman, President, the Secretary, or the
officer or person calling the meeting, to each stockholder entitled to vote at
such meeting. If mailed, such notice shall be deemed delivered when deposited
in the United States mail, postage prepaid, addressed to the stockholder at his
address as it appears on the stock transfer books of the corporation.
Section 5. Record Date: For the purpose of determining stockholders entitled
to vote at any meeting or entitled to receive payment of any dividend, or in
order to make a determination of stockholders for any other proper purpose, the
Board of Directors may fix in advance a date as the record date for any such
determination of stockholders, such date in any case
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<PAGE> 3
to be not more than sixty days and, in case of a meeting of stockholders, not
less than ten days prior to the date on which the particular action requiring
such determination of stockholders is to be taken. If no record date is fixed
for the determination of stockholders entitled to notice or entitled to receive
payment of a dividend, the date on which notice of the meeting is mailed or the
date on which the resolution of the Board of Directors declaring such dividend
is adopted, as the case may be, shall be the record date for such determination
of stockholders. When a determination of stockholders entitled to vote at any
meeting of stockholders has been made as provided in this section, such
determination shall apply to any adjournment thereof.
Section 6. Shareholder's List: The officer having charge of the stock ledger
of the corporation shall prepare, at least ten days before every stockholders
meeting, a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order, with the address of, and the number of shares
registered in the name of each stockholder. Such list shall be open to the
examination by any stockholder for a period of ten days prior to the meeting,
either at a place within the city where the meeting is to be held, which shall
be specified in the notice of meeting or at the place where the meeting is to
be held. The list shall also be produced and kept at the time and place of the
meeting during the whole meeting thereof, and may be inspected by any present
stockholder.
Section 7. Shareholder Quorum and Voting: A majority of the outstanding
shares of the corporation entitled to vote, represented in person or by proxy,
shall constitute a quorum at a meeting of stockholders. If less than a
majority of the outstanding shares are represented at a meeting, a majority of
the shares so represented may adjourn the meeting from time to time without
further notice. At such adjourned meeting at which a quorum shall be present
or represented, any business may be transacted which might have been transacted
at the meeting as originally noticed. The stockholders present at a duly
organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum.
Section 8. Shareholders' Proxies: At all meetings of stockholders, a
stockholder may vote by proxy which shall be executed either in writing or
electronic transmission in accordance with Section 212(2) of the Delaware
General Corporation Law, by the stockholder or by his duly authorized attorney
in fact, or his authorized officer, director, or employee. Such proxy, or
facsimile thereof, shall be filed with the Secretary of the corporation before
or at the time of the meeting. No proxy shall be voted or acted upon after
three years from the date of its execution, unless otherwise provided in the
proxy.
Section 9. Voting of Shares: Each outstanding share otherwise entitled to
vote shall be entitled to one vote upon each matter submitted to a vote at a
meeting of stockholders. A majority vote of those shares present and voting at
a duly organized meeting shall suffice to defeat or enact any proposal unless
the laws of the State of Delaware require a greater-than-majority vote, in
which event the higher vote shall be required for the action to constitute the
action of the corporation.
Section 10. Voting by Fiduciary: Shares held by an administrator, executor,
guardian or conservator may be voted by him, either in person or by proxy,
without the transfer of such
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shares into his name. Shares standing in the name of a trustee may be voted by
him, either in person or by proxy, but no trustee shall be entitled to vote
shares held by him without transfer of such shares into his name. Shares
standing in the name of a receiver may be voted by such receiver, and shares
held by or under the control of a receiver may be voted by such receiver
without the transfer thereof into his name if authority to do so is contained
in an appropriate order of the court by which such receiver was appointed.
A stockholder whose shares are pledged shall be entitled to vote such shares
until the shares are transferred into the name of the pledgee, and thereafter
the pledgee shall be entitled to vote the shares so transferred.
Shares of its own stock belonging to the corporation or held by it in a
fiduciary capacity shall not be voted, directly or indirectly, at a meeting,
and shall not be counted in determining the total number of outstanding shares
at any given time.
Section 11. Action of Shareholders Without a Meeting: An action required to
be taken at a meeting of the stockholders, or any other action which may be
taken at a meeting of the stockholders, may be taken without a meeting, if a
consent in writing, setting forth the action so taken, shall be signed by a
majority of the stockholders entitled to vote with respect to the subject
matter thereof, unless a greater-than-majority vote would be required at a duly
organized meeting, in which event said greater-than-majority stockholder
approval must be obtained. Such consent shall be filed with the minutes of the
corporation. In the event that action is taken by less than unanimous written
consent, prompt notice of the action taken shall be given to those stockholders
who have not consented in writing.
ARTICLE III
Board of Directors
Section 1. Functions: The business and affairs of the corporation shall be
managed by its Board of Directors.
Section 2. Number of Directors: As provided in the Certificate of
Incorporation, the Board of Directors shall initially consist of one person,
but may be increased or diminished by resolution of the Board of Directors or
shareholders. The directors shall hold office until the next annual meeting of
stockholders and until their successors shall have been elected and qualified.
Directors need not be stockholders of the corporation.
Section 3. Election: Directors shall be elected at an annual or special
stockholders' meeting by those stockholders present and entitled to vote, a
plurality of the vote being cast being required to elect. Each stockholder
shall be entitled to one vote for each share of stock owned. If there is but
one nominee for any office, it shall be in order to move that the secretary
cast the elective ballot to elect the nominee.
Section 4. Regular Meetings: A regular meeting of the Board of Directors
shall be held without notice, other than this Bylaw immediately after, and at
the same place as, the annual meeting of stockholders. The Board of Directors
may provide, by resolution, the
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day, time and place for the holding of additional regular meetings without
other notice than such resolution. The Secretary of the corporation shall
serve as Secretary for the Board of Directors and shall issue notices for all
meetings as required by the Bylaws; shall keep a record of the minutes of the
proceedings of the meetings of directors; and shall perform such other duties
as may be properly required of him by the Board of Directors.
Section 5. Special Meetings: Special meetings of the Board of Directors may
be called by or at the request of the Chairman, President, or by a majority of
the directors. The person or persons authorized to call special meetings of
the Board of Directors may fix the place for holding any special meeting of the
Board of Directors called by them.
Section 6. Notice: Notice of any special meeting shall be given at least two
days prior thereto by written notice delivered personally or mailed to each
director at his business address, or by facsimile transmission or telegram. If
mailed, such notice shall be deemed to be delivered when deposited in the
United States mail so addressed, with postage prepaid. If notice be given by
telegram, such notice shall be deemed to be delivered when the telegram is
delivered to the telegraph company. The attendance of a director at a meeting
shall constitute a waiver of notice of such meeting, except where a director
attends a meeting for the express purpose of objecting to the transaction of
any business at the meeting.
Section 7. Quorum and Voting: A majority of the number of directors fixed
according to Section 2 of this Article IV shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors, but if less
than such majority is present at a meeting, a majority of the directors present
may adjourn the meeting from time to time without further notice. The act of
the majority of the Directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors unless the laws of the State of
Delaware require a greater-than-majority vote, in which case such greater vote
shall be required for the act to be that of the Board of Directors.
Section 8. Vacancy: Any vacancy occurring in the Board of Directors may be
filled by the affirmative vote of a majority of the remaining directors, even
though the remaining directors are less than a quorum of the Board of
Directors. A director elected to fill a vacancy shall be elected for the
unexpired term of his predecessor in office. Any directorship to be filled by
reason of an increase in the number of directors shall be filled by either the
board of directors or by the stockholders at an annual or special meeting
called for that purpose.
Section 9. Compensation: By resolution of the Board of Directors, the
directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors, and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or a stated salary as director. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation.
Section 10. Presumption of Assent: A director of the corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless
he requests that his objection be entered in the minutes of the meeting or
unless he shall file his written dissent to such
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action with the Secretary of the meeting before the adjournment thereof or
shall express such dissent by written notice sent by registered mail to the
Secretary of the corporation within one day after the adjournment of the
meeting. Such right to dissent shall not apply to a director who voted in
favor of such action.
Section 11. Directors Action Without a Meeting: Any action that may be taken
at a meeting of the Board of Directors, may be taken without a meeting if a
written consent thereto is signed by all the members of the Board. Such
written consent shall be filed with the minutes of proceedings of the Board.
Section 12. Meeting Participation: Any meeting of the Board of Directors may
be held by conference telephone, or similar communication equipment, if all
persons participating in the meeting can hear each other, with minutes thereof
duly prepared and entered into the minutes of the corporation.
ARTICLE IV
Officers
Section 1. Officers: The officers of the corporation shall be a President,
one or more Vice Presidents, a Secretary, a Treasurer, and may include a
Chairman, each of whom shall be appointed by the Board of Directors. Other
officers and assistant officers may be authorized and appointed by the Board of
Directors. Any two or more offices may be held by the same person.
Section 2. Election and Term: The officers of the corporation shall be
appointed by the Board of Directors at the first meeting of the Board of
Directors held after each annual meeting of the stockholders. Each officer
shall hold office until his successor shall have been duly elected and
qualified, until his death, or until he shall resign or shall be removed as
provided below.
Section 3. Removal: Any officer or agent elected or appointed by the Board of
Directors may be removed by the Board of Directors whenever in its judgment the
best interests of the corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed.
Section 4. Vacancy: A vacancy in any office because of death, resignation,
removal, disqualification or otherwise, may be filled by majority vote of the
remaining members of the Board of Directors.
Section 5. Chairman of the Board. If elected, the chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
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Section 6. President: In the absence of the chairman of the board the
president shall preside at all meetings of the directors and stockholders,
shall have general charge and control over the affairs of the corporation
subject to the direction of the Board of Directors, shall sign or countersign
all certificates, contracts and other instruments of the corporation as
authorized by the Board of Directors and shall perform such other duties as are
incident to his office or are required of him by the Board of Directors.
Section 7. Vice President: The most senior Vice-President shall exercise the
functions of the President, in the Chairman's and President's absence. The
Vice Presidents shall have such powers and duties as may be assigned to them
from time to time by the Board of Directors, the Chairman, or the President.
Section 8. Secretary: The Secretary, or any Assistant Secretary, shall issue
notices for all meetings as required by the Bylaws, shall keep a record of the
minutes of the proceedings of the meetings of stockholders and directors, shall
have charge of the seal and of the corporate books, and shall make such reports
and perform such other duties as are incident to his office, or properly
required of him by the Board of Directors, the Chairman or the President.
Section 9. Treasurer: The Treasurer shall have the custody of all monies and
securities of the corporation and shall keep regular books of account. He
shall disburse the funds of the corporation in payment of the just demands
against the corporation, or as may be ordered by the Board of Directors, taking
proper vouchers for such disbursements, and shall render to the Board of
Directors, from time to time as may be required of him, an account of all his
transactions as Treasurer and of the financial condition of the corporation.
He shall perform all duties incident to this office or which are required of
him by the Board of Directors, the Chairman or the President.
ARTICLE V
Certificates Representing Shares
Section 1. Issues: Certificates representing shares of the corporation shall
be in such form as shall be determined by the Board of Directors. Such
certificates shall be signed by the Chairman or the President and by the
Secretary. All certificates for shares shall be consecutively numbered or
otherwise identified. The name and address of the person to whom the shares
represented thereby are issued, with the number of shares and date of issue,
shall be entered on the stock transfer books of the corporation. All
certificates surrendered to the corporation for transfer shall be cancelled and
no new certificate shall be issued until the former certificate for a like
number of shares shall have been surrendered and cancelled, except in case of a
lost, destroyed or mutilated certificate, in which case a replacement
certificate may be issued therefor upon such terms and indemnity to the
corporation as the Board of Directors may prescribe.
Section 2. Transfers: Transfer of shares of the corporation shall be made
only on the stock transfer books of the corporation by the holder of record
thereof of by his legal representative, who shall furnish proper evidence of
authority to transfer, or by his attorney authorized
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by power of attorney duly executed and filed with the Secretary of the
corporation, and on surrender for the cancellation of the certificate for such
shares. The person in whose name shares stand on the books of the corporation
shall be deemed by the corporation to be the owner thereof for all purposes,
unless otherwise notified by such person in writing.
ARTICLE VI
Seal
Section 1. Seal: The corporation may or may not have a corporate seal, as may
from time to time be determined by resolution of the Board of Directors. If a
corporate seal is adopted, it shall have inscribed thereon the name of the
corporation and the words "Corporate Seal" and "Delaware." The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or in any
manner reproduced.
ARTICLE VII
Amendments
Section 1. Shareholders: These Bylaws may be amended by a majority vote of
all the stock issued and outstanding and entitled to vote at any annual or
special meeting of the stockholders, provided notice of intention to amend
shall have been contained in the notice of the meeting.
Section 2. Directors: The Board of Directors, by a majority vote of the
entire Board at any meeting, may amend these Bylaws, including Bylaws adopted
by the stockholders, unless such amendment specifically provides that it is not
subject to repeal by the Directors.
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EXHIBIT 3.49.2
<PAGE> 2
EXHIBIT 3.49.2
BYLAWS
OF
PAXSON COMMUNICATIONS OF CLEVELAND-67, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the
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meeting, of objecting to the transaction of any business because the meeting is
not lawfully called or convened, and (b) an objection to consideration of a
particular matter at the meeting that is not within the purpose of the meeting
unless the shareholders object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
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SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next
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succeeding annual meeting. Each director shall hold office for the term for
which he is elected and until his successor is elected and qualifies or until
his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
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SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of
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stock, bonds, deeds, and contracts for the Corporation, and shall preside at
all meetings of the shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
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An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of directors upon which he does not serve, duly
designated according to law, as to matters within its designated authority, if
the director reasonably believes that the committee is competent. The
foregoing right of indemnification or reimbursement shall not be exclusive of
other rights to which the person, his heirs, or personal representatives may be
entitled. The Corporation may, upon the affirmative vote of a majority of its
board of directors, purchase insurance for the purpose of indemnifying these
persons. The insurance may be for the benefit of all directors, officers, or
employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to
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every applicable securities law, each certificate shall bear an appropriate
legend restricting the transfer of the shares evidenced by that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
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<PAGE> 10
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
- 9 -
<PAGE> 1
EXHIBIT 3.50.2
<PAGE> 2
EXHIBIT 3.50.2
BYLAWS
OF
PAXSON COMMUNICATIONS OF WASHINGTON-60, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If
<PAGE> 3
mailed, the notice shall be considered delivered when it is deposited in the
United States mail, postage prepaid, addressed to the shareholder at his
address as it appears on the records of the Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting that is not within the purpose of the meeting unless the shareholders
object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the
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<PAGE> 4
board of directors fixes a new record date. The board of directors shall fix a
new record date if the meeting is adjourned to a date more than 120 days after
the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting
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<PAGE> 5
stock of which is owned or controlled by this Corporation, directly or
indirectly, at any meeting shall not be counted in determining the total number
of outstanding shares at any time. The chairman of the board, the president,
any vice president, the secretary, and the treasurer of a corporate shareholder
are presumed to possess, in that order, authority to vote shares standing in
the name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next
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<PAGE> 6
succeeding annual meeting. Each director shall hold office for the term for
which he is elected and until his successor is elected and qualifies or until
his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
5
<PAGE> 7
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
6
<PAGE> 8
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the
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<PAGE> 9
secretary or assistant secretary, certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any
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<PAGE> 10
person as an officer, agent, or employee of the Corporation does not create any
contract rights. The board of directors may fill a vacancy, however occurring,
in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of directors upon which he does not serve, duly
designated according to law, as to matters within its designated authority, if
the director reasonably believes that the committee is competent. The
foregoing right of indemnification or reimbursement shall not be exclusive of
other rights to which the person, his heirs, or personal representatives may be
entitled. The
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Corporation may, upon the affirmative vote of a majority of its board of
directors, purchase insurance for the purpose of indemnifying these persons.
The insurance may be for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
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ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
11
<PAGE> 1
EXHIBIT 3.51.2
<PAGE> 2
EXHIBIT 3.51.2
BYLAWS
OF
PAXSON WASHINGTON LICENSE, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If
<PAGE> 3
mailed, the notice shall be considered delivered when it is deposited in the
United States mail, postage prepaid, addressed to the shareholder at his
address as it appears on the records of the Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting that is not within the purpose of the meeting unless the shareholders
object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the
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board of directors fixes a new record date. The board of directors shall fix a
new record date if the meeting is adjourned to a date more than 120 days after
the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting
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stock of which is owned or controlled by this Corporation, directly or
indirectly, at any meeting shall not be counted in determining the total number
of outstanding shares at any time. The chairman of the board, the president,
any vice president, the secretary, and the treasurer of a corporate shareholder
are presumed to possess, in that order, authority to vote shares standing in
the name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next
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succeeding annual meeting. Each director shall hold office for the term for
which he is elected and until his successor is elected and qualifies or until
his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
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SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
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ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the
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secretary or assistant secretary, certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary or any assistant
secretary shall have the power to sign contracts and other instruments for the
Corporation and shall (a) keep the minutes of the proceedings of the
shareholders and the board of directors in one or more books provided for that
purpose, (b) see that all notices are duly given in accordance with the
provisions of these bylaws or as required by law, (c) maintain custody of the
corporate records and the corporate seal, attest the signatures of officers who
execute documents on behalf of the Corporation, authenticate records of the
Corporation, and assure that the seal is affixed to all documents of which
execution on behalf of the Corporation under its seal is duly authorized, (d)
keep a register of the post office address of each shareholder that shall be
furnished to the secretary by the shareholder, (e) sign with the chairman of
the board, the president, or a vice president, certificates for shares of stock
of the Corporation, the issuance of which have been authorized by resolution of
the board of directors, (f) have general charge of the stock transfer books of
the Corporation, and (g) in general perform all duties incident to the office
of secretary and other duties as from time to time may be prescribed by the
chairman of the board, the president, or the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any
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person as an officer, agent, or employee of the Corporation does not create any
contract rights. The board of directors may fill a vacancy, however occurring,
in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of directors upon which he does not serve, duly
designated according to law, as to matters within its designated authority, if
the director reasonably believes that the committee is competent. The
foregoing right of indemnification or reimbursement shall not be exclusive of
other rights to which the person, his heirs, or personal representatives may be
entitled. The
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Corporation may, upon the affirmative vote of a majority of its board of
directors, purchase insurance for the purpose of indemnifying these persons.
The insurance may be for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
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ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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EXHIBIT 3.52.2
<PAGE> 2
EXHIBIT 3.52.2
BYLAWS
OF
PAXSON COMMUNICATIONS OF PHOENIX-13, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If
<PAGE> 3
mailed, the notice shall be considered delivered when it is deposited in the
United States mail, postage prepaid, addressed to the shareholder at his
address as it appears on the records of the Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting that is not within the purpose of the meeting unless the shareholders
object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the
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board of directors fixes a new record date. The board of directors shall fix a
new record date if the meeting is adjourned to a date more than 120 days after
the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting
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stock of which is owned or controlled by this Corporation, directly or
indirectly, at any meeting shall not be counted in determining the total number
of outstanding shares at any time. The chairman of the board, the president,
any vice president, the secretary, and the treasurer of a corporate shareholder
are presumed to possess, in that order, authority to vote shares standing in
the name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next
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<PAGE> 6
succeeding annual meeting. Each director shall hold office for the term for
which he is elected and until his successor is elected and qualifies or until
his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
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SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
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ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the
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secretary or assistant secretary, certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any
8
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person as an officer, agent, or employee of the Corporation does not create any
contract rights. The board of directors may fill a vacancy, however occurring,
in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of directors upon which he does not serve, duly
designated according to law, as to matters within its designated authority, if
the director reasonably believes that the committee is competent. The
foregoing right of indemnification or reimbursement shall not be exclusive of
other rights to which the person, his heirs, or personal representatives may be
entitled. The
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Corporation may, upon the affirmative vote of a majority of its board of
directors, purchase insurance for the purpose of indemnifying these persons.
The insurance may be for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
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ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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<PAGE> 1
EXHIBIT 3.53.2
<PAGE> 2
EXHIBIT 3.53.2
BYLAWS
OF
PAXSON PHOENIX LICENSE, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of
the Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a
<PAGE> 3
meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting that is not within the purpose of the meeting unless the shareholders
object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
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If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of
outstanding shares at any time. The chairman of the board, the president,
any vice president, the secretary, and the treasurer of a corporate shareholder
are presumed to possess, in that order, authority to vote shares standing in
the name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
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SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall
hold office for the term for which he is elected and until his successor is
elected and qualifies or until his earlier resignation, removal from office,
or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
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<PAGE> 6
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
5
<PAGE> 7
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the
secretary or assistant secretary, certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary or any assistant
secretary shall have the power to sign contracts and other instruments for the
Corporation and shall (a) keep the minutes of the proceedings of the
shareholders and the board of directors in one or more books provided for that
purpose, (b) see that all notices are duly given in accordance with the
provisions of these bylaws or as required by law, (c) maintain custody of the
corporate records and the corporate seal, attest the signatures of officers who
execute documents on behalf of the Corporation, authenticate records of the
Corporation, and assure that the seal is affixed to all documents of which
execution on behalf of the Corporation under its seal is duly authorized, (d)
keep a register of the post office address of each shareholder that shall be
furnished to the secretary by the shareholder, (e) sign with the chairman of
the board, the president, or a vice president, certificates for shares of stock
of the Corporation, the issuance of which have been authorized by resolution of
the board of directors, (f) have general charge of the stock transfer books of
the Corporation, and (g) in general perform all duties incident to the office
of secretary and other duties as from time to time may be prescribed by the
chairman of the board, the president, or the board of directors.
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<PAGE> 8
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to
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the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of directors upon which he does not serve, duly
designated according to law, as to matters within its designated authority, if
the director reasonably believes that the committee is competent. The
foregoing right of indemnification or reimbursement shall not be exclusive of
other rights to which the person, his heirs, or personal representatives may be
entitled. The Corporation may, upon the affirmative vote of a majority of its
board of directors, purchase insurance for the purpose of indemnifying these
persons. The insurance may be for the benefit of all directors, officers, or
employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
8
<PAGE> 10
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
9
<PAGE> 1
EXHIBIT 3.54.2
<PAGE> 2
EXHIBIT 3.54.2
BYLAWS
OF
INFOMALL LOS ANGELES, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If
<PAGE> 3
mailed, the notice shall be considered delivered when it is deposited in the
United States mail, postage prepaid, addressed to the shareholder at his
address as it appears on the records of the Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting that is not within the purpose of the meeting unless the shareholders
object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the
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<PAGE> 4
board of directors fixes a new record date. The board of directors shall fix a
new record date if the meeting is adjourned to a date more than 120 days after
the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting
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<PAGE> 5
stock of which is owned or controlled by this Corporation, directly or
indirectly, at any meeting shall not be counted in determining the total number
of outstanding shares at any time. The chairman of the board, the president,
any vice president, the secretary, and the treasurer of a corporate shareholder
are presumed to possess, in that order, authority to vote shares standing in
the name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next
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<PAGE> 6
succeeding annual meeting. Each director shall hold office for the term for
which he is elected and until his successor is elected and qualifies or until
his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
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<PAGE> 7
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
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ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the
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<PAGE> 9
secretary or assistant secretary, certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any
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<PAGE> 10
person as an officer, agent, or employee of the Corporation does not create any
contract rights. The board of directors may fill a vacancy, however occurring,
in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of directors upon which he does not serve, duly
designated according to law, as to matters within its designated authority, if
the director reasonably believes that the committee is competent. The
foregoing right of indemnification or reimbursement shall not be exclusive of
other rights to which the person, his heirs, or personal representatives may be
entitled. The
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<PAGE> 11
Corporation may, upon the affirmative vote of a majority of its board of
directors, purchase insurance for the purpose of indemnifying these persons.
The insurance may be for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
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ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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<PAGE> 1
EXHIBIT 3.55.2
<PAGE> 2
EXHIBIT 3.55.2
BYLAWS
OF
PAXSON COMMUNICATIONS OF MILWAUKEE-55, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If
<PAGE> 3
mailed, the notice shall be considered delivered when it is deposited in the
United States mail, postage prepaid, addressed to the shareholder at his
address as it appears on the records of the Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting that is not within the purpose of the meeting unless the shareholders
object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the
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board of directors fixes a new record date. The board of directors shall fix a
new record date if the meeting is adjourned to a date more than 120 days after
the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting
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<PAGE> 5
stock of which is owned or controlled by this Corporation, directly or
indirectly, at any meeting shall not be counted in determining the total number
of outstanding shares at any time. The chairman of the board, the president,
any vice president, the secretary, and the treasurer of a corporate shareholder
are presumed to possess, in that order, authority to vote shares standing in
the name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next
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<PAGE> 6
succeeding annual meeting. Each director shall hold office for the term for
which he is elected and until his successor is elected and qualifies or until
his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
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SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
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ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the
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<PAGE> 9
secretary or assistant secretary, certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any
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<PAGE> 10
person as an officer, agent, or employee of the Corporation does not create any
contract rights. The board of directors may fill a vacancy, however occurring,
in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of directors upon which he does not serve, duly
designated according to law, as to matters within its designated authority, if
the director reasonably believes that the committee is competent. The
foregoing right of indemnification or reimbursement shall not be exclusive of
other rights to which the person, his heirs, or personal representatives may be
entitled. The
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<PAGE> 11
Corporation may, upon the affirmative vote of a majority of its board of
directors, purchase insurance for the purpose of indemnifying these persons.
The insurance may be for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
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<PAGE> 12
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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<PAGE> 1
EXHIBIT 3.56.2
<PAGE> 2
EXHIBIT 3.56.2
BYLAWS
OF
PAXSON COMMUNICATIONS OF DENVER-59, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If
<PAGE> 3
mailed, the notice shall be considered delivered when it is deposited in the
United States mail, postage prepaid, addressed to the shareholder at his
address as it appears on the records of the Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a meeting, in person or by proxy, shall constitute a waiver of (a) notice of
the meeting, except when the shareholder attends a meeting solely for the
purpose, expressed at the beginning of the meeting, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened, and (b) an objection to consideration of a particular matter at the
meeting that is not within the purpose of the meeting unless the shareholders
object to considering the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the
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board of directors fixes a new record date. The board of directors shall fix a
new record date if the meeting is adjourned to a date more than 120 days after
the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting
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stock of which is owned or controlled by this Corporation, directly or
indirectly, at any meeting shall not be counted in determining the total number
of outstanding shares at any time. The chairman of the board, the president,
any vice president, the secretary, and the treasurer of a corporate shareholder
are presumed to possess, in that order, authority to vote shares standing in
the name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next
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<PAGE> 6
succeeding annual meeting. Each director shall hold office for the term for
which he is elected and until his successor is elected and qualifies or until
his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
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<PAGE> 7
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
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<PAGE> 8
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the
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<PAGE> 9
secretary or assistant secretary, certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in the name of the
Corporation in the banks, trust companies, or other depositaries as shall be
selected by the board of directors, and (c) in general perform all the duties
incident to the office of treasurer and other duties as from time to time may
be assigned to him by the chairman of the board, the president, or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in the sum and with the surety or
sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any
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<PAGE> 10
person as an officer, agent, or employee of the Corporation does not create any
contract rights. The board of directors may fill a vacancy, however occurring,
in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of directors upon which he does not serve, duly
designated according to law, as to matters within its designated authority, if
the director reasonably believes that the committee is competent. The
foregoing right of indemnification or reimbursement shall not be exclusive of
other rights to which the person, his heirs, or personal representatives may be
entitled. The
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<PAGE> 11
Corporation may, upon the affirmative vote of a majority of its board of
directors, purchase insurance for the purpose of indemnifying these persons.
The insurance may be for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
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<PAGE> 12
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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<PAGE> 1
EXHIBIT 3.57.2
<PAGE> 2
EXHIBIT 3.57.2
BYLAWS
OF
PAXSON COMMUNICATIONS OF NEW YORK-43, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a
<PAGE> 3
meeting, in person or by proxy, shall constitute a waiver of (a) notice of the
meeting, except when the shareholder attends a meeting solely for the purpose,
expressed at the beginning of the meeting, of objecting to the transaction of
any business because the meeting is not lawfully called or convened, and (b) an
objection to consideration of a particular matter at the meeting that is not
within the purpose of the meeting unless the shareholders object to considering
the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
2
<PAGE> 4
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
3
<PAGE> 5
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
4
<PAGE> 6
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
5
<PAGE> 7
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for
6
<PAGE> 8
monies due and payable to the Corporation from any source whatsoever, and
deposit monies in the name of the Corporation in the banks, trust companies, or
other depositaries as shall be selected by the board of directors, and (c) in
general perform all the duties incident to the office of treasurer and other
duties as from time to time may be assigned to him by the chairman of the
board, the president, or the board of directors. If required by the board of
directors, the treasurer shall give a bond for the faithful discharge of his
duties in the sum and with the surety or sureties that the board of directors
determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of
7
<PAGE> 9
directors upon which he does not serve, duly designated according to law, as to
matters within its designated authority, if the director reasonably believes
that the committee is competent. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which the person, his
heirs, or personal representatives may be entitled. The Corporation may, upon
the affirmative vote of a majority of its board of directors, purchase
insurance for the purpose of indemnifying these persons. The insurance may be
for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
8
<PAGE> 10
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
9
<PAGE> 1
EXHIBIT 3.58.2
<PAGE> 2
EXHIBIT 3.58.2
BYLAWS
OF
PAXSON NEW YORK LICENSE, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a
<PAGE> 3
meeting, in person or by proxy, shall constitute a waiver of (a) notice of the
meeting, except when the shareholder attends a meeting solely for the purpose,
expressed at the beginning of the meeting, of objecting to the transaction of
any business because the meeting is not lawfully called or convened, and (b) an
objection to consideration of a particular matter at the meeting that is not
within the purpose of the meeting unless the shareholders object to considering
the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
2
<PAGE> 4
If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
3
<PAGE> 5
SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
4
<PAGE> 6
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
5
<PAGE> 7
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for
6
<PAGE> 8
monies due and payable to the Corporation from any source whatsoever, and
deposit monies in the name of the Corporation in the banks, trust companies, or
other depositaries as shall be selected by the board of directors, and (c) in
general perform all the duties incident to the office of treasurer and other
duties as from time to time may be assigned to him by the chairman of the
board, the president, or the board of directors. If required by the board of
directors, the treasurer shall give a bond for the faithful discharge of his
duties in the sum and with the surety or sureties that the board of directors
determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of
7
<PAGE> 9
directors upon which he does not serve, duly designated according to law, as to
matters within its designated authority, if the director reasonably believes
that the committee is competent. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which the person, his
heirs, or personal representatives may be entitled. The Corporation may, upon
the affirmative vote of a majority of its board of directors, purchase
insurance for the purpose of indemnifying these persons. The insurance may be
for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
8
<PAGE> 10
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
9
<PAGE> 1
EXHIBIT 3.59.2
<PAGE> 2
EXHIBIT 3.59.2
BYLAWS
OF
PAXSON COMMUNICATIONS OF AKRON-23, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a
<PAGE> 3
meeting, in person or by proxy, shall constitute a waiver of (a) notice of the
meeting, except when the shareholder attends a meeting solely for the purpose,
expressed at the beginning of the meeting, of objecting to the transaction of
any business because the meeting is not lawfully called or convened, and (b) an
objection to consideration of a particular matter at the meeting that is not
within the purpose of the meeting unless the shareholders object to considering
the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
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If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
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SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
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<PAGE> 6
SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
5
<PAGE> 7
assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for
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<PAGE> 8
monies due and payable to the Corporation from any source whatsoever, and
deposit monies in the name of the Corporation in the banks, trust companies, or
other depositaries as shall be selected by the board of directors, and (c) in
general perform all the duties incident to the office of treasurer and other
duties as from time to time may be assigned to him by the chairman of the
board, the president, or the board of directors. If required by the board of
directors, the treasurer shall give a bond for the faithful discharge of his
duties in the sum and with the surety or sureties that the board of directors
determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of
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directors upon which he does not serve, duly designated according to law, as to
matters within its designated authority, if the director reasonably believes
that the committee is competent. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which the person, his
heirs, or personal representatives may be entitled. The Corporation may, upon
the affirmative vote of a majority of its board of directors, purchase
insurance for the purpose of indemnifying these persons. The insurance may be
for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
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ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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<PAGE> 1
EXHIBIT 3.60.2
<PAGE> 2
EXHIBIT 3.60.2
BYLAWS
OF
PAXSON AKRON LICENSE, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a
<PAGE> 3
meeting, in person or by proxy, shall constitute a waiver of (a) notice of the
meeting, except when the shareholder attends a meeting solely for the purpose,
expressed at the beginning of the meeting, of objecting to the transaction of
any business because the meeting is not lawfully called or convened, and (b) an
objection to consideration of a particular matter at the meeting that is not
within the purpose of the meeting unless the shareholders object to considering
the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
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If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
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SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
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SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
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assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for
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monies due and payable to the Corporation from any source whatsoever, and
deposit monies in the name of the Corporation in the banks, trust companies, or
other depositaries as shall be selected by the board of directors, and (c) in
general perform all the duties incident to the office of treasurer and other
duties as from time to time may be assigned to him by the chairman of the
board, the president, or the board of directors. If required by the board of
directors, the treasurer shall give a bond for the faithful discharge of his
duties in the sum and with the surety or sureties that the board of directors
determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of
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directors upon which he does not serve, duly designated according to law, as to
matters within its designated authority, if the director reasonably believes
that the committee is competent. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which the person, his
heirs, or personal representatives may be entitled. The Corporation may, upon
the affirmative vote of a majority of its board of directors, purchase
insurance for the purpose of indemnifying these persons. The insurance may be
for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
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ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
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EXHIBIT 3.61.2
<PAGE> 2
EXHIBIT 3.61.2
BYLAWS
OF
PAXSON COMMUNICATIONS OF DAYTON-26, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Corporation for the election of directors and the
transaction of other business shall be held during the month of April each year
and on the date and at the time and place that the board of directors
determines. If any annual meeting is not held, by oversight or otherwise, a
special meeting shall be held as soon as practical, and any business transacted
or election held at that meeting shall be as valid as if transacted or held at
the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose shall be held when called by the chairman of the
board, president, or the board of directors, or when demanded in writing by the
holders of not less than ten percent (unless a greater percentage not to exceed
fifty percent is required by the articles of incorporation) of all the shares
entitled to vote at the meeting. Such demand must be delivered to the
Corporation's secretary. A meeting demanded by shareholders shall be called
for a date not less than ten nor more than sixty days after the request is
made, unless the shareholders requesting the meeting designate a later date.
The secretary shall issue the call for the meeting, unless the president,
chairman of the board, the board of directors, or shareholders requesting the
meeting designate another person to do so. The shareholders at a special
meeting may transact only business that is related to the purposes stated in
the notice of the special meeting.
SECTION 3. PLACE. Meetings of shareholders may be held
either within or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, stating the place, day, and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered to each shareholder of record entitled to vote at the
meeting, not less than ten nor more than sixty days before the date set for the
meeting, either personally or by first-class mail, by or at the direction of
the chairman of the board, president, the secretary, or the officer or other
persons calling the meeting. If mailed, the notice shall be considered
delivered when it is deposited in the United States mail, postage prepaid,
addressed to the shareholder at his address as it appears on the records of the
Corporation.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is
required to be given to any shareholder of the Corporation under these bylaws,
the articles of incorporation, or the Florida Business Corporation Act, a
written waiver of notice, signed anytime by the person entitled to notice shall
be equivalent to giving notice. Attendance by a shareholder entitled to vote
at a
<PAGE> 3
meeting, in person or by proxy, shall constitute a waiver of (a) notice of the
meeting, except when the shareholder attends a meeting solely for the purpose,
expressed at the beginning of the meeting, of objecting to the transaction of
any business because the meeting is not lawfully called or convened, and (b) an
objection to consideration of a particular matter at the meeting that is not
within the purpose of the meeting unless the shareholders object to considering
the matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted.
If the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the
board of directors authorizes the dividend; If no prior action is required by
the board of directors pursuant to the Florida Business Corporation Act, the
record date for determining shareholders entitled to take action without a
meeting is the date the first signed written consent is delivered to the
Corporation; If prior action is required by the board of directors pursuant to
the Florida Business Corporation Act, the record date for determining
shareholders entitled to take action without a meeting is at the close of
business on the day that the board of directors adopts a resolution taking such
prior action; and For determining shareholders entitled to notice of and to
vote at an annual or special shareholders meeting the record date is as of the
close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete
alphabetical list of the names of the shareholders entitled to receive notice
of and to vote at the meeting shall be prepared by the secretary or other
authorized agent having charge of the stock transfer book. The list shall be
arranged by voting group and include each shareholder's address, and the
number, series, and class of shares held. The list must be made available at
least ten days before and throughout each meeting of shareholders, or such
shorter time as exists between the record date and the meeting. The list must
be made available at the Corporation's principal office, registered agent's
office, transfer agent's office or at a place identified in the meeting notice
in the city where the meeting will be held. Any shareholder, his agent or
attorney, upon written demand and at his own expense may inspect the list
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
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If the requirements of this section have not been
substantially complied with, the meeting, on the demand of any shareholder in
person or by proxy, shall be adjourned until the requirements of this section
are met. If no demand for adjournment is made, failure to comply with the
requirements of this section does not affect the validity of any action taken
at the meeting.
SECTION 8. SHAREHOLDER QUORUM AND VOTING. A majority of the
shares entitled to vote, represented in person or by proxy, constitutes a
quorum at a meeting of shareholders. If a quorum is present, the affirmative
vote of a majority of the shares entitled to vote on the matter is the act of
the shareholders unless otherwise provided by law. A shareholder may vote
either in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact. After a quorum has been established at a
shareholders' meeting, a withdrawal of shareholders that reduces the number of
shareholders entitled to vote at the meeting below the number required for a
quorum does not affect the validity of an adjournment of the meeting or an
action taken at the meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or
otherwise reacquired by the corporation, and shares of stock of this
Corporation owned by another corporation the majority of the voting stock of
which is owned or controlled by this Corporation, directly or indirectly, at
any meeting shall not be counted in determining the total number of outstanding
shares at any time. The chairman of the board, the president, any vice
president, the secretary, and the treasurer of a corporate shareholder are
presumed to possess, in that order, authority to vote shares standing in the
name of a corporate shareholder, absent a bylaw or other instrument of the
corporate shareholder designating some other officer, agent, or proxy to vote
the shares. Shares held by an administrator, executor, guardian, or
conservator may be voted by him without a transfer of the shares into his name.
A trustee may vote shares standing in his name, but no trustee may vote shares
that are not transferred into his name. If he is authorized to do so by an
appropriate order of the court by which he was appointed, a receiver may vote
shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote
the shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall
be managed and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have one director
initially. The number of directors may be increased or diminished from time to
time by action of the board of directors or shareholders, but no decrease shall
have the effect of shortening the term of any incumbent director, unless the
shareholders remove the director.
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SECTION 3. QUALIFICATION. Each member of the board of
directors must be a natural person who is eighteen years of age or older. A
director need not be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the
articles of incorporation as members of the initial board of directors shall
hold office until the first annual meeting of shareholders and until their
successors have been elected and qualified or until their earlier resignation,
removal from office, or death. At the first annual meeting of shareholders and
at each annual meeting thereafter the shareholders shall elect directors to
hold office until the next succeeding annual meeting. Each director shall hold
office for the term for which he is elected and until his successor is elected
and qualifies or until his earlier resignation, removal from office, or death.
SECTION 5. COMPENSATION. The board of directors has
authority to fix the compensation of the directors, as directors and as
officers.
SECTION 6. DUTIES OF DIRECTORS. A director shall perform his
duties as a director, including his duties as a member of any committee of the
board upon which he serves, in good faith, in a manner he reasonably believes
to be in the best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is presumed
to have assented to the action unless he votes against it or expressly abstains
from voting on the action taken, or, he objects at the beginning of the meeting
to the holding of the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any
vacancy occurring in the board of directors, including any vacancy created
because of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, even if the number
of remaining directors does not constitute a quorum of the board of directors.
A director elected to fill a vacancy shall hold office only until the next
election of directors by the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting
of shareholders called for that purpose, the shareholders, by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors, may remove any director, or the entire board of directors, with or
without cause, and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice
to the board of directors or its chairman of the board or the corporation. A
resignation is effective when the notice is delivered unless the notice
specifies later effective date. If a resignation is made effective at a later
date, the board of directors may fill the pending vacancy before the effective
date if the board of directors provided that the successor does not take office
until the effective date.
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SECTION 10. QUORUM AND VOTING. A majority of the board of
directors constitutes a quorum for the transaction of business. The act of the
majority of the directors at a meeting at which a quorum is present is the act
of the board of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings
by the board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held without notice, other than this bylaw, immediately
after and at the same place as the annual meeting of shareholders. The board
of directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by or at the request of the president, chairman of
the board, or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time
and place of special meetings of the board of directors shall be given to each
director by either personal delivery or by first class United States mail,
telegram, or cablegram at least two days before the meeting. Notice of a
meeting of the board of directors need not be given to any director who signs a
waiver of notice either before or after the meeting. Attendance of a director
at a meeting constitutes a waiver of notice of the meeting and all objections
to the time and place of the meeting, or the manner in which it has been called
or convened, except when the director states, at the beginning of the meeting,
or promptly upon arrival at the meeting, any objection to the transaction of
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of the meeting.
A majority of the directors present, whether or not a quorum
exists, may adjourn any meeting of the board of directors to another time and
place. Notice of any adjourned meeting shall be given to the directors who
were not present at the time of the adjournment and, unless the time and place
of the adjourned meeting are announced at the time of the adjournment, to the
other directors.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of the chairman of the board, a president, a secretary, and a
treasurer, and may include one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers. The officers shall be
elected initially by the board of directors at the organizational meeting of
board of directors and thereafter at the first meeting of the board following
the annual meeting of the shareholders in each year. The board from time to
time may elect or appoint other officers, assistant officers, and agents, who
shall have the authority and perform the duties prescribed by the board. An
elected or duly appointed officer may, in turn, appoint one or more officers or
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assistant officers, unless the board of directors disapproves or rejects the
appointment. All officers shall hold office until their successors have been
appointed and have qualified or until their earlier resignation, removal from
office, or death. One person may simultaneously hold any two or more offices.
The failure to elect the chairman of the board, president, secretary, or
treasurer shall not affect the existence of the Corporation.
SECTION 2. CHAIRMAN OF THE BOARD. The chairman of the board,
shall be the chief executive officer, subject to the directions of the board of
directors, is responsible for the general and active management of the business
and affairs of the Corporation, has the power to sign certificates of stock,
bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
SECTION 3. PRESIDENT. In the absence of the chairman of
board, the president, subject to the directions of the board of directors, is
responsible for the general and active management of the business and affairs
of the Corporation, has the power to sign certificates of stock, bonds, deeds,
and contracts for the Corporation, and shall preside at all meetings of the
shareholders.
SECTION 4. VICE PRESIDENTS. Each vice president has the
power to sign bonds, deeds, and contracts for the Corporation and shall have
the other powers and perform the other duties prescribed by the board of
directors, the chairman of the board, or the president. Unless the board
otherwise provides, if the chairman of the board and president are absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties
and may exercise any of the powers of the chairman of the board and president.
Any vice president may sign, with the secretary or assistant secretary,
certificates for stock of the Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to
sign contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in
one or more books provided for that purpose, (b) see that all notices are duly
given in accordance with the provisions of these bylaws or as required by law,
(c) maintain custody of the corporate records and the corporate seal, attest
the signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution on behalf of the Corporation under its seal is
duly authorized, (d) keep a register of the post office address of each
shareholder that shall be furnished to the secretary by the shareholder, (e)
sign with the chairman of the board, the president, or a vice president,
certificates for shares of stock of the Corporation, the issuance of which have
been authorized by resolution of the board of directors, (f) have general
charge of the stock transfer books of the Corporation, and (g) in general
perform all duties incident to the office of secretary and other duties as from
time to time may be prescribed by the chairman of the board, the president, or
the board of directors.
SECTION 6. TREASURER. The treasurer shall (a) have charge
and custody of and be responsible for all funds and securities of the
Corporation, (b) receive and give receipts for
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monies due and payable to the Corporation from any source whatsoever, and
deposit monies in the name of the Corporation in the banks, trust companies, or
other depositaries as shall be selected by the board of directors, and (c) in
general perform all the duties incident to the office of treasurer and other
duties as from time to time may be assigned to him by the chairman of the
board, the president, or the board of directors. If required by the board of
directors, the treasurer shall give a bond for the faithful discharge of his
duties in the sum and with the surety or sureties that the board of directors
determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected
or appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal shall be without prejudice to any contract rights of the
person removed. The appointment of any person as an officer, agent, or
employee of the Corporation does not create any contract rights. The board of
directors may fill a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless
the notice specifies a later effective date. If a resignation is made
effective at a later date, its board of directors may fill the pending vacancy
before the effective date if the board of directors provides that the successor
does not take office until the effective date. An officer's resignation does
not affect the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to
time shall fix the salaries of the officers, and no officer shall be prevented
from receiving his salary merely because he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or
threatened to be made, a party to any threatened, pending, or completed action
or proceeding, whether civil, criminal, administrative, or investigative,
because he is or was a director, officer, employee, or agent of this
Corporation or serves or served any other corporation or other enterprise in
any capacity at the request of this Corporation, shall be indemnified by this
Corporation, and this Corporation may advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director,
officer, employee, or agent, when acting in good faith, may rely upon
information, opinions, reports, or statements, including financial statements
and other financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director, officer, employee,
or agent reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to matters that
the director, officer, employee, or agent believes to be within that person's
professional or expert competence, or (3) in the case of a director, a
committee of the board of
7
<PAGE> 9
directors upon which he does not serve, duly designated according to law, as to
matters within its designated authority, if the director reasonably believes
that the committee is competent. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which the person, his
heirs, or personal representatives may be entitled. The Corporation may, upon
the affirmative vote of a majority of its board of directors, purchase
insurance for the purpose of indemnifying these persons. The insurance may be
for the benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented
by certificates. The board of directors may authorize the issuance of some or
all of the shares of the Corporation of any or all of its classes or series
without certificates. If certificates are to be issued, the share must first
be fully paid.
SECTION 2. FORM. Certificates evidencing shares in this
Corporation shall be signed by the chairman of the board, president or a vice
president and the secretary, assistant secretary or any other officer
authorized by the board of directors, and may be sealed with the seal of this
Corporation or a facsimile of the seal. Unless the Corporation's stock is
registered pursuant to every applicable securities law, each certificate shall
bear an appropriate legend restricting the transfer of the shares evidenced by
that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate in the place of any certificate
previously issued if the shareholder of record (a) makes proof in affidavit
form that the certificate has been lost, destroyed, or wrongfully taken, (b)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by the purchaser for value in good faith and
without notice of any adverse claim, (c) if requested by the Corporation, gives
bond in the form that the Corporation directs, to indemnify the Corporation,
the transfer agent, and the registrar against any claim that may be made
concerning the alleged loss, destruction, or theft of a certificate, and (d)
satisfies any other reasonable requirements imposed by the Corporation.
SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing
shares that are restricted as to sale, disposition, or other transfer shall
bear a legend summarizing the restriction or stating that the Corporation will
furnish to any shareholder, upon request and without charge, a full statement
of the restriction.
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
8
<PAGE> 10
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and
the word "seal" inscribed on it, and may be a facsimile, engraved, printed, or
an impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws
may be adopted, by either a vote of a majority of the full board of directors
or by vote of the holders of a majority of the issued and outstanding shares
entitled to vote, but the board of directors may not amend or repeal any bylaw
adopted by the shareholders if the shareholders specifically provide that the
bylaw is not subject to amendment or repeal by the directors. In order to be
effective, any amendment approved hereby must be in writing and attached to
these Bylaws.
9
<PAGE> 1
EXHIBIT 5
<PAGE> 2
EXHIBIT 5
[HOLLAND & KNIGHT LETTERHEAD]
January 23, 1996
Paxson Communications Corporation
601 Clearwater Park Road
West Palm Beach, FL 33401
Re: Registration Statement On Form S-4
Registration No. 33-63765
Gentlemen:
We have acted as counsel for Paxson Communications Corporation (the
"Corporation"), a Delaware corporation, in connection with the preparation of
the above-referenced registration statement, as amended (the "Registration
Statement"), filed with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended (the "Act"), to register the exchange of an
aggregate principal of $230,000,000 of its 11 5/8% Senior Subordinated Notes
Due 2002 (the "New Notes") for an equal principal amount of its outstanding 11
5/8% Senior Subordinated Notes Due 2002 (the "Old Notes," and with the New
Notes collectively, the "Notes.") The Notes have been issued pursuant to an
indenture between the Company, the Guarantors listed therein and The Bank of
New York, as Trustee, dated as of September 28, 1995 (the "Indenture"). In
this connection, you have requested our opinion as to certain matters with
respect to the New Notes. Capitalized terms defined in the Registration
Statement and not otherwise defined herein are used herein with the meanings as
so defined.
We have reviewed the Registration Statement, the Indenture and such
other documents, records and certificates of officers of the Corporation and
its subsidiaries and other instruments relating to the authorization and
issuance of the Notes as we deemed relevant or necessary for the opinions
herein expressed.
Based on the above, it is our opinion that the $230,000,000 principal
amount of New Notes proposed to be issued in exchange for an equal principal
amount of Old Notes have been duly authorized and when issued for exchange in
accordance with the Registration Statement, the Indenture and the Letter of
Transmittal, will be validly issued. The New Notes, upon due acceptance by the
Corporation of the Old
<PAGE> 3
Paxson Communications Corporation
January 23, 1996
Page 2
Notes being tendered in exchange therefor as provided in the Registration
Statement, the Indenture and the Letter of Transmittal will constitute valid
and binding obligations of the Corporation, enforceable against the Corporation
in accordance with the terms of such documents.
For the purposes hereof, we do not purport to be expert in the law of
any state other than Florida, the General Corporation Law of the State of
Delaware and the United States. We express no opinions as to matters which may
be governed by the substantive laws of any state other than Florida or the
General Corporation Law of the State of Delaware. Accordingly, the opinions
set forth in this letter are qualified in their entirety regarding matters that
would be controlled by the substantive laws of any other state (including the
laws of New York) by our having assumed that, to the extent relevant to the
opinions expressed above, the internal laws of New York conform in all material
respects with the internal laws of the state of Florida.
We hereby consent to the use of this opinion as Exhibit 5 to the
Registration Statement and to all references to our firm in the Registration
Statement.
This opinion is rendered solely for your benefit in connection with
the transactions described above. This opinion may not be used or relied upon
by any other person and, except as provided in the preceding paragraphs, may
not be disclosed, quoted, filed with a governmental agency or otherwise
referred to without our prior written consent.
Very truly yours,
/s/ Holland & Knight
HOLLAND & KNIGHT
<PAGE> 1
EXHIBIT 8
<PAGE> 2
EXHIBIT 8
January 23, 1996
Paxson Communications Corporation
601 Clearwater Park Road
West Palm Beach, FL 33401
Re: Registration Statement On Form S-4
Registration No. 33 63765
Gentlemen:
We have acted as counsel for Paxson Communications Corporation (the
"Corporation"), a Delaware corporation, in connection with the preparation of
the above-referenced registration statement, as amended (the "Registration
Statement"), filed with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended (the "Act"), to register the exchange of an
aggregate principal amount of $230,000,000 of its 11 5/8% Senior Subordinated
Notes Due 2002 (the "New Notes") for an equal principal amount of its
outstanding 11 5/8% Senior Subordinated Notes Due 2002 (the "Old Notes" and the
New Notes, collectively, the "Notes.") In this connection, you have requested
our opinion as to the material income tax consequences to Holders of the Notes,
as defined in the Prospectus included in the Registration Statement (the
"Prospectus").
Based on the facts and circumstances set forth in the Registration
Statement, it is our opinion that the material federal income tax consequences
to Holders of the Notes are accurately reflected in all material respects in
the discussion set forth under the caption "Certain Federal Income Tax
Considerations."
This opinion is based solely on current provisions of the Internal
Revenue Code of 1986, as amended, applicable Treasury Regulations (current and
proposed), judicial authority and administrative rulings, all of which are
subject to change either prospectively or retroactively. We express no opinion
as to any aspects of state, local or foreign tax laws that may be relevant to
Holders, or as to tax consequences which may result under bankruptcy,
fraudulent conveyance and similar laws affecting enforcement of creditors'
rights at some future time. Furthermore, any variation or differences in the
facts and circumstances as incorporated herein might affect our conclusion,
perhaps in an adverse manner.
<PAGE> 3
Paxson Communications Corporation
January 23, 1996
Page 2
We opine only as to the matters specifically addressed in the section
entitled "Certain Federal Income Tax Consequences." No opinions should be
inferred as to any other matters or as to the tax treatment of transactions
that we do not specifically address, or any other future transactions or events
subsequent to consummation of the exchange offer.
This opinion represents our firm's interpretation of existing law and,
as such, is not binding upon the Internal Revenue Service (the "Service") or
the courts. We can give no assurance that the Service will not challenge our
conclusions and prevail in the courts in such a manner as to cause adverse tax
consequences to the Holders.
This opinion is not intended as a substitute for careful tax planning
on an individual basis. Holders are urged to consult their tax advisor with
specific reference to the effect of their own particular facts and
circumstances on the matters discussed herein.
We hereby consent to the use of the opinion as Exhibit 8 to the
Registration Statement and to all references to our firm in the Registration
Statement. In giving such consent, we do not thereby admit that we are acting
within the category of persons whose consent is required under Section 7 of the
Act and the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
/s/ Holland & Knight
HOLLAND & KNIGHT
<PAGE> 1
EXHIBIT 10.39.2
<PAGE> 2
EXHIBIT 10.39.2
- --------------------------------------------------------------------------------
OPTION AGREEMENT
BY AND AMONG
WHITEHEAD MEDIA, INC.
AND
WHITEHEAD MEDIA OF OHIO, INC.
AND
PAXSON COMMUNICATIONS OF CLEVELAND-67, INC.
FOR
WOAC(TV), CHANNEL 67, CANTON, OHIO
DECEMBER 29, 1995
- --------------------------------------------------------------------------------
<PAGE> 3
OPTION AGREEMENT
This OPTION AGREEMENT is executed this 29th day of December, 1995, by
and among WHITEHEAD MEDIA, INC., a Florida corporation ["Whitehead"], WHITEHEAD
MEDIA OF OHIO, INC., a Delaware corporation ("Whitehead-Ohio" and collectively
with Whitehead, "Seller") and PAXSON COMMUNICATIONS OF CLEVELAND-67, INC., a
Florida corporation ["Buyer"].
WHEREAS, Whitehead is the owner and operator of Television Station
WOAC(TV), Channel 67, Canton, Ohio ["the Station"], pursuant to authorizations
issued by the Federal Communications Commission ["FCC"];
WHEREAS, Whitehead intends to assign to Whitehead-Ohio the FCC
licenses for the Station;
WHEREAS, the parties have agreed that Seller will sell to Buyer an
option to purchase certain of the assets used and useful in the conduct of the
business and operation of the Station on the terms and conditions set forth
herein and subject to the FCC's rules, regulations and policies.
NOW THEREFORE, in consideration of the above and of the mutual
promises and covenants contained herein, and other good and valuable
consideration, the parties, intending to be legally bound, agree as follows:
SECTION 1. OPTION TO PURCHASE ASSETS
1.1 Option Price. In consideration of the payment of One Thousand
Dollars ($1,000) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Seller, the Seller hereby sells
and grants to Buyer an exclusive, irrevocable option [the "Option"] to purchase
the assets, real, personal and mixed, tangible and intangible, owned and held
by Seller that are used or useful in the conduct of the business and operations
of the Station [the "Station Assets"], free and clear of all material debts,
liens, encumbrances or other liabilities, subject to the terms and conditions
set forth herein.
1.2 Buyer may freely assign this Option to any other party, but
shall provide Seller with five (5) days' written notice to Seller. The rights
and obligations of any assignee of Buyer following such assignment shall be the
same as the rights and obligations of the Buyer hereunder. Buyer shall also be
permitted to assign its rights and interests hereunder to its lenders as
collateral security for Buyer's obligations to such lenders.
<PAGE> 4
-2-
1.3 The Option granted hereunder shall run for five (5) years
commencing on the date of this Agreement. Buyer shall provide five (5) days
written notice to Seller of its exercise of the Option.
1.4 In the event that the Option is exercised hereunder, the
parties shall, within ten days of Buyer's written notice thereof, execute an
Asset Purchase Agreement [the "Purchase Agreement"] in the form attached hereto
as Exhibit A, it being understood that the only change to such form shall be
changes, if any, in the information contained in the Schedules thereto and the
addition, if any, of Schedules thereto that are reasonably required to reflect
events occurring after the date hereof; provided, however, that Buyer shall not
be required to accept any such change that could reasonably be expected to
cause an adverse change in, or have an adverse effect on, the assets to be
conveyed to Buyer pursuant to the Purchase Agreement or the ability of Seller
to consummate the transactions contemplated by the Purchase Agreement, and
thereafter Buyer and Seller shall perform their respective obligations under
the Purchase Agreement, including, without limitation, filing and prosecuting
an appropriate application for FCC consent to the assignment of the FCC
licenses for the Station from Seller to Buyer. Notwithstanding anything
contained in this Agreement to the contrary, Buyer may withdraw its notice of
exercise of its Option at any time prior to its execution of the Purchase
Agreement without any liability to Seller.
1.5 Buyer acknowledges and agrees that this Option Agreement shall
be deemed to be the Option Agreement referenced to in Section 8.12 of the Loan
Agreement dated as of October 30, 1995, between Buyer and Seller, and that by
execution and delivery of this Option Agreement, Seller has satisfied its
obligation under Section 8.12 to enter into the Option Agreement referenced to
therein.
SECTION 2. SPECIFIC PERFORMANCE
The parties agree that the FCC licenses and the broadcast business
made possible thereby are unique assets not readily available on the open
market. For this reason, Seller acknowledges that monetary damages alone would
not be adequate to compensate Buyer and that monetary damages alone would not
be adequate to compensate Buyer and that specific performance is an appropriate
remedy for Buyer in the event this Agreement is breached. The parties agree
that the rights afforded by the preceding sentence shall be in addition to any
and all rights Buyer may have at law or equity. If any action is brought by
Buyer to enforce this Agreement, Seller shall waive the defense that there is
an adequate remedy at law.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
<PAGE> 5
-3-
3.1 Whitehead and Whitehead-Ohio are corporations duly
incorporated, validly existing and in good standing under the laws of the
States of Florida and Delaware, respectively.
3.2 Seller has and will have upon the exercise of the Option full
corporate power and authority to enter into this Option Agreement and the
Purchase Agreement and to consummate the transactions contemplated hereby and
thereby. This Agreement constitutes, and any other instruments contemplated
hereby when executed will constitute, the legal, valid and binding obligations
of Seller, enforceable in accordance with their terms, except as may be
affected by bankruptcy and insolvency laws and court-applied equitable
principles.
3.3 The execution and delivery of this Agreement, the consummation
of the transactions contemplated hereby, and the compliance with the terms,
conditions and provisions of this Agreement, with or without the giving of
notice or the passage of time, or both, will not: (i) contravene any provision
of Seller's Articles of Incorporation or By-laws, (ii) conflict with or result
in a breach of or constitute a default under any of the terms, conditions or
provisions of any indenture, mortgage, loan or credit agreement or any other
agreement or instrument to which Seller is a party or by which it or any of the
assets of Seller may be bound or affected, or any decree, judgment or order of
any court or governmental department, commission, board, agency or
instrumentality, domestic or foreign, or any applicable law, ordinance, rule or
regulation, including but not limited to the Communications Act of 1934, as
amended ["the Act"], and the rules and regulations of the FCC promulgated
thereunder.
3.4 No representations or warranty by Seller in this Agreement
contains or will contain any untrue statement of a material fact, or omits or
will omit to state a material fact necessary to make this statement or facts
contained herein or therein not misleading.
SECTION 4. COVENANTS OF SELLER
So long as this Agreement is in effect, Seller covenants that it will
not, without the Buyer's prior written approval:
4.1 Create or incur, assume or suffer to exist any indebtedness,
obligation or liability, whether matured or unmatured, liquidated or
unliquidated, direct or contingent, joint or several, except for: (i)
indebtedness evidenced by the Credit Agreement of December 29, 1995; and (ii)
indebtedness (other than for borrowed money) incurred in the ordinary course of
business not to exceed Twenty Five Thousand Dollars ($25,000.00) in the
aggregate at any one time.
4.2 Create, assume or suffer to exist, directly or indirectly, any
security interest, mortgage, deed of trust, pledge, lien, charge or other
encumbrance, of any nature
<PAGE> 6
-4-
whatsoever upon any of its properties or assets, now owned or hereafter as
acquired, excluding, however, from the operation of this covenant:
(i) any security interest or lien created
pursuant to the Credit Agreement ("Credit Agreement") dated as of December 29,
1995 among Seller, the Licensee Companies and Lenders referenced to therein and
Banque Paribas and CIBC Inc., as Administrative Agent and Documentation Agent,
respectively, for such Lenders.
(ii) liens for taxes or assessments either not
delinquent or the validity of which are being contested in good faith by
appropriate legal or administrative proceedings and as to which adequate
reserves shall have been set aside on its books, in conformity with generally
accepted accounting principles;
(iii) materialmen's, mechanics', carriers',
workmen's, repairmen's, warehousemen's or other like liens arising in the
ordinary course of business and either not yet due and payable or being
contested in good faith by appropriate legal proceedings and as to which
adequate reserves shall have been set aside on its books, in conformity with
generally accepted accounting principles;
(iv) deposits or pledges to secure payment of
workers' compensation, unemployment insurance or other social security benefits
or obligations; or
(v) any judgment lien, unless the judgment it
secures shall not, within thirty (30) days after the entry thereof, have been
discharged, vacated, reversed, or execution thereof stayed pending appeal, or
shall not have been discharged, vacated or reversed within thirty (30) days
after the expiration of any such stay.
4.3 Sell, transfer, lease or otherwise dispose of any of its
material assets except in connection with the acquisition of replacement
property of equivalent kind and value.
4.4 Enter into any consolidation or merger with, or into any
acquisition of all or substantially all of the properties or assets of any
person or entity.
4.5 Change, in any material respect, the nature or character of
its business as intended, or engage in any activity not reasonably related to
such business.
4.6 Enter into any contract or commitment relating to its stock or
assets except for contracts involving aggregate payments of less than
Twenty-five Thousand Dollars ($25,000.00) and contracts which can be terminated
without penalty on thirty (30) days' notice or less, or amend or terminate any
material contract (or waive any substantial right
<PAGE> 7
-5-
thereunder), or incur any obligation (including obligations relating to the
borrowing of money or guarantee of indebtedness).
4.7 Transfer or grant any right under, or enter into any
settlement regarding the breach or infringement of, any license, patent,
copyright, trademark, service mark, trade name, franchise, or similar right, or
modify any existing right relating to the Seller.
4.8 Enter into any agreement or grant any person or entity a right
to purchase the Station's FCC licenses or all or substantially all of the
assets of the Seller, provided, however, that Seller may, following FCC
approval, transfer the State's FCC licenses to Whitehead-Ohio, a company
wholly-owned by Eddie L. Whitehead, in accordance with the Credit Agreement so
long as prior to such assignment Seller and Buyer shall have modified the
Purchase Agreement, in a manner acceptable to Buyer, to include Whitehead-Ohio
as a party thereto.
4.9 Enter into any agreement or take any other action that would
interfere with, or prevent, Seller's transferring the Assets to Buyer as
contemplated hereunder or under the Purchase Agreement.
4.10 Seller will notify Buyer promptly of the threat of, or
commencement against itself or its shareholder of any claim, suit, action,
arbitration, legal, administrative or other proceeding, or governmental
investigation or tax audit affecting the Station or Seller and will cooperate
fully with Buyer in taking any and all actions necessary or desirable to the
consummation of the transactions contemplated by this Agreement.
SECTION 5. MISCELLANEOUS
5.1 This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
5.2 No amendment, waiver of compliance with any provision or
condition hereof, or consent pursuant to this Agreement will be effective
unless evidenced by an instrument in writing signed by the parties.
5.3 The headings are for convenience only and will not control or
affect the meaning or construction of the provisions of this Agreement.
5.4 The construction and performance of this Agreement will be
governed by the laws of the State of Florida.
<PAGE> 8
-6-
5.5 Any notice, demand or request required or permitted to be
given under the provisions of this Agreement shall be in writing and shall be
deemed to have been duly delivered on the date of personal delivery or the date
of receipt if sent by a private air express service (postage prepaid) or mailed
by registered or certified mail, postage prepaid and return receipt requested,
and shall be deemed to have been received on the date of personal delivery or
on the date set forth on the return receipt, to the following addresses or to
such other address as any party may request, in the case of Seller, by
notifying Buyer, and in the case of Buyer, by notifying Seller:
To Seller: Whitehead Media, Inc.
Whitehead Media of Ohio, Inc.
12144 Classic Drive
Coral Springs, FL 33071
Telecopy: 305-752-2280
Telephone: 305-753-8712
To Buyer: Paxson Communications of Cleveland-67, Inc.
601 Clearwater Park Road
West Palm Beach, FL 33401
Telecopy: 407-659-4122
Telephone: 407-659-4252
5.6 This Agreement may be executed in one or more counterparts,
each of which will be deemed an original but all of which together will
constitute one and the same instrument.
5.7 After the date hereof, Buyer shall be afforded reasonable
opportunity to inspect the Station and the books and records of the Seller upon
reasonable request. Buyer's obligations hereunder and under the Purchase
Agreement are contingent upon and subject to prior confirmation and
verification by Buyer of the financial and other information made available to
Buyer by Seller, review of further financial or other information relating to
the purchase of the Assets and operation of the Station as may be requested by
Buyer, inspection of the assets and technical facilities of the Station, and
review and approval of the schedules and exhibits (and all underlying
documents) to be attached to the Purchase Agreement, all to the satisfaction of
Buyer in its sole discretion.
5.8 Buyer and Seller each agree that they will use their best
efforts to keep confidential (except for such disclosure to attorneys, bankers,
underwriters, investors, etc. as may be appropriate in the furtherance of this
transaction and except for such filings with the FCC as may be required) all
information of a confidential nature obtained in connection with
<PAGE> 9
-7-
the transactions contemplated by this Agreement, and in the event that such
transactions are not consummated, each party will return to the other party
such documents and other material obtained from the other party in connection
therewith.
5.9 Buyer and Seller shall jointly prepare, and determine the
timing of, any press release or other announcement to the public relating to
the execution of this agreement. No party hereto will issue any press release
or make any other public announcement relating to the transactions contemplated
hereby without the prior consent of the other party hereto, except that any
party may make any disclosure required to be made by it under applicable law if
it determines in good faith that it is appropriate to do so and gives prior
notice to the other party.
5.10 Each party shall bear all costs incurred by it in connection
with the transactions contemplated by this Agreement.
5.11 Seller agrees that from the date hereof and during the time
period in which the Option is exercisable hereunder, or if the Option is
exercised, during the period prior to execution of the Purchase Agreement, it
shall not offer or seek to offer, or entertain or discuss any offer, to sell
the Station or its Assets, other than as contemplated under this Agreement, nor
shall Seller permit its shareholder to offer, to seek to offer, or entertain or
discuss any offer to sell any of the capital stock of Seller without the
written consent of Buyer.
5.12 Prior to consummation of the Purchase Agreement and to
obtaining consent from the FCC, Buyer shall not, directly or indirectly,
control, supervise or direct or attempt to control, supervise or direct the
operations of the Station or Seller; such operations, including complete
ultimate control and supervision of all of the Station's programs, employees
and policies, shall remain the sole responsibility of Seller, as set forth in
the rules and policies of the FCC.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 10
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first written above.
WHITEHEAD MEDIA, INC.
By: /s/ Eddie Whitehead
--------------------------------
Name: Eddie Whitehead
Title: President
PAXSON COMMUNICATIONS
OF CLEVELAND-67, INC.
By: /s/ William L. Watson
--------------------------------
Name: William Watson
Title: Secretary
WHITEHEAD MEDIA OF OHIO, INC.
By: /s/ Eddie Whitehead
--------------------------------
Name: Eddie Whitehead
Title: President
<PAGE> 11
EXHIBIT A
FORM OF ASSET PURCHASE AGREEMENT
<PAGE> 12
- -------------------------------------------------------------------------------
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
WHITEHEAD MEDIA, INC.
AND
PAXSON COMMUNICATIONS OF CLEVELAND-67, INC.
FOR
TELEVISION STATION WOAC(TV),
CANTON, OHIO
__________________ ____, 199__
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<PAGE> 13
TABLE OF CONTENTS
<TABLE>
<CAPTION>
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<S> <C>
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Assets" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Assumed Contracts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Closing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Closing Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Consents" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Contracts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"FCC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"FCC Consent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"FCC Licenses" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Final Order" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Intangibles" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Licenses" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Permitted Liens" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Person" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Purchase Price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Real Property" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Tangible Personal Property" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2. PURCHASE AND SALE OF ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 Agreement to Sell and Buy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Excluded Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.3 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(a) Prorations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(b) Manner of Determining Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.4 Assumption of Liabilities and Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.1 Organization, Standing and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.2 Authorization and Binding Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.3 Absence of Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.4 Governmental Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.5 Title to and Condition of Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.6 Title to and Condition of Tangible Personal Property . . . . . . . . . . . . . . . . . . . . . . . . . 7
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3.7 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.8 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.9 Intangibles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.10 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.11 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.12 Personnel8
(a) Employees and Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(b) Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(c) Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.13 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.14 Claims and Legal Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.15 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.16 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.17 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.1 Organization, Standing and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.2 Authorization and Binding Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.3 Absence of Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.4 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.5 Buyer Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5. OPERATIONS OF THE STATION PRIOR TO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.2 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.3 Disposition of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.4 Encumbrances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.5 Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.6 Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.7 Access to Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.8 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.9 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.10 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.11 Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.12 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.1 FCC Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.2 Control of the Station . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.3 Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.4 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.5 Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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6.6 Access to Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.7 Broker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER AT CLOSING . . . . . . . . . . . . . . . . . . . . . . . . 16
7.1 Conditions to Obligations of Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(a) Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(b) Covenants and Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(c) Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(d) FCC Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(e) Governmental Authorizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(f) Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.2 Conditions to Obligations of Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(a)Representations and Warranties16
(b) Covenants and Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(c) Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(d) FCC Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 8. CLOSING AND CLOSING DELIVERIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
8.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(a) Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(b) Closing Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
8.2 Deliveries by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(a) Transfer Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(b) Estoppel Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(c) Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(d) Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(e) Licenses, Contracts, Business Records, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 18
(f) Opinions of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.3 Deliveries by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(a) Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(b) Assumption Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(c) Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(d) Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 9. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
9.1 Termination by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(a) Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(b) Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(c) Upset Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
9.2 Termination by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(a) Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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(b) Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(c) Upset Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
9.3 Rights on Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION; CERTAIN REMEDIES . . . . . . . . . . . . . 19
10.1 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
10.2 Indemnification by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
10.3 Indemnification by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
10.4 Procedure for Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
10.5 Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
10.6 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
11.1 Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
11.2 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
11.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
11.4 Benefit and Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
11.5 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
11.6 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
11.7 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
11.8 Gender and Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
11.9 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
11.10 Waiver of Compliance; Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
11.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
11.12 Press Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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LIST OF SCHEDULES
Schedule 2.2 -- Excluded Property
Schedule 3.3 -- Consents
Schedule 3.4 -- Licenses
Schedule 3.5 -- Real Property
Schedule 3.6 -- Tangible Personal Property
Schedule 3.7 -- Assumed Contracts
Schedule 3.9 -- Intangibles
Schedule 3.10 -- Insurance Policies
Schedule 3.12 -- Employee Matters
Schedule 8.2(f) -- Form of Opinion of Seller's Counsel
Schedule 8.3(d) -- Form of Opinion of Buyer's Counsel
<PAGE> 18
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT is dated as of __________ ___, 199__, by
and among Whitehead Media, Inc., a Florida corporation ("Seller"), and Paxson
Communications of Cleveland-67, Inc., a Florida corporation ("Buyer").
RECITALS
A. Seller is the owner and operator of television station
WOAC(TV), Canton, Ohio (the "Station"), pursuant to authorizations issued by
the Federal Communications Commission ("FCC").
B. Seller desires to sell, and Buyer wishes to buy, substantially
all the assets that are owned by Seller or in which Seller has a transferable
interest and which are used or useful in the business or operations of the
Station, for the price and on the terms and conditions set forth in this
Agreement.
AGREEMENTS
In consideration of the above recitals and of the mutual agreements
and covenants contained in this Agreement, Buyer and Seller, intending to be
bound legally, agree as follows:
SECTION 1. DEFINITIONS
The following terms, as used in this Agreement, shall have the
meanings set forth in this Section:
"Assets" means the assets to be sold, transferred, or otherwise
conveyed to Buyer under this Agreement, as specified in Section 2.1 and 2.2.
"Assumed Contracts" means (i) all Contracts listed in Schedule 3.7
that are to be assumed by Buyer upon its purchase of the Station, (ii) all
Contracts entered into by Seller in the ordinary course of business which
comply with the provisions of Section 5.3 hereof; and (iii) any other Contracts
entered into by Seller between the date of this Agreement and the Closing Date
that Buyer agrees in writing to assume.
"Closing" means the consummation of the purchase and sale of the
Assets pursuant to this Agreement in accordance with the provisions of Section
8.
"Closing Date" means the date on which the Closing occurs, as
determined pursuant to Section 8.
<PAGE> 19
"Consents" means the consents, permits, or approvals of government
authorities and other third parties necessary to transfer the Assets to Buyer
or otherwise to consummate the transactions contemplated by this Agreement.
"Contracts" means all contracts, leases, non-governmental licenses,
and other agreements (including leases for personal or real property and
employment agreements), written or oral (including any amendments and other
modifications thereto) to which Seller is a party or which are binding upon
Seller and which relate to or affect the Assets or the business or operations
of the Station, and (i) which are in effect on the date of this Agreement or
(ii) which are entered into by Seller between the date of this Agreement and
the Closing Date.
"FCC" means the Federal Communications Commission.
"FCC Consent" means action by the FCC granting its consent to the
assignment of the FCC Licenses to Buyer as contemplated by this Agreement.
"FCC Licenses" means all Licenses and/or Construction Permits issued
by the FCC to Seller in connection with the business or operations of the
Station.
"Final Order" means an action by the FCC that has not been reversed,
stayed, enjoined, set aside, annulled, or suspended, and with respect to which
no requests are pending for administrative or judicial review, reconsideration,
appeal, or stay, and the time for filing any such requests and the time for the
FCC to set aside the action on its own motion have expired.
"Intangibles" means all copyrights, trademarks, trade names, service
marks, service names, licenses, patents, permits, jingles, proprietary
information, technical information and data, machinery and equipment
warranties, and other similar intangible property rights and interests (and any
goodwill associated with any of the foregoing) applied for, issued to, or owned
y Seller or under which Seller is licensed or franchised and which are used or
useful in the business and operations of the Station, together with any
additions thereto between the date of this Agreement and the Closing Date.
"Licenses" means all licenses, permits, and other authorizations
issued by the FCC, the Federal Aviation Administration, or any other federal,
state, or local government authorities to Seller in connection with the conduct
of the business or operations of the Station, together with any additions
thereto between the date of this Agreement and the Closing Date.
"Permitted Liens" means liens for taxes not yet due and payable.
-2-
<PAGE> 20
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, or any
governmental entity.
"Purchase Price" means the purchase price specified in Section 2.3.
"Real Property" means Seller's interests in real property, leaseholds
and subleaseholds, purchase options, easements, licenses, rights to access, and
rights of way, and all buildings and other improvements thereon, which are used
or useful in the business or operations of the Station, together with any
additions thereto between the date of this Agreement and the Closing Date.
"Tangible Personal Property" means all machinery, equipment, tools,
furniture, leasehold improvements, office equipment, plant, inventory, spare
parts, and other tangible personal property which is owned by the Seller or in
which Seller has an interest and which is used or useful in the conduct of the
business or operations of the Station, together with any additions thereto
between the date of this Agreement and the Closing Date, but excluding any
Tangible Personal Property consumed in the ordinary course of business between
the date hereof and the Closing Date.
SECTION 2. PURCHASE AND SALE OF ASSETS
2.1 Agreement to Sell and Buy. Subject to the terms and
conditions set forth in this Agreement, Seller hereby agrees to sell, transfer,
assign and deliver to Buyer on the Closing Date, and Buyer agrees to purchase
and accept, all of the Assets and property interests owned by Seller or in
which Seller has a property interest which are used or useful in connection
with the conduct of the business or operations of the Station, together with
any additions thereto between the date of this Agreement and the Closing Date,
but excluding the assets described in Section 2.2, free and clear of any
claims, liabilities, security interests, mortgages, liens, pledges, conditions,
charges, or encumbrances of any nature whatsoever (except for Permitted Liens),
including the following:
(a) The Tangible Personal Property;
(b) The Real Property;
(c) The Licenses;
(d) The Assumed Contracts;
(e) The Intangibles, including the goodwill of
the Station, if any;
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(f) All proprietary information, technical
information and data, machinery and equipment warranties, maps, computer discs
and tapes, plans, diagrams, blueprints, and schematics, including filings with
the FCC relating to the business and operation of the Station, which belong to
Seller and is within its possession and control;
(g) All choses in action of Seller relating to
the Station that are assignable to Buyer as provided herein;
(h) All records required by the FCC to be kept by
the Station and copies of all other books and records which belong to Seller
and are within its possession and control relating to the business or
operations of the Station (exclusive of corporate, financial and accounting
records), including executed copies of the Assumed Contracts; and
2.2 Excluded Assets. The Assets shall exclude the following
assets.
(a) Seller's cash on hand as of the Closing and
all other cash in any of Seller's bank or savings accounts; any insurance
policies, letters of credit, or other similar items and cash surrender value in
regard thereto; and any stocks, bonds, certificates of deposit and similar
securities or other investments;
(b) All corporate and accounting records of
Seller and copies of all other books and records relating to the business and
operations of the Station; and
(c) All property listed on Schedule 2.2 hereto.
2.3 Purchase Price. The Purchase Price for the Assets shall be
Five Hundred Thousand Dollars ($500,000) adjusted as provided below and shall
be paid in cash at the Closing:
(a) Prorations. The Purchase Price shall be
increased or decreased as required to effectuate the proration of expenses as
of 11:59 p.m. local time, on the day prior to the Closing Date. All expenses
arising from the operation of the Station, including business and license fees,
utility charges, real and personal property taxes and assessments levied
against the Assets, property and equipment rentals, applicable copyright or
other fees, sales and service charges, taxes (except for taxes arising from the
transfer of the Asset under this Agreement which shall be governed by Section
11.1 hereof), prepaid time sales agreements and similar prepaid and deferred
items, shall be prorated between Buyer and Seller in accordance with the
principle that Seller shall be responsible for all expenses, costs, and
liabilities allocable to the period prior to the Closing Date, and Buyer shall
be responsible for all expenses, costs, and obligations allocable to the period
on and after the Closing Date. Notwithstanding the preceding sentence, there
shall be no adjustment for, and Seller shall remain solely liable with respect
to, any Contracts not included in the Assumed
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Contracts and any other obligation or liability not being assumed by Buyer in
accordance with Section 2.5.
(b) Manner of Determining Adjustments. Any
adjustments will, insofar as feasible, be determined and paid on the Closing
Date, with final settlement and payment by the appropriate party occurring no
later than ninety (90) days after the Closing Date or such other date as the
parties shall mutually agree upon.
2.4 Assumption of Liabilities and Obligations. As of the Closing
Date, Buyer shall (a) assume and undertake to pay, discharge, and perform all
obligations and liabilities of the Seller under the Licenses and the Assumed
Contracts insofar as they relate to the time on and after the Closing Date, and
arise out of events related to Buyer's ownership of the Assets or its operation
of the Station on or after the Closing Date and those relating to the period
prior to the Closing which Buyer agrees to assume pursuant to the prorations
and adjustments and (b) shall pay that portion of the principal and interest
due and payable following the Closing Date pursuant to the terms of the Credit
Agreement dated as of December 29, 1995 (the "Credit Agreement"), among
Whitehead Media, Inc. and its Affiliates, the several Lenders From Time to Time
Parties thereto, CIBC Inc., as Documentation Agent, and Banque Paribas, as
Administrative Agent that is allocable to the Station as set forth in Schedule
6.03 to the Credit Agreement. Buyer shall not assume any other obligations or
liabilities of Seller, including (i) any obligations or liabilities under any
Contract not included in the Assumed Contracts, (ii) any obligations or
liabilities under the Assumed Contracts relating to the period prior to the
Closing Date, (iii) any claims or pending litigation or proceedings relating to
the operation of the Station prior to the Closing, (iv) any obligations or
liabilities arising under agreements entered into other than in the ordinary
course of business, (v) any obligation to any employee of the Station for
severance benefits, vacation time, or sick leave accrued prior to the Closing
Date relating to any employee of Seller who is not employed or offered
employment by Buyer within the 90-day adjustment period, or (vi) any
obligations or liabilities caused by, arising out of, or resulting from any
action or omission of Seller prior to the Closing, and all such obligations and
liabilities shall remain and be the obligations and liabilities solely of
Seller.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Organization, Standing and Authority. Seller is a corporation
organized under the laws of Florida. Seller has all requisite power and
authority (i) to own, lease, and use the Assets as now owned, leased, and used,
(ii) to conduct the business operations of the Station as now conducted, and
(iii) to execute and deliver this Agreement and the documents contemplated
hereby, and to perform and comply with all of the terms, covenants, and
conditions to be performed and complied with by Seller hereunder and
thereunder. Seller is
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not a participant of any joint venture or partnership with any person or entity
with respect to any part of the operations of the Station or any of the Assets.
3.2 Authorization and Binding Obligation. The execution,
delivery, and performance of this Agreement by Seller have been duly authorized
by all necessary corporate actions on the part of Seller. This Agreement has
been duly executed and delivered by Seller and constitutes the legal, valid,
and binding obligation of Seller, enforceable against it in accordance with its
terms except as the enforceability of this Agreement may be affected by
bankruptcy, insolvency, or similar laws affecting creditors' rights generally,
and by judicial discretion in the enforcement of equitable remedies.
3.3 Absence of Conflicting Agreements. Subject to obtaining the
Consents listed on Schedule 3.3, the execution, delivery, the performance of
this Agreement and the documents contemplated hereby (with or without the
giving of notice, the lapse of time, or both): (i) do not require the consent
of any third party; (ii) will not conflict with, result in a breach of, or
constitute a default under, any law, judgment, order, ordinance, injunction,
decree, rule, regulation, or ruling of any court or governmental
instrumentality in a proceeding involving Seller; (iii) will not conflict with,
constitute grounds for termination of, result in a breach of, constitute a
default under, or accelerate or permit the acceleration of any performance
required by the terms of, any agreement, instrument, license, or permit to
which Seller is a party or by which Seller may be bound; (iv) will not create
any claim, liability, mortgage, lien, pledge, condition, charge, or encumbrance
of any nature whatsoever upon any of the Assets; and (v) will not conflict with
any provision of Seller's Certificate of Incorporation or By-laws.
3.4 Governmental Licenses. To the best of Seller's knowledge and
except as set forth on Schedule 3.4, (i) Schedule 3.4 includes a true and
complete list of the material Licenses and lists pending applications affecting
the Licenses; (ii) Seller has delivered to Buyer true and complete copies of
the Licenses listed on such Schedule (including any amendment and other
modifications thereto), (iii) the Licenses have been validly issued, and Seller
is the authorized legal holder thereof, (iv) the Licenses listed on Schedule
3.4 comprise all of the material licenses, permits, and other authorizations
required from any governmental or regulatory authority for the lawful conduct
of the business and operations of the Station in the manner and to the full
extent they are now conducted, (v) none of the Licenses is subject to any
restriction or condition that would limit the full operation of the Station as
now operated, (vi) the Licenses are in full force and effect, in all material
respects, and the conduct of the business and operations of the Station is in
material accordance therewith, and (vii) Seller has no reason to believe that
any of the Licenses would not be renewed by the FCC or other granting authority
in the ordinary course.
3.5 Title to and Condition of Real Property. Schedule 3.5
contains a complete and accurate description of all the Real Property and
Seller's interests therein (including street
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address, legal description, owner, and use and the location of all improvements
thereon). The Real Property listed on Schedule 3.5 comprises all real property
interests necessary to conduct the business and operations of the Station as
now conducted. With respect to each leasehold or subleasehold interest
included in the Real Property being conveyed under this Agreement, so long as
Seller fulfills its obligations under the lease therefor, Seller has
enforceable rights to nondisturbance and quiet enjoyment, and no third party
holds any interest in the leased premises with the right to foreclose upon
Seller's leasehold or subleasehold interest. Seller has full legal and
practical access to the Real Property. All easements, rights-of-way, and real
property licenses relating to the Real Property have been properly recorded in
the appropriate public recording offices. Seller will cooperate with Buyer and
provide such assistance as Buyer may reasonably request in connection with
Buyer's efforts to obtain on or before Closing, at Buyer's election and
expense, a policy of title insurance and a current survey with respect to the
Real Property, including, without limitation, using its best efforts to cause
all lease agreements relating to the Real Property to be recorded in the
appropriate public recording offices.
3.6 Title to and Condition of Tangible Personal Property.
Schedule 3.6 lists all material items of Tangible Personal Property. The
Tangible Personal Property listed on Schedule 3.6 comprises all material items
of tangible personal property used to conduct the business and operations of
the Station as now conducted exclusive of motor vehicles. Except as described
in Schedule 3.6, Seller owns and has good title to each item of Tangible
Personal Property, and none of the Tangible Personal Property owned by Seller
is subject to any security interest, mortgage, pledge, conditional sales
agreement, or other lien or encumbrance, except Permitted Liens.
3.7 Contracts. Schedule 3.7 is a true and complete list of all
Assumed Contracts except contracts with advertisers for the sale of advertising
time on the Station for cash at prevailing rates and which may be canceled by
the Station without penalty on not more than ninety days' notice. Seller has
delivered to Buyer true and complete copies of all written Assumed Contracts,
true and complete memoranda of all material oral Assumed Contracts (including
any amendments and other modifications to such Assumed Contracts), and a
schedule summarizing Seller's obligations under trade and barter agreements
relating to the Station. To the best of Seller's knowledge, all of the Assumed
Contracts are in full force and effect, and are valid, binding, and enforceable
in accordance with their terms and there is not under any Assumed Contract any
default by any party thereto or any event that, after notice or lapse of time
or both, could constitute a default. Except for the need to obtain the
Consents listed in Schedule 3.3, Seller has full legal power and authority to
assign its rights under the Assumed Contracts to Buyer in accordance with this
Agreement, and such assignment will not affect the validity, enforceability, or
continuation of any of the Assumed Contracts.
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3.8 Consents. Except for the FCC Consent provided in Section 6.1
and the other Consents described in Schedule 3.3, to the best of Seller's
knowledge, no consent, approval, permit, or authorization of, or declaration to
or filing with any governmental or regulatory authority, or any other third
party is required (i) to consummate this Agreement and the transactions
contemplated hereby, (ii) to permit Seller to assign or transfer the Assets to
Buyer, or (iii) to enable Buyer to conduct the business and operations of the
Station in essentially the same manner as such business and operations are now
conducted.
3.9 Intangibles. To the best of Seller's knowledge, Schedule 3.9
is a true and complete list of all material Intangibles (exclusive of those
listed in Schedule 3.4), all of which are valid and in good standing and
uncontested. Seller has delivered to Buyer copies of all documents
establishing or evidencing all intangibles.
3.10 Insurance. Schedule 3.10 is a true and complete list of all
insurance policies of Seller that insure any part of the Assets or the business
of the Station. All policies of insurance listed in Schedule 3.10 are in full
force and effect.
3.11 Reports. To the best of Seller's knowledge and except as set
forth in Schedule 3.4, all returns, reports, and statements that the Station is
currently required to file with the FCC or place in its Public File or file
with any other governmental agency have been filed, and all reporting
requirements of the FCC and other governmental authorities having jurisdiction
over Seller and the Station have been complied with in all material respects
and all of such returns, reports, and statements are substantially complete and
correct as filed.
3.12 Personnel.
(a) Employees and Compensation. Schedule 3.12 contains a
true and complete list of all employees of the Station, their job description,
date of hire, salary and amount and date of last salary increase. Schedule
3.12 also contains a true and complete list as of the date of this Agreement of
all employee benefit plans or arrangements applicable to the employees of the
Station and all fixed or contingent liabilities or obligations of Seller with
respect to any person now or formerly employed by Seller at the Station,
including pension or thrift plans, individual or supplemental pension or
accrued compensation arrangements, contributions to hospitalization or other
health or life insurance programs, incentive plans, bonus arrangements, and
vacation, sick leave, disability and termination arrangements or policies,
including workers' compensation policies, and a description of all fixed or
contingent liabilities or obligations of Seller with respect to any person now
or formerly employed at the Station or any person now or formerly retained as
an independent contractor at the Station.
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(b) Labor Relations. Seller is not a party to or subject
to any collective bargaining agreements with respect to the Station. Seller
has no written or oral contracts of employment with any employee of the
Station, other than those listed in Schedule 3.7.
(c) Liabilities. Seller has no liability of any kind to
or in respect of any employee benefit plan, including withdrawal liability
under Section 4201 of ERISA. Seller has not incurred any accumulated funding
deficiency within the meaning of ERISA or Section 4971 of the Internal Revenue
Code. Seller has not failed to make any required contributions to any employee
benefit plan. The Pension Benefit Guaranty Corporation has not asserted that
Seller has incurred any liability in connection with any such plan. No lien
has been attached and no person has threatened to attach a lien on any property
of Seller as a result of a failure to comply with ERISA.
3.13 Taxes. To the best of the Seller's knowledge, (i) Seller has
filed or caused to be filed all federal income tax returns and all other
federal, state, county, local, or city tax returns which are required to be
filed, and it has paid or caused to be paid all taxes shown on those returns or
on any tax assessment received by it to the extent that such taxes have become
due, and (ii) there are no governmental investigations or other legal,
administrative, or tax proceedings pursuant to which Seller is or could be made
liable for any taxes, penalties, interest, or other charges, the liability for
which could extend to Buyer as transferee of the business of the Station, and
no event has occurred that could impose on Buyer any transferee liability for
any taxes, penalties, or interest due or to become due from Seller.
3.14 Claims and Legal Actions. Except for any FCC rulemaking
proceedings generally affecting the broadcasting industry, and except as set
forth on Schedule 3.4, to the best of Seller's knowledge, there is no claim,
legal action, counterclaim, nor any order, decree or judgment, in progress or
pending, or to the knowledge of Seller threatened, against or relating to
Seller with respect to its ownership or operation of the Station or otherwise
relating to the Assets or the business or operations of the Station, nor does
Seller know or have reason to be aware of any basis for the same. In
particular, but without limiting the generality of the foregoing, and except as
forth on Schedule 3.14, to the best of Seller's knowledge, there are no
applications, complaints or proceedings pending or, to the best of its
knowledge, threatened (i) before the FCC relating to the business or operations
of the Station other than rule making proceedings which affect the radio
industry generally, (ii) before any federal or state agency relating to the
business or operations of the Station involving charges of illegal
discrimination under any federal or state employment laws or regulations, or
(iii) before any federal, state, or local agency relating to the business or
operations of the Station involving zoning issues under any federal, state, or
local zoning law, rule, or regulation.
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3.15 Environmental Matters.
(a) Seller has complied in all material respects with all
laws, rules, and regulations of all federal, state, and local governments (and
all agencies thereof) concerning the environment, public health and safety, and
employee health and safety, and no charge, complaint, action, suit, proceeding,
hearing, investigation, claim, demand, or notice has been filed or commenced
against Seller in connection with its ownership or operation of the Station
alleging any failure to comply with any such law, rule, or regulation.
(b) To the best of Seller's knowledge, Seller has no
liability relating to its ownership and operation of the Station (and there is
no basis related to the past or present operations, properties, or facilities
of Seller for any present or future charge, complaint, action, suit,
proceeding, hearing, investigation, claim, or demand against Seller giving rise
to any such liability) under any law, rule, or regulation of any federal,
state, or local government (or agency thereof) concerning release or threatened
release of hazardous substances, public health and safety, or pollution or
protection of the environment.
(c) To the best of Seller's knowledge, Seller has no
liability relating to its ownership and operation of the Station (and Seller
has not handled or disposed of any substance, arranged for the disposal of any
substance, or owned or operated any property or facility in any manner that
could form the basis for any present or future charge, complaint, action, suit,
proceeding, hearing, investigation, claim, or demand (under the common law or
pursuant to any statute) against Seller giving rise to any such liability) for
damage to any site, location, or body of water (surface of subsurface) or for
illness or personal injury.
(d) To the best of Seller's knowledge, Seller has no
liability relating to its ownership and operation of the Station (and there is
no basis for any present or future charge, complaint, action, suit, proceeding,
hearing, investigation, claim, or demand against Seller giving rise to any such
liability) under any law, rule, or regulation of any federal, state, or local
government (or agency thereof) concerning employee health and safety.
(e) In connection with its ownership or operation of the
Station, Seller has obtained and been in material compliance with all of the
terms and conditions of all permits, licenses, and other authorizations which
are required under, and has complied in all material respects with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules, and timetables which are contained in, all federal,
state, and local laws, rules, and regulations (including all codes, plans,
judgments, orders, decrees, stipulations, injunctions, and charges thereunder)
relating to public health and safety, worker health and safety, and pollution
or protection of the environment, including laws relating to emissions,
discharges, releases, or threatened releases of pollutants, contaminants, or
chemical, industrial, hazardous, or toxic materials or wastes into ambient air,
surface water, ground water, or lands or otherwise relating to the manufacture,
processing, distribution,
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use, treatment, storage, disposal, transport, or handling of pollutants,
contaminants, or chemical, industrial, hazardous, or toxic materials or wastes.
(f) To the best of Seller's knowledge, all properties and
equipment used in the business of the Station are and have been free of
asbestos and asbestos-related products, PCB's, dioxins, and Extremely Hazardous
Substances (as defined in Section 302 of the Emergency Planning and Community
Right-to-Know Act).
(g) No pollutant, contaminant, or chemical, industrial,
hazardous, or toxic material or waste has ever been manufactured, buried,
stored, spilled, leaked, discharged, emitted, or released by Seller in
connection with its ownership and operation of the Station or, to the best of
Seller's knowledge, after due investigation, by any other party on any Real
Property.
3.16 Compliance with Laws. To the best Seller's knowledge and
except as set forth on Schedule 3.4, Seller has complied in all material
respects with the Licenses and all federal, state, and local laws, rules,
regulations, and ordinances applicable or relating to the ownership and
operation of the Station. To the best of Seller's knowledge, neither the
ownership or use of the properties of the Station nor the conduct of the
business or operations of the Station conflicts with the rights of any other
person or entity.
3.17 Full Disclosure. No representation or warranty made by Seller
in this Agreement or in any certificate, document, or other instrument
furnished or to be furnished by Seller pursuant hereto contains or will
knowingly contain any untrue statement of a material fact.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 Organization, Standing and Authority. Buyer is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Florida and at Closing will be duly qualified to conduct business as a
foreign corporation in the State of Ohio. Buyer has all requisite power and
authority to execute and deliver this Agreement and the documents contemplated
hereby, and to perform and comply with all of the terms, covenants, and
conditions to be performed and complied with by Buyer hereunder and thereunder.
4.2 Authorization and Binding Obligation. The execution,
delivery, and performance of this Agreement by Buyer have been duly authorized
by all necessary actions on the part of Buyer. This Agreement has been duly
executed and delivered by Buyer and constitutes the legal, valid, and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms
except as the enforceability of this Agreement may be affected by
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bankruptcy, insolvency, or similar laws affecting creditors' rights generally
and by judicial discretion in the enforcement of equitable remedies.
4.3 Absence of Conflicting Agreements. Subject to obtaining the
Consents, the execution, delivery, and performance by Buyer of this Agreement
and the documents contemplated hereby (with or without the giving of notice,
the lapse of time, or both): (i) do not require the consent of any third party;
(ii) will not conflict with the Certificate of Incorporation or Bylaws of
Buyer; (iii) will not conflict with, result in a breach of, or constitute a
default under, any law, judgment, order, injunction, decree, rule, regulation,
or ruling of any court or governmental instrumentality; (iv) will not conflict
with, constitute grounds for termination of, result in a breach of, constitute
a default under, or accelerate or permit the acceleration of any performance
required by the terms of, any agreement, instrument, license, or permit to
which Buyer is a party or by which Buyer may be bound, such that Buyer could
not acquire the Assets or operate the Station.
4.4 Full Disclosure. No representation or warranty made by Buyer
in this Agreement or in any certificate, document, or other instrument
furnished or to be furnished by Buyer pursuant hereto contains or will
knowingly contain any untrue statement of a material fact.
4.5 Buyer Qualifications. Buyer is legally, financially and
otherwise qualified to be the licensee of, acquire, own and operate the Station
under the Communications Act of 1934, as amended, and the rules, regulations
and policies of the FCC. Buyer knows of no fact that would, under existing law
and the existing rules, regulations, policies and procedures of the FCC
disqualify Buyer as assignee of the FCC Licenses or as the owner and operator
of the Station.
SECTION 5. OPERATIONS OF THE STATION PRIOR TO CLOSING
5.1 Generally. Seller agrees that, between the date of this
Agreement and the Closing Date, Seller shall operate the Station in the
ordinary course of business in accordance with its past practices (except where
such conduct would conflict with the following covenants or with Seller's other
obligations under this Agreement), and in accordance with the other covenants
in this Section 5.
5.2 Contracts. Seller will not enter into any contract or
commitment which is not terminable on 90-days notice relating to the Station or
the Assets, or amend or terminate any Contract (or waive any material right
thereunder), or incur any obligation (including obligations relating to the
borrowing of money or the guaranteeing of indebtedness) that will be binding on
Buyer after Closing, except for cash time sales agreements made in the ordinary
course of business and other contracts or commitments involving less than
$5,000. Prior to the Closing Date, Seller shall deliver to Buyer a list of all
Contracts entered into
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between the date of this Agreement and the Closing Date, together with copies
of such Contracts.
5.3 Disposition of Assets. Seller shall not sell, assign, lease,
or otherwise transfer or dispose of any of the material Assets, except where no
longer used or useful in the business or operations of the Station or in
connection with the acquisition of replacement property of equivalent kind and
value.
5.4 Encumbrances. Seller shall not create, assume or permit to
exist any claim, liability, mortgage, lien, pledge, condition, charge, or
encumbrance of any nature whatsoever upon the Assets, except for (i) liens
which shall be removed prior to the Closing Date, (ii) liens for current taxes
not yet due and payable, and (iii) mechanics' liens and other similar liens,
which shall be removed prior to the Closing Date either by payment or posting
an appropriate indemnity bond.
5.5 Licenses. Seller shall not cause or permit, by any act or
failure to act, any of the Licenses issued by the FCC to expire or to be
revoked, suspended, or modified, or take any action that could cause the FCC or
any other governmental authority to institute proceedings for the suspension,
revocation, or adverse modification of any of the Licenses. Seller shall not
fail to prosecute with due diligence any applications to any governmental
authority in connection with the operation of the Station.
5.6 Rights. Seller shall not knowingly waive any material right
relating to the Station or any of the Assets.
5.7 Access to Information. Seller shall give Buyer and its
counsel, accountants, engineers, and other authorized representatives
reasonable access during normal business hours to the Assets and to all other
properties, equipment, books, records, Contracts, and documents relating to the
Station for the purpose of audit and inspection and will furnish or cause to be
furnished to Buyer or its authorized representatives all material information
with respect to the affairs and business of the Station that Buyer may
reasonably request (including any operations reports produced with respect to
the affairs and business of the Station).
5.8 Insurance. Seller shall maintain substantially the same
insurance coverage provided by the existing insurance policies on the Station
and the Assets.
5.9 Consents. Seller shall use its best efforts to obtain the
Consents described in Section 8.2(c), without any material change in the terms
or conditions of any Contract or License as in effect on the date of this
Agreement. Seller shall advise Buyer of any communications it receives
concerning the Consents and of any conditions proposed, considered, or
requested for any of the Consents. Upon Buyer's request, Seller shall
cooperate with Buyer and use its best efforts to obtain from the lessors under
each Real
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<PAGE> 31
Property lease such estoppel certificates and consents to the collateral
assignment of the lessee's interest under each such lease as Buyer's lenders
may request.
5.10 Books and Records. Seller shall maintain its books and
records relating to the Station in accordance with past practices.
5.11 Notification. Seller shall promptly notify Buyer in writing
of any material change in any of the information contained in Seller's
representations and warranties contained in Section 3 of this Agreement.
5.12 Compliance with Laws. Seller shall comply in all material
respects with all laws, rules, and regulations applicable or relating to the
ownership and operation of the Station.
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS
6.1 FCC Consent.
(a) The assignment of the FCC Licenses in connection with
the purchase and sale of the Assets pursuant to this Agreement shall be subject
to the prior consent and approval of the FCC.
(b) Seller and Buyer shall promptly prepare an
appropriate application for the FCC Consent and shall file the application with
the FCC within five (5) business days of the execution of this Agreement. The
parties shall prosecute the application with all reasonable diligence and
otherwise use their reasonable commercial efforts to obtain a grant of the
application as expeditiously as practicable. Each party agrees to comply with
any condition imposed on it by the FCC Consent, except that no party shall be
required to comply with a condition if (1) the condition was imposed on it as
the result of a circumstance the existence of which does not constitute a
breach by the party of any of its representations, warranties, or covenants
under this Agreement, and (2) compliance with the condition would have a
material adverse effect upon it. Buyer and Seller shall oppose any requests
for reconsideration or judicial review of the FCC Consent, provided, however,
that the parties shall continue to have all rights available to them pursuant
to Section 9 hereof. If the Closing shall not have occurred for any reason
within the original effective period of the FCC Consent, and neither party
shall have terminated this Agreement under Section 9, the parties shall jointly
request an extension of the effective period of the FCC Consent. No extension
of the FCC Consent shall limit the exercise by either party of its rights under
Section 9.
6.2 Control of the Station. Prior to Closing, Buyer shall not,
directly or indirectly, control, supervise, direct, or attempt to control,
supervise, or direct, the
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operations of the Station; such operations, including complete control and
supervision of all of the Station programs, employees, and policies, shall be
the sole responsibility of the Seller until the Closing.
6.3 Risk of Loss. The risk of any loss, damage, impairment,
confiscation, or condemnation of any of the Assets from any cause whatsoever
shall be borne by Seller at all times prior to the Closing.
6.4 Confidentiality. Except as necessary for the consummation of
the transaction contemplated by this Agreement, including Buyer's obtaining of
financing related hereto, and except as and to the extent required by law,
including, without limitation, disclosure requirements of federal or state
securities laws and rules and regulations of securities markets, each party
will keep confidential any information obtained from the other party in
connection with the transactions contemplated by this Agreement. Except as
provided in this Paragraph each party will refrain from disclosing any such
information to any third party. If this Agreement is terminated, each party
will return to the other party all copies of all documents and other all
information obtained by the such party from the other party in connection with
the transactions contemplated by this Agreement.
6.5 Cooperation. Buyer and Seller shall cooperate fully with each
other and their respective counsel and accountants in connection with any
actions required to be taken as part of their respective obligations under this
Agreement, and Buyer and Seller shall execute such other documents as may be
necessary and desirable to the implementation and consummation of this
Agreement, and otherwise use their reasonable commercial efforts to consummate
the transaction contemplated hereby and to fulfill their obligations under this
Agreement. Notwithstanding the foregoing, neither Buyer nor Seller shall have
any obligation (i) to expend funds to obtain any of the Consents or (ii) to
agree to any material adverse change in any License or Assumed Contract to
obtain a Consent required with respect thereto; provided, however, that Seller
shall be required to expend funds, if necessary, to cure any defaults in order
to obtain Consents and either party shall be required to expend funds in
respect of normal and usual filing fees and the fees of professional advisors.
6.6 Access to Books and Records. Seller shall provide Buyer
access and the right to copy for a period of four (4) years from the Closing
Date any books and records relating to the Assets but not included in the
Assets. Buyer shall provide Seller access and the right to copy for a period
of four (4) years from the Closing Date any books and records relating to the
Assets that are included in the Assets.
6.7 Broker. Each of Buyer and Seller represents and warrants that
neither it nor any person or entity acting on its behalf has incurred any
liability for any finders' or brokers' fees or commissions in connection with
the transactions contemplated by this Agreement.
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SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER
AT CLOSING
7.1 Conditions to Obligations of Buyer. All obligations of Buyer
at the Closing are subject at Buyer's option to the fulfillment or waiver by
Buyer prior to or at the Closing Date of each of the following conditions:
(a) Representations and Warranties. All material
representations and warranties of Seller contained in this Agreement shall be
true and complete in all material respects at and as of the Closing Date as
though made at and as of that time.
(b) Covenants and Conditions. Seller shall have
performed and complied in all material respects with all material covenants,
agreements, and conditions required by this Agreement to be performed or
complied with by it prior to or on the Closing Date.
(c) Consents. All Consents shall have been obtained and
delivered to Buyer without any material adverse change in the terms or
conditions of any agreement or any governmental license, permit, or other
authorization.
(d) FCC Consent. The FCC Consent shall have been granted
without the imposition on Buyer of any material conditions that need not be
complied with by Buyer under Section 6.1 hereof, Seller shall have complied
with any material conditions imposed on it by the FCC Consent, and the FCC
Consent shall have become a Final Order.
(e) Governmental Authorizations. Seller shall be the
holder of all material Licenses and there shall not have been any modification
of any material License that could have a material adverse effect on the
Station or the conduct of its business and operations. No proceeding shall be
pending the effect of which could be to revoke, cancel, fail to renew, suspend,
or modify adversely any material License. All FCC Licenses are material
Licenses.
(f) Deliveries. Seller shall have made or stand willing
to make all the deliveries to Buyer set forth in Section 8.2.
7.2 Conditions to Obligations of Seller. All obligations of
Seller at the Closing are subject at Seller's option to the fulfillment prior
to or at the Closing Date of each of the following conditions:
(a) Representations and Warranties. All material
representations and warranties of Buyer contained in this Agreement shall be
true and complete in all material respects at and as of the Closing Date as
though made at and as of that time.
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(b) Covenants and Conditions. Buyer shall have performed
and complied in all material respects with all material covenants, agreements,
and conditions required by this Agreement to be performed or complied with by
it prior to or on the Closing Date.
(c) Deliveries. Buyer shall have made or stand willing
to make all the deliveries set forth in Section 8.3.
(d) FCC Consent. The FCC Consent shall have been granted
without the imposition on Seller of any material conditions that need not be
complied with by Seller under Section 6.1 hereof and Buyer shall have complied
with any conditions imposed on it by the FCC Consent.
SECTION 8. CLOSING AND CLOSING DELIVERIES
8.1 Closing.
(a) Closing Date. The Closing shall take place at 10:00
a.m. on a date to be set by Buyer on at least five days' written notice to
Seller, that is (1) not earlier than the first business day after the FCC
Consent is granted, and (2) not later than ten business days following the date
upon which the FCC Consent has become a Final Order. If Buyer fails to specify
the date for Closing pursuant to the preceding sentence prior to the fifth
business day after the date upon which the FCC Consent becomes a Final Order,
the Closing shall take place on the tenth business day after the date upon
which the FCC Consent becomes a Final Order.
(b) Closing Place. The Closing shall be held at the
offices of Dow, Lohnes & Albertson, 1255 23rd Street, N.W, Suite 500,
Washington, D.C. 20037, or such other place that is agreed upon by Buyer and
Seller.
8.2 Deliveries by Seller. Prior to or on the Closing Date, Seller
shall deliver to Buyer the following, in form and substance reasonably
satisfactory to Buyer and its counsel:
(a) Transfer Documents. Subject to the provisions of
this Agreement, duly executed bills of sale, assignments, and other transfer
documents which shall be sufficient to vest good and marketable title to the
Assets in the name of Buyer, free and clear of all mortgages, liens,
restrictions, encumbrances, claims, and obligations except for Permitted Liens.
(b) Estoppel Certificate. An Estoppel Certificate of the
Lessor of the leasehold interests listed in Schedule 3.5.
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(c) Consents. An executed copy of any instrument
evidencing receipt of any Consent;
(d) Certificates. Certificates, dated as of the Closing
Date, executed by Seller certifying (1) that the material representations and
warranties of Seller contained in this Agreement are true and complete in all
material respects as of the Closing Date as though made on and as of that date;
and (2) that Seller have in all material respects performed and complied with
all of its material obligations, covenants, and agreements set forth in this
Agreement to be performed and complied with on or prior to the Closing Date and
such additional Certificates and confirmations to Buyer's lenders as Buyer may
reasonably request in connection with obtaining financing for the performance
of its payment obligations hereunder.
(e) Licenses, Contracts, Business Records, Etc. Copies
of all Licenses and Assumed Contracts;
(f) Opinions of Counsel. Opinions of Seller's counsel
dated as of the Closing Date, substantially in the form of Schedule 8.2(f)
hereto.
8.3 Deliveries by Buyer. Prior to or on the Closing Date, Buyer
shall deliver to Seller the following, in form and substance reasonably
satisfactory to Seller and its counsel;
(a) Purchase Price. The Purchase Price as provided in
Section 2.4;
(b) Assumption Agreements. Appropriate assumption
agreements pursuant to which Buyer shall assume and undertake to perform
Seller's obligations under the Licenses and Assumed Contracts arising on or
after the Closing Date;
(c) Officer's Certificate. A certificate, dated as of
the Closing Date, executed on behalf of Buyer by its President, certifying (1)
that the representations and warranties of Buyer contained in this Agreement
are true and complete in all material respects as of the Closing Date as though
made on and as of that date, and (2) that Buyer has in all material respects
performed and complied with all of its obligations, covenants, and agreements
set forth in this Agreement to be performed and complied with on or prior to
the Closing Date;
(d) Opinion of Counsel. An opinion of Buyer's counsel
dated as of the Closing Date, substantially in the form of Schedule 8.3(d)
hereto.
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SECTION 9. TERMINATION
9.1 Termination by Seller. This Agreement may be terminated by
Seller and the purchase and sale of the Assets abandoned, if Seller is not then
in material default, upon written notice to Buyer, upon the occurrence of any
of the following:
(a) Conditions. If, on the date that would otherwise be
the Closing Date, any of the conditions precedent to the obligations of Seller
set forth in this Agreement have not been satisfied or waived in writing by
Seller.
(b) Judgments. If there shall be in effect on the date
that would otherwise be the Closing Date any judgment, decree, or order, not
caused by Seller, that would prevent or make unlawful the Closing.
(c) Upset Date. If the Closing shall not have occurred
within eighteen (18) months of the date of this Agreement.
9.2 Termination by Buyer. This Agreement may be terminated by
Buyer and the purchase and sale of the Station abandoned, if Buyer is not then
in material default, upon written notice to Seller, upon the occurrence of any
of the following:
(a) Conditions. If on the date that would otherwise be
the Closing Date any of the conditions precedent to the obligations of Buyer
set forth in this Agreement have not been satisfied or waived in writing by
Buyer.
(b) Judgments. If there shall be in effect on the date
that would otherwise be the Closing Date any judgment, decree, or order, not
caused by Buyer, that would prevent or make unlawful the Closing.
(c) Upset Date. If the Closing shall not have occurred
within eighteen (18) months of the date of this Agreement.
(d) Rights on Termination. If this Agreement is
terminated pursuant to Section 9.1 or Section 9.2 and neither party is in
material breach of any provision of this Agreement, the parties hereto shall
not have any further liability to each other with respect to the purchase and
sale of the Assets.
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES
10.1 Representations and Warranties. All representations and
warranties contained in this Agreement shall be deemed continuing
representations and warranties and shall
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survive the closing for a period of twelve (12) months provided, however, that
as to any representation or warranty made by either the Buyer or Seller which
the other party knows, or has reason to believe, is not true as of the Closing
Date, such representation or warranty shall not survive the Closing. Until the
Closing, Buyer and Seller will immediately advise each other, in a detailed
written notice, of any fact or occurrence or any pending or threatened
occurrence of which any of them obtains knowledge and which (a) (if existing
and known at the date of the execution of this Agreement) would have been
required to be set forth or disclosed in or pursuant to this Agreement or a
Schedule hereto, (b) (if existing and known at any time prior to or at the
Closing) would make the performance by any party of a covenant contained in
this Agreement impossible or make that performance materially more difficult
than in the absence of that fact or occurrence, or (c) (if existing and known
at the time of the Closing) would cause a condition to any party's obligations
under this Agreement not to be fully satisfied.
10.2 Indemnification by Seller. Seller hereby agrees to indemnify
and hold Buyer harmless against and with respect to, and shall reimburse Buyer
for:
(a) Subject to the proviso contained in the first
sentence of Section 10.1, any and all losses, liabilities, or damages resulting
from any untrue representation, breach of warranty, or material omission or
nonfulfillment of any covenant by Seller contained in this Agreement or in any
certificate, document, or instrument delivered to Buyer under this Agreement.
(b) Any and all obligations of Seller not assumed by
Buyer pursuant to this Agreement, including any liabilities arising at any time
under any Contract not included in the Assumed Contracts.
(c) Any and all losses, liabilities, or damages
contingent or otherwise resulting from the operation or ownership of the
Station prior to the Closing Date, including any liabilities arising under the
Licenses or the Assumed Contracts which relate to events occurring prior to the
Closing Date.
(d) Any and all actions, suits, proceedings, claims,
demands, assessments, judgments, costs, and expenses, including reasonable
legal fees and expenses, incident to any of the foregoing or incurred in
investigating or attempting to avoid the same or to oppose the imposition
thereof, or in enforcing this indemnity.
10.3 Indemnification by Buyer. Buyer hereby agrees to indemnify
and hold Seller harmless against and with respect to, and shall reimburse
Seller for:
(a) Subject to the proviso contained in the first
sentence of Section 10.1, any and all losses, liabilities, or damages resulting
from any untrue representation, breach of
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<PAGE> 38
warranty, or material omission or nonfulfillment of any covenant by Buyer
contained in this Agreement or in any certificate, Schedule, document, or
instrument delivered to Seller under this Agreement.
(b) Any and all obligations of Seller assumed by Buyer
pursuant to this Agreement.
(c) Any and all losses, liabilities, or damages
contingent or otherwise, resulting from the operation or ownership of the
Station on and after the Closing.
(d) Any and all actions, suits, proceedings, claims,
demands, assessments, judgments, costs and expenses, including reasonable legal
fees and expenses, incident to any of the foregoing or incurred in
investigating or attempting to avoid the same or to oppose the imposition
thereof, or in enforcing this indemnity.
10.4 Procedure for Indemnification. The procedure for
indemnification shall be as follows:
(a) The party claiming indemnification (the "Claimant")
shall promptly give notice to the party from which indemnification is claimed
(the "Indemnifying Party") of any claim, whether between the parties or brought
by a third party, specifying in reasonable detail the factual basis for the
claim. If the claim relates to an action, suit, or proceeding filed by a third
party against Claimant, such notice shall be given by Claimant within as soon
as practicable after written notice of such action, suit, or proceeding was
given to Claimant.
(b) With respect to claims solely between the parties,
following receipt of notice from the Claimant of a claim, the Indemnifying
Party shall have thirty days to make such investigation of the claim as the
Indemnifying Party deems necessary or desirable. For the purposes of such
investigation, the Claimant agrees to make available to the Indemnifying Party
and/or its authorized representatives the information relied upon by the
Claimant to substantiate the claim. If the Claimant and the Indemnifying Party
agree at or prior to the expiration of the thirty- day period (or any mutually
agreed upon extension thereof) to the validity and amount of such claim, the
Indemnifying Party shall immediately pay to the Claimant the full amount of the
claim. If the Claimant and the Indemnifying Party do not agree within the
thirty-day period (or any mutually agreed upon extension thereof), the Claimant
may seek appropriate remedy at law or equity or under the arbitration
provisions of this Agreement, as applicable.
(c) With respect to any claim by a third party as to
which the Claimant is entitled to indemnification under this Agreement, the
Indemnifying Party shall have the right at its own expense, to participate in
or assume control of the defense of such claim, and the Claimant shall
cooperate fully with the Indemnifying Party subject to reimbursement for
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reasonable actual out-of-pocket expenses incurred by the Claimant as the result
of a request by the Indemnifying Party. If the Indemnifying Party elects to
assume control of the defense of any third-party claim, the Claimant shall have
the right to participate in the defense of such claim at its own expense. If
the Indemnifying Party does not elect to assume control or otherwise
participate int he defense of any third party claim, it shall be bound by the
results obtained by the Claimant with respect to such claim.
(d) If a claim, whether between the parties or by a third
party, requires immediate action, the parties will make every effort to reach a
decision with respect thereto as expeditiously as possible.
(e) The indemnification rights provided in Sections 10.2
and 10.3 shall extend to the shareholders, directors, officers, employees, and
representatives of any Claimant although for the purpose of the procedures set
forth in this Section 10.4, any indemnification claims by such parties shall be
made by and through the Claimant.
(f) Notwithstanding anything in this Agreement to the
contrary, neither party shall indemnify or otherwise be liable to the other
party for any breach of a representation or warranty, or for breach of any
covenant in this Agreement except to the extent the losses, obligations,
liabilities, costs and expenses of such party arising therefrom exceed in the
aggregate Ten Thousand Dollars ($10,000). The provisions of the foregoing
sentence shall not apply to liabilities assumed by either party pursuant to the
adjustments and prorations.
10.5 Specific Performance. The parties recognize that if Seller
breaches this Agreement and refuses to perform under the provisions of this
Agreement, monetary damages alone would not be adequate to compensate Buyer for
its injury. Buyer shall therefore be entitled, as its sole and exclusive
remedy, to obtain specific performance of the terms of this Agreement. If any
action is brought by Buyer to enforce this Agreement, Seller shall waive the
defense that there is an adequate remedy at law.
10.6 Attorneys' Fees. In the event of a default by either party
which results in a lawsuit or other proceeding for any remedy available under
this Agreement, the prevailing party shall be entitled to reimbursement from
the other party of its reasonable legal fees and expenses.
SECTION 11. MISCELLANEOUS
11.1 Fees and Expenses. Any federal, state, or local sales or
transfer tax arising in connection with the conveyance of the Assets by Seller
to Buyer pursuant to this Agreement shall be paid by Seller. Buyer and Seller
shall each pay one-half of the fee payable to the FCC in connection with the
filing of the application for FCC Consent. Except as otherwise
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<PAGE> 40
provided in this Agreement, each party shall pay its own expenses incurred in
connection with the authorization, preparation, execution, and performance of
this Agreement, including all fees and expenses of counsel, accountants,
agents, and representatives, and each party shall be responsible for all fees
or commissions payable to any finder, broker, advisor, or similar person
retained by or on behalf of such party.
11.2 Arbitration. Except as otherwise provided to the contrary
below, any dispute arising out of or related to this Agreement that Seller and
Buyer are unable to resolve by themselves shall be settled by arbitration in
the District of Columbia by a panel of three arbitrators. Seller and Buyer
shall each designate one disinterested arbitrator, and the two arbitrators so
designated shall select the third arbitrator. Before undertaking to resolve
the dispute, each arbitrator shall be duly sworn faithfully and fairly to hear
and examine the matters in controversy and to make a just award according to
the best of his or her understanding. The arbitration hearing shall be
conducted in accordance with the commercial arbitration rules of the American
Arbitration Association. The written decision of a majority of the arbitrators
shall be final and binding on Seller and Buyer. The costs and expenses of the
arbitration proceeding shall be assessed between Seller and Buyer in a manner
to be decided by a majority of the arbitrators, and the assessment shall be set
forth in the decision and award of the arbitrators. Judgment on the award, if
it is not paid within thirty days, may be entered in any court having
jurisdiction over the matter. No action at law or suit in equity based upon
any claim arising out of or related to this Agreement shall be instituted in
any court by Seller or Buyer against the other except (i) an action to compel
arbitration pursuant to this Section, (ii) an action to enforce the award of
the arbitration panel rendered in accordance with this Section, or (iii) a suit
for specific performance pursuant to Section 10.5.
11.3 Notices. All notices, demands, and requests required or
permitted to be given under the provisions of this Agreement shall be (a) in
writing, (b) sent by telecopy (with receipt personally confirmed by telephone),
delivered by personal delivery, or sent by commercial delivery service or
registered or certified mail, return receipt requested, (c) deemed to have been
given on the date of personal delivery or the date set forth in the records of
the delivery service or on the return receipt, and (d) addressed as follows:
If to Seller: Mr. Eddie L. Whitehead
Whitehead Media, Inc.
12144 Classic Drive
Coral Springs, FL 33071
Telephone: (305) 753-8712
Facsimile: (305) 752-2280
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<PAGE> 41
If to Buyer: Mr. Lowell W. Paxson
Paxson Communications of Cleveland-67, Inc.
601 Clearwater Park Road
West Palm Beach, FL 33401
Telecopy: (407) 659-4252
Telephone: (407) 659-4122
or to any other or additional persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this Section
11.3.
11.4 Benefit and Binding Effect. Neither party hereto may assign
this Agreement without the prior written consent of the other party hereto;
provided, however, that Buyer may assign its rights and obligations under this
Agreement to a wholly-owned subsidiary or commonly controlled affiliate without
seeking or obtaining Seller's prior approval, provided that such assignment
does not relieve Buyer of its responsibilities hereunder. Upon any permitted
assignment by Buyer or Seller in accordance with this Section 11.4, all
references to "Buyer" herein shall be deemed to be references to Buyer's
assignee and all references to "Seller" herein shall be deemed to be references
to Seller's assignee. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
11.5 Further Assurances. The parties shall take any actions and
execute any other documents that may be necessary or desirable to the
implementation and consummation of this Agreement, including, in the case of
Seller, any additional bills of sale, deeds, or other transfer documents that,
including, in the case of Seller, any additional bills of sale, deeds, or other
transfer documents that, in the reasonable opinion of Buyer, may be necessary
to ensure, complete, and evidence the full and effective transfer of the Assets
to Buyer pursuant to this Agreement.
11.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED,
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA (WITHOUT
REGARD TO THE CHOICE OF LAW PROVISIONS THEREOF).
11.7 Headings. The headings in this Agreement are included for
ease of reference only and shall not control or affect the meaning or
construction of the provisions of this Agreement.
11.8 Gender and Number. Words used in this Agreement, regardless
of the gender and number specifically used, shall be deemed and construed to
include any other gender, masculine, feminine, or neuter, and any other number,
singular or plural, as the context requires.
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11.9 Entire Agreement. This Agreement, the schedules, hereto, and
all documents, certificates, and other documents to be delivered by the parties
pursuant hereto, collectively represent the entire understanding and agreement
between Buyer and Seller with respect to the subject matter hereof. This
Agreement supersedes all prior negotiations between the parties and cannot be
amended, supplemented, or changed except by an agreement in writing that makes
specific reference to this Agreement and which is signed by the party against
which enforcement of any such amendment, supplement, or modification is sought.
11.10 Waiver of Compliance; Consents. Except as otherwise provided
in this Agreement, any failure of any of the parties to comply with any
obligation, representation, warranty, covenant, agreement, or condition herein
may be waived by the party entitled to the benefits thereof only by a written
instrument signed by the party granting such waiver, but such waiver or failure
to insist upon strict compliance with such obligation, representation,
warranty, covenant, agreement or condition shall not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure. Whenever this
Agreement requires or permits consent by or on behalf of any party hereto, such
consent shall be given in writing in a manner consistent with the requirements
for a waiver of compliance as set forth in this Section 11.10.
11.11 Counterparts. This Agreement may be signed in counterparts
with the same effect as if the signature on each counterpart were upon the same
instrument.
11.12 Press Releases. Neither party shall publish any press
release, make any other public announcement or otherwise communicate with any
news media concerning this Agreement or the transactions contemplated hereby
without the prior written consent of the other party; provided, however, that
nothing contained herein shall prevent either party from promptly making all
filings with governmental authorities as may, in its judgment, be required or
advisable in connection with the execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby, in which case the
other party shall be first notified in writing.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Asset
Purchase Agreement as of the day and year first above written.
PAXSON COMMUNICATIONS OF
CLEVELAND-67, INC.
By:
----------------------------
Name:
---------------------------
Title:
-------------------------
WHITEHEAD MEDIA, INC.
By:
-----------------------------
Name:
---------------------------
Title:
-------------------------
<PAGE> 1
EXHIBIT 10.39.3
<PAGE> 2
EXHIBIT 10.39.3
- --------------------------------------------------------------------------------
TIME BROKERAGE AGREEMENT
BY AND BETWEEN
WHITEHEAD MEDIA, INC.
AND
PAXSON COMMUNICATIONS OF CLEVELAND-67, INC.
FOR
TELEVISION STATION WOAC(TV), CANTON, OHIO
OCTOBER 30, 1995
- --------------------------------------------------------------------------------
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C>
SECTION 1. LEASE OF STATION AIR TIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Effective Date; Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.4 Option to Renew . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.5 Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.6 Licensee Operation of Station . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.7 Licensee Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.8 Programmer Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.9 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2. STATION OBLIGATIONS TO ITS COMMUNITY OF LICENSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 Licensee Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Additional Licensee Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.3 Responsibility for Employees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 3. STATION PROGRAMMING POLICIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.1 Broadcast Station Programming Policy Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.2 Licensee Control of Programming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.3 Programmer Compliance with Copyright Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.4 Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.5 Children's Television Advertising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.6 Payola . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.7 Cooperation on Programming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.8 Staffing Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 4. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.1 Programmer's Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.2 Licensee's Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.3 Limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.4 Time Brokerage Challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 5. ACCESS TO PROGRAMMER MATERIALS AND CORRESPONDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.1 Confidential Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.2 Political Advertising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 6. TERMINATION AND REMEDIES UPON DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
</TABLE>
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<PAGE> 4
<TABLE>
<S> <C>
6.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.3 Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.4 Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 7. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
7.1 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
7.2 Call Letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.3 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.4 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.5 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.6 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.7 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.8 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.9 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.10 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.11 No Joint Venture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
</TABLE>
-ii-
<PAGE> 5
TIME BROKERAGE AGREEMENT
TIME BROKERAGE AGREEMENT, made this 30 th day of October, 1995, by and
between WHITEHEAD MEDIA, INC., a Florida corporation (the "Licensee") and PAXSON
COMMUNICATIONS OF CLEVELAND-67, INC., a Florida corporation (the "Programmer").
WHEREAS, Licensee is seeking to acquire Television Station WOAC(TV),
Canton, Ohio (the "Station") pursuant to authorizations issued by the Federal
Communications Commission ("FCC").
WHEREAS, Programmer is involved in television station ownership and
operation.
WHEREAS, the Licensee wishes to retain Programmer to provide
programming for the Station that is in conformity with Station policies and
procedures, FCC policies for time brokerage arrangements, and the provisions
hereof.
WHEREAS, Programmer agrees to use the Station to broadcast such
programming of its selection that is in conformity with all rules, regulations
and policies of the FCC, subject to Licensee's full authority to manage and
control the operation of the Station.
WHEREAS, Programmer and Licensee agree to cooperate to make this Time
Brokerage Agreement work to the benefit of the public and both parties and as
contemplated in this Agreement.
NOW, THEREFORE, in consideration of the above recitals and mutual
promises and covenants contained herein, the parties, intending to be legally
bound, agree as follows:
SECTION 1. LEASE OF STATION AIR TIME
1.1 Representations. Both Licensee and Programmer represent that
they are legally qualified, empowered and able to enter into this Agreement and
that the execution, delivery, and performance hereof shall not constitute a
breach or violation of any material agreement, contract or other obligation to
which either party is subject or by which it is bound.
1.2 Effective Date; Term. The effective date of this Agreement
shall be the date of consummation of Licensee's acquisition of the Station
following FCC approval (the "Closing"). It shall continue in force for an
initial term of ten years from that date unless otherwise extended or
terminated as set forth below.
1.3 Scope. During the term of this Agreement and any renewal
thereof, Licensee shall make available to Programmer broadcast time upon the
Station as set forth in this Agreement. Programmer shall deliver such
programming, at its expense, to the Station's transmitter facilities or other
authorized remote control points as reasonably designated by Licensee. Subject
to Licensee's reasonable approval, as set forth in this Agreement,
<PAGE> 6
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Programmer shall provide programming of Programmer's selection complete with
commercial matter, news, public service announcements and other suitable
programming to the Licensee up to ninety-eight hours per week. Notwithstanding
the foregoing, the Licensee may designate such additional time as it may
require without any adjustment of the monthly consideration to be paid to
Licensee under Section 1.5 for the broadcast of programming necessary for the
Station to broadcast news, public affairs, children's, religious and
non-entertainment programming as required by the FCC. All program time not
reserved by or designated for Licensee shall be available for use by Programmer
and no other party.
1.4 Option to Renew. Subject to the termination provisions of
Section 6 hereof, this Agreement may be renewed for an additional term as
mutually agreed upon by the Licensee and the Programmer.
1.5 Consideration. As consideration for the air time made
available hereunder Programmer shall make payments to Licensee as set forth in
Attachment I.
1.6 Licensee Operation of Station. Licensee will have full
authority, power and control over the management and operations of the Station
during the term of this Agreement and during any renewal of such term.
Licensee will bear all responsibility for Station's compliance with all
applicable provisions of the Communications Act of 1934, as amended, (the
"Act") the rules, regulations and policies of the FCC and all other applicable
laws. Licensee shall be solely responsible for and pay in a timely manner all
operating costs of the Station, including but not limited to maintenance of the
studio and transmitting facility and costs of electricity, except that
Programmer shall be responsible for the costs of its programming as provided in
Sections 1.8 and 2.3 hereof. Licensee shall employ at its expense management
level and other employees consisting of a General Manager and such operational
and other personnel as outlined in the budget previously provided to
Programmer, who will direct the day-to-day operations of the Station, and who
will report to and be accountable to the Licensee. Licensee shall be
responsible for the salaries, taxes, insurance and related costs for all
personnel employed by the Station and shall maintain insurance satisfactory to
Programmer covering the Station's transmission facilities. During the term of
the Agreement and any renewal hereof, Programmer agrees to perform, without
charge, routine monitoring of the Station's transmitter performance and tower
lighting by remote control, if and when requested by Licensee.
1.7 Licensee Representations and Warranties. Licensee represents
and warrants as follows:
(a) Licensee owns and holds or will hold all licenses and
other permits and authorizations necessary for the operation of the Station,
and such licenses, permits and authorizations are and will be in full force and
effect throughout the term of this Agreement. There is not now pending, or to
Licensee's best knowledge, threatened, any action by the FCC or by any other
party to revoke, cancel, suspend, refuse to renew or modify adversely any of
<PAGE> 7
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such licenses, permits or authorizations. Licensee is not in material
violation of any statute, ordinance, rule, regulation, policy, order or decree
of any federal, state or local entity, court or authority having jurisdiction
over it or the Station, which would have an adverse effect upon the Licensee,
the Station or upon Licensee's ability to perform this Agreement. Licensee
shall not take any action or omit to take any action which would have an
adverse impact upon the Licensee, the Station or upon Licensee's ability to
perform this Agreement. All reports and applications required to be filed with
the FCC or any other governmental body have been, and during the course of the
term of this Agreement or any renewal thereof, will be filed in a timely and
complete manner. During the term of this Agreement and any renewal thereof,
Licensee shall not dispose of, transfer, assign or pledge any of Licensee's
assets and properties except with the prior written consent of the Programmer,
if such action would adversely affect Licensee's performance hereunder or the
business and operations of Licensee or the Station permitted hereby.
(b) Licensee shall pay, in a timely fashion, all of the
expenses incurred in operating the Station including salaries and benefits of
its employees, lease payments, utilities, taxes, programming expenses, etc., as
set forth in Attachment II (except those for which a good faith dispute has
been raised with the vendor or taxing authority), and shall provide Programmer
with a certificate of such timely payment within thirty (30) days of the end of
each month.
1.8 Programmer Responsibility. Programmer shall be solely
responsible for any expenses incurred in the origination and/or delivery of
programming from any remote location and for any publicity or promotional
expenses incurred by Programmer, including, without limitation, ASCAP and BMI
music license fees for all programming provided by Programmer. Such payments
by Programmer shall be in addition to any other payments to be made by
Programmer under this Agreement.
1.9 Contracts. Programmer will enter into no third-party
contracts, leases or agreements which will bind Licensee in any way except with
Licensee's prior written approval.
SECTION 2. STATION OBLIGATIONS TO ITS COMMUNITY OF LICENSE
2.1 Licensee Authority. Notwithstanding any other provision of
this Agreement, Programmer recognizes that Licensee has certain obligations to
broadcast programming to meet the needs and interests of viewers in Canton,
Ohio, the station's service area and the educational and informational needs of
children. From time to time the Licensee shall air specific programming on
issues of importance to the local community and educational and informational
programming for children. Nothing in this Agreement shall abrogate the
unrestricted authority of the Licensee to discharge its obligations to the
public and to comply with the Act and the rules and policies of the FCC.
<PAGE> 8
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2.2 Additional Licensee Obligations. Although both parties shall
cooperate in the broadcast of emergency information over the Station, Licensee
shall also retain the right to interrupt Programmer's programming in case of an
emergency or for programming which, in the good faith judgment of Licensee, is
of greater local or national public importance. Licensee shall also coordinate
with Programmer the Station's hourly station identification and any other
announcements required to be aired by FCC rules. Licensee shall continue to
maintain a main studio, as that term is defined by the FCC, within the
Station's principal community contour, shall maintain its local public
inspection file in accordance with FCC rules, regulations and policies, and
shall prepare and place in such inspection file or files in a timely manner all
material required by Section 73.3526 of the FCC's Rules, including without
limitation the Station's quarterly issues and program lists; information
concerning the broadcast of children's educational and informational
programming; and documentation of compliance with commercial limits applicable
to certain children's television programming. Programmer shall, upon request
by Licensee, provide Licensee with such information concerning Programmer's
programs and advertising as is necessary to assist Licensee in the preparation
of such information. Licensee shall also maintain the station logs, receive
and respond to telephone inquiries, and control and oversee any remote control
point which may be established for the Station.
2.3 Responsibility for Employees and Expenses. Programmer shall
employ and be solely responsible for the salaries, taxes, insurance and related
costs for all personnel used in the production of its programming (including,
but not limited to, salespeople, technical staff, traffic personnel, board
operators and programming staff). Licensee will provide and be responsible for
the Station personnel necessary for the broadcast transmission of its own
programs (including, without limitation, the Station's General Manager and such
operational and other personnel as may be necessary or appropriate), and will
be responsible for the salaries, taxes, benefits, insurance and related costs
for all the Licensee's employees used in the broadcast transmission of its
programs and necessary to other aspects of Station operation. Whenever on the
Station's premises, all personnel shall be subject to the overall supervision
of Licensee's General Manager.
SECTION 3. STATION PROGRAMMING POLICIES
3.1 Broadcast Station Programming Policy Statement. Licensee has
adopted and will enforce a Broadcast Station Programming Policy Statement (the
"Policy Statement"), a copy of which appears as Attachment III hereto and which
may be amended in a reasonable manner from time to time by Licensee upon notice
to Programmer. Programmer agrees and covenants to comply in all material
respects with the Policy Statement, to all rules and regulations of the FCC,
and to all changes subsequently made by Licensee or the FCC. Programmer shall
furnish or cause to be furnished the artistic personnel and material for the
programs as provided by this Agreement and all programs shall be prepared and
presented in conformity with the rules, regulations and policies of the FCC and
with the Policy Statement set forth in Attachment III hereto. All advertising
spots and promotional material or announcements shall comply with
<PAGE> 9
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applicable federal, state and local regulations and policies and shall be
produced in accordance with quality standards established by Programmer. If
Licensee determines that a program supplied by Programmer is for any reason,
within Licensee's sole discretion, unsatisfactory or unsuitable or contrary to
the public interest, or does not comply with the Policy Statement it may, upon
prior written notice to Programmer (to the extent time permits such notice),
suspend or cancel such program without liability to Programmer. Licensee will
use reasonable efforts to provide such written notice to Programmer prior to
the suspension or cancellation of such program.
3.2 Licensee Control of Programming. Programmer recognizes that
the Licensee has full authority to control the operation of the Station. The
parties agree that Licensee's authority includes but is not limited to the
right to reject or refuse such portions of the Programmer's programming which
Licensee believes to be unsatisfactory, unsuitable or contrary to the public
interest. Programmer shall have the right to change the programming supplied
to Licensee and shall give Licensee at least twenty-four (24) hours notice of
substantial and material changes in such programming.
3.3 Programmer Compliance with Copyright Act. Programmer
represents and warrants to Licensee that Programmer has full authority to
broadcast its programming on the Station, and that Programmer shall not
broadcast any material in violation of the Copyright Act. All music supplied
by Programmer shall be: (i) licensed by ASCAP, SESAC or BMI; (ii) in the
public domain; or (iii) cleared at the source by Programmer. Licensee will
maintain ASCAP, BMI and SESAC licenses as necessary. The right to use the
programming and to authorize its use in any manner shall be and remain vested
in Programmer.
3.4 Sales. Programmer shall retain all of the Station's network
compensation revenues, any revenues received from any network or program
supplier with respect to affiliation or use of programming by Programmer, any
retransmission consent revenues and all revenues from the sale of advertising
time within the programming it provides to the Licensee. Programmer shall be
responsible for payment of the commissions due to any national sales
representative engaged by it for the purpose of selling national advertising
which is carried during the programming it provides to Licensee. Unless
otherwise agreed between the parties, Licensee shall retain all revenues from
the sale of Station's advertising during the hours each week in which the
Licensee airs its own programming pursuant to Section 1.3 hereof.
3.5 Children's Television Advertising. Programmer agrees that it
will not broadcast advertising within programs originally designed for children
aged 12 years and under in excess of the amounts permitted under applicable FCC
rules, and will take all steps necessary to pre-screen children's programming
broadcast during the hours it is providing such programming, to establish that
advertising is not being broadcast in excess of the applicable FCC rules.
<PAGE> 10
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3.6 Payola. Programmer agrees that it will not accept any
consideration, compensation, gift or gratuity of any kind whatsoever,
regardless of its value or form, including, but not limited to, a commission,
discount, bonus, material, supplies or other merchandise, services or labor
(collectively "Consideration"), whether or not pursuant to written contracts or
agreements between Programmer and merchants or advertisers, unless the payer is
identified in the program for which Consideration was provided as having paid
for or furnished such Consideration, in accordance with the Act and FCC
requirements. Programmer agrees to annually, or more frequently at the request
of the Licensee, execute and provide Licensee with a Payola Affidavit from each
of its employees involved with the Station substantially in the form attached
hereto as Attachment IV.
3.7 Cooperation on Programming. Programmer and Licensee mutually
acknowledge their interest in ensuring that the Station serves the needs and
interests of viewers in Canton and the surrounding service area and agree to
cooperate to provide such service. Licensee shall, on a regular basis, assess
the issues of concern to residents of Canton and the surrounding area and
address those issues in its public service programming. Programmer, in
cooperation with Licensee, will endeavor to ensure that programming responsive
to the needs and interests of the community of license and surrounding area is
broadcast, in compliance with applicable FCC requirements. Licensee will
describe those issues and the programming that is broadcast in response to
those issues and place issues/programs lists in the Station's public inspection
file as required by FCC rules. Further, Licensee may request, and Programmer
shall provide, information concerning such of Programmer's programs as are
responsive to community issues so as to assist Licensee in the satisfaction of
its public service programming obligations. Licensee shall also evaluate the
local need for children's educational and informational programming and shall
inform Programmer of its conclusions in that regard. Licensee, in cooperation
with Programmer, will ensure that educational and informational programming for
children is broadcast over the Station in compliance with applicable FCC
requirements. Programmer shall also provide Licensee upon request such other
information necessary to enable Licensee to prepare records and reports
required by the Commission or other local, state or federal government
entities.
3.8 Staffing Requirements. Licensee will be in full compliance
with the main studio staff requirements as specified by the FCC.
SECTION 4. INDEMNIFICATION
4.1 Programmer's Indemnification. Programmer shall indemnify and
hold harmless Licensee from and against any and all claims, losses, costs,
liabilities, damages, forfeitures and expenses (including reasonable legal fees
and other expenses incidental thereto) of every kind, nature and description
(collectively, "Damages") resulting from (i) Programmer's breach of any
representation, warranty, covenant or agreement contained in this Agreement, or
(ii) any action taken by Programmer or its employees and agents with respect to
the Station, or any failure by
<PAGE> 11
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Programmer or its employees and agents to take any action with respect to the
Station, including, without limitation, Damages relating to violations of the
Act or any rule, regulation or policy of the FCC, slander, defamation or other
claims relating to programming provided by Programmer and Programmer's
broadcast and sale of advertising time on the Station.
4.2 Licensee's Indemnification. Licensee shall indemnify and hold
harmless Programmer from and against any and all claims, losses, consents,
liabilities, damages, FCC forfeitures and expenses (including reasonable legal
fees and other expenses incidental thereto) of every kind, nature and
description, arising out of Licensee's operations and broadcasts to the extent
permitted by law and any action taken by the Licensee or its employees and
agents with respect to the Station, or any failure by Licensee or its employees
and agents to take any action with respect to the Station.
4.3 Limitation. Neither Licensee nor Programmer shall be entitled
to indemnification pursuant to this section unless such claim for
indemnification is asserted in writing delivered to the other party.
4.4 Time Brokerage Challenge. If this Agreement is challenged at
the FCC, whether or not in connection with the Station's license renewal
application, counsel for the Licensee and counsel for the Programmer shall
jointly defend the Agreement and the parties' performance thereunder throughout
all FCC proceedings at the sole expense of the Programmer. If portions of this
Agreement do not receive the approval of the FCC Staff, then the parties shall
reform the Agreement as necessary to satisfy the FCC Staff's concerns or, at
Programmer's option and expense, seek reversal of the Staff's decision and
approval from the full Commission or a court of law.
SECTION 5. ACCESS TO PROGRAMMER MATERIALS AND CORRESPONDENCE
5.1 Confidential Review. Prior to the commencement of any
programming by Programmer under this Agreement, Programmer shall acquaint the
Licensee with the nature and type of the programming to be provided. Licensee
shall be entitled to review at its discretion from time to time on a
confidential basis any of Programmer's programming material it may reasonably
request. Programmer shall promptly provide Licensee with copies of all
correspondence and complaints received from the public (including any telephone
logs of complaints called in), and copies of all program logs and promotional
materials. However, nothing in this section shall entitle Licensee to review
the internal corporate or financial records of the Programmer.
5.2 Political Advertising. Programmer shall cooperate with
Licensee to assist Licensee in complying with all rules of the FCC regarding
political broadcasting. Licensee shall promptly supply to Programmer, and
Programmer shall promptly supply to Licensee, such
<PAGE> 12
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information, including all inquiries concerning the broadcast of political
advertising, as may be necessary to comply with FCC rules and policies,
including the lowest unit rate, equal opportunities, reasonable access,
political file and related requirements of federal law. Licensee, in
consultation with Programmer, shall develop a statement which discloses its
political broadcasting policies to political candidates, and Programmer shall
follow those policies and rates in the sale of political programming and
advertising. In the event that Programmer fails to satisfy the political
broadcasting requirements under the Act and the rules and regulations of the
FCC and such failure inhibits Licensee in its compliance with the political
broadcasting requirements of the FCC, then to the extent reasonably necessary
to assure such compliance, Programmer shall either provide rebates to political
advertisers or release broadcast time and/or advertising availabilities to
Licensee at no cost to Licensee.
SECTION 6. TERMINATION AND REMEDIES UPON DEFAULT
6.1 Termination. In addition to other remedies available at law
or equity, this Agreement may be terminated as set forth below by either
Licensee or Programmer by written notice to the other if the party seeking to
terminate is not then in material default or breach hereof, upon the occurrence
of any of the following:
(a) subject to the provisions of Section 7.9, this
Agreement is declared invalid or illegal in whole or substantial part by an
order or decree of an administrative agency or court of competent jurisdiction
and such order or decree has become final and no longer subject to further
administrative or judicial review;
(b) the other party is in material breach of its
obligations hereunder and has failed to cure such breach within thirty (30)
days of notice from the non-breaching party;
(c) the mutual consent of both parties;
(d) there has been a material change in FCC rules,
policies or precedent that would cause this Agreement to be in violation
thereof and such change is in effect and not the subject of an appeal or
further administrative review and this Agreement cannot be reformed, in a
manner acceptable to Buyer and Seller, to remove and/or eliminate the
violation; or
(e) by either party upon six months written notice to the
other party.
6.2 Termination Requirements and Procedures.
(a) Programmer may terminate this Agreement pursuant to
Section 6.1(e) hereof only if it pays Licensee an amount equal to six times the
monthly compensation due for the month preceding the notice of termination by
Programmer pursuant to Attachment I.
<PAGE> 13
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(b) Licensee may terminate this Agreement pursuant to
Section 6.1(e) hereof only if it pays Programmer Liquidated Damages, calculated
in accordance with Attachment V.
(c) During any period prior to the effective date of any
termination of this Agreement, Programmer and Licensee agree to cooperate in
good faith to ensure that Station operations will continue, to the extent
possible, in accordance with the terms of this Agreement and that the
termination of this Agreement is effected in a manner that will minimize, to
the extent possible, the resulting disruption of the Station's ongoing
operations.
6.3 Force Majeure. Any failure or impairment of the Station's
facilities or any delay or interruption in the broadcast of programs, or
failure at any time to furnish facilities, in whole or in part, for broadcast,
due to Acts of God, strikes, lockouts, material or labor restrictions by any
governmental authority, civil riot, floods and any other cause not reasonably
within the control of Licensee, or for power reductions necessitated for
maintenance of the Station or for maintenance of other stations located on the
tower from which the Station will be broadcasting, shall not constitute a
breach of this Agreement and Licensee will not be liable to Programmer for
reimbursement or reduction of the consideration owed to Licensee.
6.4 Other Agreements. During the term of this Agreement or any
renewal hereof, Licensee will not enter into any other agreement with any third
party that would conflict with or result in a material breach of this Agreement
by Licensee.
SECTION 7. MISCELLANEOUS
7.1 Assignment.
(a) Neither this Agreement nor any of the rights,
interests or obligations of either party hereunder shall be assigned,
encumbered, hypothecated or otherwise transferred without the prior written
consent of the other party, such consent not to be unreasonably withheld.
Notwithstanding the foregoing, Programmer shall have the right to collaterally
assign its rights and interests hereunder to its senior lenders.
(b) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
(c) Licensee agrees to enter into such agreements and
confirmations as Programmer's senior lenders may reasonably require: (i) to
acknowledge and confirm any collateral assignment of this Agreement to such
senior lenders; (ii) to provide for simultaneous notice and reasonable cure
rights, which rights must be exercised within 30 days after the 30-day period
specified in Section 6.1(b) hereof, to such senior lenders of any default by
Programmer under this Agreement; (iii) to provide simultaneous notice and
reasonable cure rights, which rights must be exercised within 30 days after the
expiration of the 30-day period specified in
<PAGE> 14
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Section 6.1(b) hereof, to such senior lenders prior to any election or action
by Licensee to terminate or cancel this Agreement pursuant to Section 6.1(b)
and, if requested by such senior lenders, to enter into a new Agreement on the
same terms and conditions as this Agreement with such senior lenders or their
nominee, successor or purchaser who (x) possesses all requisite qualifications
to hold FCC licenses, (y) has not had an authorization issued by the FCC
revoked or an application for license renewal denied by the FCC, and (z)
possesses the financial capacity to perform Programmer's obligations hereunder
("Lenders' Assignee"); (iv) in the event that such senior lenders shall be
entitled to foreclose or otherwise acquire Programmer's interest in this
Agreement, or if such senior lenders (or their nominee, successor or purchaser
who qualifies as a "Lenders' Assignee") shall have elected to enter into a new
Agreement, on the same terms and conditions as this Agreement, with Licensee,
to enable such senior lenders to acquire Programmer's interest in this
Agreement or assign such interest to any purchaser or assignee of such senior
lenders who qualifies as a "Lenders' Assignee", or require Licensee to enter
into a new Agreement, on the same terms and conditions as this Agreement,
directly with any purchaser or assignee of such senior lenders who qualifies as
a "Lenders' Assignee"; and (v) provide for such other assurances as such senior
lenders shall reasonably request in connection with the exercise of their
rights under this paragraph 7.1(c).
7.2 Call Letters. Upon request of Programmer, subject to the
consent of the Licensee, Licensee shall apply to the FCC for authority to
change the call letters of the Station (with the consent of the FCC) to such
call letters that Programmer shall reasonably designate. Licensee must
coordinate with Programmer any proposed changes to the call letters of the
Station before taking any action to change such letters.
7.3 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which
together will constitute one and the same instrument.
7.4 Entire Agreement. This Agreement and the Attachments hereto
embodies the entire agreement and understanding of the parties relating to the
operation of the Station. No amendment, waiver of compliance with any
provision or condition hereof, or consent pursuant to this Agreement will be
effective unless evidenced by an instrument in writing signed by the parties.
7.5 Taxes. Licensee and Programmer shall each pay its own ad
valorem taxes, if any, which may be assessed on such party's respective
personal property for the periods that such items are owned by such party.
Programmer shall pay all taxes, if any, to which the consideration specified in
Section 1.5 herein is subject, provided that Licensee is responsible for
payment of its own income taxes.
7.6 Headings. The headings are for convenience only and will not
control or affect the meaning or construction of the provisions of this
Agreement.
<PAGE> 15
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7.7 Governing Law. The obligations of Licensee and Programmer are
subject to applicable federal, state and local law, rules and regulations,
including, but not limited to, the Act and the Rules and Regulations of the
FCC. The construction and performance of the Agreement will be governed by the
laws of the State of Florida.
7.8 Notices. All notices, demands and requests required or
permitted to be given under the provisions of this Agreement shall be (i) in
writing, (ii) sent by telecopy (with receipt personally confirmed by
telephone), delivered by personal delivery, or sent by commercial delivery
service or certified mail, return receipt requested, (iii) deemed to have been
given on the date telecopied with receipt confirmed, the date of personal
delivery, or the date set forth in the records of the delivery service or on
the return receipt, and (iv) addressed as follows:
To Programmer: Paxson Communications of Cleveland-67, Inc.
601 Clearwater Park Road
West Palm Beach, FL 33401
Telecopy: (407) 659-4252
Telephone: (407) 659-4122
To Licensee: Whitehead Media, Inc.
12144 Classic Drive
Coral Springs, FL 33071
Telecopy: (305) 752-2280
Telephone: (305) 753-8712
or to any such other or additional persons and addresses as the parties
may from time to time designate in a writing delivered in accordance with this
Section 7.8.
7.9 Severability. If any provision of this Agreement or the
application thereof to any person or circumstances shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
In the event that the FCC alters or modifies its rules or policies in a fashion
which would raise substantial and material question as to the validity of any
provision of this Agreement, the parties hereto shall negotiate in good faith
to revise any such provision of this Agreement with a view toward assuring
compliance with all then existing FCC rules and policies which may be
applicable, while attempting to preserve, as closely as possible, the intent of
the parties as embodied in the provision of this Agreement which is to be so
modified.
7.10 Arbitration. Any dispute arising out of or related to this
Agreement that Licensee and Programmer are unable to resolve by themselves
shall be settled by arbitration in Miami, Florida by a panel of three
arbitrators. Licensee and Programmer shall each designate one
<PAGE> 16
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disinterested arbitrator and the two arbitrators designed shall select the
third arbitrator. The persons selected as arbitrators need not be professional
arbitrators, and persons such as lawyers, accountants and bankers shall be
acceptable. Before undertaking to resolve a dispute, each arbitrator shall be
duly sworn faithfully and fairly to hear and examine the matters in controversy
and to make a just award according to the best of his or her understanding.
The arbitration hearing shall be conducted in accordance with the commercial
arbitration rules of the American Arbitration Association. The written
decision of a majority of the arbitrators shall be final and binding on
Licensee and Programmer. The costs and expenses of the arbitration proceeding
shall be assessed between Licensee and Programmer in a manner to be decided by
a majority of the arbitrators, and the assessment shall be set forth in the
decision and award of the arbitrators. Judgment on the award, if it is not
paid within thirty days, may be entered in any court having jurisdiction over
the matter. No action at law or in equity based upon any claim arising out of
or related to this Agreement shall be instituted in any court by Licensee or
Programmer against the other except: (i) an action to compel arbitration
pursuant to this Section; or (ii) an action to enforce the award of the
arbitration panel rendered in accordance with this Section.
7.11 No Joint Venture. Nothing in this Agreement shall be deemed
to create a joint venture between the Licensee and the Programmer.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 17
- 13 -
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
LICENSEE: WHITEHEAD MEDIA, INC.
By: /s/ Eddie L. Whitehead
-----------------------------------------
Eddie L. Whitehead
President
PROGRAMMER: PAXSON COMMUNICATIONS
OF CLEVELAND-67, INC.
By: /s/ William L. Watson
-----------------------------------------
William L. Watson
Secretary
<PAGE> 18
ATTACHMENT I
Compensation Schedule
Upon execution of Licensee's acquisition of the Station, Programmer
shall pay Licensee an imprest deposit of Ten Thousand Dollars ($10,000) and,
thereafter, on a monthly basis, a fee of Seven Thousand Dollars ($7,000)
payable by the fifth day of each month. Programmer shall also reimburse
Licensee on a monthly basis for Licensee's payment of Station expenses listed
on Attachment II upon receipt from the Licensee of a certificate (with attached
invoices, etc.) documenting payment of those expenses.
Payments shall be made by delivery of a check to Licensee at an
address to be designated.
<PAGE> 19
ATTACHMENT II
Categories of Anticipated Station Expenses
(1) Lease and Utility Payments
(2) Employee Salaries and Benefits
(3) Property Insurance and Taxes
(4) Fees, Licenses and Professional Fees
(5) Miscellaneous Station Expenses
(6) Equipment Repair and Replacement
(7) Programming Expenses
(8) Debt Service
<PAGE> 20
ATTACHMENT III
Broadcast Station Programming Policy Statement
<PAGE> 21
BROADCAST STATION PROGRAMMING POLICY STATEMENT
The following sets forth the policies generally applicable to
the presentation of programming and advertising over Television Station
WOAC(TV), Canton, Ohio. All programming and advertising broadcast by the
station must conform to these policies and to the provisions of the
Communications Act of 1934, as amended [the "Act"], and the Rules and
Regulations of the Federal Communications Commission ["FCC"].
Station Identification
The station must broadcast a station identification announcement once an hour
as close to the hour as feasible in a natural break in the programming. The
announcement must include (1) the station's call letters (currently, WOAC);
followed immediately by (2) the station's city of license (Canton, Ohio).
Broadcast of Telephone Conversations
Before recording a telephone conversation for broadcast or broadcasting such a
conversation simultaneously with its occurrent, any party to the call must be
informed that the call will be broadcast or will be recorded for later
broadcast, and the party's consent to such broadcast must be obtained. This
requirement does not apply to calls initiated by the other party which are made
in a context in which it is customary for the station to broadcast telephone
calls.
Sponsorship Identification
When money, service, or other valuable consideration is either directly or
indirectly paid or promised as part of an arrangement to transmit any
programming, the station at the time of broadcast shall announce (1) that the
matter is sponsored, either whole or in part; and (2) by whom or on whose
behalf the matter is sponsored. Products or services furnished to the station
in consideration for an identification of any person, product, service,
trademark or brand name shall be identified in this manner.
In the case of any political or controversial issue broadcast for which any
material or service is furnished as an inducement for its transmission, an
announcement shall be made at the beginning and conclusion of the broadcast
stating (1) the material or service that has been furnished; and (2) the
person(s) or association(s) on whose behalf the programming is transmitted.
However, if the broadcast is 5 minutes duration or less, the required
announcement need only be made either at its beginning or end.
Prior to any sponsored broadcast involving political matters or controversial
issues, the station shall obtain a list of the chief executive officers,
members of the executive committee or board of directors of the sponsoring
organization and shall place this list in the station's public inspection file.
<PAGE> 22
- 2 -
Payola/Plugola
The station, its personnel, or its programmers shall not accept or agree to
accept from any person any money, service, or other valuable consideration for
the broadcast of any matter unless such fact is disclosed to the station so
that all required station identification announcements can be made. All
persons responsible for station programming must, from time to time, execute
such documents as may be required by station management to confirm their
understanding of and compliance with the FCC's sponsorship identification
requirements.
Rebroadcasts
The station shall not rebroadcast the signal of any other broadcast station
without first obtaining such station's prior written consent to such
rebroadcast.
Fairness
Station shall seek to afford coverage to contrasting viewpoints concerning
controversial issues of public importance.
Personal Attacks
The station shall not air attacks upon the honesty, character, integrity or
like personal qualities of any identified person or group. If such an attack
should nonetheless occur during the presentation of views on a controversial
issue of public importance, those responsible for programming shall submit a
tape or transcript of the broadcast to station management and to the person
attacked within 48 hours, and shall offer the person attacked a reasonable
opportunity to respond.
Political Editorials
Unless specifically authorized by station management, the station shall not air
any editorial which either endorses or opposes a legally qualified candidate
for public office.
Political Broadcasting
All "uses" of the station by legally qualified candidates for elective office
shall be in accordance with the Act and the FCC's Rules and policies, including
without limitation, equal opportunities requirements, reasonable access
requirements, lowest unit charge requirements and similar rules and
regulations.
<PAGE> 23
- 3 -
Obscenity and Indecency
The station shall not broadcast any obscene material. Material is deemed to be
obscene if the average person, applying contemporary community standards in the
local community, would find that the material, taken as a whole, appeals to the
prurient interest; depicts or describes in a patently offensive way sexual
conduct specifically defined by applicable state law; and taken as a whole,
lacks serious literary artistic, political or scientific value.
The station shall not broadcast any indecent material outside of the periods of
time prescribed by the Commission. Material is deemed to be indecent if it
includes language or material that, in context, depicts or describes, in terms
patently offensive as measured by contemporary community standards for the
broadcast medium, sexual or excretory activities or organs.
Billing
No entity which sells advertising for airing on the station shall knowingly
issue any bill, invoice or other document which contains false information
concerning the amount charged or the broadcast of advertising which is the
subject of the bill or invoice. No entity which sells advertising for airing
on the station shall misrepresent the nature or content of aired advertising,
nor the quantity, time of day, or day on which such advertising was broadcast.
Contests
Any contests conducted on the station shall be conducted substantially as
announced or advertised. Advertisements or announcements concerning such
contests shall fully and accurately disclose the contest's material terms. No
contest description shall be false, misleading or deceptive with respect to any
material term.
Hoaxes
The station shall not knowingly broadcast false information concerning a crime
or catastrophe.
Children's Programming
The station shall broadcast reasonable amounts of educational and informational
programming designed for children aged 16 years and younger.
Children's Advertising
Programming designed for children aged 12 years and younger shall not include
more than 12 minutes of commercial matter per hour, Monday through Friday, and
shall not include more than
<PAGE> 24
- 4 -
10.5 minutes of commercial matter per hour on weekend programming. There shall
be no host selling, as that term is defined by the FCC, in children's
programming on the station.
Emergency Information
Any emergency information which is broadcast by the station shall be
transmitted both aurally and visually or only visually.
Lottery
The station shall not advertise or broadcast any information concerning any
lottery (except the Ohio State Lottery and any other state lottery). The
station may advertise and provide information about lotteries conducted by
non-profit groups, governmental entities and in certain situations, by
commercial organizations, if and only if there is no state or local restriction
or ban on such advertising or information and the lottery is legal under state
or local law. Any and all lottery advertising must first be approved by
station management.
Advertising
Station shall comply with all federal, state and local laws concerning
advertising, including without limitation, all laws concerning misleading
advertising, and the advertising of alcoholic beverages.
Programming Prohibitions.
Knowing broadcast of the following types of programs and announcements is
prohibited:
False Claims. False or unwarranted claims for any product or
service.
Unfair Imitation. Infringements of another advertiser's
rights through plagiarism or unfair imitation of either
program idea or copy, or any other unfair competition.
Commercial Disparagement. Any unfair disparagement of
competitors or competitive goods.
Profanity. Any programs or announcements that are slanderous,
obscene, profane, vulgar, repulsive or offensive, as evaluated
by station management.
Violence. Any programs which are excessively violent.
Unauthenticated Testimonials. Any testimonials which cannot
be authenticated.
<PAGE> 25
ATTACHMENT IV
Payola Statement
<PAGE> 26
FORM OF PAYOLA AFFIDAVIT
City of ________________________ )
)
County of ______________________ ) SS:
)
State of _______________________ )
ANTI-PAYOLA/PLUGOLA AFFIDAVIT
________________________, being first duly sworn, deposes and says as follows:
1. He is _____________________ for _____________________.
Position
2. He has acted in the above capacity since ____________.
3. No matter has been broadcast by Station _____ for which
service, money or other valuable consideration has been
directly or indirectly paid, or promised to, or charged, or
accepted, by him from any person, which matter at the time so
broadcast has not been announced or otherwise indicated as
paid for or furnished by such person.
4. So far as he is aware, no matter has been broadcast by Station
_____ for which service, money, or other valuable
consideration has been directly or indirectly paid, or
promised to, or charged, or accepted by Station _____ or by
any independent contractor engaged by Station _____ in
furnishing programs, from any person, which matter at the time
so broadcast has not been announced or otherwise indicated as
paid for or furnished by such person.
5. In future, he will not pay, promise to pay, request, or
receive any service, money, or any other valuable
consideration, direct or indirect, from a third party, in
exchange for the influencing of, or the attempt to influence,
the preparation of presentation of broadcast matter on Station
_____.
6. Nothing contained herein is intended to, or shall prohibit
receipt or acceptance of anything with the expressed knowledge
and approval of my employer, but henceforth any such approval
must be given in writing by someone expressly authorized to
give such approval.
7. He, his spouse and his immediate family do___ do not___ have
any present direct or indirect ownership interest in (other
than an investment in a corporation whose stock is publicly
held), serve as an officer or director of, whether with or
without
<PAGE> 27
- 3 -
compensation, or serve as an employee of, any person, firm or
corporation engaged in:
1. The publishing of music;
2. The production, distribution (including wholesale and
retail sales outlets), manufacture or exploitation of
music, films, tapes, recordings or electrical
transcriptions of any program material intended for
radio broadcast use;
3. The exploitation, promotion, or management or persons
rendering artistic, production and/or other services
in the entertainment field;
4. The ownership or operation of one or more radio or
television stations;
5. The wholesale or retail sale of records intended for
public purchase;
6. Advertising on Station _____, or any other station
owned by its licensee (excluding nominal
stockholdings in publicly owned companies).
8. The facts and circumstances relating to such interest are
none____ as follows___:
_______________________________________________________________
_______________________________________________________________
___________________________________________
Affiant
Subscribed and sworn to before me
this ____ day of _________, 19___.
_________________________________
Notary Public
My Commission expires: ____________.
<PAGE> 28
ATTACHMENT V
Liquidated Damages
Licensee acknowledges that Programmer will make a substantial
advance payment in order to enter into the Time Brokerage Agreement; that
Programmer will acquire certain assets associated uniquely with the Station's
operation and will enter into various long-term agreements with program
suppliers and other third parties to produce programming for the Station at
substantial expense and risk; that Programmer will recruit, hire and maintain a
staff of employees dedicated to acquiring and producing quality programming to
be broadcast on the Station; and that Programmer will make substantial
investments in additional hard assets to produce quality programming for the
Station. Licensee also acknowledges that Programmer will make substantial
investments, both in tangible and intangible terms, to promote the Station
under the Time Brokerage Agreement, to create a unique image for the Station,
and to develop a competitive position in the market for the Station and that
such efforts on the part of Programmer will add substantial value to the
Station. Licensee and Programmer acknowledge and agree that any measure of
actual damages cannot compensate Programmer for the loss of Licensee's
performance under this Agreement and that the true measure of damages to
Programmer for termination or material breach of the Time Brokerage Agreement
by Licensee is incapable of accurate estimation with reasonable certainty.
Licensee and Programmer therefore agree that it is a fair and reasonable
forecast of just compensation for the harm caused to be measured by liquidated
damages, as defined in subparagraph (a) of this Attachment, to be paid to
Programmer upon the termination or material breach of the Time Brokerage
Agreement by Licensee.
(a) "Liquidated Damages" shall mean an amount equal to
funds expended and/or committed to be expended by Programmer (except (i) with
respect to items (3) through (8) below, such expenditures and/or commitments
shall be consistent with industry practices and (ii) to the extent not
theretofore recovered by Programmer from the Station 's gross revenues prior to
the termination or material breach) in each of the following categories:
(1) the full value of all of Programmer's capital
expenditures incurred in connection with this
Agreement, less any consideration received by
Programmer as a consequence of any sale of such
assets;
(2) the aggregate of the monthly payments made by
Programmer to Licensee pursuant to Attachment I;
(3) the full value of all service contracts and
programming agreements assumed and entered into by
Programmer for purposes of providing programming and
advertising to be broadcast on the Station, which
Programmer owns at the time of termination or breach
less any consideration received by Programmer as a
consequence of its good faith efforts to sell or
assign such agreements;
<PAGE> 29
- 2 -
(4) the full value of all severance and employee
benefit packages that Programmer, in its discretion,
shall provide to employees whose services would not
be required in the absence of the Time Brokerage
Agreement;
(5) the full value of any contract with third
parties, which could not be performed owing to
termination of breach, for services to be rendered in
connection with programming provided to the Station
including, without limitation, producers, advertising
salespeople, technicians, engineers, and any other
independent contractors whose services would not be
required in the absence of the Time Brokerage
Agreement;
(6) the full value of all expenses incurred to
promote the Station and position the Station in the
marketplace;
(7) all corporate, legal, administrative,
professional and brokerage expenses attributable to
Programmer's negotiation and performance of the Time
Brokerage Agreement; and
(8) the good will and intangible value associated
with Programmer's efforts under this Agreement to
create a unique image and competitive market position
for the Station.
(b) Should Licensee terminate or materially breach the
Time Brokerage Agreement, Programmer shall submit its computation of Liquidated
Damages under the categories set forth above to a "Big Six" accounting firm
mutually acceptable to the parties for independent auditing and verification.
Within thirty (30) days of verification, Licensee agrees to tender payment of
all verified amounts to Programmer; provided, however, that if Licensee objects
to any particular enumerated component of the Liquidated Damages, as verified,
it shall notify Programmer of such objection within fifteen (15) days of
verification. If thereafter Programmer and Licensee cannot agree as to the
amount of the objectionable component, either party shall have the right to
elect to arbitrate such dispute pursuant to Section 7.10 of the Time Brokerage
Agreement provided it gives written notice of its election to arbitrate by the
thirtieth (30) day following the date of Licensee's objection to Programmer's
verification. Notwithstanding that Licensee may question a particular
component of the Liquidated Damages and either party may elect arbitration of
the dispute, the reminder of the items comprising the Liquidated Damages shall
be paid by Licensee to Programmer within thirty (30) days of accounting
verification, as specified above. No payment shall be required as to any
contested component until the earlier of (i) Programmer and Licensee reaching
an agreement on the amount or (ii) entering of the arbitration award.
(c) If any category of Liquidated Damages is held
to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remainder of the categories of
<PAGE> 30
- 3 -
Liquidated Damages shall not be affected thereby, and the parties agree to use
their best efforts to negotiate a replacement category that is not invalid,
illegal or unenforceable.
<PAGE> 1
EXHIBIT 10.39.4
<PAGE> 2
[/R]
EXHIBIT 10.39.4
[/R]
AMENDMENT TO TIME BROKERAGE AGREEMENT
This Amendment to Time Brokerage Agreement ("Amendment") is entered
into as of the 29th day of December, 1995, by and between Whitehead Media,
Inc., a Florida corporation (the "Licensee"), and Paxson Communications of
Cleveland-67, Inc., a Florida corporation (the "Programmer").
W I T N E S S E T H:
WHEREAS, the Licensee and the Programmer are parties to that certain
Time Brokerage Agreement dated as of October 30, 1995; and
WHEREAS, the Licensee and the Programmer wish to modify several
provisions of the Time Brokerage Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained, the Licensee and the Programmer agree as follows:
1. Amendment. The Time Brokerage Agreement is hereby amended as
follows:
Existing Subsection (b) of Section 1.7 is deleted and is replaced with
the following:
(b) Licensee shall pay, in a timely fashion, all of the
expenses incurred in operating the Station including salaries and
benefits of its employees, lease payments, utilities, taxes,
programming expenses, debt service, etc., as set forth in Attachment
II (except those for which a good faith dispute has been raised with
the vendor or taxing authority), and shall provide Programmer with a
certificate of such timely payment within thirty (30) days of the end
of each month. In the event that Licensee shall fail to timely make
the payments called for by Attachment II hereof, Programmer may, upon
5 days notice to Licensee, make such payments directly to the vendor,
lender, etc., and such direct payment shall be in lieu of any
reimbursement called for by this subsection.
Existing Section 2.3 is deleted and is replaced with the following:
2.3 Responsibility for Employees and Expenses.
Programmer shall employ and be solely responsible for the salaries,
taxes, insurance and related costs for all personnel used in the
production of its programming (including, but not limited to,
salespeople, technical staff, traffic personnel, board operators and
programming staff). Programmer shall be responsible for purchasing
such additional equipment as Licensee and Programmer jointly agree is
necessary to upgrade the Station's technical facilities. Licensee and
Programmer shall negotiate in good faith and enter into a mutually
acceptable Lease Agreement providing for Licensee's unimpaired use of
such equipment on generally reasonable terms. Licensee will provide
and be responsible for the Station personnel necessary for the
broadcast transmission of its own programs (including, without
limitation, the Station's General Manager and such operational and
other personnel as may be necessary or appropriate), and will be
responsible for
<PAGE> 3
-2-
the salaries, taxes, benefits, insurance and related costs for all the
Licensee's employees used in the broadcast transmission of its
programs and necessary to other aspects of Station operation.
Whenever on the Station's premises, all personnel shall be subject to
the overall supervision of Licensee's General Manager.
Existing Section 7.1 is deleted and is replaced with the following:
7.1 Assignment.
(a) Neither this Agreement nor any of the rights,
interests or obligations of either party hereunder shall be assigned,
encumbered, hypothecated or otherwise transferred without the prior
written consent of the other party, such consent not to be
unreasonably withheld, provided, however, that Programmer acknowledges
that Licensee may not assign, encumber, hypothecate or otherwise
transfer this Agreement or any of its rights or interests hereunder
without the consent of the Licensee's lenders. Notwithstanding the
foregoing, Licensee and Programmer shall have the right to
collaterally assign its rights and interests hereunder to their
respective senior lenders.
(b) This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(c) Each party hereto agrees to enter into such
agreements and confirmations as the other party's senior lenders may
reasonably require: (i) to acknowledge and confirm any collateral
assignment of this Agreement to such senior lenders; (ii) to provide
for simultaneous notice and reasonable cure rights, which rights must
be exercised within 30 days after the 30-day period specified in
Section 6.1(b) hereof, to such senior lenders of any default by
Programmer or Licensee under this Agreement; (iii) to provide
simultaneous notice and reasonable cure rights, which rights must be
exercised within 30 days after the expiration of the 30-day period
specified in Section 6.1(b) hereof, to such senior lenders prior to
any election or action by Licensee or Programmer to terminate or
cancel this Agreement pursuant to Section 6.1(b) and, if requested by
such senior lenders, to enter into a new Agreement on the same terms
and conditions as this Agreement with such senior lenders or their
nominee, successor or purchaser who (x) possesses all requisite
qualifications to hold FCC licenses, (y) has not had an authorization
issued by the FCC revoked or an application for license renewal denied
by the FCC, and in the case of a request by Programmer's senior
lenders, (z) possesses the financial capacity to perform Programmer's
obligations hereunder ("Lenders' Assignee"); (iv) in the event that
such senior lenders shall be entitled to foreclose or otherwise
acquire Programmer's or Licensee's interest in this Agreement, or if
such senior lenders (or their nominee, successor or purchaser who
qualifies as a "Lenders' Assignee") shall have elected to enter into a
new Agreement, on the same terms and conditions as this Agreement,
with Licensee or Programmer, to enable such senior lenders to acquire
Programmer's or Licensee's interest in this Agreement or assign such
interest to any purchaser or assignee of such senior lenders who
qualifies as a "Lenders' Assignee", or require Licensee to enter into
a new Agreement, on the same terms and conditions as this Agreement,
directly with any purchaser or assignee of such senior lenders who
qualifies as a "Lenders' Assignee"; and (v) provide for such other
assurances as such senior lenders shall reasonably request in
connection with the exercise of their rights under this paragraph
7.1(c).
<PAGE> 4
-3-
2. Counterparts. This Amendment may be executed in counterparts.
3. References to Time Brokerage Agreement. Except as amended
hereby, all terms and provisions of the Time Brokerage Agreement shall remain
in full force and effect.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 5
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Time Brokerage Agreement the day and year first above written.
LICENSEE: WHITEHEAD MEDIA, INC.
By: /s/ Eddie Whitehead
---------------------------------
Name: Eddie Whitehead
Title: President
PROGRAMMER: PAXSON
COMMUNICATIONS OF CLEVELAND-67, INC.
By: /s/ William L. Watson
---------------------------------
Name: William L. Watson
Title: Secretary
<PAGE> 1
EXHIBIT 10.44.2
<PAGE> 2
EXHIBIT 10.44.2
- -------------------------------------------------------------------------------
OPTION AGREEMENT
BY AND AMONG
WHITEHEAD MEDIA, INC.
AND
WHITEHEAD MEDIA OF FLORIDA, INC.
AND
PAXSON COMMUNICATIONS OF FT. PIERCE-34, INC.
FOR
WTVX(TV), CHANNEL 34, FT. PIERCE, FLORIDA
DECEMBER 29, 1995
- -------------------------------------------------------------------------------
<PAGE> 3
OPTION AGREEMENT
This OPTION AGREEMENT is executed this 29th day of December 1995, by
and among WHITEHEAD MEDIA, INC., a Florida corporation ["Whitehead"], WHITEHEAD
MEDIA OF FLORIDA, INC., a Delaware corporation ("Whitehead-Florida" and
collectively with Whitehead, "Seller"), and PAXSON COMMUNICATIONS OF FT.
PIERCE-34, INC., a Florida corporation ["Buyer"].
WHEREAS, Whitehead is the owner and operator of Television Station
WTVX(TV), Channel 34, Ft. Pierce, Florida ["the Station"], pursuant to
authorizations issued by the Federal Communications Commission ["FCC"];
WHEREAS, Whitehead intends to assign to Whitehead-Florida the FCC
licenses for the Station;
WHEREAS, the parties have agreed that Seller will sell to Buyer an
option to purchase certain of the assets used and useful in the conduct of the
business and operation of the Station on the terms and conditions set forth
herein and subject to the FCC's rules, regulations and policies.
NOW THEREFORE, in consideration of the above and of the mutual
promises and covenants contained herein, and other good and valuable
consideration, the parties, intending to be legally bound, agree as follows:
SECTION 1. OPTION TO PURCHASE ASSETS
1.1 Option Price. In consideration of the payment of One Thousand
Dollars ($1,000) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Seller, the Seller hereby sells
and grants to Buyer an exclusive, irrevocable option [the "Option"] to purchase
the assets, real, personal and mixed, tangible and intangible, owned and held
by Seller that are used or useful in the conduct of the business and operations
of the Station [the "Station Assets"], free and clear of all material debts,
liens, encumbrances or other liabilities, subject to the terms and conditions
set forth herein.
1.2 Buyer may freely assign this Option to any other party, but
shall provide Seller with five (5) days' written notice to Seller. The rights
and obligations of any assignee of Buyer following such assignment shall be the
same as the rights and obligations of the Buyer hereunder. Buyer shall also be
permitted to assign its rights and interests hereunder to its lenders as
collateral security for Buyer's obligations to such lenders.
<PAGE> 4
-2-
1.3 The Option granted hereunder shall run for five (5) years
commencing on the date of this Agreement. Buyer shall provide five (5) days
written notice to Seller of its exercise of the Option.
1.4 In the event that the Option is exercised hereunder, the
parties shall, within ten days of Buyer's written notice thereof, execute an
Asset Purchase Agreement [the "Purchase Agreement"] in the form attached hereto
as Exhibit A, it being understood that the only change to such form shall be
changes, if any, in the information contained in the Schedules thereto and the
addition, if any, of Schedules thereto that are reasonably required to reflect
events occurring after the date hereof; provided, however, that Buyer shall not
be required to accept any such change that could reasonably be expected to
cause an adverse change in, or have an adverse effect on, the assets to be
conveyed to Buyer pursuant to the Purchase Agreement or the ability of Seller
to consummate the transactions contemplated by the Purchase Agreement, and
thereafter Buyer and Seller shall perform their respective obligations under
the Purchase Agreement, including, without limitation, filing and prosecuting
an appropriate application for FCC consent to the assignment of the FCC
licenses for the Station from Seller to Buyer. Notwithstanding anything
contained in this Agreement to the contrary, Buyer may withdraw its notice of
exercise of its Option at any time prior to its execution of the Purchase
Agreement without any liability to Seller.
SECTION 2. SPECIFIC PERFORMANCE
The parties agree that the FCC licenses and the broadcast business
made possible thereby are unique assets not readily available on the open
market. For this reason, Seller acknowledges that monetary damages alone would
not be adequate to compensate Buyer and that monetary damages alone would not
be adequate to compensate Buyer and that specific performance is an appropriate
remedy for Buyer in the event this Agreement is breached. The parties agree
that the rights afforded by the preceding sentence shall be in addition to any
and all rights Buyer may have at law or equity. If any action is brought by
Buyer to enforce this Agreement, Seller shall waive the defense that there is
an adequate remedy at law.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Whitehead and Whitehead-Florida are corporations duly
incorporated, validly existing and in good standing under the laws of the
States of Florida and Delaware, respectively.
3.2 Seller has and will have upon the exercise of the Option full
corporate power and authority to enter into this Option Agreement and the
Purchase Agreement and to
<PAGE> 5
-3-
consummate the transactions contemplated hereby and thereby. This Agreement
constitutes, and any other instruments contemplated hereby when executed will
constitute, the legal, valid and binding obligations of Seller, enforceable in
accordance with their terms, except as may be affected by bankruptcy and
insolvency laws and court-applied equitable principles.
3.3 The execution and delivery of this Agreement, the consummation
of the transactions contemplated hereby, and the compliance with the terms,
conditions and provisions of this Agreement, with or without the giving of
notice or the passage of time, or both, will not: (i) contravene any provision
of Seller's Articles of Incorporation or By-laws, (ii) conflict with or result
in a breach of or constitute a default under any of the terms, conditions or
provisions of any indenture, mortgage, loan or credit agreement or any other
agreement or instrument to which Seller is a party or by which it or any of the
assets of Seller may be bound or affected, or any decree, judgment or order of
any court or governmental department, commission, board, agency or
instrumentality, domestic or foreign, or any applicable law, ordinance, rule or
regulation, including but not limited to the Communications Act of 1934, as
amended ["the Act"], and the rules and regulations of the FCC promulgated
thereunder.
3.4 No representations or warranty by Seller in this Agreement
contains or will contain any untrue statement of a material fact, or omits or
will omit to state a material fact necessary to make this statement or facts
contained herein or therein not misleading.
SECTION 4. COVENANTS OF SELLER
So long as this Agreement is in effect, Seller covenants that it will
not, without the Buyer's prior written approval:
4.1 Create or incur, assume or suffer to exist any indebtedness,
obligation or liability, whether matured or unmatured, liquidated or
unliquidated, direct or contingent, joint or several, except for: (i)
indebtedness evidenced by the Credit Agreement of December 29, 1995; and (ii)
indebtedness (other than for borrowed money) incurred in the ordinary course of
business not to exceed Twenty Five Thousand Dollars ($25,000.00) in the
aggregate at any one time.
4.2 Create, assume or suffer to exist, directly or indirectly, any
security interest, mortgage, deed of trust, pledge, lien, charge or other
encumbrance, of any nature whatsoever upon any of its properties or assets, now
owned or hereafter as acquired, excluding, however, from the operation of this
covenant:
(i) any security interest or lien created pursuant to the
Credit Agreement ("Credit Agreement") dated as of December 29, 1995 among
Seller, the
<PAGE> 6
-4-
License Companies and Lenders referred to therein and Banque Paribas and CIBC
Inc., as Administrative Agent and Documentation Agent, respectively, for such
Lenders;
(ii) liens for taxes or assessments either not delinquent
or the validity of which are being contested in good faith by appropriate legal
or administrative proceedings and as to which adequate reserves shall have been
set aside on its books, in conformity with generally accepted accounting
principles;
(iii) materialmen's, mechanics', carriers', workmen's,
repairmen's, warehousemen's or other like liens arising in the ordinary course
of business and either not yet due and payable or being contested in good faith
by appropriate legal proceedings and as to which adequate reserves shall have
been set aside on its books, in conformity with generally accepted accounting
principles;
(iv) deposits or pledges to secure payment of workers'
compensation, unemployment insurance or other social security benefits or
obligations; or
(v) any judgment lien, unless the judgment it secures
shall not, within thirty (30) days after the entry thereof, have been
discharged, vacated, reversed, or execution thereof stayed pending appeal, or
shall not have been discharged, vacated or reversed within thirty (30) days
after the expiration of any such stay.
4.3 Sell, transfer, lease or otherwise dispose of any of its
material assets except in connection with the acquisition of replacement
property of equivalent kind and value.
4.4 Enter into any consolidation or merger with, or into any
acquisition of all or substantially all of the properties or assets of any
person or entity.
4.5 Change, in any material respect, the nature or character of
its business as intended, or engage in any activity not reasonably related to
such business.
4.6 Enter into any contract or commitment relating to its stock or
assets except for contracts involving aggregate payments of less than
Twenty-five Thousand Dollars ($25,000.00) and contracts which can be terminated
without penalty on thirty (30) days' notice or less, or amend or terminate any
material contract (or waive any substantial right thereunder), or incur any
obligation (including obligations relating to the borrowing of money or
guarantee of indebtedness).
4.7 Transfer or grant any right under, or enter into any
settlement regarding the breach or infringement of, any license, patent,
copyright, trademark, service
<PAGE> 7
-5-
mark, trade name, franchise, or similar right, or modify any existing right
relating to the Seller.
4.8 Enter into any agreement or grant any person or entity a right
to purchase the Station's FCC licenses or all or substantially all of the
assets of the Seller, provided, however, that Seller may, following FCC
approval, transfer the Station's FCC licenses to Whitehead-Florida, a company
wholly owned by Eddie L. Whitehead, in accordance with the Credit Agreement so
long as prior to such assignment Seller and Buyer shall have modified the
Purchase Agreement, in a manner acceptable to Buyer, to include
Whitehead-Florida as party thereto.
4.9 Enter into any agreement or take any other action that would
interfere with, or prevent, Seller's transferring the Assets to Buyer as
contemplated hereunder or under the Purchase Agreement.
4.10 Seller will notify Buyer promptly of the threat of, or
commencement against itself or its shareholder of any claim, suit, action,
arbitration, legal, administrative or other proceeding, or governmental
investigation or tax audit affecting the Station or Seller and will cooperate
fully with Buyer in taking any and all actions necessary or desirable to the
consummation of the transactions contemplated by this Agreement.
SECTION 5. MISCELLANEOUS
5.1 This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
5.2 No amendment, waiver of compliance with any provision or
condition hereof, or consent pursuant to this Agreement will be effective
unless evidenced by an instrument in writing signed by the parties.
5.3 The headings are for convenience only and will not control or
affect the meaning or construction of the provisions of this Agreement.
5.4 The construction and performance of this Agreement will be
governed by the laws of the State of Florida.
5.5 Any notice, demand or request required or permitted to be
given under the provisions of this Agreement shall be in writing and shall be
deemed to have been duly delivered on the date of personal delivery or the date
of receipt if sent by a private air express service (postage prepaid) or mailed
by registered or certified mail, postage prepaid and return receipt requested,
and shall be deemed to have been received on the date of personal delivery or
on the date set forth on the return receipt, to the following addresses or
<PAGE> 8
-6-
to such other address as any party may request, in the case of Seller, by
notifying Buyer, and in the case of Buyer, by notifying Seller:
To Seller: Whitehead Media, Inc.
Whitehead Media of Florida, Inc.
12144 Classic Drive
Coral Springs, FL 33071
Telecopy: 305-752-2280
Telephone: 305-753-8712
To Buyer: Paxson Communications of Ft. Pierce-34, Inc.
601 Clearwater Park Road
West Palm Beach, FL 33401
Telecopy: 407-659-4122
Telephone: 407-659-4252
5.6 This Agreement may be executed in one or more counterparts,
each of which will be deemed an original but all of which together will
constitute one and the same instrument.
5.7 After the date hereof, Buyer shall be afforded reasonable
opportunity to inspect the Station and the books and records of the Seller upon
reasonable request. Buyer's obligations hereunder and under the Purchase
Agreement are contingent upon and subject to prior confirmation and
verification by Buyer of the financial and other information made available to
Buyer by Seller, review of further financial or other information relating to
the purchase of the Assets and operation of the Station as may be requested by
Buyer, inspection of the assets and technical facilities of the Station, and
review and approval of the schedules and exhibits (and all underlying
documents) to be attached to the Purchase Agreement, all to the satisfaction of
Buyer in its sole discretion.
5.8 Buyer and Seller each agree that they will use their best
efforts to keep confidential (except for such disclosure to attorneys, bankers,
underwriters, investors, etc. as may be appropriate in the furtherance of this
transaction and except for such filings with the FCC as may be required) all
information of a confidential nature obtained in connection with the
transactions contemplated by this Agreement, and in the event that such
transactions are not consummated, each party will return to the other party
such documents and other material obtained from the other party in connection
therewith.
5.9 Buyer and Seller shall jointly prepare, and determine the
timing of, any press release or other announcement to the public relating to
the execution of this agreement. No party hereto will issue any press release
or make any other public announcement relating
<PAGE> 9
-7-
to the transactions contemplated hereby without the prior consent of the other
party hereto, except that any party may make any disclosure required to be made
by it under applicable law if it determines in good faith that it is
appropriate to do so and gives prior notice to the other party.
5.10 Each party shall bear all costs incurred by it in connection
with the transactions contemplated by this Agreement.
5.11 Seller agrees that from the date hereof and during the time
period in which the Option is exercisable hereunder, or if the Option is
exercised, during the period prior to execution of the Purchase Agreement, it
shall not offer or seek to offer, or entertain or discuss any offer, to sell
the Station or its Assets, other than as contemplated under this Agreement, nor
shall Seller permit its shareholder to offer, to seek to offer, or entertain or
discuss any offer to sell any of the capital stock of Seller without the
written consent of Buyer.
5.12 Prior to consummation of the Purchase Agreement and to
obtaining consent from the FCC, Buyer shall not, directly or indirectly,
control, supervise or direct or attempt to control, supervise or direct the
operations of the Station or Seller; such operations, including complete
ultimate control and supervision of all of the Station's programs, employees
and policies, shall remain the sole responsibility of Seller, as set forth in
the rules and policies of the FCC.
<PAGE> 10
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first written above.
WHITEHEAD MEDIA, INC.
By: /s/ Eddie Whitehead
------------------------------
Name: Eddie Whitehead
Title: President
PAXSON COMMUNICATIONS
OF FT. PIERCE-34, INC.
By: /s/ William L. Watson
------------------------------
Name: William L. Watson
Title: Secretary
WHITEHEAD MEDIA OF FLORIDA, INC.
By: /s/ Eddie Whitehead
------------------------------
Name: Eddie Whitehead
Title: President
<PAGE> 11
EXHIBIT A
FORM OF ASSET PURCHASE AGREEMENT
<PAGE> 12
- ------------------------------------------------------------------------------
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
WHITEHEAD MEDIA, INC.
AND
PAXSON COMMUNICATIONS OF FT. PIERCE-34, INC.
FOR
TELEVISION STATION WTVX(TV),
FT. PIERCE, FLORIDA
__________________ ____, 199__
- ------------------------------------------------------------------------------
<PAGE> 13
TABLE OF CONTENTS
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RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Assets" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Assumed Contracts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Closing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Closing Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Consents" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Contracts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"FCC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"FCC Consent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"FCC Licenses" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Final Order" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Intangibles" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Licenses" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Permitted Liens" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Person" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Purchase Price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Real Property" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Tangible Personal Property" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2. PURCHASE AND SALE OF ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 Agreement to Sell and Buy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Excluded Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.3 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(a) Prorations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(b) Manner of Determining Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.4 Assumption of Liabilities and Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.1 Organization, Standing and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.2 Authorization and Binding Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.3 Absence of Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.4 Governmental Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.5 Title to and Condition of Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.6 Title to and Condition of Tangible Personal Property . . . . . . . . . . . . . . . . . . . . . . . . . 7
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3.7 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.8 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.9 Intangibles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.10 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.11 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.12 Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(a) Employees and Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(b) Labor Relations9
(c) Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.13 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.14 Claims and Legal Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.15 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.16 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.17 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.1 Organization, Standing and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.2 Authorization and Binding Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.3 Absence of Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.4 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.5 Buyer Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5. OPERATIONS OF THE STATION PRIOR TO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.2 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.3 Disposition of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.4 Encumbrances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.5 Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.6 Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.7 Access to Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.8 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.9 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.10 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.11 Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.12 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.1 FCC Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.2 Control of the Station . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.3 Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.4 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.5 Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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6.6 Access to Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.7 Broker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.8 Consulting Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER AT CLOSING . . . . . . . . . . . . . . . . . . . . . . . . 16
7.1 Conditions to Obligations of Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(a) Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(b) Covenants and Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(c) Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(d) FCC Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(e) Governmental Authorizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(f) Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.2 Conditions to Obligations of Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(a) Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(b) Covenants and Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(c) Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(d) FCC Consent17
SECTION 8. CLOSING AND CLOSING DELIVERIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
8.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(a) Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(b) Closing Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
8.2 Deliveries by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(a) Transfer Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(b) Estoppel Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(c) Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(d) Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(e) Licenses, Contracts, Business Records, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 18
(f) Opinions of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(g) Consulting Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.3 Deliveries by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(a) Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(b) Assumption Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(c) Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(d) Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(e) Consulting Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 9. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
9.1 Termination by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(a) Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(b) Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
</TABLE>
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<TABLE>
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<S> <C>
(c) Upset Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
9.2 Termination by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(a) Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(b) Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(c) Upset Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
9.3 Rights on Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION; CERTAIN REMEDIES . . . . . . . . . . . . . 20
10.1 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
10.2 Indemnification by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
10.3 Indemnification by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
10.4 Procedure for Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
10.5 Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
10.6 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
11.1 Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
11.2 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
11.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
11.4 Benefit and Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
11.5 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
11.6 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
11.7 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
11.8 Gender and Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
11.9 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
11.10 Waiver of Compliance; Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
11.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
11.12 Press Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
</TABLE>
<PAGE> 17
LIST OF SCHEDULES
Schedule 2.2 -- Excluded Property
Schedule 3.3 -- Consents
Schedule 3.4 -- Licenses
Schedule 3.5 -- Real Property
Schedule 3.6 -- Tangible Personal Property
Schedule 3.7 -- Assumed Contracts
Schedule 3.9 -- Intangibles
Schedule 3.10 -- Insurance Policies
Schedule 3.12 -- Employee Matters
Schedule 8.2(f) -- Form of Opinion of Seller's Counsel
Schedule 8.3(d) -- Form of Opinion of Buyer's Counsel
<PAGE> 18
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT is dated as of __________ ___, 199__, by
and among Whitehead Media, Inc., a Florida corporation ("Seller"), and Paxson
Communications of Ft. Pierce-34, Inc., a Florida corporation ("Buyer").
RECITALS
A. Seller is the owner and operator of television station
WTVX(TV), Ft. Pierce, Florida (the "Station"), pursuant to authorizations
issued by the Federal Communications Commission ("FCC").
B. Seller desires to sell, and Buyer wishes to buy, substantially
all the assets that are owned by Seller or in which Seller has a transferable
interest and which are used or useful in the business or operations of the
Station, for the price and on the terms and conditions set forth in this
Agreement.
AGREEMENTS
In consideration of the above recitals and of the mutual agreements
and covenants contained in this Agreement, Buyer and Seller, intending to be
bound legally, agree as follows:
SECTION 1. DEFINITIONS
The following terms, as used in this Agreement, shall have the
meanings set forth in this Section:
"Assets" means the assets to be sold, transferred, or otherwise
conveyed to Buyer under this Agreement, as specified in Section 2.1 and 2.2.
"Assumed Contracts" means (i) all Contracts listed in Schedule 3.7
that are to be assumed by Buyer upon its purchase of the Station, (ii) all
Contracts entered into by Seller in the ordinary course of business which
comply with the provisions of Section 5.3 hereof; and (iii) any other Contracts
entered into by Seller between the date of this Agreement and the Closing Date
that Buyer agrees in writing to assume.
"Closing" means the consummation of the purchase and sale of the
Assets pursuant to this Agreement in accordance with the provisions of Section
8.
"Closing Date" means the date on which the Closing occurs, as
determined pursuant to Section 8.
<PAGE> 19
"Consents" means the consents, permits, or approvals of government
authorities and other third parties necessary to transfer the Assets to Buyer
or otherwise to consummate the transactions contemplated by this Agreement.
"Contracts" means all contracts, leases, non-governmental licenses,
and other agreements (including leases for personal or real property and
employment agreements), written or oral (including any amendments and other
modifications thereto) to which Seller is a party or which are binding upon
Seller and which relate to or affect the Assets or the business or operations
of the Station, and (i) which are in effect on the date of this Agreement or
(ii) which are entered into by Seller between the date of this Agreement and
the Closing Date.
"FCC" means the Federal Communications Commission.
"FCC Consent" means action by the FCC granting its consent to the
assignment of the FCC Licenses to Buyer as contemplated by this Agreement.
"FCC Licenses" means all Licenses and/or Construction Permits issued
by the FCC to Seller in connection with the business or operations of the
Station.
"Final Order" means an action by the FCC that has not been reversed,
stayed, enjoined, set aside, annulled, or suspended, and with respect to which
no requests are pending for administrative or judicial review, reconsideration,
appeal, or stay, and the time for filing any such requests and the time for the
FCC to set aside the action on its own motion have expired.
"Intangibles" means all copyrights, trademarks, trade names, service
marks, service names, licenses, patents, permits, jingles, proprietary
information, technical information and data, machinery and equipment
warranties, and other similar intangible property rights and interests (and any
goodwill associated with any of the foregoing) applied for, issued to, or owned
y Seller or under which Seller is licensed or franchised and which are used or
useful in the business and operations of the Station, together with any
additions thereto between the date of this Agreement and the Closing Date.
"Licenses" means all licenses, permits, and other authorizations
issued by the FCC, the Federal Aviation Administration, or any other federal,
state, or local government authorities to Seller in connection with the conduct
of the business or operations of the Station, together with any additions
thereto between the date of this Agreement and the Closing Date.
"Permitted Liens" means liens for taxes not yet due and payable.
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<PAGE> 20
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, or any
governmental entity.
"Purchase Price" means the purchase price specified in Section 2.3.
"Real Property" means Seller's interests in real property, leaseholds
and subleaseholds, purchase options, easements, licenses, rights to access, and
rights of way, and all buildings and other improvements thereon, which are used
or useful in the business or operations of the Station, together with any
additions thereto between the date of this Agreement and the Closing Date.
"Tangible Personal Property" means all machinery, equipment, tools,
furniture, leasehold improvements, office equipment, plant, inventory, spare
parts, and other tangible personal property which is owned by the Seller or in
which Seller has an interest and which is used or useful in the conduct of the
business or operations of the Station, together with any additions thereto
between the date of this Agreement and the Closing Date, but excluding any
Tangible Personal Property consumed in the ordinary course of business between
the date hereof and the Closing Date.
SECTION 2. PURCHASE AND SALE OF ASSETS
2.1 Agreement to Sell and Buy. Subject to the terms and
conditions set forth in this Agreement, Seller hereby agrees to sell, transfer,
assign and deliver to Buyer on the Closing Date, and Buyer agrees to purchase
and accept, all of the Assets and property interests owned by Seller or in
which Seller has a property interest which are used or useful in connection
with the conduct of the business or operations of the Station, together with
any additions thereto between the date of this Agreement and the Closing Date,
but excluding the assets described in Section 2.2, free and clear of any
claims, liabilities, security interests, mortgages, liens, pledges, conditions,
charges, or encumbrances of any nature whatsoever (except for Permitted Liens),
including the following:
(a) The Tangible Personal Property;
(b) The Real Property;
(c) The Licenses;
(d) The Assumed Contracts;
(e) The Intangibles, including the goodwill of
the Station, if any;
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<PAGE> 21
(f) All proprietary information, technical
information and data, machinery and equipment warranties, maps, computer discs
and tapes, plans, diagrams, blueprints, and schematics, including filings with
the FCC relating to the business and operation of the Station, which belong to
Seller and is within its possession and control;
(g) All choses in action of Seller relating to
the Station that are assignable to Buyer as provided herein;
(h) All records required by the FCC to be kept by
the Station and copies of all other books and records which belong to Seller
and are within its possession and control relating to the business or
operations of the Station (exclusive of corporate, financial and accounting
records), including executed copies of the Assumed Contracts; and
2.2 Excluded Assets. The Assets shall exclude the following
assets.
(a) Seller's cash on hand as of the Closing and
all other cash in any of Seller's bank or savings accounts; any insurance
policies, letters of credit, or other similar items and cash surrender value in
regard thereto; and any stocks, bonds, certificates of deposit and similar
securities or other investments;
(b) All corporate and accounting records of
Seller and copies of all other books and records relating to the business and
operations of the Station; and
(c) All property listed on Schedule 2.2 hereto.
2.3 Purchase Price. The Purchase Price for the Assets, adjusted
as provided below, shall be paid in cash at the Closing and shall be:
(i) Five Hundred Thousand Dollars
($500,000), if the application for FCC Consent is filed on or prior to August
5, 1996;
(ii) One Million Dollars ($1,000,000), if
the application for FCC Consent is filed between August 6, 1996 and August 5,
1997;
(iii) One Million Five Hundred Thousand
Dollars ($1,500,000) if the application for FCC Consent is filed after August
5, 1997.
(a) Prorations. The Purchase Price shall be
increased or decreased as required to effectuate the proration of expenses as
of 11:59 p.m. local time, on the day prior to the Closing Date. All expenses
arising from the operation of the Station, including business and license fees,
utility charges, real and personal property taxes and assessments levied
against the Assets, property and equipment rentals, applicable copyright or
other fees,
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<PAGE> 22
sales and service charges, taxes (except for taxes arising from the transfer of
the Asset under this Agreement which shall be governed by Section 11.1 hereof),
prepaid time sales agreements and similar prepaid and deferred items, shall be
prorated between Buyer and Seller in accordance with the principle that Seller
shall be responsible for all expenses, costs, and liabilities allocable to the
period prior to the Closing Date, and Buyer shall be responsible for all
expenses, costs, and obligations allocable to the period on and after the
Closing Date. Notwithstanding the preceding sentence, there shall be no
adjustment for, and Seller shall remain solely liable with respect to, any
Contracts not included in the Assumed Contracts and any other obligation or
liability not being assumed by Buyer in accordance with Section 2.5.
(b) Manner of Determining Adjustments. Any
adjustments will, insofar as feasible, be determined and paid on the Closing
Date, with final settlement and payment by the appropriate party occurring no
later than ninety (90) days after the Closing Date or such other date as the
parties shall mutually agree upon.
2.4 Assumption of Liabilities and Obligations. As of the Closing
Date, Buyer shall (a) assume and undertake to pay, discharge, and perform all
obligations and liabilities of the Seller under the Licenses and the Assumed
Contracts insofar as they relate to the time on and after the Closing Date, and
arise out of events related to Buyer's ownership of the Assets or its operation
of the Station on or after the Closing Date and those relating to the period
prior to the Closing which Buyer agrees to assume pursuant to the prorations
and adjustments and (b) shall pay that portion of the principal and interest
due and payable following the Closing Date pursuant to the terms of the Credit
Agreement dated as of December 29, 1995, among Whitehead Media, Inc. and its
Affiliates, the several Lenders From Time to Time Parties thereto, CIBC Inc.,
as Documentation Agent, and Banque Paribas, as Administrative Agent that is
allocable to the Station as set forth in Schedule 6.03 to the Credit Agreement.
Buyer shall not assume any other obligations or liabilities of Seller,
including (i) any obligations or liabilities under any Contract not included in
the Assumed Contracts, (ii) any obligations or liabilities under the Assumed
Contracts relating to the period prior to the Closing Date, (iii) any claims or
pending litigation or proceedings relating to the operation of the Station
prior to the Closing, (iv) any obligations or liabilities arising under
agreements entered into other than in the ordinary course of business, (v) any
obligation to any employee of the Station for severance benefits, vacation
time, or sick leave accrued prior to the Closing Date relating to any employee
of Seller who is not employed or offered employment by Buyer within the 90-day
adjustment period, or (vi) any obligations or liabilities caused by, arising
out of, or resulting from any action or omission of Seller prior to the
Closing, and all such obligations and liabilities shall remain and be the
obligations and liabilities solely of Seller.
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<PAGE> 23
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Organization, Standing and Authority. Seller is a corporation
organized under the laws of Florida. Seller has all requisite power and
authority (i) to own, lease, and use the Assets as now owned, leased, and used,
(ii) to conduct the business operations of the Station as now conducted, and
(iii) to execute and deliver this Agreement and the documents contemplated
hereby, and to perform and comply with all of the terms, covenants, and
conditions to be performed and complied with by Seller hereunder and
thereunder. Seller is not a participant of any joint venture or partnership
with any person or entity with respect to any part of the operations of the
Station or any of the Assets.
3.2 Authorization and Binding Obligation. The execution,
delivery, and performance of this Agreement by Seller have been duly authorized
by all necessary corporate actions on the part of Seller. This Agreement has
been duly executed and delivered by Seller and constitutes the legal, valid,
and binding obligation of Seller, enforceable against it in accordance with its
terms except as the enforceability of this Agreement may be affected by
bankruptcy, insolvency, or similar laws affecting creditors' rights generally,
and by judicial discretion in the enforcement of equitable remedies.
3.3 Absence of Conflicting Agreements. Subject to obtaining the
Consents listed on Schedule 3.3, the execution, delivery, the performance of
this Agreement and the documents contemplated hereby (with or without the
giving of notice, the lapse of time, or both): (i) do not require the consent
of any third party; (ii) will not conflict with, result in a breach of, or
constitute a default under, any law, judgment, order, ordinance, injunction,
decree, rule, regulation, or ruling of any court or governmental
instrumentality in a proceeding involving Seller; (iii) will not conflict with,
constitute grounds for termination of, result in a breach of, constitute a
default under, or accelerate or permit the acceleration of any performance
required by the terms of, any agreement, instrument, license, or permit to
which Seller is a party or by which Seller may be bound; (iv) will not create
any claim, liability, mortgage, lien, pledge, condition, charge, or encumbrance
of any nature whatsoever upon any of the Assets; and (v) will not conflict with
any provision of Seller's Certificate of Incorporation or By-laws.
3.4 Governmental Licenses. To the best of Seller's knowledge and
except as set forth on Schedule 3.4, (i) Schedule 3.4 includes a true and
complete list of the material Licenses and lists pending applications affecting
the Licenses; (ii) Seller has delivered to Buyer true and complete copies of
the Licenses listed on such Schedule (including any amendment and other
modifications thereto), (iii) the Licenses have been validly issued, and Seller
is the authorized legal holder thereof, (iv) the Licenses listed on Schedule
3.4 comprise all of the material licenses, permits, and other authorizations
required from any
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<PAGE> 24
governmental or regulatory authority for the lawful conduct of the business and
operations of the Station in the manner and to the full extent they are now
conducted, (v) none of the Licenses is subject to any restriction or condition
that would limit the full operation of the Station as now operated, (vi) the
Licenses are in full force and effect, in all material respects, and the
conduct of the business and operations of the Station is in material accordance
therewith, and (vii) Seller has no reason to believe that any of the Licenses
would not be renewed by the FCC or other granting authority in the ordinary
course.
3.5 Title to and Condition of Real Property. Schedule 3.5
contains a complete and accurate description of all the Real Property and
Seller's interests therein (including street address, legal description, owner,
and use and the location of all improvements thereon). The Real Property
listed on Schedule 3.5 comprises all real property interests necessary to
conduct the business and operations of the Station as now conducted. With
respect to each leasehold or subleasehold interest included in the Real
Property being conveyed under this Agreement, so long as Seller fulfills its
obligations under the lease therefor, Seller has enforceable rights to
nondisturbance and quiet enjoyment, and no third party holds any interest in
the leased premises with the right to foreclose upon Seller's leasehold or
subleasehold interest. Seller has full legal and practical access to the Real
Property. All easements, rights-of-way, and real property licenses relating to
the Real Property have been properly recorded in the appropriate public
recording offices. Seller will cooperate with Buyer and provide such
assistance as Buyer may reasonably request in connection with Buyer's efforts
to obtain on or before Closing, at Buyer's election and expense, a policy of
title insurance and a current survey with respect to the Real Property,
including, without limitation, using its best efforts to cause all lease
agreements relating to the Real Property to be recorded in the appropriate
public recording offices.
3.6 Title to and Condition of Tangible Personal Property.
Schedule 3.6 lists all material items of Tangible Personal Property. The
Tangible Personal Property listed on Schedule 3.6 comprises all material items
of tangible personal property used to conduct the business and operations of
the Station as now conducted exclusive of motor vehicles. Except as described
in Schedule 3.6, Seller owns and has good title to each item of Tangible
Personal Property, and none of the Tangible Personal Property owned by Seller
is subject to any security interest, mortgage, pledge, conditional sales
agreement, or other lien or encumbrance, except Permitted Liens.
3.7 Contracts. Schedule 3.7 is a true and complete list of all
Assumed Contracts except contracts with advertisers for the sale of advertising
time on the Station for cash at prevailing rates and which may be canceled by
the Station without penalty on not more than ninety days' notice. Seller has
delivered to Buyer true and complete copies of all written Assumed Contracts,
true and complete memoranda of all material oral Assumed Contracts (including
any amendments and other modifications to such Assumed Contracts), and a
schedule summarizing Seller's obligations under trade and barter agreements
relating to the
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<PAGE> 25
Station. To the best of Seller's knowledge, all of the Assumed Contracts are
in full force and effect, and are valid, binding, and enforceable in accordance
with their terms and there is not under any Assumed Contract any default by any
party thereto or any event that, after notice or lapse of time or both, could
constitute a default. Except for the need to obtain the Consents listed in
Schedule 3.3, Seller has full legal power and authority to assign its rights
under the Assumed Contracts to Buyer in accordance with this Agreement, and
such assignment will not affect the validity, enforceability, or continuation
of any of the Assumed Contracts.
3.8 Consents. Except for the FCC Consent provided in Section 6.1
and the other Consents described in Schedule 3.3, to the best of Seller's
knowledge, no consent, approval, permit, or authorization of, or declaration to
or filing with any governmental or regulatory authority, or any other third
party is required (i) to consummate this Agreement and the transactions
contemplated hereby, (ii) to permit Seller to assign or transfer the Assets to
Buyer, or (iii) to enable Buyer to conduct the business and operations of the
Station in essentially the same manner as such business and operations are now
conducted.
3.9 Intangibles. To the best of Seller's knowledge, Schedule 3.9
is a true and complete list of all material Intangibles (exclusive of those
listed in Schedule 3.4), all of which are valid and in good standing and
uncontested. Seller has delivered to Buyer copies of all documents
establishing or evidencing all intangibles.
3.10 Insurance. Schedule 3.10 is a true and complete list of all
insurance policies of Seller that insure any part of the Assets or the business
of the Station. All policies of insurance listed in Schedule 3.10 are in full
force and effect.
3.11 Reports. To the best of Seller's knowledge and except as set
forth in Schedule 3.4, all returns, reports, and statements that the Station is
currently required to file with the FCC or place in its Public File or file
with any other governmental agency have been filed, and all reporting
requirements of the FCC and other governmental authorities having jurisdiction
over Seller and the Station have been complied with in all material respects
and all of such returns, reports, and statements are substantially complete and
correct as filed.
3.12 Personnel.
(a) Employees and Compensation. Schedule 3.12 contains a
true and complete list of all employees of the Station, their job description,
date of hire, salary and amount and date of last salary increase. Schedule
3.12 also contains a true and complete list as of the date of this Agreement of
all employee benefit plans or arrangements applicable to the employees of the
Station and all fixed or contingent liabilities or obligations of Seller with
respect to any person now or formerly employed by Seller at the Station,
including pension or thrift plans, individual or supplemental pension or
accrued compensation
-8-
<PAGE> 26
arrangements, contributions to hospitalization or other health or life
insurance programs, incentive plans, bonus arrangements, and vacation, sick
leave, disability and termination arrangements or policies, including workers'
compensation policies, and a description of all fixed or contingent liabilities
or obligations of Seller with respect to any person now or formerly employed at
the Station or any person now or formerly retained as an independent contractor
at the Station.
(b) Labor Relations. Seller is not a party to or subject
to any collective bargaining agreements with respect to the Station. Seller
has no written or oral contracts of employment with any employee of the
Station, other than those listed in Schedule 3.7.
(c) Liabilities. Seller has no liability of any kind to
or in respect of any employee benefit plan, including withdrawal liability
under Section 4201 of ERISA. Seller has not incurred any accumulated funding
deficiency within the meaning of ERISA or Section 4971 of the Internal Revenue
Code. Seller has not failed to make any required contributions to any employee
benefit plan. The Pension Benefit Guaranty Corporation has not asserted that
Seller has incurred any liability in connection with any such plan. No lien
has been attached and no person has threatened to attach a lien on any property
of Seller as a result of a failure to comply with ERISA.
3.13 Taxes. To the best of the Seller's knowledge, (i) Seller has
filed or caused to be filed all federal income tax returns and all other
federal, state, county, local, or city tax returns which are required to be
filed, and it has paid or caused to be paid all taxes shown on those returns or
on any tax assessment received by it to the extent that such taxes have become
due, and (ii) there are no governmental investigations or other legal,
administrative, or tax proceedings pursuant to which Seller is or could be made
liable for any taxes, penalties, interest, or other charges, the liability for
which could extend to Buyer as transferee of the business of the Station, and
no event has occurred that could impose on Buyer any transferee liability for
any taxes, penalties, or interest due or to become due from Seller.
3.14 Claims and Legal Actions. Except for any FCC rulemaking
proceedings generally affecting the broadcasting industry, and except as set
forth on Schedule 3.4, to the best of Seller's knowledge, there is no claim,
legal action, counterclaim, nor any order, decree or judgment, in progress or
pending, or to the knowledge of Seller threatened, against or relating to
Seller with respect to its ownership or operation of the Station or otherwise
relating to the Assets or the business or operations of the Station, nor does
Seller know or have reason to be aware of any basis for the same. In
particular, but without limiting the generality of the foregoing, and except as
forth on Schedule 3.14, to the best of Seller's knowledge, there are no
applications, complaints or proceedings pending or, to the best of its
knowledge, threatened (i) before the FCC relating to the business or operations
of the Station other than rule making proceedings which affect the radio
industry generally, (ii) before any
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federal or state agency relating to the business or operations of the Station
involving charges of illegal discrimination under any federal or state
employment laws or regulations, or (iii) before any federal, state, or local
agency relating to the business or operations of the Station involving zoning
issues under any federal, state, or local zoning law, rule, or regulation.
3.15 Environmental Matters.
(a) Seller has complied in all material respects with all
laws, rules, and regulations of all federal, state, and local governments (and
all agencies thereof) concerning the environment, public health and safety, and
employee health and safety, and no charge, complaint, action, suit, proceeding,
hearing, investigation, claim, demand, or notice has been filed or commenced
against Seller in connection with its ownership or operation of the Station
alleging any failure to comply with any such law, rule, or regulation.
(b) To the best of Seller's knowledge, Seller has no
liability relating to its ownership and operation of the Station (and there is
no basis related to the past or present operations, properties, or facilities
of Seller for any present or future charge, complaint, action, suit,
proceeding, hearing, investigation, claim, or demand against Seller giving rise
to any such liability) under any law, rule, or regulation of any federal,
state, or local government (or agency thereof) concerning release or threatened
release of hazardous substances, public health and safety, or pollution or
protection of the environment.
(c) To the best of Seller's knowledge, Seller has no
liability relating to its ownership and operation of the Station (and Seller
has not handled or disposed of any substance, arranged for the disposal of any
substance, or owned or operated any property or facility in any manner that
could form the basis for any present or future charge, complaint, action, suit,
proceeding, hearing, investigation, claim, or demand (under the common law or
pursuant to any statute) against Seller giving rise to any such liability) for
damage to any site, location, or body of water (surface of subsurface) or for
illness or personal injury.
(d) To the best of Seller's knowledge, Seller has no
liability relating to its ownership and operation of the Station (and there is
no basis for any present or future charge, complaint, action, suit, proceeding,
hearing, investigation, claim, or demand against Seller giving rise to any such
liability) under any law, rule, or regulation of any federal, state, or local
government (or agency thereof) concerning employee health and safety.
(e) In connection with its ownership or operation of the
Station, Seller has obtained and been in material compliance with all of the
terms and conditions of all permits, licenses, and other authorizations which
are required under, and has complied in all material respects with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules, and timetables which are contained in, all federal,
state, and local laws, rules, and regulations (including all codes, plans,
judgments, orders, decrees,
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stipulations, injunctions, and charges thereunder) relating to public health
and safety, worker health and safety, and pollution or protection of the
environment, including laws relating to emissions, discharges, releases, or
threatened releases of pollutants, contaminants, or chemical, industrial,
hazardous, or toxic materials or wastes into ambient air, surface water, ground
water, or lands or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
pollutants, contaminants, or chemical, industrial, hazardous, or toxic
materials or wastes.
(f) To the best of Seller's knowledge, all properties and
equipment used in the business of the Station are and have been free of
asbestos and asbestos-related products, PCB's, dioxins, and Extremely Hazardous
Substances (as defined in Section 302 of the Emergency Planning and Community
Right-to-Know Act).
(g) No pollutant, contaminant, or chemical, industrial,
hazardous, or toxic material or waste has ever been manufactured, buried,
stored, spilled, leaked, discharged, emitted, or released by Seller in
connection with its ownership and operation of the Station or, to the best of
Seller's knowledge, after due investigation, by any other party on any Real
Property.
3.16 Compliance with Laws. To the best Seller's knowledge and
except as set forth on Schedule 3.4, Seller has complied in all material
respects with the Licenses and all federal, state, and local laws, rules,
regulations, and ordinances applicable or relating to the ownership and
operation of the Station. To the best of Seller's knowledge, neither the
ownership or use of the properties of the Station nor the conduct of the
business or operations of the Station conflicts with the rights of any other
person or entity.
3.17 Full Disclosure. No representation or warranty made by Seller
in this Agreement or in any certificate, document, or other instrument
furnished or to be furnished by Seller pursuant hereto contains or will
knowingly contain any untrue statement of a material fact.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 Organization, Standing and Authority. Buyer is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Florida. Buyer has all requisite power and authority to execute and
deliver this Agreement and the documents contemplated hereby, and to perform
and comply with all of the terms, covenants, and conditions to be performed and
complied with by Buyer hereunder and thereunder.
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4.2 Authorization and Binding Obligation. The execution,
delivery, and performance of this Agreement by Buyer have been duly authorized
by all necessary actions on the part of Buyer. This Agreement has been duly
executed and delivered by Buyer and constitutes the legal, valid, and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms
except as the enforceability of this Agreement may be affected by bankruptcy,
insolvency, or similar laws affecting creditors' rights generally and by
judicial discretion in the enforcement of equitable remedies.
4.3 Absence of Conflicting Agreements. Subject to obtaining the
Consents, the execution, delivery, and performance by Buyer of this Agreement
and the documents contemplated hereby (with or without the giving of notice,
the lapse of time, or both): (i) do not require the consent of any third party;
(ii) will not conflict with the Certificate of Incorporation or Bylaws of
Buyer; (iii) will not conflict with, result in a breach of, or constitute a
default under, any law, judgment, order, injunction, decree, rule, regulation,
or ruling of any court or governmental instrumentality; (iv) will not conflict
with, constitute grounds for termination of, result in a breach of, constitute
a default under, or accelerate or permit the acceleration of any performance
required by the terms of, any agreement, instrument, license, or permit to
which Buyer is a party or by which Buyer may be bound, such that Buyer could
not acquire the Assets or operate the Station.
4.4 Full Disclosure. No representation or warranty made by Buyer
in this Agreement or in any certificate, document, or other instrument
furnished or to be furnished by Buyer pursuant hereto contains or will
knowingly contain any untrue statement of a material fact.
4.5 Buyer Qualifications. Buyer is legally, financially and
otherwise qualified to be the licensee of, acquire, own and operate the Station
under the Communications Act of 1934, as amended, and the rules, regulations
and policies of the FCC. Buyer knows of no fact that would, under existing law
and the existing rules, regulations, policies and procedures of the FCC
disqualify Buyer as assignee of the FCC Licenses or as the owner and operator
of the Station.
SECTION 5. OPERATIONS OF THE STATION PRIOR TO CLOSING
5.1 Generally. Seller agrees that, between the date of this
Agreement and the Closing Date, Seller shall operate the Station in the
ordinary course of business in accordance with its past practices (except where
such conduct would conflict with the following covenants or with Seller's other
obligations under this Agreement), and in accordance with the other covenants
in this Section 5.
5.2 Contracts. Seller will not enter into any contract or
commitment which is not terminable on 90-days notice relating to the Station or
the Assets, or amend or terminate any
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Contract (or waive any material right thereunder), or incur any obligation
(including obligations relating to the borrowing of money or the guaranteeing
of indebtedness) that will be binding on Buyer after Closing, except for cash
time sales agreements made in the ordinary course of business and other
contracts or commitments involving less than $5,000. Prior to the Closing
Date, Seller shall deliver to Buyer a list of all Contracts entered into
between the date of this Agreement and the Closing Date, together with copies
of such Contracts.
5.3 Disposition of Assets. Seller shall not sell, assign, lease,
or otherwise transfer or dispose of any of the material Assets, except where no
longer used or useful in the business or operations of the Station or in
connection with the acquisition of replacement property of equivalent kind and
value.
5.4 Encumbrances. Seller shall not create, assume or permit to
exist any claim, liability, mortgage, lien, pledge, condition, charge, or
encumbrance of any nature whatsoever upon the Assets, except for (i) liens
which shall be removed prior to the Closing Date, (ii) liens for current taxes
not yet due and payable, and (iii) mechanics' liens and other similar liens,
which shall be removed prior to the Closing Date either by payment or posting
an appropriate indemnity bond.
5.5 Licenses. Seller shall not cause or permit, by any act or
failure to act, any of the Licenses issued by the FCC to expire or to be
revoked, suspended, or modified, or take any action that could cause the FCC or
any other governmental authority to institute proceedings for the suspension,
revocation, or adverse modification of any of the Licenses. Seller shall not
fail to prosecute with due diligence any applications to any governmental
authority in connection with the operation of the Station.
5.6 Rights. Seller shall not knowingly waive any material right
relating to the Station or any of the Assets.
5.7 Access to Information. Seller shall give Buyer and its
counsel, accountants, engineers, and other authorized representatives
reasonable access during normal business hours to the Assets and to all other
properties, equipment, books, records, Contracts, and documents relating to the
Station for the purpose of audit and inspection and will furnish or cause to be
furnished to Buyer or its authorized representatives all material information
with respect to the affairs and business of the Station that Buyer may
reasonably request (including any operations reports produced with respect to
the affairs and business of the Station).
5.8 Insurance. Seller shall maintain substantially the same
insurance coverage provided by the existing insurance policies on the Station
and the Assets.
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5.9 Consents. Seller shall use its best efforts to obtain the
Consents described in Section 8.2(c), without any material change in the terms
or conditions of any Contract or License as in effect on the date of this
Agreement. Seller shall advise Buyer of any communications it receives
concerning the Consents and of any conditions proposed, considered, or
requested for any of the Consents. Upon Buyer's request, Seller shall
cooperate with Buyer and use its best efforts to obtain from the lessors under
each Real Property lease such estoppel certificates and consents to the
collateral assignment of the lessee's interest under each such lease as Buyer's
lenders may request.
5.10 Books and Records. Seller shall maintain its books and
records relating to the Station in accordance with past practices.
5.11 Notification. Seller shall promptly notify Buyer in writing
of any material change in any of the information contained in Seller's
representations and warranties contained in Section 3 of this Agreement.
5.12 Compliance with Laws. Seller shall comply in all material
respects with all laws, rules, and regulations applicable or relating to the
ownership and operation of the Station.
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS
6.1 FCC Consent.
(a) The assignment of the FCC Licenses in connection with
the purchase and sale of the Assets pursuant to this Agreement shall be subject
to the prior consent and approval of the FCC.
(b) Seller and Buyer shall promptly prepare an
appropriate application for the FCC Consent and shall file the application with
the FCC within five (5) business days of the execution of this Agreement. The
parties shall prosecute the application with all reasonable diligence and
otherwise use their reasonable commercial efforts to obtain a grant of the
application as expeditiously as practicable. Each party agrees to comply with
any condition imposed on it by the FCC Consent, except that no party shall be
required to comply with a condition if (1) the condition was imposed on it as
the result of a circumstance the existence of which does not constitute a
breach by the party of any of its representations, warranties, or covenants
under this Agreement, and (2) compliance with the condition would have a
material adverse effect upon it. Buyer and Seller shall oppose any requests
for reconsideration or judicial review of the FCC Consent, provided, however,
that the parties shall continue to have all rights available to them pursuant
to Section 9 hereof. If the Closing shall not have occurred for any reason
within the original effective period of the FCC Consent, and neither party
shall have terminated this Agreement under Section 9, the
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parties shall jointly request an extension of the effective period of the FCC
Consent. No extension of the FCC Consent shall limit the exercise by either
party of its rights under Section 9.
6.2 Control of the Station. Prior to Closing, Buyer shall not,
directly or indirectly, control, supervise, direct, or attempt to control,
supervise, or direct, the operations of the Station; such operations, including
complete control and supervision of all of the Station programs, employees, and
policies, shall be the sole responsibility of the Seller until the Closing.
6.3 Risk of Loss. The risk of any loss, damage, impairment,
confiscation, or condemnation of any of the Assets from any cause whatsoever
shall be borne by Seller at all times prior to the Closing.
6.4 Confidentiality. Except as necessary for the consummation of
the transaction contemplated by this Agreement, including Buyer's obtaining of
financing related hereto, and except as and to the extent required by law,
including, without limitation, disclosure requirements of federal or state
securities laws and rules and regulations of securities markets, each party
will keep confidential any information obtained from the other party in
connection with the transactions contemplated by this Agreement. Except as
provided in this Paragraph each party will refrain from disclosing any such
information to any third party. If this Agreement is terminated, each party
will return to the other party all copies of all documents and other all
information obtained by the such party from the other party in connection with
the transactions contemplated by this Agreement.
6.5 Cooperation. Buyer and Seller shall cooperate fully with each
other and their respective counsel and accountants in connection with any
actions required to be taken as part of their respective obligations under this
Agreement, and Buyer and Seller shall execute such other documents as may be
necessary and desirable to the implementation and consummation of this
Agreement, and otherwise use their reasonable commercial efforts to consummate
the transaction contemplated hereby and to fulfill their obligations under this
Agreement. Notwithstanding the foregoing, neither Buyer nor Seller shall have
any obligation (i) to expend funds to obtain any of the Consents or (ii) to
agree to any material adverse change in any License or Assumed Contract to
obtain a Consent required with respect thereto; provided, however, that Seller
shall be required to expend funds, if necessary, to cure any defaults in order
to obtain Consents and either party shall be required to expend funds in
respect of normal and usual filing fees and the fees of professional advisors.
6.6 Access to Books and Records. Seller shall provide Buyer
access and the right to copy for a period of four (4) years from the Closing
Date any books and records relating to the Assets but not included in the
Assets. Buyer shall provide Seller access and the right
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to copy for a period of four (4) years from the Closing Date any books and
records relating to the Assets that are included in the Assets.
6.7 Broker. Each of Buyer and Seller represents and warrants that
neither it nor any person or entity acting on its behalf has incurred any
liability for any finders' or brokers' fees or commissions in connection with
the transactions contemplated by this Agreement.
6.8 Consulting Agreement. At the Closing, Buyer and Seller shall
enter into a five-year Consulting Agreement which shall provide for the payment
by Buyer to Seller of an annual consulting fee in the amount of $150,000 for
each of the five years of such Agreement and shall include such other terms and
conditions that are customary to such agreements and are reasonably acceptable
to Buyer and Seller.
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER
AT CLOSING
7.1 Conditions to Obligations of Buyer. All obligations of Buyer
at the Closing are subject at Buyer's option to the fulfillment or waiver by
Buyer prior to or at the Closing Date of each of the following conditions:
(a) Representations and Warranties. All material
representations and warranties of Seller contained in this Agreement shall be
true and complete in all material respects at and as of the Closing Date as
though made at and as of that time.
(b) Covenants and Conditions. Seller shall have
performed and complied in all material respects with all material covenants,
agreements, and conditions required by this Agreement to be performed or
complied with by it prior to or on the Closing Date.
(c) Consents. All Consents shall have been obtained and
delivered to Buyer without any material adverse change in the terms or
conditions of any agreement or any governmental license, permit, or other
authorization.
(d) FCC Consent. The FCC Consent shall have been granted
without the imposition on Buyer of any material conditions that need not be
complied with by Buyer under Section 6.1 hereof, Seller shall have complied
with any material conditions imposed on it by the FCC Consent, and the FCC
Consent shall have become a Final Order.
(e) Governmental Authorizations. Seller shall be the
holder of all material Licenses and there shall not have been any modification
of any material License that could have a material adverse effect on the
Station or the conduct of its business and operations. No proceeding shall be
pending the effect of which could be to revoke, cancel, fail to renew,
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suspend, or modify adversely any material License. All FCC Licenses are
material Licenses.
(f) Deliveries. Seller shall have made or stand willing
to make all the deliveries to Buyer set forth in Section 8.2.
7.2 Conditions to Obligations of Seller. All obligations of
Seller at the Closing are subject at Seller's option to the fulfillment prior
to or at the Closing Date of each of the following conditions:
(a) Representations and Warranties. All material
representations and warranties of Buyer contained in this Agreement shall be
true and complete in all material respects at and as of the Closing Date as
though made at and as of that time.
(b) Covenants and Conditions. Buyer shall have performed
and complied in all material respects with all material covenants, agreements,
and conditions required by this Agreement to be performed or complied with by
it prior to or on the Closing Date.
(c) Deliveries. Buyer shall have made or stand willing
to make all the deliveries set forth in Section 8.3.
(d) FCC Consent. The FCC Consent shall have been granted
without the imposition on Seller of any material conditions that need not be
complied with by Seller under Section 6.1 hereof and Buyer shall have complied
with any conditions imposed on it by the FCC Consent.
SECTION 8. CLOSING AND CLOSING DELIVERIES
8.1 Closing.
(a) Closing Date. The Closing shall take place at 10:00
a.m. on a date to be set by Buyer on at least five days' written notice to
Seller, that is (1) not earlier than the first business day after the FCC
Consent is granted, and (2) not later than ten business days following the date
upon which the FCC Consent has become a Final Order. If Buyer fails to specify
the date for Closing pursuant to the preceding sentence prior to the fifth
business day after the date upon which the FCC Consent becomes a Final Order,
the Closing shall take place on the tenth business day after the date upon
which the FCC Consent becomes a Final Order.
(b) Closing Place. The Closing shall be held at the
offices of Dow, Lohnes & Albertson, 1255 23rd Street, N.W, Suite 500,
Washington, D.C. 20037, or such other place that is agreed upon by Buyer and
Seller.
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8.2 Deliveries by Seller. Prior to or on the Closing Date, Seller
shall deliver to Buyer the following, in form and substance reasonably
satisfactory to Buyer and its counsel:
(a) Transfer Documents. Subject to the provisions of
this Agreement, duly executed bills of sale, assignments, and other transfer
documents which shall be sufficient to vest good and marketable title to the
Assets in the name of Buyer, free and clear of all mortgages, liens,
restrictions, encumbrances, claims, and obligations except for Permitted Liens.
(b) Estoppel Certificate. An Estoppel Certificate of the
Lessor of the leasehold interests listed in Schedule 3.5.
(c) Consents. An executed copy of any instrument
evidencing receipt of any Consent;
(d) Certificates. Certificates, dated as of the Closing
Date, executed by Seller certifying (1) that the material representations and
warranties of Seller contained in this Agreement are true and complete in all
material respects as of the Closing Date as though made on and as of that date;
and (2) that Seller have in all material respects performed and complied with
all of its material obligations, covenants, and agreements set forth in this
Agreement to be performed and complied with on or prior to the Closing Date and
such additional Certificates and confirmations to Buyer's lenders as Buyer may
reasonably request in connection with obtaining financing for the performance
of its payment obligations hereunder.
(e) Licenses, Contracts, Business Records, Etc. Copies
of all Licenses and Assumed Contracts.
(f) Opinions of Counsel. Opinions of Seller's counsel
dated as of the Closing Date, substantially in the form of Schedule 8.2(f)
hereto.
(g) Consulting Agreement. The Consulting Agreement duly
executed by Seller and Buyer.
8.3 Deliveries by Buyer. Prior to or on the Closing Date, Buyer
shall deliver to Seller the following, in form and substance reasonably
satisfactory to Seller and its counsel.
(a) Purchase Price. The Purchase Price as provided in
Section 2.4.
(b) Assumption Agreements. Appropriate assumption
agreements pursuant to which Buyer shall assume and undertake to perform
Seller's obligations under the Licenses and Assumed Contracts arising on or
after the Closing Date.
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(c) Officer's Certificate. A certificate, dated as of
the Closing Date, executed on behalf of Buyer by its President, certifying (1)
that the representations and warranties of Buyer contained in this Agreement
are true and complete in all material respects as of the Closing Date as though
made on and as of that date, and (2) that Buyer has in all material respects
performed and complied with all of its obligations, covenants, and agreements
set forth in this Agreement to be performed and complied with on or prior to
the Closing Date.
(d) Opinion of Counsel. An opinion of Buyer's counsel
dated as of the Closing Date, substantially in the form of Schedule 8.3(d)
hereto.
(e) Consulting Agreement. The Consulting Agreement duly
executed by Seller and Buyer.
SECTION 9. TERMINATION
9.1 Termination by Seller. This Agreement may be terminated by
Seller and the purchase and sale of the Assets abandoned, if Seller is not then
in material default, upon written notice to Buyer, upon the occurrence of any
of the following:
(a) Conditions. If, on the date that would otherwise be
the Closing Date, any of the conditions precedent to the obligations of Seller
set forth in this Agreement have not been satisfied or waived in writing by
Seller.
(b) Judgments. If there shall be in effect on the date
that would otherwise be the Closing Date any judgment, decree, or order, not
caused by Seller, that would prevent or make unlawful the Closing.
(c) Upset Date. If the Closing shall not have occurred
within eighteen (18) months of the date of this Agreement.
9.2 Termination by Buyer. This Agreement may be terminated by
Buyer and the purchase and sale of the Station abandoned, if Buyer is not then
in material default, upon written notice to Seller, upon the occurrence of any
of the following:
(a) Conditions. If on the date that would otherwise be
the Closing Date any of the conditions precedent to the obligations of Buyer
set forth in this Agreement have not been satisfied or waived in writing by
Buyer.
(b) Judgments. If there shall be in effect on the date
that would otherwise be the Closing Date any judgment, decree, or order, not
caused by Buyer, that would prevent or make unlawful the Closing.
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(c) Upset Date. If the Closing shall not have occurred
within eighteen (18) months of the date of this Agreement.
9.3 Rights on Termination. If this Agreement is terminated
pursuant to Section 9.1 or Section 9.2 and neither party is in material breach
of any provision of this Agreement, the parties hereto shall not have any
further liability to each other with respect to the purchase and sale of the
Assets.
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES
10.1 Representations and Warranties. All representations and
warranties contained in this Agreement shall be deemed continuing
representations and warranties and shall survive the closing for a period of
twelve (12) months provided, however, that as to any representation or warranty
made by either the Buyer or Seller which the other party knows, or has reason
to believe, is not true as of the Closing Date, such representation or warranty
shall not survive the Closing. Until the Closing, Buyer and Seller will
immediately advise each other, in a detailed written notice, of any fact or
occurrence or any pending or threatened occurrence of which any of them obtains
knowledge and which (a) (if existing and known at the date of the execution of
this Agreement) would have been required to be set forth or disclosed in or
pursuant to this Agreement or a Schedule hereto, (b) (if existing and known at
any time prior to or at the Closing) would make the performance by any party of
a covenant contained in this Agreement impossible or make that performance
materially more difficult than in the absence of that fact or occurrence, or
(c) (if existing and known at the time of the Closing) would cause a condition
to any party's obligations under this Agreement not to be fully satisfied.
10.2 Indemnification by Seller. Seller hereby agrees to indemnify
and hold Buyer harmless against and with respect to, and shall reimburse Buyer
for:
(a) Subject to the proviso contained in the first
sentence of Section 10.1, any and all losses, liabilities, or damages resulting
from any untrue representation, breach of warranty, or material omission or
nonfulfillment of any covenant by Seller contained in this Agreement or in any
certificate, document, or instrument delivered to Buyer under this Agreement.
(b) Any and all obligations of Seller not assumed by
Buyer pursuant to this Agreement, including any liabilities arising at any time
under any Contract not included in the Assumed Contracts.
(c) Any and all losses, liabilities, or damages
contingent or otherwise resulting from the operation or ownership of the
Station prior to the Closing Date, including
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any liabilities arising under the Licenses or the Assumed Contracts which
relate to events occurring prior to the Closing Date.
(d) Any and all actions, suits, proceedings, claims,
demands, assessments, judgments, costs, and expenses, including reasonable
legal fees and expenses, incident to any of the foregoing or incurred in
investigating or attempting to avoid the same or to oppose the imposition
thereof, or in enforcing this indemnity.
10.3 Indemnification by Buyer. Buyer hereby agrees to indemnify
and hold Seller harmless against and with respect to, and shall reimburse
Seller for:
(a) Subject to the proviso contained in the first
sentence of Section 10.1, any and all losses, liabilities, or damages resulting
from any untrue representation, breach of warranty, or material omission or
nonfulfillment of any covenant by Buyer contained in this Agreement or in any
certificate, Schedule, document, or instrument delivered to Seller under this
Agreement.
(b) Any and all obligations of Seller assumed by Buyer
pursuant to this Agreement.
(c) Any and all losses, liabilities, or damages
contingent or otherwise, resulting from the operation or ownership of the
Station on and after the Closing.
(d) Any and all actions, suits, proceedings, claims,
demands, assessments, judgments, costs and expenses, including reasonable legal
fees and expenses, incident to any of the foregoing or incurred in
investigating or attempting to avoid the same or to oppose the imposition
thereof, or in enforcing this indemnity.
10.4 Procedure for Indemnification. The procedure for
indemnification shall be as follows:
(a) The party claiming indemnification (the "Claimant")
shall promptly give notice to the party from which indemnification is claimed
(the "Indemnifying Party") of any claim, whether between the parties or brought
by a third party, specifying in reasonable detail the factual basis for the
claim. If the claim relates to an action, suit, or proceeding filed by a third
party against Claimant, such notice shall be given by Claimant within as soon
as practicable after written notice of such action, suit, or proceeding was
given to Claimant.
(b) With respect to claims solely between the parties,
following receipt of notice from the Claimant of a claim, the Indemnifying
Party shall have thirty days to make such investigation of the claim as the
Indemnifying Party deems necessary or desirable. For the purposes of such
investigation, the Claimant agrees to make available to the Indemnifying
-21-
<PAGE> 39
Party and/or its authorized representatives the information relied upon by the
Claimant to substantiate the claim. If the Claimant and the Indemnifying Party
agree at or prior to the expiration of the thirty-day period (or any mutually
agreed upon extension thereof) to the validity and amount of such claim, the
Indemnifying Party shall immediately pay to the Claimant the full amount of the
claim. If the Claimant and the Indemnifying Party do not agree within the
thirty-day period (or any mutually agreed upon extension thereof), the
Claimant may seek appropriate remedy at law or equity or under the arbitration
provisions of this Agreement, as applicable.
(c) With respect to any claim by a third party as to
which the Claimant is entitled to indemnification under this Agreement, the
Indemnifying Party shall have the right at its own expense, to participate in
or assume control of the defense of such claim, and the Claimant shall
cooperate fully with the Indemnifying Party subject to reimbursement for
reasonable actual out-of-pocket expenses incurred by the Claimant as the result
of a request by the Indemnifying Party. If the Indemnifying Party elects to
assume control of the defense of any third-party claim, the Claimant shall have
the right to participate in the defense of such claim at its own expense. If
the Indemnifying Party does not elect to assume control or otherwise
participate int he defense of any third party claim, it shall be bound by the
results obtained by the Claimant with respect to such claim.
(d) If a claim, whether between the parties or by a third
party, requires immediate action, the parties will make every effort to reach a
decision with respect thereto as expeditiously as possible.
(e) The indemnification rights provided in Sections 10.2
and 10.3 shall extend to the shareholders, directors, officers, employees, and
representatives of any Claimant although for the purpose of the procedures set
forth in this Section 10.4, any indemnification claims by such parties shall be
made by and through the Claimant.
(f) Notwithstanding anything in this Agreement to the
contrary, neither party shall indemnify or otherwise be liable to the other
party for any breach of a representation or warranty, or for breach of any
covenant in this Agreement except to the extent the losses, obligations,
liabilities, costs and expenses of such party arising therefrom exceed in the
aggregate Ten Thousand Dollars ($10,000). The provisions of the foregoing
sentence shall not apply to liabilities assumed by either party pursuant to the
adjustments and prorations.
10.5 Specific Performance. The parties recognize that if Seller
breaches this Agreement and refuses to perform under the provisions of this
Agreement, monetary damages alone would not be adequate to compensate Buyer for
its injury. Buyer shall therefore be entitled, as its sole and exclusive
remedy, to obtain specific performance of the
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<PAGE> 40
terms of this Agreement. If any action is brought by Buyer to enforce this
Agreement, Seller shall waive the defense that there is an adequate remedy at
law.
10.6 Attorneys' Fees. In the event of a default by either party
which results in a lawsuit or other proceeding for any remedy available under
this Agreement, the prevailing party shall be entitled to reimbursement from
the other party of its reasonable legal fees and expenses.
SECTION 11. MISCELLANEOUS
11.1 Fees and Expenses. Any federal, state, or local sales or
transfer tax arising in connection with the conveyance of the Assets by Seller
to Buyer pursuant to this Agreement shall be paid by Seller. Buyer and Seller
shall each pay one-half of the fee payable to the FCC in connection with the
filing of the application for FCC Consent. Except as otherwise provided in
this Agreement, each party shall pay its own expenses incurred in connection
with the authorization, preparation, execution, and performance of this
Agreement, including all fees and expenses of counsel, accountants, agents, and
representatives, and each party shall be responsible for all fees or
commissions payable to any finder, broker, advisor, or similar person retained
by or on behalf of such party.
11.2 Arbitration. Except as otherwise provided to the contrary
below, any dispute arising out of or related to this Agreement that Seller and
Buyer are unable to resolve by themselves shall be settled by arbitration in
the District of Columbia by a panel of three arbitrators. Seller and Buyer
shall each designate one disinterested arbitrator, and the two arbitrators so
designated shall select the third arbitrator. Before undertaking to resolve
the dispute, each arbitrator shall be duly sworn faithfully and fairly to hear
and examine the matters in controversy and to make a just award according to
the best of his or her understanding. The arbitration hearing shall be
conducted in accordance with the commercial arbitration rules of the American
Arbitration Association. The written decision of a majority of the arbitrators
shall be final and binding on Seller and Buyer. The costs and expenses of the
arbitration proceeding shall be assessed between Seller and Buyer in a manner
to be decided by a majority of the arbitrators, and the assessment shall be set
forth in the decision and award of the arbitrators. Judgment on the award, if
it is not paid within thirty days, may be entered in any court having
jurisdiction over the matter. No action at law or suit in equity based upon
any claim arising out of or related to this Agreement shall be instituted in
any court by Seller or Buyer against the other except (i) an action to compel
arbitration pursuant to this Section, (ii) an action to enforce the award of
the arbitration panel rendered in accordance with this Section, or (iii) a suit
for specific performance pursuant to Section 10.5.
11.3 Notices. All notices, demands, and requests required or
permitted to be given under the provisions of this Agreement shall be (a) in
writing, (b) sent by telecopy (with
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<PAGE> 41
receipt personally confirmed by telephone), delivered by personal delivery, or
sent by commercial delivery service or registered or certified mail, return
receipt requested, (c) deemed to have been given on the date of personal
delivery or the date set forth in the records of the delivery service or on the
return receipt, and (d) addressed as follows:
If to Seller: Mr. Eddie L. Whitehead
Whitehead Media, Inc.
12144 Classic Drive
Coral Springs, FL 33071
Telephone: (305) 753-8712
Facsimile: (305) 752-2280
If to Buyer: Mr. Lowell W. Paxson
Paxson Communications of Ft. Pierce-34, Inc.
601 Clearwater Park Road
West Palm Beach, FL 33401
Telecopy: (407) 659-4252
Telephone: (407) 659-4122
or to any other or additional persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this Section
11.3.
11.4 Benefit and Binding Effect. Neither party hereto may assign
this Agreement without the prior written consent of the other party hereto;
provided, however, that Buyer may assign its rights and obligations under this
Agreement to a wholly-owned subsidiary or commonly controlled affiliate without
seeking or obtaining Seller's prior approval, provided that such assignment
does not relieve Buyer of its responsibilities hereunder. Upon any permitted
assignment by Buyer or Seller in accordance with this Section 11.4, all
references to "Buyer" herein shall be deemed to be references to Buyer's
assignee and all references to "Seller" herein shall be deemed to be references
to Seller's assignee. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
11.5 Further Assurances. The parties shall take any actions and
execute any other documents that may be necessary or desirable to the
implementation and consummation of this Agreement, including, in the case of
Seller, any additional bills of sale, deeds, or other transfer documents that,
including, in the case of Seller, any additional bills of sale, deeds, or other
transfer documents that, in the reasonable opinion of Buyer, may be necessary
to ensure, complete, and evidence the full and effective transfer of the Assets
to Buyer pursuant to this Agreement.
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<PAGE> 42
11.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED,
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA (WITHOUT
REGARD TO THE CHOICE OF LAW PROVISIONS THEREOF).
11.7 Headings. The headings in this Agreement are included for
ease of reference only and shall not control or affect the meaning or
construction of the provisions of this Agreement.
11.8 Gender and Number. Words used in this Agreement, regardless
of the gender and number specifically used, shall be deemed and construed to
include any other gender, masculine, feminine, or neuter, and any other number,
singular or plural, as the context requires.
11.9 Entire Agreement. This Agreement, the schedules, hereto, and
all documents, certificates, and other documents to be delivered by the parties
pursuant hereto, collectively represent the entire understanding and agreement
between Buyer and Seller with respect to the subject matter hereof. This
Agreement supersedes all prior negotiations between the parties and cannot be
amended, supplemented, or changed except by an agreement in writing that makes
specific reference to this Agreement and which is signed by the party against
which enforcement of any such amendment, supplement, or modification is sought.
11.10 Waiver of Compliance; Consents. Except as otherwise provided
in this Agreement, any failure of any of the parties to comply with any
obligation, representation, warranty, covenant, agreement, or condition herein
may be waived by the party entitled to the benefits thereof only by a written
instrument signed by the party granting such waiver, but such waiver or failure
to insist upon strict compliance with such obligation, representation,
warranty, covenant, agreement or condition shall not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure. Whenever this
Agreement requires or permits consent by or on behalf of any party hereto, such
consent shall be given in writing in a manner consistent with the requirements
for a waiver of compliance as set forth in this Section 11.10.
11.11 Counterparts. This Agreement may be signed in counterparts
with the same effect as if the signature on each counterpart were upon the same
instrument.
11.12 Press Releases. Neither party shall publish any press
release, make any other public announcement or otherwise communicate with any
news media concerning this Agreement or the transactions contemplated hereby
without the prior written consent of the
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<PAGE> 43
other party; provided, however, that nothing contained herein shall prevent
either party from promptly making all filings with governmental authorities as
may, in its judgment, be required or advisable in connection with the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby, in which case the other party shall be first notified in
writing.
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<PAGE> 44
IN WITNESS WHEREOF, the parties hereto have duly executed this Asset
Purchase Agreement as of the day and year first above written.
PAXSON COMMUNICATIONS OF
FT. PIERCE-34, INC.
By:
--------------------------
Name:
-------------------------
Title:
------------------------
WHITEHEAD MEDIA, INC.
By:
--------------------------
Name:
------------------------
Title:
-----------------------
<PAGE> 45
EXHIBIT B
PURCHASE PRICE
<PAGE> 1
EXHIBIT 10.45.2
<PAGE> 2
EXHIBIT 10.45.2
AMENDMENT TO TIME BROKERAGE AGREEMENT
This Amendment to Time Brokerage Agreement ("Amendment") is entered
into as of the 29th day of December, 1995, by and between Whitehead Media,
Inc., a Florida corporation (the "Licensee"), and Paxson Communications of Ft.
Pierce-34, Inc., a Florida corporation (the "Programmer").
W I T N E S S E T H:
WHEREAS, the Licensee and the Programmer are parties to that certain
Time Brokerage Agreement dated as of September 22, 1994, between Licensee and
Paxson Communications Corp., as amended by an Amendment to Time Brokerage
Agreement dated as of April 19, 1995, between Licensee and Paxson
Communications Corp., as assigned by Paxson Communications Corp. to Programmer
pursuant to an Assignment and Assumption Agreement dated as of August 4, 1995,
between Paxson Communications Corporation (formerly known as Paxson
Communications Corp.) and Programmer; and
WHEREAS, the Licensee and the Programmer wish to amend certain
provisions of the Time Brokerage Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained, the Licensee and the Programmer agree as follows:
1. Amendment. The Time Brokerage Agreement is hereby amended as
follows:
Existing Subsection (b) of Section 1.7 is deleted and is replaced with
the following:
(b) Licensee shall pay, in a timely fashion, all of the
expenses incurred in operating the Station including salaries and
benefits of its employees, lease payments, utilities, taxes,
programming expenses, debt service, etc., as set forth in Attachment
II (except those for which a good faith dispute has been raised with
the vendor or taxing authority), and shall provide Programmer with a
certificate of such timely payment within thirty (30) days of the end
of each month. In the event that Licensee shall fail to timely make
the payments called for by Attachment II hereof, Programmer may, upon
5 days notice to Licensee, make such payments directly to the vendor,
lender, etc., and such direct payment shall be in lieu of any
reimbursement called for by this subsection.
Existing Section 7.1 is deleted and is replaced with the following:
7.1 Assignment.
(a) Neither this Agreement nor any of the rights,
interests or obligations of either party hereunder shall be assigned,
encumbered, hypothecated or otherwise transferred without the prior
written consent of
<PAGE> 3
-2-
the other party, such consent not to be unreasonably withheld,
provided, however, that Programmer acknowledges that Licensee may not
assign, encumber, hypothecate or otherwise transfer this Agreement or
any of its rights or interests hereunder without the consent of the
Licensee's lenders. Notwithstanding the foregoing, Licensee and
Programmer shall have the right to collaterally assign its rights and
interests hereunder to their respective senior lenders.
(b) This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(c) Each party hereto agrees to enter into such
agreements and confirmations as the other party's senior lenders may
reasonably require: (i) to acknowledge and confirm any collateral
assignment of this Agreement to such senior lenders; (ii) to provide
for simultaneous notice and reasonable cure rights, which rights must
be exercised within 30 days after the 30-day period specified in
Section 6.1(b) hereof, to such senior lenders of any default by
Programmer or Licensee under this Agreement; (iii) to provide
simultaneous notice and reasonable cure rights, which rights must be
exercised within 30 days after the expiration of the 30-day period
specified in Section 6.1(b) hereof, to such senior lenders prior to
any election or action by Licensee or Programmer to terminate or
cancel this Agreement pursuant to Section 6.1(b) and, if requested by
such senior lenders, to enter into a new Agreement on the same terms
and conditions as this Agreement with such senior lenders or their
nominee, successor or purchaser who (x) possesses all requisite
qualifications to hold FCC licenses, (y) has not had an authorization
issued by the FCC revoked or an application for license renewal denied
by the FCC, and in the case of a request by Programmer's senior
lenders, (z) possesses the financial capacity to perform Programmer's
obligations hereunder ("Lenders' Assignee"); (iv) in the event that
such senior lenders shall be entitled to foreclose or otherwise
acquire Programmer's or Licensee's interest in this Agreement, or if
such senior lenders (or their nominee, successor or purchaser who
qualifies as a "Lenders' Assignee") shall have elected to enter into a
new Agreement, on the same terms and conditions as this Agreement,
with Licensee or Programmer, to enable such senior lenders to acquire
Programmer's or Licensee's interest in this Agreement or assign such
interest to any purchaser or assignee of such senior lenders who
qualifies as a "Lenders' Assignee", or require Licensee to enter into
a new Agreement, on the same terms and conditions as this Agreement,
directly with any purchaser or assignee of such senior lenders who
qualifies as a "Lenders' Assignee"; and (v) provide for such other
assurances as such senior lenders shall reasonably request in
connection with the exercise of their rights under this paragraph
7.1(c).
2. Counterparts. This Amendment may be executed in counterparts.
3. References to Time Brokerage Agreement. Except as amended
hereby, all terms and provisions of the Time Brokerage Agreement as previously
amended shall remain in full force and effect.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Time Brokerage Agreement the day and year first above written.
LICENSEE: WHITEHEAD MEDIA, INC.
By: /s/ Eddie Whitehead
---------------------------------
Name: Eddie Whitehead
Title: President
PROGRAMMER: PAXSON
COMMUNICATIONS OF FT. PIERCE-34, INC.
By: /s/ William L. Watson
---------------------------------
Name: William L. Watson
Title: Secretary
<PAGE> 1
EXHIBIT 10.55.2
<PAGE> 2
EXHIBIT 10.55.2
- --------------------------------------------------------------------------------
OPTION AGREEMENT
BY AND AMONG
WHITEHEAD MEDIA, INC.
WHITEHEAD MEDIA OF GEORGIA, INC.
AND
PAXSON COMMUNICATIONS OF ATLANTA-14, INC.
FOR
WNGM(TV), CHANNEL 34, ATHENS, GEORGIA
DECEMBER 29, 1995
- --------------------------------------------------------------------------------
<PAGE> 3
OPTION AGREEMENT
This OPTION AGREEMENT is executed this 29th day of December, 1995, by
and between WHITEHEAD MEDIA, INC., a Florida corporation ["Whitehead"],
WHITEHEAD MEDIA OF GEORGIA, INC., a Delaware corporation ("Whitehead-Georgia"
and collectively with Whitehead, "Seller"), and PAXSON COMMUNICATIONS OF
ATLANTA-14, INC., a Florida corporation ["Buyer"].
WHEREAS, Seller is the proposed owner and operator of Television
Station WNGM(TV), Channel 34, Athens, Georgia ["the Station"], pursuant to
authorizations issued by the Federal Communications Commission ["FCC"];
WHEREAS, Whitehead intends to assign to Whitehead-Georgia the FCC
licenses for the Station;
WHEREAS, the parties have agreed that Seller will sell to Buyer an
option to purchase certain of the assets used and useful in the conduct of the
business and operation of the Station on the terms and conditions set forth
herein and subject to the FCC's rules, regulations and policies.
NOW THEREFORE, in consideration of the above and of the mutual
promises and covenants contained herein, and other good and valuable
consideration, the parties, intending to be legally bound, agree as follows:
SECTION 1. OPTION TO PURCHASE ASSETS
1.1 Option Price. In consideration of the payment of One Thousand
Dollars ($1,000) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Seller, the Seller hereby sells
and grants to Buyer an exclusive, irrevocable option [the "Option"] to purchase
the assets, real, personal and mixed, tangible and intangible, owned and held
by Seller that are used or useful in the conduct of the business and operations
of the Station [the "Station Assets"], free and clear of all material debts,
liens, encumbrances or other liabilities, subject to the terms and conditions
set forth herein.
1.2 Buyer may freely assign this Option to any other party, but
shall provide Seller with five (5) days' written notice to Seller. The rights
and obligations of any assignee of Buyer following such assignment shall be the
same as the rights and obligations of the Buyer hereunder. Buyer shall also be
permitted to assign its rights and interests hereunder to its lenders as
collateral security for Buyer's obligations to such lenders.
<PAGE> 4
-2-
1.3 The Option granted hereunder shall run for five (5) years
commencing on the date of this Agreement. Buyer shall provide five (5) days
written notice to Seller of its exercise of the Option.
1.4 In the event that the Option is exercised hereunder, the
parties shall, within ten days of Buyer's written notice thereof, execute an
Asset Purchase Agreement [the "Purchase Agreement"] in the form attached hereto
as Exhibit A, it being understood that the only change to such form shall be
changes, if any, in the information contained in the Schedules thereto and the
addition, if any, of Schedules thereto that are reasonably required to reflect
events occurring after the date hereof; provided, however, that Buyer shall not
be required to accept any such change that could reasonably be expected to
cause an adverse change in, or have an adverse effect on, the assets to be
conveyed to Buyer pursuant to the Purchase Agreement or the ability of Seller
to consummate the transactions contemplated by the Purchase Agreement, and
thereafter Buyer and Seller shall perform their respective obligations under
the Purchase Agreement, including, without limitation, filing and prosecuting
an appropriate application for FCC consent to the assignment of the FCC
licenses for the Station from Seller to Buyer. Notwithstanding anything
contained in this Agreement to the contrary, Buyer may withdraw its notice of
exercise of its Option at any time prior to its execution of the Purchase
Agreement without any liability to Seller.
SECTION 2. SPECIFIC PERFORMANCE
The parties agree that the FCC licenses and the broadcast business
made possible thereby are unique assets not readily available on the open
market. For this reason, Seller acknowledges that monetary damages alone would
not be adequate to compensate Buyer and that monetary damages alone would not
be adequate to compensate Buyer and that specific performance is an appropriate
remedy for Buyer in the event this Agreement is breached. The parties agree
that the rights afforded by the preceding sentence shall be in addition to any
and all rights Buyer may have at law or equity. If any action is brought by
Buyer to enforce this Agreement, Seller shall waive the defense that there is
an adequate remedy at law.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Whitehead and Whitehead-Georgia are corporations duly
incorporated, validly existing and in good standing under the laws of the
States of Florida and Delaware, respectively.
3.2 Seller has and will have upon the exercise of the Option full
corporate power and authority to enter into this Option Agreement and the
Purchase Agreement and to
<PAGE> 5
-3-
consummate the transactions contemplated hereby and thereby. This Agreement
constitutes, and any other instruments contemplated hereby when executed will
constitute, the legal, valid and binding obligations of Seller, enforceable in
accordance with their terms, except as may be affected by bankruptcy and
insolvency laws and court-applied equitable principles.
3.3 The execution and delivery of this Agreement, the consummation
of the transactions contemplated hereby, and the compliance with the terms,
conditions and provisions of this Agreement, with or without the giving of
notice or the passage of time, or both, will not: (i) contravene any provision
of Seller's Articles of Incorporation or By-laws, (ii) conflict with or result
in a breach of or constitute a default under any of the terms, conditions or
provisions of any indenture, mortgage, loan or credit agreement or any other
agreement or instrument to which Seller is a party or by which it or any of the
assets of Seller may be bound or affected, or any decree, judgment or order of
any court or governmental department, commission, board, agency or
instrumentality, domestic or foreign, or any applicable law, ordinance, rule or
regulation, including but not limited to the Communications Act of 1934, as
amended ["the Act"], and the rules and regulations of the FCC promulgated
thereunder.
3.4 No representations or warranty by Seller in this Agreement
contains or will contain any untrue statement of a material fact, or omits or
will omit to state a material fact necessary to make this statement or facts
contained herein or therein not misleading.
SECTION 4. COVENANTS OF SELLER
So long as this Agreement is in effect, Seller covenants that it will
not, without the Buyer's prior written approval:
4.1 Create or incur, assume or suffer to exist any indebtedness,
obligation or liability, whether matured or unmatured, liquidated or
unliquidated, direct or contingent, joint or several, except for: (i)
indebtedness evidenced by the Credit Agreement of December 29, 1995; and (ii)
indebtedness (other than for borrowed money) incurred in the ordinary course of
business not to exceed Twenty Five Thousand Dollars ($25,000.00) in the
aggregate at any one time.
4.2 Create, assume or suffer to exist, directly or indirectly, any
security interest, mortgage, deed of trust, pledge, lien, charge or other
encumbrance, of any nature whatsoever upon any of its properties or assets, now
owned or hereafter as acquired, excluding, however, from the operation of this
covenant:
(i) any security interest or lien created
pursuant to the Credit Agreement ("Credit Agreement") dated as of December 29,
1995 among Seller, the
<PAGE> 6
-4-
Licensee Companies and Lenders referred to therein and Banque Paribas and CIBC
Inc., as Administrative Agent and Documentation Agent, respectively, for such
Lenders;
(ii) liens for taxes or assessments either not
delinquent or the validity of which are being contested in good faith by
appropriate legal or administrative proceedings and as to which adequate
reserves shall have been set aside on its books, in conformity with generally
accepted accounting principles;
(iii) materialmen's, mechanics', carriers',
workmen's, repairmen's, warehousemen's or other like liens arising in the
ordinary course of business and either not yet due and payable or being
contested in good faith by appropriate legal proceedings and as to which
adequate reserves shall have been set aside on its books, in conformity with
generally accepted accounting principles;
(iv) deposits or pledges to secure payment of
workers' compensation, unemployment insurance or other social security benefits
or obligations; or
(v) any judgment lien, unless the judgment it
secures shall not, within thirty (30) days after the entry thereof, have been
discharged, vacated, reversed, or execution thereof stayed pending appeal, or
shall not have been discharged, vacated or reversed within thirty (30) days
after the expiration of any such stay.
4.3 Sell, transfer, lease or otherwise dispose of any of its
material assets except in connection with the acquisition of replacement
property of equivalent kind and value.
4.4 Enter into any consolidation or merger with, or into any
acquisition of all or substantially all of the properties or assets of any
person or entity.
4.5 Change, in any material respect, the nature or character of
its business as intended, or engage in any activity not reasonably related to
such business.
4.6 Enter into any contract or commitment relating to its stock or
assets except for contracts involving aggregate payments of less than
Twenty-five Thousand Dollars ($25,000.00) and contracts which can be terminated
without penalty on thirty (30) days' notice or less, or amend or terminate any
material contract (or waive any substantial right thereunder), or incur any
obligation (including obligations relating to the borrowing of money or
guarantee of indebtedness).
4.7 Transfer or grant any right under, or enter into any
settlement regarding the breach or infringement of, any license, patent,
copyright, trademark, service
<PAGE> 7
-5-
mark, trade name, franchise, or similar right, or modify any existing right
relating to the Seller.
4.8 Enter into any agreement or grant any person or entity a right
to purchase the Station's FCC licenses or all or substantially all of the
assets of the Seller, provided, however, that Seller may, following FCC
approval, transfer the Station's FCC licenses to Whitehead-Georgia, a company
wholly-owned by Eddie L. Whitehead, in accordance with the Credit Agreement so
long as prior to such assignment Seller and Buyer shall have modified the
Purchase Agreement, in a manner acceptable to Buyer, to include
Whitehead-Georgia as party thereto.
4.9 Enter into any agreement or take any other action that would
interfere with, or prevent, Seller's transferring the Assets to Buyer as
contemplated hereunder or under the Purchase Agreement.
4.10 Seller will notify Buyer promptly of the threat of, or
commencement against itself or its shareholder of any claim, suit, action,
arbitration, legal, administrative or other proceeding, or governmental
investigation or tax audit affecting the Station or Seller and will cooperate
fully with Buyer in taking any and all actions necessary or desirable to the
consummation of the transactions contemplated by this Agreement.
SECTION 5. MISCELLANEOUS
5.1 This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
5.2 No amendment, waiver of compliance with any provision or
condition hereof, or consent pursuant to this Agreement will be effective
unless evidenced by an instrument in writing signed by the parties.
5.3 The headings are for convenience only and will not control or
affect the meaning or construction of the provisions of this Agreement.
5.4 The construction and performance of this Agreement will be
governed by the laws of the State of Florida.
5.5 Any notice, demand or request required or permitted to be
given under the provisions of this Agreement shall be in writing and shall be
deemed to have been duly delivered on the date of personal delivery or the date
of receipt if sent by a private air express service (postage prepaid) or mailed
by registered or certified mail, postage prepaid and return receipt requested,
and shall be deemed to have been received on the date of personal delivery or
on the date set forth on the return receipt, to the following addresses or
<PAGE> 8
-6-
to such other address as any party may request, in the case of Seller, by
notifying Buyer, and in the case of Buyer, by notifying Seller:
To Seller: Whitehead Media, Inc.
Whitehead Media of Georgia, Inc.
12144 Classic Drive
Coral Springs, FL 33071
Telecopy: 305-752-2280
Telephone: 305-753-8712
To Buyer: Paxson Communications of Atlanta-14, Inc.
601 Clearwater Park Road
West Palm Beach, FL 33401
Telecopy: 407-659-4122
Telephone: 407-659-4252
5.6 This Agreement may be executed in one or more counterparts,
each of which will be deemed an original but all of which together will
constitute one and the same instrument.
5.7 After the date hereof, Buyer shall be afforded reasonable
opportunity to inspect the Station and the books and records of the Seller upon
reasonable request. Buyer's obligations hereunder and under the Purchase
Agreement are contingent upon and subject to prior confirmation and
verification by Buyer of the financial and other information made available to
Buyer by Seller, review of further financial or other information relating to
the purchase of the Assets and operation of the Station as may be requested by
Buyer, inspection of the assets and technical facilities of the Station, and
review and approval of the schedules and exhibits (and all underlying
documents) to be attached to the Purchase Agreement, all to the satisfaction of
Buyer in its sole discretion.
5.8 Buyer and Seller each agree that they will use their best
efforts to keep confidential (except for such disclosure to attorneys, bankers,
underwriters, investors, etc. as may be appropriate in the furtherance of this
transaction and except for such filings with the FCC as may be required) all
information of a confidential nature obtained in connection with the
transactions contemplated by this Agreement, and in the event that such
transactions are not consummated, each party will return to the other party
such documents and other material obtained from the other party in connection
therewith.
5.9 Buyer and Seller shall jointly prepare, and determine the
timing of, any press release or other announcement to the public relating to
the execution of this agreement. No party hereto will issue any press release
or make any other public announcement relating
<PAGE> 9
-7-
to the transactions contemplated hereby without the prior consent of the other
party hereto, except that any party may make any disclosure required to be made
by it under applicable law if it determines in good faith that it is
appropriate to do so and gives prior notice to the other party.
5.10 Each party shall bear all costs incurred by it in connection
with the transactions contemplated by this Agreement.
5.11 Seller agrees that from the date hereof and during the time
period in which the Option is exercisable hereunder, or if the Option is
exercised, during the period prior to execution of the Purchase Agreement, it
shall not offer or seek to offer, or entertain or discuss any offer, to sell
the Station or its Assets, other than as contemplated under this Agreement, nor
shall Seller permit its shareholder to offer, to seek to offer, or entertain or
discuss any offer to sell any of the capital stock of Seller without the
written consent of Buyer.
5.12 Prior to consummation of the Purchase Agreement and to
obtaining consent from the FCC, Buyer shall not, directly or indirectly,
control, supervise or direct or attempt to control, supervise or direct the
operations of the Station or Seller; such operations, including complete
ultimate control and supervision of all of the Station's programs, employees
and policies, shall remain the sole responsibility of Seller, as set forth in
the rules and policies of the FCC.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 10
-8-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first written above.
WHITEHEAD MEDIA, INC.
By: /s/ Eddie Whitehead
---------------------------------
Name: Eddie Whitehead
Title: President
PAXSON COMMUNICATIONS OF
ATLANTA-14, INC.
By: /s/ William L. Watson
---------------------------------
Name: William L. Watson
Title: Secretary
WHITEHEAD MEDIA OF GEORGIA, INC.
By: /s/ Eddie Whitehead
---------------------------------
Name: Eddie Whitehead
Title: President
<PAGE> 11
EXHIBIT A
FORM OF ASSET PURCHASE AGREEMENT
<PAGE> 12
- --------------------------------------------------------------------------------
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
WHITEHEAD MEDIA, INC.
AND
PAXSON COMMUNICATIONS OF ATLANTA-14, INC.
FOR
TELEVISION STATION WNGM(TV),
ATHENS, GEORGIA
__________________ ____, 199__
- --------------------------------------------------------------------------------
<PAGE> 13
TABLE OF CONTENTS
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RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Assets" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Assumed Contracts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Closing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Closing Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Consents" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Contracts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"FCC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"FCC Consent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"FCC Licenses" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Final Order" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Intangibles" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Licenses" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Permitted Liens" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Person" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Purchase Price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Real Property" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Tangible Personal Property" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2. PURCHASE AND SALE OF ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 Agreement to Sell and Buy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Excluded Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.3 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(a) Prorations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(b) Manner of Determining Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.4 Assumption of Liabilities and Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.1 Organization, Standing and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.2 Authorization and Binding Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.3 Absence of Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.4 Governmental Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.5 Title to and Condition of Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.6 Title to and Condition of Tangible Personal Property . . . . . . . . . . . . . . . . . . . . . . . . . 7
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3.7 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.8 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.9 Intangibles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.10 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.11 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.12 Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(a) Employees and Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(b) Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(c) Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.13 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.14 Claims and Legal Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.15 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.16 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.17 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.1 Organization, Standing and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.2 Authorization and Binding Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.3 Absence of Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.4 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.5 Buyer Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5. OPERATIONS OF THE STATION PRIOR TO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.2 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.3 Disposition of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.4 Encumbrances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.5 Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.6 Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.7 Access to Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.8 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.9 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.10 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.11 Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.12 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.1 FCC Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.2 Control of the Station . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.3 Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.4 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.5 Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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6.6 Access to Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.7 Broker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER AT CLOSING . . . . . . . . . . . . . . . . . . . . . . . . 16
7.1 Conditions to Obligations of Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(a) Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(b) Covenants and Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(c) Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(d) FCC Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(e) Governmental Authorizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(f) Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.2 Conditions to Obligations of Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(a) Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(b) Covenants and Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(c) Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(d) FCC Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 8. CLOSING AND CLOSING DELIVERIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
8.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(a) Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(b) Closing Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
8.2 Deliveries by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(a) Transfer Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(b) Estoppel Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(c) Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(d) Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(e) Licenses, Contracts, Business Records, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 18
(f) Opinions of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.3 Deliveries by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(a) Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(b) Assumption Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(c) Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(d) Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 9. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
9.1 Termination by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(a) Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(b) Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(c) Upset Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
9.2 Termination by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(a) Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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(b) Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(c) Upset Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
9.3 Rights on Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
10.1 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
10.2 Indemnification by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
10.3 Indemnification by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
10.4 Procedure for Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
10.5 Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
10.6 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
11.1 Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
11.2 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
11.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
11.4 Benefit and Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
11.5 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
11.6 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
11.7 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
11.8 Gender and Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
11.9 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
11.10 Waiver of Compliance; Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
11.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
11.12 Press Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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LIST OF SCHEDULES
Schedule 2.2 -- Excluded Property
Schedule 3.3 -- Consents
Schedule 3.4 -- Licenses
Schedule 3.5 -- Real Property
Schedule 3.6 -- Tangible Personal Property
Schedule 3.7 -- Assumed Contracts
Schedule 3.9 -- Intangibles
Schedule 3.10 -- Insurance Policies
Schedule 3.12 -- Employee Matters
Schedule 8.2(f) -- Form of Opinion of Seller's Counsel
Schedule 8.3(d) -- Form of Opinion of Buyer's Counsel
<PAGE> 18
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT is dated as of __________ ___, 199__, by
and among Whitehead Media, Inc., a Florida corporation ("Seller"), and Paxson
Communications of Atlanta-14, Inc., a Florida corporation ("Buyer").
RECITALS
A. Seller, directly and through a wholly-owned subsidiary, is the
owner and operator of television station WNGM(TV), Athens, Georgia (the
"Station"), pursuant to authorizations issued by the Federal Communications
Commission ("FCC").
B. Seller desires to sell, and Buyer wishes to buy, substantially
all the assets that are owned by Seller or in which Seller has a transferable
interest and which are used or useful in the business or operations of the
Station, for the price and on the terms and conditions set forth in this
Agreement.
AGREEMENTS
In consideration of the above recitals and of the mutual agreements
and covenants contained in this Agreement, Buyer and Seller, intending to be
bound legally, agree as follows:
SECTION 1. DEFINITIONS
The following terms, as used in this Agreement, shall have the
meanings set forth in this Section:
"Assets" means the assets to be sold, transferred, or otherwise
conveyed to Buyer under this Agreement, as specified in Section 2.1 and 2.2.
"Assumed Contracts" means (i) all Contracts listed in Schedule 3.7
that are to be assumed by Buyer upon its purchase of the Station, (ii) all
Contracts entered into by Seller in the ordinary course of business which
comply with the provisions of Section 5.3 hereof; and (iii) any other Contracts
entered into by Seller between the date of this Agreement and the Closing Date
that Buyer agrees in writing to assume.
"Closing" means the consummation of the purchase and sale of the
Assets pursuant to this Agreement in accordance with the provisions of Section
8.
"Closing Date" means the date on which the Closing occurs, as
determined pursuant to Section 8.
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"Consents" means the consents, permits, or approvals of government
authorities and other third parties necessary to transfer the Assets to Buyer
or otherwise to consummate the transactions contemplated by this Agreement.
"Contracts" means all contracts, leases, non-governmental licenses,
and other agreements (including leases for personal or real property and
employment agreements), written or oral (including any amendments and other
modifications thereto) to which Seller is a party or which are binding upon
Seller and which relate to or affect the Assets or the business or operations
of the Station, and (i) which are in effect on the date of this Agreement or
(ii) which are entered into by Seller between the date of this Agreement and
the Closing Date.
"FCC" means the Federal Communications Commission.
"FCC Consent" means action by the FCC granting its consent to the
assignment of the FCC Licenses to Buyer as contemplated by this Agreement.
"FCC Licenses" means all Licenses and/or Construction Permits issued
by the FCC to Seller in connection with the business or operations of the
Station.
"Final Order" means an action by the FCC that has not been reversed,
stayed, enjoined, set aside, annulled, or suspended, and with respect to which
no requests are pending for administrative or judicial review, reconsideration,
appeal, or stay, and the time for filing any such requests and the time for the
FCC to set aside the action on its own motion have expired.
"Intangibles" means all copyrights, trademarks, trade names, service
marks, service names, licenses, patents, permits, jingles, proprietary
information, technical information and data, machinery and equipment
warranties, and other similar intangible property rights and interests (and any
goodwill associated with any of the foregoing) applied for, issued to, or owned
y Seller or under which Seller is licensed or franchised and which are used or
useful in the business and operations of the Station, together with any
additions thereto between the date of this Agreement and the Closing Date.
"Licenses" means all licenses, permits, and other authorizations
issued by the FCC, the Federal Aviation Administration, or any other federal,
state, or local government authorities to Seller in connection with the conduct
of the business or operations of the Station, together with any additions
thereto between the date of this Agreement and the Closing Date.
"Permitted Liens" means liens for taxes not yet due and payable.
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"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, or any
governmental entity.
"Purchase Price" means the purchase price specified in Section 2.3.
"Real Property" means Seller's interests in real property, leaseholds
and subleaseholds, purchase options, easements, licenses, rights to access, and
rights of way, and all buildings and other improvements thereon, which are used
or useful in the business or operations of the Station, together with any
additions thereto between the date of this Agreement and the Closing Date.
"Tangible Personal Property" means all machinery, equipment, tools,
furniture, leasehold improvements, office equipment, plant, inventory, spare
parts, and other tangible personal property which is owned by the Seller or in
which Seller has an interest and which is used or useful in the conduct of the
business or operations of the Station, together with any additions thereto
between the date of this Agreement and the Closing Date, but excluding any
Tangible Personal Property consumed in the ordinary course of business between
the date hereof and the Closing Date.
SECTION 2. PURCHASE AND SALE OF ASSETS
2.1 Agreement to Sell and Buy. Subject to the terms and
conditions set forth in this Agreement, Seller hereby agrees to sell, transfer,
assign and deliver to Buyer on the Closing Date, and Buyer agrees to purchase
and accept, all of the Assets and property interests owned by Seller or in
which Seller has a property interest which are used or useful in connection
with the conduct of the business or operations of the Station, together with
any additions thereto between the date of this Agreement and the Closing Date,
but excluding the assets described in Section 2.2, free and clear of any
claims, liabilities, security interests, mortgages, liens, pledges, conditions,
charges, or encumbrances of any nature whatsoever (except for Permitted Liens),
including the following:
(a) The Tangible Personal Property;
(b) The Real Property;
(c) The Licenses;
(d) The Assumed Contracts;
(e) The Intangibles, including the goodwill of
the Station, if any;
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(f) All proprietary information, technical
information and data, machinery and equipment warranties, maps, computer discs
and tapes, plans, diagrams, blueprints, and schematics, including filings with
the FCC relating to the business and operation of the Station, which belong to
Seller and is within its possession and control;
(g) All choses in action of Seller relating to
the Station that are assignable to Buyer as provided herein;
(h) All records required by the FCC to be kept by
the Station and copies of all other books and records which belong to Seller
and are within its possession and control relating to the business or
operations of the Station (exclusive of corporate, financial and accounting
records), including executed copies of the Assumed Contracts; and
2.2 Excluded Assets. The Assets shall exclude the following
assets.
(a) Seller's cash on hand as of the Closing and
all other cash in any of Seller's bank or savings accounts; any insurance
policies, letters of credit, or other similar items and cash surrender value in
regard thereto; and any stocks, bonds, certificates of deposit and similar
securities or other investments;
(b) All corporate and accounting records of
Seller and copies of all other books and records relating to the business and
operations of the Station; and
(c) All property listed on Schedule 2.2 hereto.
2.3 Purchase Price. The Purchase Price for the Assets shall be
Five Hundred Thousand Dollars ($500,000) adjusted as provided below and shall
be paid in cash at the Closing:
(a) Prorations. The Purchase Price shall be
increased or decreased as required to effectuate the proration of expenses as
of 11:59 p.m. local time, on the day prior to the Closing Date. All expenses
arising from the operation of the Station, including business and license fees,
utility charges, real and personal property taxes and assessments levied
against the Assets, property and equipment rentals, applicable copyright or
other fees, sales and service charges, taxes (except for taxes arising from the
transfer of the Asset under this Agreement which shall be governed by Section
11.1 hereof), prepaid time sales agreements and similar prepaid and deferred
items, shall be prorated between Buyer and Seller in accordance with the
principle that Seller shall be responsible for all expenses, costs, and
liabilities allocable to the period prior to the Closing Date, and Buyer shall
be responsible for all expenses, costs, and obligations allocable to the period
on and after the Closing Date. Notwithstanding the preceding sentence, there
shall be no adjustment for, and Seller shall remain solely liable with respect
to, any Contracts not included in the Assumed
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<PAGE> 22
Contracts and any other obligation or liability not being assumed by Buyer in
accordance with Section 2.5.
(b) Manner of Determining Adjustments. Any
adjustments will, insofar as feasible, be determined and paid on the Closing
Date, with final settlement and payment by the appropriate party occurring no
later than ninety (90) days after the Closing Date or such other date as the
parties shall mutually agree upon.
2.4 Assumption of Liabilities and Obligations. As of the Closing
Date, Buyer shall (a) assume and undertake to pay, discharge, and perform all
obligations and liabilities of the Seller under the Licenses and the Assumed
Contracts insofar as they relate to the time on and after the Closing Date, and
arise out of events related to Buyer's ownership of the Assets or its operation
of the Station on or after the Closing Date and those relating to the period
prior to the Closing which Buyer agrees to assume pursuant to the prorations
and adjustments and (b) shall pay that portion of the principal and interest
due and payable following the Closing Date pursuant to the terms of the Credit
Agreement dated as of December 29, 1995 (the "Credit Agreement"), among
Whitehead Media, Inc. and its Affiliates, the several Lenders From Time to Time
Parties thereto, CIBC Inc., as Documentation Agent, and Banque Paribas, as
Administrative Agent that is allocable to the Station as set forth in Schedule
6.03 to the Credit Agreement. Buyer shall not assume any other obligations or
liabilities of Seller, including (i) any obligations or liabilities under any
Contract not included in the Assumed Contracts, (ii) any obligations or
liabilities under the Assumed Contracts relating to the period prior to the
Closing Date, (iii) any claims or pending litigation or proceedings relating to
the operation of the Station prior to the Closing, (iv) any obligations or
liabilities arising under agreements entered into other than in the ordinary
course of business, (v) any obligation to any employee of the Station for
severance benefits, vacation time, or sick leave accrued prior to the Closing
Date relating to any employee of Seller who is not employed or offered
employment by Buyer within the 90-day adjustment period, or (vi) any
obligations or liabilities caused by, arising out of, or resulting from any
action or omission of Seller prior to the Closing, and all such obligations and
liabilities shall remain and be the obligations and liabilities solely of
Seller.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Organization, Standing and Authority. Seller is a corporation
organized under the laws of Florida. Seller has all requisite power and
authority (i) to own, lease, and use the Assets as now owned, leased, and used,
(ii) to conduct the business operations of the Station as now conducted, and
(iii) to execute and deliver this Agreement and the documents contemplated
hereby, and to perform and comply with all of the terms, covenants, and
conditions to be performed and complied with by Seller hereunder and
thereunder. Seller is
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<PAGE> 23
not a participant of any joint venture or partnership with any person or entity
with respect to any part of the operations of the Station or any of the Assets.
3.2 Authorization and Binding Obligation. The execution,
delivery, and performance of this Agreement by Seller have been duly authorized
by all necessary corporate actions on the part of Seller. This Agreement has
been duly executed and delivered by Seller and constitutes the legal, valid,
and binding obligation of Seller, enforceable against it in accordance with its
terms except as the enforceability of this Agreement may be affected by
bankruptcy, insolvency, or similar laws affecting creditors' rights generally,
and by judicial discretion in the enforcement of equitable remedies.
3.3 Absence of Conflicting Agreements. Subject to obtaining the
Consents listed on Schedule 3.3, the execution, delivery, the performance of
this Agreement and the documents contemplated hereby (with or without the
giving of notice, the lapse of time, or both): (i) do not require the consent
of any third party; (ii) will not conflict with, result in a breach of, or
constitute a default under, any law, judgment, order, ordinance, injunction,
decree, rule, regulation, or ruling of any court or governmental
instrumentality in a proceeding involving Seller; (iii) will not conflict with,
constitute grounds for termination of, result in a breach of, constitute a
default under, or accelerate or permit the acceleration of any performance
required by the terms of, any agreement, instrument, license, or permit to
which Seller is a party or by which Seller may be bound; (iv) will not create
any claim, liability, mortgage, lien, pledge, condition, charge, or encumbrance
of any nature whatsoever upon any of the Assets; and (v) will not conflict with
any provision of Seller's Certificate of Incorporation or By-laws.
3.4 Governmental Licenses. To the best of Seller's knowledge and
except as set forth on Schedule 3.4, (i) Schedule 3.4 includes a true and
complete list of the material Licenses and lists pending applications affecting
the Licenses; (ii) Seller has delivered to Buyer true and complete copies of
the Licenses listed on such Schedule (including any amendment and other
modifications thereto), (iii) the Licenses have been validly issued, and Seller
is the authorized legal holder thereof, (iv) the Licenses listed on Schedule
3.4 comprise all of the material licenses, permits, and other authorizations
required from any governmental or regulatory authority for the lawful conduct
of the business and operations of the Station in the manner and to the full
extent they are now conducted, (v) none of the Licenses is subject to any
restriction or condition that would limit the full operation of the Station as
now operated, (vi) the Licenses are in full force and effect, in all material
respects, and the conduct of the business and operations of the Station is in
material accordance therewith, and (vii) Seller has no reason to believe that
any of the Licenses would not be renewed by the FCC or other granting authority
in the ordinary course.
3.5 Title to and Condition of Real Property. Schedule 3.5
contains a complete and accurate description of all the Real Property and
Seller's interests therein (including street
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<PAGE> 24
address, legal description, owner, and use and the location of all improvements
thereon). The Real Property listed on Schedule 3.5 comprises all real property
interests necessary to conduct the business and operations of the Station as
now conducted. With respect to each leasehold or subleasehold interest
included in the Real Property being conveyed under this Agreement, so long as
Seller fulfills its obligations under the lease therefor, Seller has
enforceable rights to nondisturbance and quiet enjoyment, and no third party
holds any interest in the leased premises with the right to foreclose upon
Seller's leasehold or subleasehold interest. Seller has full legal and
practical access to the Real Property. All easements, rights-of-way, and real
property licenses relating to the Real Property have been properly recorded in
the appropriate public recording offices. Seller will cooperate with Buyer and
provide such assistance as Buyer may reasonably request in connection with
Buyer's efforts to obtain on or before Closing, at Buyer's election and
expense, a policy of title insurance and a current survey with respect to the
Real Property, including, without limitation, using its best efforts to cause
all lease agreements relating to the Real Property to be recorded in the
appropriate public recording offices.
3.6 Title to and Condition of Tangible Personal Property.
Schedule 3.6 lists all material items of Tangible Personal Property. The
Tangible Personal Property listed on Schedule 3.6 comprises all material items
of tangible personal property used to conduct the business and operations of
the Station as now conducted exclusive of motor vehicles. Except as described
in Schedule 3.6, Seller owns and has good title to each item of Tangible
Personal Property, and none of the Tangible Personal Property owned by Seller
is subject to any security interest, mortgage, pledge, conditional sales
agreement, or other lien or encumbrance, except Permitted Liens.
3.7 Contracts. Schedule 3.7 is a true and complete list of all
Assumed Contracts except contracts with advertisers for the sale of advertising
time on the Station for cash at prevailing rates and which may be canceled by
the Station without penalty on not more than ninety days' notice. Seller has
delivered to Buyer true and complete copies of all written Assumed Contracts,
true and complete memoranda of all material oral Assumed Contracts (including
any amendments and other modifications to such Assumed Contracts), and a
schedule summarizing Seller's obligations under trade and barter agreements
relating to the Station. To the best of Seller's knowledge, all of the Assumed
Contracts are in full force and effect, and are valid, binding, and enforceable
in accordance with their terms and there is not under any Assumed Contract any
default by any party thereto or any event that, after notice or lapse of time
or both, could constitute a default. Except for the need to obtain the
Consents listed in Schedule 3.3, Seller has full legal power and authority to
assign its rights under the Assumed Contracts to Buyer in accordance with this
Agreement, and such assignment will not affect the validity, enforceability, or
continuation of any of the Assumed Contracts.
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<PAGE> 25
3.8 Consents. Except for the FCC Consent provided in Section 6.1
and the other Consents described in Schedule 3.3, to the best of Seller's
knowledge, no consent, approval, permit, or authorization of, or declaration to
or filing with any governmental or regulatory authority, or any other third
party is required (i) to consummate this Agreement and the transactions
contemplated hereby, (ii) to permit Seller to assign or transfer the Assets to
Buyer, or (iii) to enable Buyer to conduct the business and operations of the
Station in essentially the same manner as such business and operations are now
conducted.
3.9 Intangibles. To the best of Seller's knowledge, Schedule 3.9
is a true and complete list of all material Intangibles (exclusive of those
listed in Schedule 3.4), all of which are valid and in good standing and
uncontested. Seller has delivered to Buyer copies of all documents
establishing or evidencing all intangibles.
3.10 Insurance. Schedule 3.10 is a true and complete list of all
insurance policies of Seller that insure any part of the Assets or the business
of the Station. All policies of insurance listed in Schedule 3.10 are in full
force and effect.
3.11 Reports. To the best of Seller's knowledge and except as set
forth in Schedule 3.4, all returns, reports, and statements that the Station is
currently required to file with the FCC or place in its Public File or file
with any other governmental agency have been filed, and all reporting
requirements of the FCC and other governmental authorities having jurisdiction
over Seller and the Station have been complied with in all material respects
and all of such returns, reports, and statements are substantially complete and
correct as filed.
3.12 Personnel.
(a) Employees and Compensation. Schedule 3.12 contains a
true and complete list of all employees of the Station, their job description,
date of hire, salary and amount and date of last salary increase. Schedule
3.12 also contains a true and complete list as of the date of this Agreement of
all employee benefit plans or arrangements applicable to the employees of the
Station and all fixed or contingent liabilities or obligations of Seller with
respect to any person now or formerly employed by Seller at the Station,
including pension or thrift plans, individual or supplemental pension or
accrued compensation arrangements, contributions to hospitalization or other
health or life insurance programs, incentive plans, bonus arrangements, and
vacation, sick leave, disability and termination arrangements or policies,
including workers' compensation policies, and a description of all fixed or
contingent liabilities or obligations of Seller with respect to any person now
or formerly employed at the Station or any person now or formerly retained as
an independent contractor at the Station.
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(b) Labor Relations. Seller is not a party to or subject
to any collective bargaining agreements with respect to the Station. Seller
has no written or oral contracts of employment with any employee of the
Station, other than those listed in Schedule 3.7.
(c) Liabilities. Seller has no liability of any kind to
or in respect of any employee benefit plan, including withdrawal liability
under Section 4201 of ERISA. Seller has not incurred any accumulated funding
deficiency within the meaning of ERISA or Section 4971 of the Internal Revenue
Code. Seller has not failed to make any required contributions to any employee
benefit plan. The Pension Benefit Guaranty Corporation has not asserted that
Seller has incurred any liability in connection with any such plan. No lien
has been attached and no person has threatened to attach a lien on any property
of Seller as a result of a failure to comply with ERISA.
3.13 Taxes. To the best of the Seller's knowledge, (i) Seller has
filed or caused to be filed all federal income tax returns and all other
federal, state, county, local, or city tax returns which are required to be
filed, and it has paid or caused to be paid all taxes shown on those returns or
on any tax assessment received by it to the extent that such taxes have become
due, and (ii) there are no governmental investigations or other legal,
administrative, or tax proceedings pursuant to which Seller is or could be made
liable for any taxes, penalties, interest, or other charges, the liability for
which could extend to Buyer as transferee of the business of the Station, and
no event has occurred that could impose on Buyer any transferee liability for
any taxes, penalties, or interest due or to become due from Seller.
3.14 Claims and Legal Actions. Except for any FCC rulemaking
proceedings generally affecting the broadcasting industry, and except as set
forth on Schedule 3.4, to the best of Seller's knowledge, there is no claim,
legal action, counterclaim, nor any order, decree or judgment, in progress or
pending, or to the knowledge of Seller threatened, against or relating to
Seller with respect to its ownership or operation of the Station or otherwise
relating to the Assets or the business or operations of the Station, nor does
Seller know or have reason to be aware of any basis for the same. In
particular, but without limiting the generality of the foregoing, and except as
forth on Schedule 3.14, to the best of Seller's knowledge, there are no
applications, complaints or proceedings pending or, to the best of its
knowledge, threatened (i) before the FCC relating to the business or operations
of the Station other than rule making proceedings which affect the radio
industry generally, (ii) before any federal or state agency relating to the
business or operations of the Station involving charges of illegal
discrimination under any federal or state employment laws or regulations, or
(iii) before any federal, state, or local agency relating to the business or
operations of the Station involving zoning issues under any federal, state, or
local zoning law, rule, or regulation.
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<PAGE> 27
3.15 Environmental Matters.
(a) Seller has complied in all material respects with all
laws, rules, and regulations of all federal, state, and local governments (and
all agencies thereof) concerning the environment, public health and safety, and
employee health and safety, and no charge, complaint, action, suit, proceeding,
hearing, investigation, claim, demand, or notice has been filed or commenced
against Seller in connection with its ownership or operation of the Station
alleging any failure to comply with any such law, rule, or regulation.
(b) To the best of Seller's knowledge, Seller has no
liability relating to its ownership and operation of the Station (and there is
no basis related to the past or present operations, properties, or facilities
of Seller for any present or future charge, complaint, action, suit,
proceeding, hearing, investigation, claim, or demand against Seller giving rise
to any such liability) under any law, rule, or regulation of any federal,
state, or local government (or agency thereof) concerning release or threatened
release of hazardous substances, public health and safety, or pollution or
protection of the environment.
(c) To the best of Seller's knowledge, Seller has no
liability relating to its ownership and operation of the Station (and Seller
has not handled or disposed of any substance, arranged for the disposal of any
substance, or owned or operated any property or facility in any manner that
could form the basis for any present or future charge, complaint, action, suit,
proceeding, hearing, investigation, claim, or demand (under the common law or
pursuant to any statute) against Seller giving rise to any such liability) for
damage to any site, location, or body of water (surface of subsurface) or for
illness or personal injury.
(d) To the best of Seller's knowledge, Seller has no
liability relating to its ownership and operation of the Station (and there is
no basis for any present or future charge, complaint, action, suit, proceeding,
hearing, investigation, claim, or demand against Seller giving rise to any such
liability) under any law, rule, or regulation of any federal, state, or local
government (or agency thereof) concerning employee health and safety.
(e) In connection with its ownership or operation of the
Station, Seller has obtained and been in material compliance with all of the
terms and conditions of all permits, licenses, and other authorizations which
are required under, and has complied in all material respects with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules, and timetables which are contained in, all federal,
state, and local laws, rules, and regulations (including all codes, plans,
judgments, orders, decrees, stipulations, injunctions, and charges thereunder)
relating to public health and safety, worker health and safety, and pollution
or protection of the environment, including laws relating to emissions,
discharges, releases, or threatened releases of pollutants, contaminants, or
chemical, industrial, hazardous, or toxic materials or wastes into ambient air,
surface water, ground water, or lands or otherwise relating to the manufacture,
processing, distribution,
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<PAGE> 28
use, treatment, storage, disposal, transport, or handling of pollutants,
contaminants, or chemical, industrial, hazardous, or toxic materials or wastes.
(f) To the best of Seller's knowledge, all properties and
equipment used in the business of the Station are and have been free of
asbestos and asbestos-related products, PCB's, dioxins, and Extremely Hazardous
Substances (as defined in Section 302 of the Emergency Planning and Community
Right-to-Know Act).
(g) No pollutant, contaminant, or chemical, industrial,
hazardous, or toxic material or waste has ever been manufactured, buried,
stored, spilled, leaked, discharged, emitted, or released by Seller in
connection with its ownership and operation of the Station or, to the best of
Seller's knowledge, after due investigation, by any other party on any Real
Property.
3.16 Compliance with Laws. To the best Seller's knowledge and
except as set forth on Schedule 3.4, Seller has complied in all material
respects with the Licenses and all federal, state, and local laws, rules,
regulations, and ordinances applicable or relating to the ownership and
operation of the Station. To the best of Seller's knowledge, neither the
ownership or use of the properties of the Station nor the conduct of the
business or operations of the Station conflicts with the rights of any other
person or entity.
3.17 Full Disclosure. No representation or warranty made by Seller
in this Agreement or in any certificate, document, or other instrument
furnished or to be furnished by Seller pursuant hereto contains or will
knowingly contain any untrue statement of a material fact.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 Organization, Standing and Authority. Buyer is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Florida and at Closing will be duly qualified to conduct business as a
foreign corporation in the State of Georgia. Buyer has all requisite power and
authority to execute and deliver this Agreement and the documents contemplated
hereby, and to perform and comply with all of the terms, covenants, and
conditions to be performed and complied with by Buyer hereunder and thereunder.
4.2 Authorization and Binding Obligation. The execution,
delivery, and performance of this Agreement by Buyer have been duly authorized
by all necessary actions on the part of Buyer. This Agreement has been duly
executed and delivered by Buyer and constitutes the legal, valid, and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms
except as the enforceability of this Agreement may be affected by
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<PAGE> 29
bankruptcy, insolvency, or similar laws affecting creditors' rights generally
and by judicial discretion in the enforcement of equitable remedies.
4.3 Absence of Conflicting Agreements. Subject to obtaining the
Consents, the execution, delivery, and performance by Buyer of this Agreement
and the documents contemplated hereby (with or without the giving of notice,
the lapse of time, or both): (i) do not require the consent of any third party;
(ii) will not conflict with the Certificate of Incorporation or Bylaws of
Buyer; (iii) will not conflict with, result in a breach of, or constitute a
default under, any law, judgment, order, injunction, decree, rule, regulation,
or ruling of any court or governmental instrumentality; (iv) will not conflict
with, constitute grounds for termination of, result in a breach of, constitute
a default under, or accelerate or permit the acceleration of any performance
required by the terms of, any agreement, instrument, license, or permit to
which Buyer is a party or by which Buyer may be bound, such that Buyer could
not acquire the Assets or operate the Station.
4.4 Full Disclosure. No representation or warranty made by Buyer
in this Agreement or in any certificate, document, or other instrument
furnished or to be furnished by Buyer pursuant hereto contains or will
knowingly contain any untrue statement of a material fact.
4.5 Buyer Qualifications. Buyer is legally, financially and
otherwise qualified to be the licensee of, acquire, own and operate the Station
under the Communications Act of 1934, as amended, and the rules, regulations
and policies of the FCC. Buyer knows of no fact that would, under existing law
and the existing rules, regulations, policies and procedures of the FCC
disqualify Buyer as assignee of the FCC Licenses or as the owner and operator
of the Station.
SECTION 5. OPERATIONS OF THE STATION PRIOR TO CLOSING
5.1 Generally. Seller agrees that, between the date of this
Agreement and the Closing Date, Seller shall operate the Station in the
ordinary course of business in accordance with its past practices (except where
such conduct would conflict with the following covenants or with Seller's other
obligations under this Agreement), and in accordance with the other covenants
in this Section 5.
5.2 Contracts. Seller will not enter into any contract or
commitment which is not terminable on 90-days notice relating to the Station or
the Assets, or amend or terminate any Contract (or waive any material right
thereunder), or incur any obligation (including obligations relating to the
borrowing of money or the guaranteeing of indebtedness) that will be binding on
Buyer after Closing, except for cash time sales agreements made in the ordinary
course of business and other contracts or commitments involving less than
$5,000. Prior to the Closing Date, Seller shall deliver to Buyer a list of all
Contracts entered into
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<PAGE> 30
between the date of this Agreement and the Closing Date, together with copies
of such Contracts.
5.3 Disposition of Assets. Seller shall not sell, assign, lease,
or otherwise transfer or dispose of any of the material Assets, except where no
longer used or useful in the business or operations of the Station or in
connection with the acquisition of replacement property of equivalent kind and
value.
5.4 Encumbrances. Seller shall not create, assume or permit to
exist any claim, liability, mortgage, lien, pledge, condition, charge, or
encumbrance of any nature whatsoever upon the Assets, except for (i) liens
which shall be removed prior to the Closing Date, (ii) liens for current taxes
not yet due and payable, and (iii) mechanics' liens and other similar liens,
which shall be removed prior to the Closing Date either by payment or posting
an appropriate indemnity bond.
5.5 Licenses. Seller shall not cause or permit, by any act or
failure to act, any of the Licenses issued by the FCC to expire or to be
revoked, suspended, or modified, or take any action that could cause the FCC or
any other governmental authority to institute proceedings for the suspension,
revocation, or adverse modification of any of the Licenses. Seller shall not
fail to prosecute with due diligence any applications to any governmental
authority in connection with the operation of the Station.
5.6 Rights. Seller shall not knowingly waive any material right
relating to the Station or any of the Assets.
5.7 Access to Information. Seller shall give Buyer and its
counsel, accountants, engineers, and other authorized representatives
reasonable access during normal business hours to the Assets and to all other
properties, equipment, books, records, Contracts, and documents relating to the
Station for the purpose of audit and inspection and will furnish or cause to be
furnished to Buyer or its authorized representatives all material information
with respect to the affairs and business of the Station that Buyer may
reasonably request (including any operations reports produced with respect to
the affairs and business of the Station).
5.8 Insurance. Seller shall maintain substantially the same
insurance coverage provided by the existing insurance policies on the Station
and the Assets.
5.9 Consents. Seller shall use its best efforts to obtain the
Consents described in Section 8.2(c), without any material change in the terms
or conditions of any Contract or License as in effect on the date of this
Agreement. Seller shall advise Buyer of any communications it receives
concerning the Consents and of any conditions proposed, considered, or
requested for any of the Consents. Upon Buyer's request, Seller shall
cooperate with Buyer and use its best efforts to obtain from the lessors under
each Real
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Property lease such estoppel certificates and consents to the collateral
assignment of the lessee's interest under each such lease as Buyer's lenders
may request.
5.10 Books and Records. Seller shall maintain its books and
records relating to the Station in accordance with past practices.
5.11 Notification. Seller shall promptly notify Buyer in writing
of any material change in any of the information contained in Seller's
representations and warranties contained in Section 3 of this Agreement.
5.12 Compliance with Laws. Seller shall comply in all material
respects with all laws, rules, and regulations applicable or relating to the
ownership and operation of the Station.
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS
6.1 FCC Consent.
(a) The assignment of the FCC Licenses in connection with
the purchase and sale of the Assets pursuant to this Agreement shall be subject
to the prior consent and approval of the FCC.
(b) Seller and Buyer shall promptly prepare an
appropriate application for the FCC Consent and shall file the application with
the FCC within five (5) business days of the execution of this Agreement. The
parties shall prosecute the application with all reasonable diligence and
otherwise use their reasonable commercial efforts to obtain a grant of the
application as expeditiously as practicable. Each party agrees to comply with
any condition imposed on it by the FCC Consent, except that no party shall be
required to comply with a condition if (1) the condition was imposed on it as
the result of a circumstance the existence of which does not constitute a
breach by the party of any of its representations, warranties, or covenants
under this Agreement, and (2) compliance with the condition would have a
material adverse effect upon it. Buyer and Seller shall oppose any requests
for reconsideration or judicial review of the FCC Consent, provided, however,
that the parties shall continue to have all rights available to them pursuant
to Section 9 hereof. If the Closing shall not have occurred for any reason
within the original effective period of the FCC Consent, and neither party
shall have terminated this Agreement under Section 9, the parties shall jointly
request an extension of the effective period of the FCC Consent. No extension
of the FCC Consent shall limit the exercise by either party of its rights under
Section 9.
6.2 Control of the Station. Prior to Closing, Buyer shall not,
directly or indirectly, control, supervise, direct, or attempt to control,
supervise, or direct, the
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operations of the Station; such operations, including complete control and
supervision of all of the Station programs, employees, and policies, shall be
the sole responsibility of the Seller until the Closing.
6.3 Risk of Loss. The risk of any loss, damage, impairment,
confiscation, or condemnation of any of the Assets from any cause whatsoever
shall be borne by Seller at all times prior to the Closing.
6.4 Confidentiality. Except as necessary for the consummation of
the transaction contemplated by this Agreement, including Buyer's obtaining of
financing related hereto, and except as and to the extent required by law,
including, without limitation, disclosure requirements of federal or state
securities laws and rules and regulations of securities markets, each party
will keep confidential any information obtained from the other party in
connection with the transactions contemplated by this Agreement. Except as
provided in this Paragraph each party will refrain from disclosing any such
information to any third party. If this Agreement is terminated, each party
will return to the other party all copies of all documents and other all
information obtained by the such party from the other party in connection with
the transactions contemplated by this Agreement.
6.5 Cooperation. Buyer and Seller shall cooperate fully with each
other and their respective counsel and accountants in connection with any
actions required to be taken as part of their respective obligations under this
Agreement, and Buyer and Seller shall execute such other documents as may be
necessary and desirable to the implementation and consummation of this
Agreement, and otherwise use their reasonable commercial efforts to consummate
the transaction contemplated hereby and to fulfill their obligations under this
Agreement. Notwithstanding the foregoing, neither Buyer nor Seller shall have
any obligation (i) to expend funds to obtain any of the Consents or (ii) to
agree to any material adverse change in any License or Assumed Contract to
obtain a Consent required with respect thereto; provided, however, that Seller
shall be required to expend funds, if necessary, to cure any defaults in order
to obtain Consents and either party shall be required to expend funds in
respect of normal and usual filing fees and the fees of professional advisors.
6.6 Access to Books and Records. Seller shall provide Buyer
access and the right to copy for a period of four (4) years from the Closing
Date any books and records relating to the Assets but not included in the
Assets. Buyer shall provide Seller access and the right to copy for a period
of four (4) years from the Closing Date any books and records relating to the
Assets that are included in the Assets.
6.7 Broker. Each of Buyer and Seller represents and warrants that
neither it nor any person or entity acting on its behalf has incurred any
liability for any finders' or brokers' fees or commissions in connection with
the transactions contemplated by this Agreement.
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SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER
AT CLOSING
7.1 Conditions to Obligations of Buyer. All obligations of Buyer
at the Closing are subject at Buyer's option to the fulfillment or waiver by
Buyer prior to or at the Closing Date of each of the following conditions:
(a) Representations and Warranties. All material
representations and warranties of Seller contained in this Agreement shall be
true and complete in all material respects at and as of the Closing Date as
though made at and as of that time.
(b) Covenants and Conditions. Seller shall have
performed and complied in all material respects with all material covenants,
agreements, and conditions required by this Agreement to be performed or
complied with by it prior to or on the Closing Date.
(c) Consents. All Consents shall have been obtained and
delivered to Buyer without any material adverse change in the terms or
conditions of any agreement or any governmental license, permit, or other
authorization.
(d) FCC Consent. The FCC Consent shall have been granted
without the imposition on Buyer of any material conditions that need not be
complied with by Buyer under Section 6.1 hereof, Seller shall have complied
with any material conditions imposed on it by the FCC Consent, and the FCC
Consent shall have become a Final Order.
(e) Governmental Authorizations. Seller shall be the
holder of all material Licenses and there shall not have been any modification
of any material License that could have a material adverse effect on the
Station or the conduct of its business and operations. No proceeding shall be
pending the effect of which could be to revoke, cancel, fail to renew, suspend,
or modify adversely any material License. All FCC Licenses are material
Licenses.
(f) Deliveries. Seller shall have made or stand willing
to make all the deliveries to Buyer set forth in Section 8.2.
7.2 Conditions to Obligations of Seller. All obligations of
Seller at the Closing are subject at Seller's option to the fulfillment prior
to or at the Closing Date of each of the following conditions:
(a) Representations and Warranties. All material
representations and warranties of Buyer contained in this Agreement shall be
true and complete in all material respects at and as of the Closing Date as
though made at and as of that time.
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(b) Covenants and Conditions. Buyer shall have performed
and complied in all material respects with all material covenants, agreements,
and conditions required by this Agreement to be performed or complied with by
it prior to or on the Closing Date.
(c) Deliveries. Buyer shall have made or stand willing
to make all the deliveries set forth in Section 8.3.
(d) FCC Consent. The FCC Consent shall have been granted
without the imposition on Seller of any material conditions that need not be
complied with by Seller under Section 6.1 hereof and Buyer shall have complied
with any conditions imposed on it by the FCC Consent.
SECTION 8. CLOSING AND CLOSING DELIVERIES
8.1 Closing.
(a) Closing Date. The Closing shall take place at 10:00
a.m. on a date to be set by Buyer on at least five days' written notice to
Seller, that is (1) not earlier than the first business day after the FCC
Consent is granted, and (2) not later than ten business days following the date
upon which the FCC Consent has become a Final Order. If Buyer fails to specify
the date for Closing pursuant to the preceding sentence prior to the fifth
business day after the date upon which the FCC Consent becomes a Final Order,
the Closing shall take place on the tenth business day after the date upon
which the FCC Consent becomes a Final Order.
(b) Closing Place. The Closing shall be held at the
offices of Dow, Lohnes & Albertson, 1255 23rd Street, N.W, Suite 500,
Washington, D.C. 20037, or such other place that is agreed upon by Buyer and
Seller.
8.2 Deliveries by Seller. Prior to or on the Closing Date, Seller
shall deliver to Buyer the following, in form and substance reasonably
satisfactory to Buyer and its counsel:
(a) Transfer Documents. Subject to the provisions of
this Agreement, duly executed bills of sale, assignments, and other transfer
documents which shall be sufficient to vest good and marketable title to the
Assets in the name of Buyer, free and clear of all mortgages, liens,
restrictions, encumbrances, claims, and obligations except for Permitted Liens.
(b) Estoppel Certificate. An Estoppel Certificate of the
Lessor of the leasehold interests listed in Schedule 3.5.
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(c) Consents. An executed copy of any instrument
evidencing receipt of any Consent;
(d) Certificates. Certificates, dated as of the Closing
Date, executed by Seller certifying (1) that the material representations and
warranties of Seller contained in this Agreement are true and complete in all
material respects as of the Closing Date as though made on and as of that date;
and (2) that Seller have in all material respects performed and complied with
all of its material obligations, covenants, and agreements set forth in this
Agreement to be performed and complied with on or prior to the Closing Date and
such additional Certificates and confirmations to Buyer's lenders as Buyer may
reasonably request in connection with obtaining financing for the performance
of its payment obligations hereunder.
(e) Licenses, Contracts, Business Records, Etc. Copies
of all Licenses and Assumed Contracts;
(f) Opinions of Counsel. Opinions of Seller's counsel
dated as of the Closing Date, substantially in the form of Schedule 8.2(f)
hereto.
8.3 Deliveries by Buyer. Prior to or on the Closing Date, Buyer
shall deliver to Seller the following, in form and substance reasonably
satisfactory to Seller and its counsel;
(a) Purchase Price. The Purchase Price as provided in
Section 2.4;
(b) Assumption Agreements. Appropriate assumption
agreements pursuant to which Buyer shall assume and undertake to perform
Seller's obligations under the Licenses and Assumed Contracts arising on or
after the Closing Date;
(c) Officer's Certificate. A certificate, dated as of
the Closing Date, executed on behalf of Buyer by its President, certifying (1)
that the representations and warranties of Buyer contained in this Agreement
are true and complete in all material respects as of the Closing Date as though
made on and as of that date, and (2) that Buyer has in all material respects
performed and complied with all of its obligations, covenants, and agreements
set forth in this Agreement to be performed and complied with on or prior to
the Closing Date;
(d) Opinion of Counsel. An opinion of Buyer's counsel
dated as of the Closing Date, substantially in the form of Schedule 8.3(d)
hereto.
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SECTION 9. TERMINATION
9.1 Termination by Seller. This Agreement may be terminated by
Seller and the purchase and sale of the Assets abandoned, if Seller is not then
in material default, upon written notice to Buyer, upon the occurrence of any
of the following:
(a) Conditions. If, on the date that would otherwise be
the Closing Date, any of the conditions precedent to the obligations of Seller
set forth in this Agreement have not been satisfied or waived in writing by
Seller.
(b) Judgments. If there shall be in effect on the date
that would otherwise be the Closing Date any judgment, decree, or order, not
caused by Seller, that would prevent or make unlawful the Closing.
(c) Upset Date. If the Closing shall not have occurred
within eighteen (18) months of the date of this Agreement.
9.2 Termination by Buyer. This Agreement may be terminated by
Buyer and the purchase and sale of the Station abandoned, if Buyer is not then
in material default, upon written notice to Seller, upon the occurrence of any
of the following:
(a) Conditions. If on the date that would otherwise be
the Closing Date any of the conditions precedent to the obligations of Buyer
set forth in this Agreement have not been satisfied or waived in writing by
Buyer.
(b) Judgments. If there shall be in effect on the date
that would otherwise be the Closing Date any judgment, decree, or order, not
caused by Buyer, that would prevent or make unlawful the Closing.
(c) Upset Date. If the Closing shall not have occurred
within eighteen (18) months of the date of this Agreement.
9.3 Rights on Termination. If this Agreement is terminated
pursuant to Section 9.1 or Section 9.2 and neither party is in material breach
of any provision of this Agreement, the parties hereto shall not have any
further liability to each other with respect to the purchase and sale of the
Assets.
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES
10.1 Representations and Warranties. All representations and
warranties contained in this Agreement shall be deemed continuing
representations and warranties and shall
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survive the closing for a period of twelve (12) months provided, however, that
as to any representation or warranty made by either the Buyer or Seller which
the other party knows, or has reason to believe, is not true as of the Closing
Date, such representation or warranty shall not survive the Closing. Until the
Closing, Buyer and Seller will immediately advise each other, in a detailed
written notice, of any fact or occurrence or any pending or threatened
occurrence of which any of them obtains knowledge and which (a) (if existing
and known at the date of the execution of this Agreement) would have been
required to be set forth or disclosed in or pursuant to this Agreement or a
Schedule hereto, (b) (if existing and known at any time prior to or at the
Closing) would make the performance by any party of a covenant contained in
this Agreement impossible or make that performance materially more difficult
than in the absence of that fact or occurrence, or (c) (if existing and known
at the time of the Closing) would cause a condition to any party's obligations
under this Agreement not to be fully satisfied.
10.2 Indemnification by Seller. Seller hereby agrees to indemnify
and hold Buyer harmless against and with respect to, and shall reimburse Buyer
for:
(a) Subject to the proviso contained in the first
sentence of Section 10.1, any and all losses, liabilities, or damages resulting
from any untrue representation, breach of warranty, or material omission or
nonfulfillment of any covenant by Seller contained in this Agreement or in any
certificate, document, or instrument delivered to Buyer under this Agreement.
(b) Any and all obligations of Seller not assumed by
Buyer pursuant to this Agreement, including any liabilities arising at any time
under any Contract not included in the Assumed Contracts.
(c) Any and all losses, liabilities, or damages
contingent or otherwise resulting from the operation or ownership of the
Station prior to the Closing Date, including any liabilities arising under the
Licenses or the Assumed Contracts which relate to events occurring prior to the
Closing Date.
(d) Any and all actions, suits, proceedings, claims,
demands, assessments, judgments, costs, and expenses, including reasonable
legal fees and expenses, incident to any of the foregoing or incurred in
investigating or attempting to avoid the same or to oppose the imposition
thereof, or in enforcing this indemnity.
10.3 Indemnification by Buyer. Buyer hereby agrees to indemnify
and hold Seller harmless against and with respect to, and shall reimburse
Seller for:
(a) Subject to the proviso contained in the first
sentence of Section 10.1, any and all losses, liabilities, or damages resulting
from any untrue representation, breach of
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warranty, or material omission or nonfulfillment of any covenant by Buyer
contained in this Agreement or in any certificate, Schedule, document, or
instrument delivered to Seller under this Agreement.
(b) Any and all obligations of Seller assumed by Buyer
pursuant to this Agreement.
(c) Any and all losses, liabilities, or damages
contingent or otherwise, resulting from the operation or ownership of the
Station on and after the Closing.
(d) Any and all actions, suits, proceedings, claims,
demands, assessments, judgments, costs and expenses, including reasonable legal
fees and expenses, incident to any of the foregoing or incurred in
investigating or attempting to avoid the same or to oppose the imposition
thereof, or in enforcing this indemnity.
10.4 Procedure for Indemnification. The procedure for
indemnification shall be as follows:
(a) The party claiming indemnification (the "Claimant")
shall promptly give notice to the party from which indemnification is claimed
(the "Indemnifying Party") of any claim, whether between the parties or brought
by a third party, specifying in reasonable detail the factual basis for the
claim. If the claim relates to an action, suit, or proceeding filed by a third
party against Claimant, such notice shall be given by Claimant within as soon
as practicable after written notice of such action, suit, or proceeding was
given to Claimant.
(b) With respect to claims solely between the parties,
following receipt of notice from the Claimant of a claim, the Indemnifying
Party shall have thirty days to make such investigation of the claim as the
Indemnifying Party deems necessary or desirable. For the purposes of such
investigation, the Claimant agrees to make available to the Indemnifying Party
and/or its authorized representatives the information relied upon by the
Claimant to substantiate the claim. If the Claimant and the Indemnifying Party
agree at or prior to the expiration of the thirty- day period (or any mutually
agreed upon extension thereof) to the validity and amount of such claim, the
Indemnifying Party shall immediately pay to the Claimant the full amount of the
claim. If the Claimant and the Indemnifying Party do not agree within the
thirty-day period (or any mutually agreed upon extension thereof), the Claimant
may seek appropriate remedy at law or equity or under the arbitration
provisions of this Agreement, as applicable.
(c) With respect to any claim by a third party as to
which the Claimant is entitled to indemnification under this Agreement, the
Indemnifying Party shall have the right at its own expense, to participate in
or assume control of the defense of such claim, and the Claimant shall
cooperate fully with the Indemnifying Party subject to reimbursement for
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reasonable actual out-of-pocket expenses incurred by the Claimant as the result
of a request by the Indemnifying Party. If the Indemnifying Party elects to
assume control of the defense of any third-party claim, the Claimant shall have
the right to participate in the defense of such claim at its own expense. If
the Indemnifying Party does not elect to assume control or otherwise
participate int he defense of any third party claim, it shall be bound by the
results obtained by the Claimant with respect to such claim.
(d) If a claim, whether between the parties or by a third
party, requires immediate action, the parties will make every effort to reach a
decision with respect thereto as expeditiously as possible.
(e) The indemnification rights provided in Sections 10.2
and 10.3 shall extend to the shareholders, directors, officers, employees, and
representatives of any Claimant although for the purpose of the procedures set
forth in this Section 10.4, any indemnification claims by such parties shall be
made by and through the Claimant.
(f) Notwithstanding anything in this Agreement to the
contrary, neither party shall indemnify or otherwise be liable to the other
party for any breach of a representation or warranty, or for breach of any
covenant in this Agreement except to the extent the losses, obligations,
liabilities, costs and expenses of such party arising therefrom exceed in the
aggregate Ten Thousand Dollars ($10,000). The provisions of the foregoing
sentence shall not apply to liabilities assumed by either party pursuant to the
adjustments and prorations.
10.5 Specific Performance. The parties recognize that if Seller
breaches this Agreement and refuses to perform under the provisions of this
Agreement, monetary damages alone would not be adequate to compensate Buyer for
its injury. Buyer shall therefore be entitled, as its sole and exclusive
remedy, to obtain specific performance of the terms of this Agreement. If any
action is brought by Buyer to enforce this Agreement, Seller shall waive the
defense that there is an adequate remedy at law.
10.6 Attorneys' Fees. In the event of a default by either party
which results in a lawsuit or other proceeding for any remedy available under
this Agreement, the prevailing party shall be entitled to reimbursement from
the other party of its reasonable legal fees and expenses.
SECTION 11. MISCELLANEOUS
11.1 Fees and Expenses. Any federal, state, or local sales or
transfer tax arising in connection with the conveyance of the Assets by Seller
to Buyer pursuant to this Agreement shall be paid by Seller. Buyer and Seller
shall each pay one-half of the fee payable to the FCC in connection with the
filing of the application for FCC Consent. Except as otherwise
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provided in this Agreement, each party shall pay its own expenses incurred in
connection with the authorization, preparation, execution, and performance of
this Agreement, including all fees and expenses of counsel, accountants,
agents, and representatives, and each party shall be responsible for all fees
or commissions payable to any finder, broker, advisor, or similar person
retained by or on behalf of such party.
11.2 Arbitration. Except as otherwise provided to the contrary
below, any dispute arising out of or related to this Agreement that Seller and
Buyer are unable to resolve by themselves shall be settled by arbitration in
the District of Columbia by a panel of three arbitrators. Seller and Buyer
shall each designate one disinterested arbitrator, and the two arbitrators so
designated shall select the third arbitrator. Before undertaking to resolve
the dispute, each arbitrator shall be duly sworn faithfully and fairly to hear
and examine the matters in controversy and to make a just award according to
the best of his or her understanding. The arbitration hearing shall be
conducted in accordance with the commercial arbitration rules of the American
Arbitration Association. The written decision of a majority of the arbitrators
shall be final and binding on Seller and Buyer. The costs and expenses of the
arbitration proceeding shall be assessed between Seller and Buyer in a manner
to be decided by a majority of the arbitrators, and the assessment shall be set
forth in the decision and award of the arbitrators. Judgment on the award, if
it is not paid within thirty days, may be entered in any court having
jurisdiction over the matter. No action at law or suit in equity based upon
any claim arising out of or related to this Agreement shall be instituted in
any court by Seller or Buyer against the other except (i) an action to compel
arbitration pursuant to this Section, (ii) an action to enforce the award of
the arbitration panel rendered in accordance with this Section, or (iii) a suit
for specific performance pursuant to Section 10.5.
11.3 Notices. All notices, demands, and requests required or
permitted to be given under the provisions of this Agreement shall be (a) in
writing, (b) sent by telecopy (with receipt personally confirmed by telephone),
delivered by personal delivery, or sent by commercial delivery service or
registered or certified mail, return receipt requested, (c) deemed to have been
given on the date of personal delivery or the date set forth in the records of
the delivery service or on the return receipt, and (d) addressed as follows:
If to Seller: Mr. Eddie L. Whitehead
Whitehead Media, Inc.
12144 Classic Drive
Coral Springs, FL 33071
Telephone: (305) 753-8712
Facsimile: (305) 752-2280
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<PAGE> 41
If to Buyer: Mr. Lowell W. Paxson
Paxson Communications of Atlanta-14, Inc.
601 Clearwater Park Road
West Palm Beach, FL 33401
Telecopy: (407) 659-4252
Telephone: (407) 659-4122
or to any other or additional persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this Section
11.3.
11.4 Benefit and Binding Effect. Neither party hereto may assign
this Agreement without the prior written consent of the other party hereto;
provided, however, that Buyer may assign its rights and obligations under this
Agreement to a wholly-owned subsidiary or commonly controlled affiliate without
seeking or obtaining Seller's prior approval, provided that such assignment
does not relieve Buyer of its responsibilities hereunder. Upon any permitted
assignment by Buyer or Seller in accordance with this Section 11.4, all
references to "Buyer" herein shall be deemed to be references to Buyer's
assignee and all references to "Seller" herein shall be deemed to be references
to Seller's assignee. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
11.5 Further Assurances. The parties shall take any actions and
execute any other documents that may be necessary or desirable to the
implementation and consummation of this Agreement, including, in the case of
Seller, any additional bills of sale, deeds, or other transfer documents that,
including, in the case of Seller, any additional bills of sale, deeds, or other
transfer documents that, in the reasonable opinion of Buyer, may be necessary
to ensure, complete, and evidence the full and effective transfer of the Assets
to Buyer pursuant to this Agreement.
11.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED,
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA (WITHOUT
REGARD TO THE CHOICE OF LAW PROVISIONS THEREOF).
11.7 Headings. The headings in this Agreement are included for
ease of reference only and shall not control or affect the meaning or
construction of the provisions of this Agreement.
11.8 Gender and Number. Words used in this Agreement, regardless
of the gender and number specifically used, shall be deemed and construed to
include any other gender, masculine, feminine, or neuter, and any other number,
singular or plural, as the context requires.
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11.9 Entire Agreement. This Agreement, the schedules, hereto, and
all documents, certificates, and other documents to be delivered by the parties
pursuant hereto, collectively represent the entire understanding and agreement
between Buyer and Seller with respect to the subject matter hereof. This
Agreement supersedes all prior negotiations between the parties and cannot be
amended, supplemented, or changed except by an agreement in writing that makes
specific reference to this Agreement and which is signed by the party against
which enforcement of any such amendment, supplement, or modification is sought.
11.10 Waiver of Compliance; Consents. Except as otherwise provided
in this Agreement, any failure of any of the parties to comply with any
obligation, representation, warranty, covenant, agreement, or condition herein
may be waived by the party entitled to the benefits thereof only by a written
instrument signed by the party granting such waiver, but such waiver or failure
to insist upon strict compliance with such obligation, representation,
warranty, covenant, agreement or condition shall not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure. Whenever this
Agreement requires or permits consent by or on behalf of any party hereto, such
consent shall be given in writing in a manner consistent with the requirements
for a waiver of compliance as set forth in this Section 11.10.
11.11 Counterparts. This Agreement may be signed in counterparts
with the same effect as if the signature on each counterpart were upon the same
instrument.
11.12 Press Releases. Neither party shall publish any press
release, make any other public announcement or otherwise communicate with any
news media concerning this Agreement or the transactions contemplated hereby
without the prior written consent of the other party; provided, however, that
nothing contained herein shall prevent either party from promptly making all
filings with governmental authorities as may, in its judgment, be required or
advisable in connection with the execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby, in which case the
other party shall be first notified in writing.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Asset
Purchase Agreement as of the day and year first above written.
PAXSON COMMUNICATIONS OF
ATLANTA-14, INC.
By: _________________________________
Name: _______________________________
Title: ______________________________
WHITEHEAD MEDIA, INC.
By: _________________________________
Name: _______________________________
Title: ______________________________
<PAGE> 44
EXHIBIT B
PURCHASE PRICE
<PAGE> 1
EXHIBIT 10.55.3
<PAGE> 2
EXHIBIT 10.55.3
- --------------------------------------------------------------------------------
TIME BROKERAGE AGREEMENT
BY AND BETWEEN
WHITEHEAD MEDIA OF GEORGIA, INC.
AND
PAXSON COMMUNICATIONS OF ATLANTA-14, INC.
FOR
TELEVISION STATION WNGM(TV), ATHENS, GEORGIA
DECEMBER 29, 1995
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TABLE OF CONTENTS
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SECTION 1. LEASE OF STATION AIR TIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Effective Date; Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 Option to Renew . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.5 Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.6 Licensee Operation of Station . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.7 Licensee Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.8 Programmer Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.9 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2. STATION OBLIGATIONS TO ITS COMMUNITY OF LICENSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.1 Licensee Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.2 Additional Licensee Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.3 Responsibility for Employees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 3. STATION PROGRAMMING POLICIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.1 Broadcast Station Programming Policy Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.2 Licensee Control of Programming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.3 Programmer Compliance with Copyright Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.4 Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.5 Children's Television Advertising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.6 Payola . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.7 Cooperation on Programming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.8 Staffing Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 4. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.1 Programmer's Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.2 Licensee's Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.3 Limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.4 Time Brokerage Challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 5. ACCESS TO PROGRAMMER MATERIALS AND CORRESPONDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.1 Confidential Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.2 Political Advertising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 6. TERMINATION AND REMEDIES UPON DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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6.2 Termination Requirements and Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.3 Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.4 Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 7. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
7.1 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
7.2 Call Letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.3 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.4 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.5 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.6 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.7 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.8 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.9 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.10 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.11 No Joint Venture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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TIME BROKERAGE AGREEMENT
TIME BROKERAGE AGREEMENT, made this 29th day of December 1995, by and
between WHITEHEAD MEDIA OF GEORGIA, INC., a Delaware corporation (the
"Licensee") and PAXSON COMMUNICATIONS OF ATLANTA-14, INC., a Florida
corporation (the "Programmer").
WHEREAS, Licensee is seeking to acquire Television Station WNGM(TV),
Athens, Georgia (the "Station") pursuant to authorizations issued by the
Federal Communications Commission ("FCC").
WHEREAS, Programmer is involved in television station ownership and
operation.
WHEREAS, the Licensee wishes to retain Programmer to provide
programming for the Station that is in conformity with Station policies and
procedures, FCC policies for time brokerage arrangements, and the provisions
hereof.
WHEREAS, Programmer agrees to use the Station to broadcast such
programming of its selection that is in conformity with all rules, regulations
and policies of the FCC, subject to Licensee's full authority to manage and
control the operation of the Station.
WHEREAS, Programmer and Licensee agree to cooperate to make this Time
Brokerage Agreement work to the benefit of the public and both parties and as
contemplated in this Agreement.
NOW, THEREFORE, in consideration of the above recitals and mutual
promises and covenants contained herein, the parties, intending to be legally
bound, agree as follows:
SECTION 1. LEASE OF STATION AIR TIME
1.1 Representations. Both Licensee and Programmer represent that
they are legally qualified, empowered and able to enter into this Agreement and
that the execution, delivery, and performance hereof shall not constitute a
breach or violation of any material agreement, contract or other obligation to
which either party is subject or by which it is bound.
1.2 Effective Date; Term. The effective date of this Agreement
shall be the date of consummation of Licensee's acquisition of the Station
following FCC approval
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(the "Closing"). It shall continue in force for an initial term of ten years
from that date unless otherwise extended or terminated as set forth below.
1.3 Scope. During the term of this Agreement and any renewal
thereof, Licensee shall make available to Programmer broadcast time upon the
Station as set forth in this Agreement. Programmer shall deliver such
programming, at its expense, to the Station's transmitter facilities or other
authorized remote control points as reasonably designated by Licensee. Subject
to Licensee's reasonable approval, as set forth in this Agreement, Programmer
shall provide programming of Programmer's selection complete with commercial
matter, news, public service announcements and other suitable programming to
the Licensee up to one hundred sixty-two hours per week. Notwithstanding the
foregoing, the Licensee may designate such additional time as it may require
without any adjustment of the monthly consideration to be paid to Licensee
under Section 1.5 for the broadcast of programming necessary for the Station to
broadcast news, public affairs, children's, religious and non-entertainment
programming as required by the FCC. All program time not reserved by or
designated for Licensee shall be available for use by Programmer and no other
party.
1.4 Option to Renew. Subject to the termination provisions of
Section 6 hereof, this Agreement may be renewed for an additional term as
mutually agreed upon by the Licensee and the Programmer.
1.5 Consideration. As consideration for the air time made
available hereunder Programmer shall make payments to Licensee as set forth in
Attachment I.
1.6 Licensee Operation of Station. Licensee will have full
authority, power and control over the management and operations of the Station
during the term of this Agreement and during any renewal of such term.
Licensee will bear all responsibility for Station's compliance with all
applicable provisions of the Communications Act of 1934, as amended, (the
"Act") the rules, regulations and policies of the FCC and all other applicable
laws. Licensee shall be solely responsible for and pay in a timely manner all
operating costs of the Station, including but not limited to maintenance of the
studio and transmitting facility and costs of electricity, except that
Programmer shall be responsible for the costs of its programming as provided in
Sections 1.8 and 2.3 hereof. Licensee shall employ at its expense management
level and other employees consisting of a General Manager and such operational
and other personnel as outlined in the budget previously provided to
Programmer, who will direct the day-to-day operations of the Station, and who
will report to and be accountable to the Licensee. Licensee shall be
responsible for the salaries, taxes, insurance and related costs for all
personnel employed by the Station and shall maintain insurance satisfactory to
Programmer covering the Station's transmission facilities. During the term of
the Agreement and any renewal hereof, Programmer agrees to perform, without
charge,
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routine monitoring of the Station's transmitter performance and tower lighting
by remote control, if and when requested by Licensee.
1.7 Licensee Representations and Warranties. Licensee represents
and warrants as follows:
(a) Licensee owns and holds or will hold all licenses and
other permits and authorizations necessary for the operation of the Station,
and such licenses, permits and authorizations are and will be in full force and
effect throughout the term of this Agreement. There is not now pending, or to
Licensee's best knowledge, threatened, any action by the FCC or by any other
party to revoke, cancel, suspend, refuse to renew or modify adversely any of
such licenses, permits or authorizations. Licensee is not in material
violation of any statute, ordinance, rule, regulation, policy, order or decree
of any federal, state or local entity, court or authority having jurisdiction
over it or the Station, which would have an adverse effect upon the Licensee,
the Station or upon Licensee's ability to perform this Agreement. Licensee
shall not take any action or omit to take any action which would have an
adverse impact upon the Licensee, the Station or upon Licensee's ability to
perform this Agreement. All reports and applications required to be filed with
the FCC or any other governmental body have been, and during the course of the
term of this Agreement or any renewal thereof, will be filed in a timely and
complete manner. During the term of this Agreement and any renewal thereof,
Licensee shall not dispose of, transfer, assign or pledge any of Licensee's
assets and properties except with the prior written consent of the Programmer,
if such action would adversely affect Licensee's performance hereunder or the
business and operations of Licensee or the Station permitted hereby.
(b) Licensee shall pay, in a timely fashion, all of the
expenses incurred in operating the Station including salaries and benefits of
its employees, lease payments, utilities, taxes, programming expenses, debt
service, etc., as set forth in Attachment II (except those for which a good
faith dispute has been raised with the vendor or taxing authority), and shall
provide Programmer with a certificate of such timely payment within thirty (30)
days of the end of each month. In the event that Licensee shall fail to timely
make the payments called for by Attachment II hereof, Programmer may, upon 5
days notice to Licensee, make such payments directly to the vendor, lender,
etc., and such direct payment shall be in lieu of any reimbursement called for
by this subsection.
1.8 Programmer Responsibility. Programmer shall be solely
responsible for any expenses incurred in the origination and/or delivery of
programming from any remote location and for any publicity or promotional
expenses incurred by Programmer, including, without limitation, ASCAP and BMI
music license fees for all programming
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provided by Programmer. Such payments by Programmer shall be in addition to
any other payments to be made by Programmer under this Agreement.
1.9 Contracts. Programmer will enter into no third-party
contracts, leases or agreements which will bind Licensee in any way except with
Licensee's prior written approval.
SECTION 2. STATION OBLIGATIONS TO ITS COMMUNITY OF LICENSE
2.1 Licensee Authority. Notwithstanding any other provision of
this Agreement, Programmer recognizes that Licensee has certain obligations to
broadcast programming to meet the needs and interests of viewers in Athens,
Georgia, the Station's service area and the educational and informational needs
of children. From time to time the Licensee shall air specific programming on
issues of importance to the local community and educational and informational
programming for children. Nothing in this Agreement shall abrogate the
unrestricted authority of the Licensee to discharge its obligations to the
public and to comply with the Act and the rules and policies of the FCC.
2.2 Additional Licensee Obligations. Although both parties shall
cooperate in the broadcast of emergency information over the Station, Licensee
shall also retain the right to interrupt Programmer's programming in case of an
emergency or for programming which, in the good faith judgment of Licensee, is
of greater local or national public importance. Licensee shall also coordinate
with Programmer the Station's hourly station identification and any other
announcements required to be aired by FCC rules. Licensee shall continue to
maintain a main studio, as that term is defined by the FCC, within the
Station's principal community contour, shall maintain its local public
inspection file in accordance with FCC rules, regulations and policies, and
shall prepare and place in such inspection file or files in a timely manner all
material required by Section 73.3526 of the FCC's Rules, including without
limitation the Station's quarterly issues and program lists; information
concerning the broadcast of children's educational and informational
programming; and documentation of compliance with commercial limits applicable
to certain children's television programming. Programmer shall, upon request
by Licensee, provide Licensee with such information concerning Programmer's
programs and advertising as is necessary to assist Licensee in the preparation
of such information. Licensee shall also maintain the station logs, receive
and respond to telephone inquiries, and control and oversee any remote control
point which may be established for the Station.
2.3 Responsibility for Employees and Expenses. Programmer shall
employ and be solely responsible for the salaries, taxes, insurance and related
costs for all personnel used in the production of its programming (including,
but not limited to, salespeople,
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technical staff, traffic personnel, board operators and programming staff).
Programmer shall be responsible for purchasing such additional equipment as
Licensee and Programmer jointly agree is necessary to upgrade the Station's
technical facilities. Licensee and Programmer shall negotiate in good faith
and enter into a mutually acceptable Lease Agreement providing for Licensee's
unimpaired use of such equipment on generally reasonable terms. Licensee will
provide and be responsible for the Station personnel necessary for the
broadcast transmission of its own programs (including, without limitation, the
Station's General Manager and such operational and other personnel as may be
necessary or appropriate), and will be responsible for the salaries, taxes,
benefits, insurance and related costs for all the Licensee's employees used in
the broadcast transmission of its programs and necessary to other aspects of
Station operation. Whenever on the Station's premises, all personnel shall be
subject to the overall supervision of Licensee's General Manager.
SECTION 3. STATION PROGRAMMING POLICIES
3.1 Broadcast Station Programming Policy Statement. Licensee has
adopted and will enforce a Broadcast Station Programming Policy Statement (the
"Policy Statement"), a copy of which appears as Attachment III hereto and which
may be amended in a reasonable manner from time to time by Licensee upon notice
to Programmer. Programmer agrees and covenants to comply in all material
respects with the Policy Statement, to all rules and regulations of the FCC,
and to all changes subsequently made by Licensee or the FCC. Programmer shall
furnish or cause to be furnished the artistic personnel and material for the
programs as provided by this Agreement and all programs shall be prepared and
presented in conformity with the rules, regulations and policies of the FCC and
with the Policy Statement set forth in Attachment III hereto. All advertising
spots and promotional material or announcements shall comply with applicable
federal, state and local regulations and policies and shall be produced in
accordance with quality standards established by Programmer. If Licensee
determines that a program supplied by Programmer is for any reason, within
Licensee's sole discretion, unsatisfactory or unsuitable or contrary to the
public interest, or does not comply with the Policy Statement it may, upon
prior written notice to Programmer (to the extent time permits such notice),
suspend or cancel such program without liability to Programmer. Licensee will
use reasonable efforts to provide such written notice to Programmer prior to
the suspension or cancellation of such program.
3.2 Licensee Control of Programming. Programmer recognizes that
the Licensee has full authority to control the operation of the Station. The
parties agree that Licensee's authority includes but is not limited to the
right to reject or refuse such portions of the Programmer's programming which
Licensee believes to be unsatisfactory, unsuitable or contrary to the public
interest. Programmer shall have the right to change the
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programming supplied to Licensee and shall give Licensee at least twenty-four
(24) hours notice of substantial and material changes in such programming.
3.3 Programmer Compliance with Copyright Act. Programmer
represents and warrants to Licensee that Programmer has full authority to
broadcast its programming on the Station, and that Programmer shall not
broadcast any material in violation of the Copyright Act. All music supplied
by Programmer shall be: (i) licensed by ASCAP, SESAC or BMI; (ii) in the
public domain; or (iii) cleared at the source by Programmer. Licensee will
maintain ASCAP, BMI and SESAC licenses as necessary. The right to use the
programming and to authorize its use in any manner shall be and remain vested
in Programmer.
3.4 Sales. Programmer shall retain all of the Station's network
compensation revenues, any revenues received from any network or program
supplier with respect to affiliation or use of programming by Programmer, any
retransmission consent revenues and all revenues from the sale of advertising
time within the programming it provides to the Licensee. Programmer shall be
responsible for payment of the commissions due to any national sales
representative engaged by it for the purpose of selling national advertising
which is carried during the programming it provides to Licensee. Unless
otherwise agreed between the parties, Licensee shall retain all revenues from
the sale of Station's advertising during the hours each week in which the
Licensee airs its own programming pursuant to Section 1.3 hereof.
3.5 Children's Television Advertising. Programmer agrees that it
will not broadcast advertising within programs originally designed for children
aged 12 years and under in excess of the amounts permitted under applicable FCC
rules, and will take all steps necessary to pre-screen children's programming
broadcast during the hours it is providing such programming, to establish that
advertising is not being broadcast in excess of the applicable FCC rules.
3.6 Payola. Programmer agrees that it will not accept any
consideration, compensation, gift or gratuity of any kind whatsoever,
regardless of its value or form, including, but not limited to, a commission,
discount, bonus, material, supplies or other merchandise, services or labor
(collectively "Consideration"), whether or not pursuant to written contracts or
agreements between Programmer and merchants or advertisers, unless the payer is
identified in the program for which Consideration was provided as having paid
for or furnished such Consideration, in accordance with the Act and FCC
requirements. Programmer agrees to annually, or more frequently at the request
of the Licensee, execute and provide Licensee with a Payola Affidavit from each
of its employees involved with the Station substantially in the form attached
hereto as Attachment IV.
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3.7 Cooperation on Programming. Programmer and Licensee mutually
acknowledge their interest in ensuring that the Station serves the needs and
interests of viewers in Athens and the surrounding service area and agree to
cooperate to provide such service. Licensee shall, on a regular basis, assess
the issues of concern to residents of Athens and the surrounding area and
address those issues in its public service programming. Programmer, in
cooperation with Licensee, will endeavor to ensure that programming responsive
to the needs and interests of the community of license and surrounding area is
broadcast, in compliance with applicable FCC requirements. Licensee will
describe those issues and the programming that is broadcast in response to
those issues and place issues/programs lists in the Station's public inspection
file as required by FCC rules. Further, Licensee may request, and Programmer
shall provide, information concerning such of Programmer's programs as are
responsive to community issues so as to assist Licensee in the satisfaction of
its public service programming obligations. Licensee shall also evaluate the
local need for children's educational and informational programming and shall
inform Programmer of its conclusions in that regard. Licensee, in cooperation
with Programmer, will ensure that educational and informational programming for
children is broadcast over the Station in compliance with applicable FCC
requirements. Programmer shall also provide Licensee upon request such other
information necessary to enable Licensee to prepare records and reports
required by the Commission or other local, state or federal government
entities.
3.8 Staffing Requirements. Licensee will be in full compliance
with the main studio staff requirements as specified by the FCC.
SECTION 4. INDEMNIFICATION
4.1 Programmer's Indemnification. Programmer shall indemnify and
hold harmless Licensee from and against any and all claims, losses, costs,
liabilities, damages, forfeitures and expenses (including reasonable legal fees
and other expenses incidental thereto) of every kind, nature and description
(collectively, "Damages") resulting from (i) Programmer's breach of any
representation, warranty, covenant or agreement contained in this Agreement, or
(ii) any action taken by Programmer or its employees and agents with respect to
the Station, or any failure by Programmer or its employees and agents to take
any action with respect to the Station, including, without limitation, Damages
relating to violations of the Act or any rule, regulation or policy of the FCC,
slander, defamation or other claims relating to programming provided by
Programmer and Programmer's broadcast and sale of advertising time on the
Station.
4.2 Licensee's Indemnification. Licensee shall indemnify and hold
harmless Programmer from and against any and all claims, losses, costs,
liabilities, damages,
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FCC forfeitures and expenses (including reasonable legal fees and other
expenses incidental thereto) of every kind, nature and description, arising out
of Licensee's operations and broadcasts to the extent permitted by law and any
action taken by the Licensee or its employees and agents with respect to the
Station, or any failure by Licensee or its employees and agents to take any
action with respect to the Station.
4.3 Limitation. Neither Licensee nor Programmer shall be entitled
to indemnification pursuant to this section unless such claim for
indemnification is asserted in writing delivered to the other party.
4.4 Time Brokerage Challenge. If this Agreement is challenged at
the FCC, whether or not in connection with the Station's license renewal
application, counsel for the Licensee and counsel for the Programmer shall
jointly defend the Agreement and the parties' performance thereunder throughout
all FCC proceedings at the sole expense of the Programmer. If portions of this
Agreement do not receive the approval of the FCC Staff, then the parties shall
reform the Agreement as necessary to satisfy the FCC Staff's concerns or, at
Programmer's option and expense, seek reversal of the Staff's decision and
approval from the full Commission or a court of law.
SECTION 5. ACCESS TO PROGRAMMER MATERIALS AND CORRESPONDENCE
5.1 Confidential Review. Prior to the commencement of any
programming by Programmer under this Agreement, Programmer shall acquaint the
Licensee with the nature and type of the programming to be provided. Licensee
shall be entitled to review at its discretion from time to time on a
confidential basis any of Programmer's programming material it may reasonably
request. Programmer shall promptly provide Licensee with copies of all
correspondence and complaints received from the public (including any telephone
logs of complaints called in), and copies of all program logs and promotional
materials. However, nothing in this section shall entitle Licensee to review
the internal corporate or financial records of the Programmer.
5.2 Political Advertising. Programmer shall cooperate with
Licensee to assist Licensee in complying with all rules of the FCC regarding
political broadcasting. Licensee shall promptly supply to Programmer, and
Programmer shall promptly supply to Licensee, such information, including all
inquiries concerning the broadcast of political advertising, as may be
necessary to comply with FCC rules and policies, including the lowest unit
rate, equal opportunities, reasonable access, political file and related
requirements of federal law. Licensee, in consultation with Programmer, shall
develop a statement which discloses its political broadcasting policies to
political candidates, and Programmer shall
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follow those policies and rates in the sale of political programming and
advertising. In the event that Programmer fails to satisfy the political
broadcasting requirements under the Act and the rules and regulations of the
FCC and such failure inhibits Licensee in its compliance with the political
broadcasting requirements of the FCC, then to the extent reasonably necessary
to assure such compliance, Programmer shall either provide rebates to political
advertisers or release broadcast time and/or advertising availabilities to
Licensee at no cost to Licensee.
SECTION 6. TERMINATION AND REMEDIES UPON DEFAULT
6.1 Termination. In addition to other remedies available at law
or equity, this Agreement may be terminated as set forth below by either
Licensee or Programmer by written notice to the other if the party seeking to
terminate is not then in material default or breach hereof, upon the occurrence
of any of the following:
(a) subject to the provisions of Section 7.9, this
Agreement is declared invalid or illegal in whole or substantial part by an
order or decree of an administrative agency or court of competent jurisdiction
and such order or decree has become final and no longer subject to further
administrative or judicial review;
(b) the other party is in material breach of its
obligations hereunder and has failed to cure such breach within thirty (30)
days of notice from the non-breaching party;
(c) the mutual consent of both parties;
(d) there has been a material change in FCC rules,
policies or precedent that would cause this Agreement to be in violation
thereof and such change is in effect and not the subject of an appeal or
further administrative review and this Agreement cannot be reformed, in a
manner acceptable to Buyer and Seller, to remove and/or eliminate the
violation; or
(e) by either party upon six months written notice to the
other party.
6.2 Termination Requirements and Procedures.
(a) Programmer may terminate this Agreement pursuant to
Section 6.1(e) hereof only if it pays Licensee an amount equal to six times the
monthly compensation
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due for the month preceding the notice of termination by Programmer pursuant to
Attachment I.
(b) Licensee may terminate this Agreement pursuant to
Section 6.1(e) hereof only if it pays Programmer Liquidated Damages, calculated
in accordance with Attachment V.
(c) During any period prior to the effective date of any
termination of this Agreement, Programmer and Licensee agree to cooperate in
good faith to ensure that Station operations will continue, to the extent
possible, in accordance with the terms of this Agreement and that the
termination of this Agreement is effected in a manner that will minimize, to
the extent possible, the resulting disruption of the Station's ongoing
operations.
6.3 Force Majeure. Any failure or impairment of the Station's
facilities or any delay or interruption in the broadcast of programs, or
failure at any time to furnish facilities, in whole or in part, for broadcast,
due to Acts of God, strikes, lockouts, material or labor restrictions by any
governmental authority, civil riot, floods and any other cause not reasonably
within the control of Licensee, or for power reductions necessitated for
maintenance of the Station or for maintenance of other stations located on the
tower from which the Station will be broadcasting, shall not constitute a
breach of this Agreement and Licensee will not be liable to Programmer for
reimbursement or reduction of the consideration owed to Licensee.
6.4 Other Agreements. During the term of this Agreement or any
renewal hereof, Licensee will not enter into any other agreement with any third
party that would conflict with or result in a material breach of this Agreement
by Licensee.
SECTION 7. MISCELLANEOUS
7.1 Assignment.
(a) Neither this Agreement nor any of the rights,
interests or obligations of either party hereunder shall be assigned,
encumbered, hypothecated or otherwise transferred without the prior written
consent of the other party, such consent not to be unreasonably withheld,
provided, however, that Programmer acknowledges that Licensee may not assign,
encumber, hypothecate or otherwise transfer this Agreement or any of its rights
or interests hereunder without the consent of the Licensee's lenders.
Notwithstanding the foregoing, Licensee and Programmer shall have the right to
collaterally assign its rights and interests hereunder to their respective
senior lenders.
<PAGE> 15
-11-
(b) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
(c) Each party hereto agrees to enter into such
agreements and confirmations as the other party's senior lenders may reasonably
require: (i) to acknowledge and confirm any collateral assignment of this
Agreement to such senior lenders; (ii) to provide for simultaneous notice and
reasonable cure rights, which rights must be exercised within 30 days after the
30-day period specified in Section 6.1(b) hereof, to such senior lenders of any
default by Programmer or Licensee under this Agreement; (iii) to provide
simultaneous notice and reasonable cure rights, which rights must be exercised
within 30 days after the expiration of the 30-day period specified in Section
6.1(b) hereof, to such senior lenders prior to any election or action by
Licensee or Programmer to terminate or cancel this Agreement pursuant to
Section 6.1(b) and, if requested by such senior lenders, to enter into a new
Agreement on the same terms and conditions as this Agreement with such senior
lenders or their nominee, successor or purchaser who (x) possesses all
requisite qualifications to hold FCC licenses, (y) has not had an authorization
issued by the FCC revoked or an application for license renewal denied by the
FCC, and in the case of a request by Programmer's senior lenders, (z) possesses
the financial capacity to perform Programmer's obligations hereunder ("Lenders'
Assignee"); (iv) in the event that such senior lenders shall be entitled to
foreclose or otherwise acquire Programmer's or Licensee's interest in this
Agreement, or if such senior lenders (or their nominee, successor or purchaser
who qualifies as a "Lenders' Assignee") shall have elected to enter into a new
Agreement, on the same terms and conditions as this Agreement, with Licensee or
Programmer, to enable such senior lenders to acquire Programmer's or Licensee's
interest in this Agreement or assign such interest to any purchaser or assignee
of such senior lenders who qualifies as a "Lenders' Assignee", or require
Licensee to enter into a new Agreement, on the same terms and conditions as
this Agreement, directly with any purchaser or assignee of such senior lenders
who qualifies as a "Lenders' Assignee"; and (v) provide for such other
assurances as such senior lenders shall reasonably request in connection with
the exercise of their rights under this paragraph 7.1(c).
7.2 Call Letters. Upon request of Programmer, subject to the
consent of the Licensee, Licensee shall apply to the FCC for authority to
change the call letters of the Station (with the consent of the FCC) to such
call letters that Programmer shall reasonably designate. Licensee must
coordinate with Programmer any proposed changes to the call letters of the
Station before taking any action to change such letters.
7.3 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which
together will constitute one and the same instrument.
<PAGE> 16
-12-
7.4 Entire Agreement. This Agreement and the Attachments hereto
embodies the entire agreement and understanding of the parties relating to the
operation of the Station. No amendment, waiver of compliance with any
provision or condition hereof, or consent pursuant to this Agreement will be
effective unless evidenced by an instrument in writing signed by the parties.
7.5 Taxes. Licensee and Programmer shall each pay its own ad
valorem taxes, if any, which may be assessed on such party's respective
personal property for the periods that such items are owned by such party.
Programmer shall pay all taxes, if any, to which the consideration specified in
Section 1.5 herein is subject, provided that Licensee is responsible for
payment of its own income taxes.
7.6 Headings. The headings are for convenience only and will not
control or affect the meaning or construction of the provisions of this
Agreement.
7.7 Governing Law. The obligations of Licensee and Programmer are
subject to applicable federal, state and local law, rules and regulations,
including, but not limited to, the Act and the Rules and Regulations of the
FCC. The construction and performance of the Agreement will be governed by the
laws of the State of Florida.
7.8 Notices. All notices, demands and requests required or
permitted to be given under the provisions of this Agreement shall be (i) in
writing, (ii) sent by telecopy (with receipt personally confirmed by
telephone), delivered by personal delivery, or sent by commercial delivery
service or certified mail, return receipt requested, (iii) deemed to have been
given on the date telecopied with receipt confirmed, the date of personal
delivery, or the date set forth in the records of the delivery service or on
the return receipt, and (iv) addressed as follows:
To Programmer: Paxson Communications of Atlanta-14, Inc.
601 Clearwater Park Road
West Palm Beach, FL 33401
Telecopy: (407) 659-4252
Telephone: (407) 659-4122
To Licensee: Whitehead Media of Georgia, Inc.
12144 Classic Drive
Coral Springs, FL 33071
Telecopy: (305) 752-2280
Telephone: (305) 753-8712
<PAGE> 17
-13-
or to any such other or additional persons and addresses as the parties may
from time to time designate in a writing delivered in accordance with this
Section 7.8.
7.9 Severability. If any provision of this Agreement or the
application thereof to any person or circumstances shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
In the event that the FCC alters or modifies its rules or policies in a fashion
which would raise substantial and material question as to the validity of any
provision of this Agreement, the parties hereto shall negotiate in good faith
to revise any such provision of this Agreement with a view toward assuring
compliance with all then existing FCC rules and policies which may be
applicable, while attempting to preserve, as closely as possible, the intent of
the parties as embodied in the provision of this Agreement which is to be so
modified.
7.10 Arbitration. Any dispute arising out of or related to this
Agreement that Licensee and Programmer are unable to resolve by themselves
shall be settled by arbitration in Miami, Florida by a panel of three
arbitrators. Licensee and Programmer shall each designate one disinterested
arbitrator and the two arbitrators designed shall select the third arbitrator.
The persons selected as arbitrators need not be professional arbitrators, and
persons such as lawyers, accountants and bankers shall be acceptable. Before
undertaking to resolve a dispute, each arbitrator shall be duly sworn
faithfully and fairly to hear and examine the matters in controversy and to
make a just award according to the best of his or her understanding. The
arbitration hearing shall be conducted in accordance with the commercial
arbitration rules of the American Arbitration Association. The written
decision of a majority of the arbitrators shall be final and binding on
Licensee and Programmer. The costs and expenses of the arbitration proceeding
shall be assessed between Licensee and Programmer in a manner to be decided by
a majority of the arbitrators, and the assessment shall be set forth in the
decision and award of the arbitrators. Judgment on the award, if it is not
paid within thirty days, may be entered in any court having jurisdiction over
the matter. No action at law or in equity based upon any claim arising out of
or related to this Agreement shall be instituted in any court by Licensee or
Programmer against the other except: (i) an action to compel arbitration
pursuant to this Section; or (ii) an action to enforce the award of the
arbitration panel rendered in accordance with this Section.
7.11 No Joint Venture. Nothing in this Agreement shall be deemed
to create a joint venture between the Licensee and the Programmer.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 18
-14-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
LICENSEE: WHITEHEAD MEDIA OF GEORGIA, INC.
By: /s/ Eddie Whitehead
------------------------------------
Name: Eddie Whitehead
Title: President
PROGRAMMER: PAXSON COMMUNICATIONS
OF ATLANTA-14, INC.
By: /s/ William L. Watson
------------------------------------
Name: William L. Watson
Title: Secretary
<PAGE> 19
ATTACHMENT I
Compensation Schedule
Upon Licensee's acquisition of the Station, Programmer shall pay
Licensee an imprest deposit of ________________ ____________________ Dollars
($_________________) and, thereafter, on a monthly basis, a fee of
_________________________ ____________ Dollars ($______________) payable by the
fifth day of each month. Programmer shall also reimburse Licensee on a monthly
basis for Licensee's payment of Station expenses listed on Attachment II upon
receipt from the Licensee of a certificate (with attached invoices, etc.)
documenting payment of those expenses.
Payments shall be made by delivery of a check to Licensee at an
address to be designated.
<PAGE> 20
ATTACHMENT II
Categories of Anticipated Station Expenses
(1) Lease and Utility Payments
(2) Employee Salaries and Benefits
(3) Property Insurance and Taxes
(4) Fees, Licenses and Professional Fees
(5) Miscellaneous Station Expenses
(6) Equipment Repair and Replacement
(7) Programming Expenses
(8) Debt Service
<PAGE> 21
ATTACHMENT III
Broadcast Station Programming Policy Statement
<PAGE> 22
BROADCAST STATION PROGRAMMING POLICY STATEMENT
The following sets forth the policies generally applicable to
the presentation of programming and advertising over Television Station
WNGM(TV), Athens, Georgia. All programming and advertising broadcast by the
station must conform to these policies and to the provisions of the
Communications Act of 1034, as amended [the "Act"], and the Rules and
Regulations of the Federal Communications Commission ["FCC"].
Station Identification
The station must broadcast a station identification announcement once an hour
as close to the hour as feasible in a natural break in the programming. The
announcement must include (1) the station's call letters (currently, WNGM);
followed immediately by (2) the station's city of license (Athens, Georgia).
Broadcast of Telephone Conversations
Before recording a telephone conversation for broadcast or broadcasting such a
conversation simultaneously with its occurrent, any party to the call must be
informed that the call will be broadcast or will be recorded for later
broadcast, and the party's consent to such broadcast must be obtained. This
requirement does not apply to calls initiated by the other party which are made
in a context in which it is customary for the station to broadcast telephone
calls.
Sponsorship Identification
When money, service, or other valuable consideration is either directly or
indirectly paid or promised as part of an arrangement to transmit any
programming, the station at the time of broadcast shall announce (1) that the
matter is sponsored, either whole or in part; and (2) by whom or on whose
behalf the matter is sponsored. Products or services furnished to the station
in consideration for an identification of any person, product, service,
trademark or brand name shall be identified in this manner.
In the case of any political or controversial issue broadcast for which any
material or service is furnished as an inducement for its transmission, an
announcement shall be made at the beginning and conclusion of the broadcast
stating (1) the material or service that has been furnished; and (2) the
person(s) or association(s) on whose behalf the programming is transmitted.
However, if the broadcast is 5 minutes duration or less, the required
announcement need only be made either at its beginning or end.
Prior to any sponsored broadcast involving political matters or controversial
issues, the station shall obtain a list of the chief executive officers,
members of the executive committee or board of directors of the sponsoring
organization and shall place this list in the station's public inspection file.
<PAGE> 23
-2-
Payola/Plugola
The station, its personnel, or its programmers shall not accept or agree to
accept from any person any money, service, or other valuable consideration for
the broadcast of any matter unless such fact is disclosed to the station so
that all required station identification announcements can be made. All
persons responsible for station programming must, from time to time, execute
such documents as may be required by station management to confirm their
understanding of and compliance with the FCC's sponsorship identification
requirements.
Rebroadcasts
The station shall not rebroadcast the signal of any other broadcast station
without first obtaining such station's prior written consent to such
rebroadcast.
Fairness
Station shall seek to afford coverage to contrasting viewpoints concerning
controversial issues of public importance.
Personal Attacks
The station shall not air attacks upon the honesty, character, integrity or
like personal qualities of any identified person or group. If such an attack
should nonetheless occur during the presentation of views on a controversial
issue of public importance, those responsible for programming shall submit a
tape or transcript of the broadcast to station management and to the person
attacked within 48 hours, and shall offer the person attacked a reasonable
opportunity to respond.
Political Editorials
Unless specifically authorized by station management, the station shall not air
any editorial which either endorses or opposes a legally qualified candidate
for public office.
Political Broadcasting
All "uses" of the station by legally qualified candidates for elective office
shall be in accordance with the Act and the FCC's Rules and policies, including
without limitation, equal opportunities requirements, reasonable access
requirements, lowest unit charge requirements and similar rules and
regulations.
<PAGE> 24
-3-
Obscenity and Indecency
The station shall not broadcast any obscene material. Material is deemed to be
obscene if the average person, applying contemporary community standards in the
local community, would find that the material, taken as a whole, appeals to the
prurient interest; depicts or describes in a patently offensive way sexual
conduct specifically defined by applicable state law; and taken as a whole,
lacks serious literary artistic, political or scientific value.
The station shall not broadcast any indecent material outside of the periods of
time prescribed by the Commission. Material is deemed to be indecent if it
includes language or material that, in context, depicts or describes, in terms
patently offensive as measured by contemporary community standards for the
broadcast medium, sexual or excretory activities or organs.
Billing
No entity which sells advertising for airing on the station shall knowingly
issue any bill, invoice or other document which contains false information
concerning the amount charged or the broadcast of advertising which is the
subject of the bill or invoice. No entity which sells advertising for airing
on the station shall misrepresent the nature or content of aired advertising,
nor the quantity, time of day, or day on which such advertising was broadcast.
Contests
Any contests conducted on the station shall be conducted substantially as
announced or advertised. Advertisements or announcements concerning such
contests shall fully and accurately disclose the contest's material terms. No
contest description shall be false, misleading or deceptive with respect to any
material term.
Hoaxes
The station shall not knowingly broadcast false information concerning a crime
or catastrophe.
Children's Programming
The station shall broadcast reasonable amounts of educational and informational
programming designed for children aged 16 years and younger.
<PAGE> 25
-4-
Children's Advertising
Programming designed for children aged 12 years and younger shall not include
more than 12 minutes of commercial matter per hour, Monday through Friday, and
shall not include more than 10.5 minutes of commercial matter per hour on
weekend programming. There shall be no host selling, as that term is defined
by the FCC, in children's programming on the station.
Emergency Information
Any emergency information which is broadcast by the station shall be
transmitted both aurally and visually or only visually.
Lottery
The station shall not advertise or broadcast any information concerning any
lottery (except the Georgia State Lottery and any other state lottery). The
station may advertise and provide information about lotteries conducted by
non-profit groups, governmental entities and in certain situations, by
commercial organizations, if and only if there is no state or local restriction
or ban on such advertising or information and the lottery is legal under state
or local law. Any and all lottery advertising must first be approved by
station management.
Advertising
Station shall comply with all federal, state and local laws concerning
advertising, including without limitation, all laws concerning misleading
advertising, and the advertising of alcoholic beverages.
Programming Prohibitions.
Knowing broadcast of the following types of programs and announcements is
prohibited:
False Claims. False or unwarranted claims for any product or
service.
Unfair Imitation. Infringements of another advertiser's
rights through plagiarism or unfair imitation of either
program idea or copy, or any other unfair competition.
Commercial Disparagement. Any unfair disparagement of
competitors or competitive goods.
<PAGE> 26
-5-
Profanity. Any programs or announcements that are slanderous,
obscene, profane, vulgar, repulsive or offensive, as evaluated
by station management.
Violence. Any programs which are excessively violent.
Unauthenticated Testimonials. Any testimonials which cannot
be authenticated.
<PAGE> 27
ATTACHMENT IV
Payola Statement
<PAGE> 28
FORM OF PAYOLA AFFIDAVIT
City of ________________________ )
)
County of ______________________ ) SS:
)
State of _______________________ )
ANTI-PAYOLA/PLUGOLA AFFIDAVIT
________________________, being first duly sworn, deposes and says as follows:
1. He is _____________________ for _____________________.
Position
2. He has acted in the above capacity since ____________.
3. No matter has been broadcast by Station _____ for which
service, money or other valuable consideration has been
directly or indirectly paid, or promised to, or charged, or
accepted, by him from any person, which matter at the time so
broadcast has not been announced or otherwise indicated as
paid for or furnished by such person.
4. So far as he is aware, no matter has been broadcast by Station
_____ for which service, money, or other valuable
consideration has been directly or indirectly paid, or
promised to, or charged, or accepted by Station _____ or by
any independent contractor engaged by Station _____ in
furnishing programs, from any person, which matter at the time
so broadcast has not been announced or otherwise indicated as
paid for or furnished by such person.
5. In future, he will not pay, promise to pay, request, or
receive any service, money, or any other valuable
consideration, direct or indirect, from a third party, in
exchange for the influencing of, or the attempt to influence,
the preparation of presentation of broadcast matter on Station
_____.
6. Nothing contained herein is intended to, or shall prohibit
receipt or acceptance of anything with the expressed knowledge
and approval of my employer, but henceforth any such approval
must be given in writing by someone expressly authorized to
give such approval.
7. He, his spouse and his immediate family do___ do not___ have
any present direct or indirect ownership interest in (other
than an investment in a
<PAGE> 29
-2-
corporation whose stock is publicly held), serve as an officer
or director of, whether with or without compensation, or serve
as an employee of, any person, firm or corporation engaged in:
1. The publishing of music;
2. The production, distribution (including wholesale and
retail sales outlets), manufacture or exploitation of
music, films, tapes, recordings or electrical
transcriptions of any program material intended for
radio broadcast use;
3. The exploitation, promotion, or management or persons
rendering artistic, production and/or other services
in the entertainment field;
4. The ownership or operation of one or more radio or
television stations;
5. The wholesale or retail sale of records intended for
public purchase;
6. Advertising on Station _____, or any other station
owned by its licensee (excluding nominal
stockholdings in publicly owned companies).
8. The facts and circumstances relating to such interest are
none____ as follows___:
_______________________________________________________________
_______________________________________________________________
_____________________________________
Affiant
Subscribed and sworn to before me
this ______ day of _______________, 19___.
__________________________________________
Notary Public
My Commission expires: ___________________.
<PAGE> 30
ATTACHMENT V
Liquidated Damages
Licensee acknowledges that Programmer will make a substantial
advance payment in order to enter into the Time Brokerage Agreement; that
Programmer will acquire certain assets associated uniquely with the Station's
operation and will enter into various long-term agreements with program
suppliers and other third parties to produce programming for the Station at
substantial expense and risk; that Programmer will recruit, hire and maintain a
staff of employees dedicated to acquiring and producing quality programming to
be broadcast on the Station; and that Programmer will make substantial
investments in additional hard assets to produce quality programming for the
Station. Licensee also acknowledges that Programmer will make substantial
investments, both in tangible and intangible terms, to promote the Station
under the Time Brokerage Agreement, to create a unique image for the Station,
and to develop a competitive position in the market for the Station and that
such efforts on the part of Programmer will add substantial value to the
Station. Licensee and Programmer acknowledge and agree that any measure of
actual damages cannot compensate Programmer for the loss of Licensee's
performance under this Agreement and that the true measure of damages to
Programmer for termination or material breach of the Time Brokerage Agreement
by Licensee is incapable of accurate estimation with reasonable certainty.
Licensee and Programmer therefore agree that it is a fair and reasonable
forecast of just compensation for the harm caused to be measured by liquidated
damages, as defined in subparagraph (a) of this Attachment, to be paid to
Programmer upon the termination or material breach of the Time Brokerage
Agreement by Licensee.
(a) "Liquidated Damages" shall mean an amount equal to
funds expended and/or committed to be expended by Programmer (except (i) with
respect to items (3) through (8) below, such expenditures and/or commitments
shall be consistent with industry practices and (ii) to the extent not
theretofore recovered by Programmer from the Station 's gross revenues prior to
the termination or material breach) in each of the following categories:
(1) the full value of all of Programmer's capital
expenditures incurred in connection with this
Agreement, less any consideration received by
Programmer as a consequence of any sale of such
assets;
(2) the aggregate of the monthly payments made by
Programmer to Licensee pursuant to Attachment I;
(3) the full value of all service contracts and
programming agreements assumed and entered into by
Programmer for purposes of providing programming and
advertising to be broadcast on the Station, which
Programmer owns at the time of termination or breach
less any
<PAGE> 31
-2-
consideration received by Programmer as a consequence
of its good faith efforts to sell or assign such
agreements;
(4) the full value of all severance and employee
benefit packages that Programmer, in its discretion,
shall provide to employees whose services would not
be required in the absence of the Time Brokerage
Agreement;
(5) the full value of any contract with third
parties, which could not be performed owing to
termination of breach, for services to be rendered in
connection with programming provided to the Station
including, without limitation, producers, advertising
salespeople, technicians, engineers, and any other
independent contractors whose services would not be
required in the absence of the Time Brokerage
Agreement;
(6) the full value of all expenses incurred to
promote the Station and position the Station in the
marketplace;
(7) all corporate, legal, administrative,
professional and brokerage expenses attributable to
Programmer's negotiation and performance of the Time
Brokerage Agreement; and
(8) the good will and intangible value associated
with Programmer's efforts under this Agreement to
create a unique image and competitive market position
for the Station.
(b) Should Licensee terminate or materially breach the
Time Brokerage Agreement, Programmer shall submit its computation of Liquidated
Damages under the categories set forth above to a "Big Six" accounting firm
mutually acceptable to the parties for independent auditing and verification.
Within thirty (30) days of verification, Licensee agrees to tender payment of
all verified amounts to Programmer; provided, however, that if Licensee objects
to any particular enumerated component of the Liquidated Damages, as verified,
it shall notify Programmer of such objection within fifteen (15) days of
verification. If thereafter Programmer and Licensee cannot agree as to the
amount of the objectionable component, either party shall have the right to
elect to arbitrate such dispute pursuant to Section 7.10 of the Time Brokerage
Agreement provided it gives written notice of its election to arbitrate by the
thirtieth (30) day following the date of Licensee's objection to Programmer's
verification. Notwithstanding that Licensee may question a particular
component of the Liquidated Damages and either party may elect arbitration of
the dispute,
<PAGE> 32
-3-
the reminder of the items comprising the Liquidated Damages shall be paid by
Licensee to Programmer within thirty (30) days of accounting verification, as
specified above. No payment shall be required as to any contested component
until the earlier of (i) Programmer and Licensee reaching an agreement on the
amount or (ii) entering of the arbitration award.
(c) If any category of Liquidated Damages is held to be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remainder of the categories of Liquidated Damages shall not be affected
thereby, and the parties agree to use their best efforts to negotiate a
replacement category that is not invalid, illegal or unenforceable.
<PAGE> 1
EXHIBIT 10.59
<PAGE> 2
EXHIBIT 10.59
================================================================================
CREDIT AGREEMENT
among
PAXSON COMMUNICATIONS CORPORATION
The Several Lenders
from Time to Time Parties Hereto
and
UNION BANK,
as the Agent
Dated as of December 19, 1995
================================================================================
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.1 Revolving Credit Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.2 Procedure for Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.3 Commitment Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.4 Repayment of Loans; Evidence of Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.5 Optional Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.6 Termination or Reduction of Commitments and Mandatory Prepayments . . . . . . . . . . . . . . . . . . . 25
2.7 Conversion and Continuation Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.8 Minimum Amounts and Maximum Number of Tranches . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.9 Interest Rates and Payment Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.10 Computation of Interest and Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.11 Inability to Determine Interest Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.12 Pro Rata Treatment and Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.13 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.14 Requirements of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.15 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
2.16 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.17 Change of Lending Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2.18 Further Assurances Regarding Security; Additional Security . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 3. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.1 Organization, Powers, Good Standing and Business . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.2 Authorization of Borrowing, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
3.3 Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
3.4 No Material Adverse Change; No Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . 38
3.5 Title To Properties; Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
3.6 Litigation; Adverse Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
3.7 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
3.8 Performance of Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
3.9 Governmental Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
3.10 Securities Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
3.11 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
3.12 Certain Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
3.13 Environmental . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
3.14 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
3.15 Related Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
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3.16 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
3.17 Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
3.18 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
3.19 Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
3.20 Purposes of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 4. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
4.1 Conditions to Initial Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
4.2 Conditions to Each Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 5. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
5.1 Financial Statements and Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
5.2 Maintenance of Existence, etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
5.3 Payment of Taxes and Claims; Tax Consolidation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
5.4 Maintenance of Properties; Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
5.5 Inspection; Lender Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
5.6 Compliance with Laws, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
5.7 Compliance with Related Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
5.8 Environmental Disclosure and Inspection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
5.9 Hazardous Materials; the Borrower's Remedial Action. . . . . . . . . . . . . . . . . . . . . . . . . . 54
5.10 FCC Licenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
5.11 Additional Loan Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
5.13 Corporate Separateness; Tax Sharing Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 6. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
6.1 Financial Condition Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
6.2 Limitation on Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
6.3 Liens and Related Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
6.4 Investments; Joint Ventures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
6.5 Contingent Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
6.6 Restricted Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
6.7 Restriction on Fundamental Changes; Asset Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
6.8 Consolidated Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
6.9 Sales and Lease-Backs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.10 Sale or Discount of Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.11 Transactions with Shareholders and Affiliates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.12 Disposal of Subsidiary Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.13 Conduct of Business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6.14 Amendments or Waivers of Related Documents and Charter
Documents; Limitation on Optional Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6.15 Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
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SECTION 7. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 8. THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
8.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
8.2 Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
8.3 Exculpatory Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
8.4 Reliance by the Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
8.5 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
8.6 Non-Reliance on the Agent and Other Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
8.7 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
8.8 The Agent in Its Individual Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
8.9 Successor the Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 9. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
9.1 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
9.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
9.3 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
9.4 Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
9.5 Payment of Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
9.6 Successors and Assigns; Participations and Assignments . . . . . . . . . . . . . . . . . . . . . . . . 74
9.7 Adjustments; Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
9.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
9.9 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
9.10 Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
9.11 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
9.12 Submission To Jurisdiction; Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
9.13 Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
9.14 WAIVERS OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
9.15 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
</TABLE>
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SCHEDULES
1.1A Lenders, Commitments and Addresses
1.1B Pricing Grid
1.1C INTV Properties
1.1D License Companies and Partners
1.1E Non-INTV Properties
1.1F Preapproved Acquisitions
1.1G Discontinued Operations
1.1H Preapproved Capital Expenditures
3.1(d) Ownership of Subsidiaries
3.1(e) FCC Licenses and LMA Agreements, Radio and Television Stations
3.1(f) Real Property
3.4 Material Adverse Change; Restricted Payments
3.6 Litigation
3.13 Environmental
3.16 Insurance
3.17(b) Intellectual Property
3.19(b) UCC Filing Offices
6.2(e) Indebtedness
6.4 Time Brokerage Agreements
EXHIBITS
A Form of Note
B Form of the Borrower Pledge Agreement
C Form of the Borrower Security Agreement
D Form of Subsidiaries Guarantee
E Form of Subsidiaries Pledge Agreement
F Form of Subsidiaries Security Agreement
G Form of Borrowing Certificate
H Form of Assignment and Acceptance
<PAGE> 7
CREDIT AGREEMENT, dated as of December 19, 1995, among PAXSON
COMMUNICATIONS CORPORATION, a Delaware corporation (the "Borrower"), the
several banks and other financial institutions from time to time parties to
this Agreement (the "Lenders") and UNION BANK, a California banking
corporation, as Agent for the Lenders hereunder.
WHEREAS, the Borrower has requested the Lenders to make
available a $100,000,000 revolving credit facility to be used by the Borrower
to make Preapproved Acquisitions (each term and each other capitalized term
used but not defined in this introductory statement shall have the meaning
assigned to such term in subsection 1.1) and Permitted Purchases, and up to
$10,000,000 of the Loans at any time outstanding to be used for working capital
(excluding Acquisition Capital Expenditures) and other general corporate
purposes, including the payment of fees and expenses incurred in connection
with the execution and delivery of this Agreement.
NOW THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"Acquisition Capital Expenditures": collectively, (i)
Preapproved Capital Expenditures and (ii) expenditures to improve or
upgrade the assets acquired pursuant to any Preapproved Acquisition or
Permitted Purchase and approved by the Lenders or the Required
Lenders, respectively, in connection with the approval of any
Preapproved Acquisition or Permitted Purchase.
"Adjusted Consolidated Operating Cash Flow": (a) at any date
on or prior to December 31, 1996, the sum of (i) the Consolidated
Operating Cash Flow of the Non-INTV Properties for the twelve most
recently ended calendar months for which the Lenders shall have
received financial statements pursuant to subsection 5.1(b)(i), plus
(ii) the product of (x) four times (y) the Consolidated Operating Cash
Flow of the INTV Properties for the three most recently ended fiscal
calendar months for which the Lenders shall have received financial
statements pursuant to subsection 5.1(b)(i); and (b) at any date after
December 31, 1996, the sum of (i) Consolidated Operating Cash Flow of
the Non-INTV Properties and the INTV Properties for the most recently
ended period of twelve consecutive calendar months for which the
Lenders shall have received financial statements pursuant to
subsection 5.1(b)(i) less (ii) Consolidated Corporate Overhead of the
Borrower and
<PAGE> 8
2
its Subsidiaries for such period. To the extent the Consolidated
Corporate Overhead for the period from the Closing Date to any date on
or prior to December 31, 1996 exceeds $5,000,000, any such excess
amount shall be deducted in any calculation of Adjusted Consolidated
Operating Cash Flow at such date.
"Adjustment Date": with respect to the effectiveness of any
change in the Applicable Margin:
(a) the Closing Date; and
(b) each subsequent date upon which the Agent
receives (i) the financial statements required to be delivered
pursuant to subsection 5.1(b)(ii) or (iii), as the case may
be, for the most recently completed fiscal period and (ii) the
compliance certificate required pursuant to subsection
5.1(b)(iv) with respect to such financial statements (or, if
such compliance certificate and financial statements shall not
have been delivered in a timely manner, each of (x) the date
upon which the compliance certificate required to be delivered
pursuant to subsection 5.1(b)(iv) for the most recently
completed fiscal period was due and (y) the date thereafter on
which such financial statements and compliance certificate
actually are delivered).
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of directors
of such Person or (b) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.
"Agent": Union Bank, together with its affiliates, as the
arranger of the Commitments and as the agent for the Lenders under
this Agreement and the other Loan Documents.
"Agreement": this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Applicable Margin": for the period commencing with any
Adjustment Date and ending on the day immediately preceding the next
succeeding Adjustment Date, the Applicable Margin shall be the rate
per annum set forth on Schedule 1.1B
<PAGE> 9
3
opposite the Leverage Ratio determined on such Adjustment Date;
provided, that (a) from the Closing Date until the receipt of the
first financial statements and certificate referred to in clause (b)
of the definition of "Adjustment Date," the Leverage Ratio shall be
deemed for purposes of this definition to be 6.75 to 1.00; and (b) in
the event that the financial statements required to be delivered
pursuant to subsection 5.1(b)(ii) and (iii) are not delivered when
due, then during the period from the date upon which such financial
statements were required to be delivered until the date upon which
they actually are delivered, the Leverage Ratio shall be deemed for
purposes of this definition to be 6.75 to 1.00.
"Asset Sale": any sale, transfer or other disposition by the
Borrower or any of its Subsidiaries of their respective assets
(including any sale and leaseback of assets and any mortgage of real
property) other than the sale or other disposition of property or
assets replaced with substantially similar assets, in each case, in
the ordinary course of business.
"Assignee": as defined in subsection 9.6(c).
"Available Commitment": as to any Lender at any time, an
amount equal to the excess, if any, of (a) the amount of such Lender's
Commitment over (b) the aggregate principal amount of all Loans made
by such Lender then outstanding.
"Barter Transaction": any sale of radio or television
advertising time (other than in the ordinary course of business) by
the Borrower to any Person, other than an Affiliate of any Loan Party,
which is paid for by such Person other than in Cash or Cash
Equivalents.
"Base Rate": with respect to each day, the greater on such
day of (a) the per annum rate most recently determined by the Agent at
its U.S. lending office from time to time as its base rate and (b)
1/2% per annum plus the Federal Funds Rate. Each change in the Base
Rate shall take effect simultaneously with the corresponding change or
changes in such base rate or the Federal Funds Rate, as the case may
be. The Base Rate is not intended to be necessarily the lowest rate
of interest charged by the Agent in connection with extensions of
credit to debtors.
"Base Rate Loans": Loans the rate of interest applicable to
which is based upon the Base Rate.
<PAGE> 10
4
"Board": the Board of Governors of the Federal Reserve
System.
"Borrower Pledge Agreement": the Pledge Agreement to be
executed and delivered by the Borrower, substantially in the form of
Exhibit B, as the same may be amended, supplemented or otherwise
modified from time to time.
"Borrower Security Agreement": the Security Agreement to be
executed and delivered by the Borrower, substantially in the form of
Exhibit C, as the same may be amended, supplemented or otherwise
modified from time to time.
"Borrowing Date": any Business Day specified in a notice
pursuant to subsection 2.2 as a date on which the Borrower requests
the Lenders to make Loans hereunder.
"Broadcast Station": any of the Owned Radio Stations, Owned
Television Stations, LMA Radio Stations and LMA Television Stations,
and "Broadcast Stations" means all such entities collectively.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close.
"Capital Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the
lessee.
"Capital Stock": any and all shares, interests,
participations or other equivalents (however designated) of capital
stock of a corporation, any and all equivalent ownership interests in
a Person (other than a corporation) and any and all warrants or
options to purchase any of the foregoing.
"Cash": money, currency or a credit balance in a Deposit
Account.
"Cash Equivalents": (i) direct obligations of the United
States or any agency thereof, or obligations guaranteed or insured by
the United States, provided that in each case such obligations mature
within one year from the date of acquisition thereof, (ii)
certificates of deposit maturing within one year from the date of
creation thereof issued by any United States national or state banking
institution having
<PAGE> 11
5
capital, surplus and undivided profits aggregating at least
$250,000,000 and rated at least A-1 by Standard & Poor's Corporation
and P-1 by Moody's Investors Service, Inc., (iii) commercial paper
with a maturity of 180 days or less issued by a corporation (except an
Affiliate of the Borrower) organized under the laws of any state of
the United States or the District of Columbia and rated at least A-1
by Standard & Poor's Corporation or at least P-1 by Moody's Investors
Service, Inc. and (iv) repurchase agreements and reverse repurchase
agreements relating to marketable direct obligations issued or
unconditionally guaranteed by the United States or issued by an agency
thereof and backed by the full faith and credit of the United States,
in each case maturing within one year from the date of acquisition;
provided that the terms of such agreements comply with the guidelines
set forth in the Federal Financial Agreements of Depository
Institutions with Securities Dealers and Others, as adopted by the
Comptroller of the Currency and (v) tax-exempt auction rate securities
and municipal preferred stock, in each case, subject to reset no more
than 35 days after the date of acquisition and having a rating of at
least AA by Standard & Poor's Corporation or AA by Moody's Investors
Service, Inc.
"Certificate of Designations": (i) the Amended and Restated
Certificate of Designations of 15% Cumulative Compounding Redeemable
Preferred Stock of Paxson Communications Corporation dated as of June
23, 1995, (ii) the Certificate of Amendment to Amend in its entirety
the 15% Cumulative Compounding Redeemable Preferred Stock of Paxson
Communications Corporation dated as of June 23, 1995, and (iii) the
Certificate of Designations of Junior Cumulative Compounding
Redeemable Preferred Stock of Paxson Communications Corporation dated
as of December 22, 1994.
"Closing Date": the date on which the conditions precedent
set forth in subsection 4.1 shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral": all assets of the Loan Parties, now owned or
hereinafter acquired, upon which a Lien is purported to be created by
any Security Document.
"Commitment": as to any Lender, the obligation of such Lender
to make Loans to the Borrower hereunder in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule 1.1A,
<PAGE> 12
6
as such amount may be reduced from time to time in accordance with the
provisions of this Agreement.
"Commitment Percentage": as to any Lender at any time, the
percentage which such Lender's Commitment then constitutes of the
aggregate Commitments (or, at any time after the Commitments shall
have expired or terminated, the percentage which the aggregate
principal amount of such Lender's Loans then outstanding constitutes
of the aggregate principal amount of the Loans then outstanding).
"Commitment Period": the period from and including the date
hereof to but not including the Termination Date or such earlier date
on which the Commitments shall terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
"Communications Act": the Communications Act of 1934, as
amended (including, without limitation, the Cable Communications
Policy Act of 1984 and the Cable Television Consumer Protection and
Competition Act of 1992) and all rules and regulations of the Federal
Communications Commission, in each case as from time to time in
effect.
"Compliance Certificate": as defined in subsection
5.1(b)(iv).
"Consolidated Capital Expenditures": for any period, the
aggregate of all expenditures (whether paid in cash or accrued as a
liability and including that portion of Capital Leases which is
capitalized on the consolidated balance sheet of the Borrower) by the
Borrower and its Subsidiaries during such period that, in conformity
with GAAP, are included in "additions to property, plant or equipment"
or comparable items reflected in the consolidated statement of changes
in financial position of the Borrower and its Subsidiaries which, in
any event, shall not include Acquisition Capital Expenditures or
Permitted Purchases.
"Consolidated Cash Interest Expense": for any period,
Consolidated Interest Expense of the Borrower and its Subsidiaries,
but excluding, however, amortization of
<PAGE> 13
7
discount, deferred financing costs and other items included in
interest expense not payable in cash during such period.
"Consolidated Corporate Overhead": for any period, the
aggregate amount expended in cash by the Borrower and Paxson
Communications Management Company ("Paxson Management") on account of
services rendered by them on behalf of Subsidiaries of the Borrower
(other than Paxson Management) and for goods consumed by the Borrower
and Paxson Management in rendering such services (other than for the
national sales personnel associated with the INTV Properties).
"Consolidated Debt Service": for any period, the amount of
all principal of and interest and fees on any Indebtedness paid in
cash by the Borrower and its Subsidiaries during such period (other
than with the proceeds of any other Indebtedness permitted hereunder),
including with respect to the Loans and the Senior Subordinated Notes
and any obligations paid with respect to Capital Leases provided that
with respect to the principal amount of the Loans, the amount of
Consolidated Debt Service for any period shall equal the difference
between (A) the aggregate principal amount of the Loans at the
beginning of such period minus (B) the aggregate Commitments at the
end of such period.
"Consolidated Fixed Charges": for any period, the sum of (i)
Consolidated Debt Service, (ii) Consolidated Capital Expenditures to
the extent actually made and (iii), without duplication of (ii),
income tax expense to the extent actually paid in cash during such
period (other than, to the extent otherwise included therein, current
income tax expenses attributable to gains on Asset Sales).
"Consolidated Interest Expense": for any period, the total
interest expense (including that portion attributable to Capital
Leases in accordance with GAAP and capitalized interest and the net
cash costs associated with Interest Rate Agreements) of the Borrower
and its Subsidiaries on a consolidated basis with respect to all
outstanding Indebtedness of the Borrower and its Subsidiaries,
including, without limitation, (i) all amounts payable to the Agent
and the Lenders pursuant to subsection 2.9 and all commissions,
discounts and other fees and charges owed with respect to letters of
credit and bankers' acceptance financing and (ii) time brokerage fees
payable by the Borrower and its Subsidiaries relating to a LMA Radio
Station or LMA Television Station expensed during such period prior to
the date such Station is acquired by the Borrower. In determining
<PAGE> 14
8
Consolidated Interest Expense for any period, there shall be (i)
included all interest expense attributable to Indebtedness incurred or
assumed by the Borrower or any of their Subsidiaries during the period
in connection with any Preapproved Acquisition or Permitted
Acquisition as if such Indebtedness was incurred or assumed on the day
before the first day of such period and bore interest from the first
day of such period until the date of such incurrence or assumption at
a rate per annum equal to the weighted average rate of interest on the
other Indebtedness outstanding during such period and (ii) excluded
Consolidated Interest Expense attributable to that portion of the
principal amount of the Loans prepaid during such period pursuant to
subsection 2.6 as if such portion of the principal amount of the Loans
was prepaid on the day before the first day of such period.
"Consolidated Net Income": for any period, the consolidated
net income (or loss) of the Borrower and its Subsidiaries, determined
on a consolidated basis in accordance with GAAP; provided that there
shall be excluded (a) the income (or deficit) of any Person accrued
prior to the date it becomes a Subsidiary of the Borrower or is merged
into or consolidated with the Borrower or any of its Subsidiaries, (b)
the income (or deficit) of any Person (other than a Subsidiary of the
Borrower) in which the Borrower or any of its Subsidiaries has an
ownership interest, except to the extent that any such income is
actually received by the Borrower or such Subsidiary in the form of
dividends or similar distributions, (c) the undistributed earnings of
any Subsidiary of the Borrower to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary is
not at the time permitted by the terms of any Contractual Obligation
(other than under any Loan Document) or Requirement of Law applicable
to such Subsidiary, (d) any after-tax gains or losses attributable to
Asset Sales or returned surplus assets of any Pension Plan, and (e)
(to the extent not included in clauses (a) through (d) above) any net
extraordinary, unusual or non-recurring gains or net non-cash
extraordinary, unusual or non-recurring losses.
"Consolidated Operating Cash Flow": for any period, the sum
(without duplication) of the amounts for such period of (a)
Consolidated Net Income, (b) Consolidated Interest Expense, (c)
provisions for taxes based on income, (d) actual taxes paid by the
Borrower on a consolidated basis resulting from gains on asset sales,
(e) total depreciation expense, (f) total amortization expense
including, without limitation, Programming Amortization Expense, and
(g) other non-cash items
<PAGE> 15
9
reducing Consolidated Net Income, less the amounts for such period of
(i) Programming Rights Payments and (ii) non-cash items increasing
Consolidated Net Income, all of the foregoing as determined on a
consolidated basis for the Borrower and its Subsidiaries in conformity
with GAAP. For the purposes of calculating Consolidated Operating
Cash Flow for any period (other than in determining Excess Cash Flow),
any acquisition by the Borrower or any Subsidiary permitted pursuant
to the terms hereof shall be deemed to have occurred on the first day
of such period, any Asset Sale by the Borrower or any Subsidiary shall
be deemed to have occurred as of the day before the first day of such
period, and Consolidated Operating Cash Flow shall be adjusted to give
effect to such acquisition or Asset Sale in accordance with the
foregoing.
"Consolidated Total Debt": as at any date of determination,
without duplication, the aggregate stated balance sheet amount of all
Indebtedness (including, without limitation, the Loans) other than
preferred capital stock and the aggregate amount of all Contingent
Obligations (other than any guaranty of the Obligations by any
Subsidiary of the Borrower) of the Borrower and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP.
"Contingent Obligation": as applied to any Person, any direct
or indirect liability, contingent or otherwise, of that Person (a)
with respect to any indebtedness, lease, dividend or other obligation
of another if the primary purpose or intent thereof by the Person
incurring the Contingent Obligation is to provide assurance to the
obligee of such obligation of another that such obligation of another
will be paid or discharged, or that any agreements relating thereto
will be complied with, or that the holders of such obligation will be
protected (in whole or in part) against loss in respect thereof, (b)
with respect to any letter of credit issued for the account of that
Person or as to which that Person is otherwise liable for
reimbursement of drawings, or (c) under Interest Rate Agreements.
Contingent Obligations shall include, without limitation, (i) the
direct or indirect guaranty, endorsement (otherwise than for
collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of the
obligation of another, (ii) the obligation to make take-or-pay or
similar payments if required regardless of non-performance by any
other party or parties to an agreement, and (iii) any liability of
such Person for the obligations of another through any agreement
(contingent or otherwise) (x) to purchase, repurchase or otherwise
acquire such obligation or
<PAGE> 16
10
any security therefor, or to provide funds for the payment or
discharge of such obligation (whether in the form of loans, advances,
stock purchases, capital contributions or otherwise), or (y) to
maintain the solvency or any balance sheet item, level of income or
financial condition of another, if in the case of any agreement
described under subclauses (x) or (y) of this sentence, the primary
purpose or intent thereof is as described in the preceding sentence.
The amount of any Contingent Obligation (other than Interest Rate
Agreements) as of any date shall be equal to the amount of the
obligation as of any date so guaranteed or otherwise supported. The
amount of any Interest Rate Agreement as of any date shall be equal to
the aggregate amount that would be payable by such Person if such
Interest Rate Agreement were terminated on such date as a result of a
default thereunder by such Person.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement (credit or
otherwise), instrument or other undertaking to which such Person is a
party or by which it or any of its property is bound.
"Cumulative Preferred Stock": collectively, the preferred
stock of the Borrower designated (i) the 15% Cumulative Compounding
Redeemable Preferred Stock, (ii) the Series B 15% Cumulative
Compounding Redeemable Preferred Stock and (iii) the Junior Cumulative
Compounding Redeemable Preferred Stock, in each case issued by the
Borrower pursuant to, and with such rights, restrictions, privileges
and preferences as set forth in, their respective Certificate of
Designations.
"Default": any of the events specified in Section 7, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Deposit Account": a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or
like organization, other than an account evidenced by a negotiable
certificate of deposit.
"Discontinued Operations": the entities and businesses
specified on Schedule 1.1G.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
<PAGE> 17
11
"Employee Benefit Plan": any employee benefit plan within the
meaning of Section 3(3) of ERISA which is maintained for employees of
the Borrower or any ERISA Affiliates.
"Environmental Claim": any accusation, allegation, notice of
violation, claim, demand, abatement order or other order or direction
(conditional or otherwise) by any governmental authority or any Person
for any damage, including, without limitation, personal injury
(including sickness, disease or death), tangible or intangible
property damage, contribution, indemnity, indirect or consequential
damages, damage to the environment, nuisance, pollution, contamination
or other adverse effects on the environment, or for fines, penalties
or restrictions, resulting from or based upon (i) the existence of a
Release (whether sudden or non-sudden or accidental or
non-accidental), of, or exposure to, any Hazardous Material, in, into
or onto the environment, (ii) the use, handling, transportation,
storage, treatment or disposal of Hazardous Materials, or (iii) the
violation, or alleged violation, of any Environmental Laws.
"Environmental Laws": any and all foreign, Federal, state,
local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority
or other Requirements of Law (including common law) regulating,
relating to or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any
time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate": the Borrower and (a) any corporation which
is a member of a controlled group of corporations within the meaning
of Section 414(b) of the Code of which the Borrower is a member; (b)
any trade or business (whether or not incorporated) which is a member
of a group of trades or businesses under common control within the
meaning of Section 414(c) of the Code of which the Borrower is a
member; and (c) any member of an affiliated service group within the
meaning of Section 414(m) or (o) of the Code of which the Borrower,
any corporation described in clause (i) above or any trade or business
described in clause (ii) above is a member.
"ERISA Event": (a) the occurrence of a reportable event
within the meaning of Section 4043 of ERISA with respect to
<PAGE> 18
12
any Pension Plan, (b) a failure to meet the minimum funding standard
of Section 412 of the Code or of Section 302 of ERISA, including,
without limitation, the failure to make on or before its due date a
required installment under Section 412(m) of the Code or Section
302(e) of ERISA, (regardless of the issuance of any waivers in
accordance with Section 412(d) of the Code) and any request for a
waiver under Section 412(d) of the Code in connection with any Pension
Plan; (c) the provision of the administrator of any Pension Plan of a
notice pursuant to Section 4041(a)(2) of ERISA to terminate such plan
pursuant to Section 4041(c) of ERISA; (d) the withdrawal by the
Borrower or any ERISA Affiliate from a Pension Plan during a plan year
for which it was a "substantial employer" within the meaning of
Section 4001(a)(2) of ERISA; (e) the institution by the PBGC of
proceedings to terminate a Pension Plan pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition which the Borrower
or any ERISA Affiliate reasonably anticipates would constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, a Pension Plan; (f) the withdrawal by the
Borrower or any ERISA Affiliate in a complete or partial withdrawal
(within the meaning of Section 4203 or 4205 of ERISA) from a
Multiemployer Plan, or the receipt by the Borrower or any ERISA
Affiliate of notice from a Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA
or that it intends to terminate or has terminated under Section 4041A
of ERISA; (g) the imposition on the Borrower or any ERISA Affiliate of
fines, penalties, taxes or related charges under Chapter 43 of the
Code or under Sections 502(c), (i) or (l) or 4071 of ERISA; (h) the
assertion of a material claim (other than routine claims for benefits)
against any Employee Benefit Plan or the assets thereof, or against
the Borrower or any ERISA Affiliate in connection with any such plan;
or (i) receipt from the Service of notice of the failure of any
Pension Plan to qualify under Section 401(a) of the Code, or the
failure of any trust forming part of a Pension Plan to fail to qualify
for exemption from taxation under Section 501(a) of the Code.
"Eurocurrency Reserve Requirements": for any day as applied
to a Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal
and emergency reserves under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed for
<PAGE> 19
13
eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board) maintained by a member bank
of the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
determined by the Agent to be equal to the arithmetic mean of the
rates per annum offered by leading banks in the London interbank
market at approximately 11:00 a.m. (London time) two Working Days
prior to the beginning of such Interest Period, as quoted on Telerate
Page 3750 or, in the event that Telerate Page 3750 shall at such time
quote such rates for fewer than two leading banks, the rate at which
the Agent is offered Dollar deposits at or about 11:00 A.M. (London
time), two Working Days prior to the beginning of such Interest Period
in the London interbank market for delivery on the first day of such
Interest Period for the number of days comprised therein and in an
amount comparable to the amount of the Agent's Eurodollar Loan to be
outstanding during such Interest Period.
"Eurodollar Loans": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum
determined for such day in accordance with the following formula
(rounded upward to the nearest 1/16th of 1%):
Eurodollar Base Rate
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 7,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Excess Cash Flow": for any period, the Consolidated Operating
Cash Flow of the Borrower and its Subsidiaries for such period minus
for such period, the sum of (a) Consolidated Debt Service, (b)
Consolidated Capital Expenditures and (c) the actual taxes paid by the
Borrower and its Subsidiaries in cash.
"Facilities": any and all real property (including, without
limitation, all buildings, fixtures or other improvements located
thereon) now, or hereafter, owned,
<PAGE> 20
14
leased, operated or used by the Borrower or any of its Subsidiaries or
any of their respective predecessors.
"FCC": the Federal Communications Commission and any
successor governmental agency performing functions similar to those
performed by the Federal Communications Commission on the date hereof.
"FCC License": any of the licenses, permits or other
authorizations issued by the FCC relating to or necessary for the
operation of the Broadcast Stations, the loss of which could
reasonably be expected to have a Material Adverse Effect, including,
without limitation, those listed on Schedule 3.1(e) hereto.
"Federal Funds Rate": with respect to each day, the rate per
annum (rounded upward, if necessary, to the nearest 1/16 of 1%)
offered in the interbank market to the Agent as the overnight "federal
funds rate" at or about 10:00 A.M., Los Angeles time, on such day (or,
if such day is not a Business Day, for the next preceding Business
Day).
"Financial Statements": the audited consolidated balance
sheet, statement of operations, cash flows and shareholders' equity
for the Borrower and its consolidated Subsidiaries for the fiscal
years ended December 31, 1993 and 1994 and the unaudited interim
consolidated balance sheet, statement of operations, cash flows and
shareholders' equity for the Borrower and its consolidated
Subsidiaries for the nine months ended September 30, 1994 and 1995.
"GAAP": generally accepted accounting principles in the
United States of America consistent with those utilized in preparing
the audited financial statements referred to in subsection 3.3.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Hazardous Materials": (a) any chemical, material or
substance defined as or included in the definition of "hazardous
substances", "hazardous wastes", "hazardous materials", "extremely
hazardous waste", "restricted hazardous waste", or "toxic substances"
or words of similar import under any applicable Environmental Laws,
(b) any oil, petroleum or petroleum derived substance, any drilling
fluids, produced
<PAGE> 21
15
waters and other wastes associated with the exploration, development
or production of crude oil, any flammable substances or explosives,
any radioactive materials, any hazardous wastes or substances, any
toxic wastes or substances or any other materials or pollutants which
(i) pose a material hazard to any property of the Borrower or any of
its Subsidiaries or to Persons on or about such property or (ii) cause
such property to be in violation of any Environmental Laws, (c)
asbestos in any form which is or could become friable, urea
formaldehyde foam insulation, polychlorinated biphenyls, and (d) any
other chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority or may
or could pose a hazard to the health and safety of the owners,
occupants or any Persons surrounding the Facilities.
"Indebtedness": of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices), (b) any other indebtedness of
such Person which is evidenced by a note, bond, debenture or similar
instrument, (c) all obligations of such Person under Capital Leases,
(d) all obligations of such Person in respect of acceptances issued or
created for the account of such Person, (e) all liabilities secured by
any Lien on any property owned by such Person even though such Person
has not assumed or otherwise become liable for the payment thereof and
(f) the liquidation value of any preferred capital stock of such
Person its Subsidiaries held by any Person other than such Person and
its wholly owned Subsidiaries.
"Indenture": the Indenture dated as of September 28, 1995
pursuant to which the Borrower issued the Senior Subordinated Notes,
as the same may be amended, supplemented or otherwise modified from
time to time.
"Intellectual Property": all patents, trademarks, trade
names, copyrights, technology, know-how and processes used in or
necessary for the conduct of business of the Borrower and its
Subsidiaries as currently conducted that are material to the condition
(financial or other), business, or operations of the Borrower and its
Subsidiaries taken as a whole.
"Interest Payment Date": (a) as to any Base Rate Loan, the
last day of each March, June, September and December and the date on
which such Loan is paid or converted into a Loan
<PAGE> 22
16
of another Type, (b) as to any Eurodollar Loan having an Interest
Period of three months or less, the last day of such Interest Period,
and (c) as to any Eurodollar Loan having an Interest Period longer
than three months, each day which is three months or a whole multiple
thereof, after the first day of such Interest Period and the last day
of such Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
(a) initially, the period commencing on the
borrowing or conversion date, as the case may be, with respect
to such Eurodollar Loan and ending one, two, three, six or
twelve months thereafter, as selected by the Borrower in its
notice of borrowing or notice of conversion, as the case may
be, given with respect thereto; and
(b) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to
such Eurodollar Loan and ending one, two, three, six or twelve
months thereafter, as selected by the Borrower by irrevocable
notice to the Agent not less than three Working Days prior to
the last day of the then current Interest Period with respect
thereto;
provided that if the Borrower at any time selects an Interest Period
with respect to any Eurodollar Loan of twelve months, such selection
is subject to the availability of Eurodollar Loans having an Interest
Period of twelve months on the part of all of the Lenders; provided,
further, all of the foregoing provisions relating to Interest Periods
are subject to the following:
(1) if any Interest Period pertaining to a
Eurodollar Loan would otherwise end on a day that is not a
Working Day, such Interest Period shall be extended to the
next succeeding Working Day unless the result of such
extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end
on the immediately preceding Working Day;
(2) any Interest Period pertaining to a Eurodollar
Loan that begins on the last Working Day of a calendar month
(or on a day for which there is no numerically corresponding
day in the calendar month at the end of
<PAGE> 23
17
such Interest Period) shall end on the last Working Day of a
calendar month; and
(3) the Borrower shall select Interest Periods with
respect to any Eurodollar Loan so as not to require a payment
or prepayment of any such Eurodollar Loan during an Interest
Period for such Loan.
"Interest Rate Agreement": any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other
similar agreement or arrangement designed to protect the Borrower or
any of its Subsidiaries against fluctuations in interest rates.
"INTV Properties": the properties, assets and entities listed
on Schedule 1.1C.
"Investment": (a) any direct or indirect purchase or other
acquisition by the Borrower or any of its Subsidiaries of, or a
beneficial interest in, stock or other Securities of any other Person,
or (b) any direct or indirect loan, advance (other than advances to
employees for moving, entertainment and travel expenses, drawing
accounts and similar expenditures in the ordinary course of business)
or capital contribution by the Borrower or any of its Subsidiaries to
any other Person, including all indebtedness and accounts receivable
from that other Person that are not current assets or did not arise
from sales to that other Person in the ordinary course of business.
The amount of any Investment shall be the original cost of such
Investment plus the cost of all additions thereto, without any
adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such investment.
Investments shall not include any purchase of Program Rights in the
ordinary course of business.
"Joint Venture": a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other legal
form.
"Leverage Ratio": at any date of determination, the ratio of
(a) Consolidated Total Debt of the Borrower and its Subsidiaries on
such date to (b) Adjusted Consolidated Operating Cash Flow as of the
last day of the month for which the Borrower shall have most recently
delivered financial statements pursuant to subsection 5.1(b)(i).
"License Subsidiary": each Subsidiary of the Borrower which
holds any FCC License relating to a Broadcast Station as
<PAGE> 24
18
specified on Schedule 1.1D; and "License Subsidiaries" means all such
Persons collectively.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement and any Capital Lease having substantially the
same economic effect as any of the foregoing).
"LMA Agreements": (i) each of the agreements (including those
identified on Schedule 3.1(e) annexed hereto) pursuant to which
certain of the Loan Parties identified in Schedule 3.1(e) operate an
LMA Radio Station or LMA Television Station, together with any
amendments, supplements or modifications thereto, as the same may be
amended, restated, supplemented or otherwise modified from time to
time in accordance with the terms hereof and thereof, and (ii) any
other local marketing agreements, local management agreements, local
sales agreements, time brokerage agreements or similar arrangements
entered into by the Borrower or any of its Subsidiaries to the extent
permitted hereby.
"LMA Radio Station": each of the radio stations (including,
without limitation, those identified on Schedule 3.1(e) hereto)
operated by the Borrower or its Subsidiaries pursuant to an LMA
Agreement.
"LMA Television Station": each of the television stations
(including, without limitation, those identified on Schedule 3.1(e)
hereto) operated by the Borrower or its Subsidiaries pursuant to an
LMA Agreement.
"Loan Documents": this Agreement, any Notes and the Security
Documents.
"Loan Parties": the Borrower and each Subsidiary of the
Borrower which is a party to a Loan Document.
"Loans": as defined in subsection 2.1.
"Majority Lenders": at any time, Lenders the Commitment
Percentages of which aggregate more than 50%.
"Margin Stock": has the meaning assigned to that term in
Regulation U of the Board as in effect from time to time.
<PAGE> 25
19
"Material Adverse Effect": a material adverse effect on (a)
the business, operations, property, condition (financial or otherwise)
or prospects of the Borrower and its Subsidiaries taken as a whole or
(b) the validity or enforceability of this or any of the other Loan
Documents or the rights or remedies of the Agent or the Lenders
hereunder or thereunder.
"Multiemployer Plan": a "multiemployer plan" within the
meaning of Section 4001(a)(3) of ERISA to which the Borrower or any
ERISA Affiliate has an obligation to contribute or in respect of which
the Borrower or any ERISA Affiliate has any outstanding liability,
contingent or otherwise.
"Net Cash Proceeds": in connection with:
(a) any Asset Sale, the proceeds thereof in the form of Cash
and Cash Equivalents (including any such proceeds received by way of
deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or otherwise, but
only as and when received), net of attorneys' fees, accountants' fees,
investment banking fees, amounts required to be applied to the
repayment of Indebtedness secured by a Lien expressly permitted
hereunder on any asset which is the subject of such Asset Sale (other
than any Lien in favor of the Agent for the benefit of the Lenders)
and other customary fees and expenses actually incurred in connection
therewith and net of taxes paid or reasonably estimated to be payable
as a result thereof (after taking into account any available tax
credits or deductions and any tax sharing arrangements); and
(b) any issuance or sale of equity securities or debt
securities or instruments or the incurrence of loans, the Cash
proceeds received from such issuance or incurrence, net of attorneys'
fees, investment banking fees, accountants' fees, underwriting
discounts and commissions and other customary fees and expenses
actually incurred in connection therewith.
"Non-Excluded Taxes": as defined in subsection 2.15.
"Non-INTV Properties": the properties, assets and entities
listed on Schedule 1.1E.
"Note": as defined in subsection 2.4(e).
"Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the
<PAGE> 26
20
maturity of the Loans and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether
or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Notes and all other obligations and liabilities
of the Borrower to the Agent or to any Lender, whether direct or
indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in
connection with, this Agreement, any other Loan Document, any Interest
Rate Agreement entered into with any Lender, whether on account of
principal, interest, fees, indemnities, costs, expenses (including,
without limitation, all fees, charges and disbursements of counsel to
the Agent or to any Lender that are required to be paid by the
Borrower pursuant hereto) or otherwise.
"Operating Lease": as applied to any Person, any lease
(including, without limitation, any leases that may be terminated by
the lessee at any time) of any property (whether real, personal or
mixed) of such Person that is not a Capital Lease other than any such
lease under which such Person is the lessor.
"Owned Radio Station": each of the radio stations (including,
without limitation, those identified on Schedule 3.1(f) hereto) owned
by the Borrower and such other radio stations acquired pursuant to a
Permitted Purchase.
"Owned Television Station": each of the television stations
(including, without limitation, those identified on Schedule 3.1(f)
hereto) owned by the Borrower and such other television stations
acquired pursuant to a Permitted Purchase.
"Ownership Report": the Ownership Report of each Loan Party
most recently filed with the FCC.
"Participant": as defined in subsection 9.6(b).
"Paxson": Lowell W. Paxson, residing on the date hereof at
780 South Ocean Boulevard, Palm Beach, Florida 33480.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Pension Plan": any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of
ERISA.
<PAGE> 27
21
"Permitted Acquisition": has the meaning assigned to that
term in subsection 6.4(j).
"Permitted Encumbrances": the following types of Liens
(provided that enforcement of the same will not have a Material
Adverse Effect except with respect to clauses (i) and (v) hereof):
(i) Liens for taxes, assessments or governmental
charges or claims the payment of which is not, at the time, required
by subsection 5.3;
(ii) Liens of carriers, warehousemen and other liens
imposed by law incurred in the ordinary course of business for sums
not yet delinquent or being contested in good faith, if such reserve
or other appropriate provision, if any, as shall be required by GAAP
shall have been made therefor;
(iii) Liens of mechanics and materialmen for sums not yet
due or the validity of which are being contested in good faith;
(iv) Liens (other than any Lien imposed pursuant to
Section 401(a)(29) or Section 412(n) of the Code or under ERISA or any
Environmental Law) incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, trade contracts,
performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money);
(v) any attachment or judgment Lien not constituting an
Event of Default under subsection 7(j);
(vi) leases or subleases granted to others not
interfering in any material respect with the business of the Borrower
or any of its Subsidiaries;
(vii) easements, rights-of-way, restrictions, minor
defects, encroachments or irregularities in title and other similar
charges or encumbrances not interfering in any material respect with
the ordinary conduct of the business of the Borrower or any of its
Subsidiaries; and
(vii) Liens arising from filing UCC financing statements
relating solely to leases permitted by this Agreement.
<PAGE> 28
22
"Permitted Purchase": any of (i) a Permitted Acquisition or
(ii) any other acquisition of a radio or televisions broadcast station
permitted hereunder or otherwise consented to by the Required Lenders
from time to time in accordance with the terms hereof.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Pledge Agreements": the collective reference to the Borrower
Pledge Agreement and the Subsidiaries Pledge Agreement.
"Preapproved Acquisition": means any of the acquisitions
listed on Schedule 1.1F, provided that such acquisition (a) is
effected pursuant to the Purchase Agreement relating to such
acquisition and (b) is consummated within nine months of the Closing
Date.
"Preapproved Capital Expenditures": expenditures to improve
or upgrade certain Broadcast Stations owned or operated as of the
Closing Date as specified on Schedule 1.1H.
"Program": any television series or other program produced or
distributed for television release (including any syndicated series or
other program regardless of its medium of initial exploitation), in
each case whether recorded on film, videotape, audiotape, cassette,
cartridge, disc or by any other means, method, process or device,
whether now known or hereafter developed.
"Program Contracts": all contracts for television broadcast
rights of Programs, including, but not limited to, film, music and
related audio rights and syndicated series exhibition rights acquired
under license agreements.
"Program Rights": any right, whether arising under Program
Contracts or otherwise, to broadcast, sell,
<PAGE> 29
23
distribute, subdistribute, exhibit, lease, sublease, license,
sublicense or otherwise exploit Programs.
"Program Rights Costs": the maximum amount which the Borrower
and/or any of its Subsidiaries or its or their co-venturers have
furnished or have contractually committed to furnish (to the extent
such commitments shall be reflected as an asset or liability on the
consolidated balance sheet and the notes thereto of the Borrower)
toward the production or acquisition by the Borrower and/or any of its
Subsidiaries or its or their co-venturers of any Program Rights with
respect to any Program.
"Programming Amortization Expense": for any period, total
amortization expense of the Borrower and/or any of its Subsidiaries
for such period which is directly attributable to Programs, Program
Rights or Program Contracts, determined on a consolidated basis in
conformity with GAAP.
"Programming Obligations": at any date of determination, all
direct or indirect liabilities, contingent or otherwise, with respect
to Program Contracts, Programs or Program Rights (including, without
limitation, all Program Rights Costs) of the Borrower and its
Subsidiaries, to the extent reflected on the consolidated balance
sheet and the notes thereto of the Borrower and its Subsidiaries
prepared in conformity with GAAP.
"Programming Rights Payments": for any period, the aggregate
cash payments scheduled to be made by the Borrower and/or any of its
Subsidiaries for such period in respect of Programming Obligations,
determined on a consolidated basis in conformity with GAAP.
"Purchase Agreements": the agreements, contracts and other
documents pursuant to which the Borrower or its Subsidiaries will
consummate a Preapproved Acquisition or Permitted Purchase, in form
and substance satisfactory to the Lenders or the Required Lenders,
respectively.
"Register": as defined in subsection 9.6(d).
"Related Documents": (a) the Purchase Agreements and (b) the
LMA Agreements.
"Release": any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal,
leaching, or migration into the indoor
<PAGE> 30
24
or outdoor environment (including, without limitation, the abandonment
or disposal of any barrels, containers or other closed receptacles
containing any Hazardous Materials), or into or out of any Facility,
including the movement of any Hazardous Material through the air,
soil, surface water, groundwater or property.
"Required Lenders": at a particular time, the holders of at
least 66-2/3% of the aggregate unpaid principal amount of the Loans,
or, if no Loans are outstanding, Lenders the Commitment Percentages of
which aggregate at least 66-2/3%.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Restricted Payment": means (i) any dividend or other
distribution, direct or indirect, on account of any equity interests
(including preferred capital stock) of the Borrower or any of its
Subsidiaries now or hereafter outstanding, (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any equity interests
(including preferred capital stock) of the Borrower or any of its
Subsidiaries now or hereafter outstanding, (iii) any payment made to
retire, or to obtain the surrender of, any outstanding warrants,
options or other rights to acquire any equity interests (including
preferred capital stock) of the Borrower or any of its Subsidiaries
now or hereafter outstanding and (iv) any direct or indirect payment,
loan, contribution or other transfer of funds or other property to any
equity holder of the Borrower or any of its Subsidiaries.
"Securities": any stock, shares, voting trust certificates,
bonds, debentures, options, warrants, notes, or other evidences of
indebtedness, secured or unsecured, convertible, subordinated or
otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations
in temporary or interim certificates for the purchase or acquisition
of, or any right to subscribe to, purchase or acquire, any of the
foregoing.
<PAGE> 31
25
"Security Agreements": the collective reference to the
Borrower Security Agreement and the Subsidiaries Security Agreement.
"Security Documents": the collective reference to the Pledge
Agreements, the Subsidiaries Guarantee, the Security Agreements and
all other security documents hereafter delivered to the Agent granting
a Lien on any asset or assets of any Person to secure the obligations
and liabilities of the Borrower hereunder and under any of the other
Loan Documents or to secure any guarantee of any such obligations and
liabilities.
"Senior Subordinated Notes": as defined in subsection 4.1(i).
"Shop at Home": Shop at Home, Inc., a Tennessee corporation.
"Solvent": with respect to any Person, that as of the date of
determination, both (A) (i) the then fair saleable value of the
property of such Person is (y) greater than the total amount of
liabilities (including Contingent Obligations) of such Person and (z)
greater than the amount that will be required to pay the probable
liabilities of such Person's then existing debts as they become
absolute and matured considering all financing alternatives, sharing
and allocation arrangements and potential asset sales reasonably
available to such Person; (ii) such Person's capital is not
unreasonably small in relation to its business or any contemplated or
undertaken transaction; and (iii) such Person does not intend to
incur, or believe or reasonably should believe that it will incur,
debts beyond its ability to pay such debts as they become due and (B)
such Person is solvent within the meaning given that term and similar
terms under applicable laws relating to fraudulent transfers.
"Stockholders' Agreement": the Amended and Restated
Stockholders' Agreement of the Borrower dated as of December 22, 1994,
as the same may be amended, supplemented or otherwise modified from
time to time (including as amended pursuant to the Consent effective
as of September 20, 1995).
"Subsidiaries Guarantee": the Guarantee to be executed and
delivered by each Subsidiary, substantially in the form of Exhibit D,
as the same may be amended, supplemented or otherwise modified from
time to time.
<PAGE> 32
26
"Subsidiaries Pledge Agreement": the Subsidiaries Pledge
Agreement to be executed and delivered by each Subsidiary in favor of
the Agent, substantially in the form of Exhibit E, as the same may be
amended, supplemented or otherwise modified from time to time.
"Subsidiaries Security Agreement": the Subsidiaries Security
Agreement to be executed and delivered by each Subsidiary in favor of
the Agent, substantially in the form of Exhibit F, as the same may be
amended, supplemented or otherwise modified from time to time.
"Subsidiaries Security Documents": the collective reference
to the Subsidiaries Pledge Agreement and the Subsidiaries Security
Agreement.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower. All references in this
Agreement to a "Subsidiary" or "Subsidiaries" of the Borrower shall
not include (a) any Unrestricted Subsidiary of the Borrower or (b) any
Discontinued Operation.
"Subsidiary Guarantor": any Subsidiary of the Borrower that
is a party to the Subsidiaries Guarantor.
"Termination Date": June 30, 2002.
"Tranche": the collective reference to Eurodollar Loans the
then current Interest Periods with respect to all of which begin on
the same date and end on the same later date (whether or not such
Loans shall originally have been made on the same day).
"Transferee": as defined in subsection 9.6(f).
"Type": as to any Loan, its nature as a Base Rate Loan or a
Eurodollar Loan.
<PAGE> 33
27
"Unrestricted Subsidiary": (a) Shop at Home and (b) any
corporation, partnership or other entity which, but for the operation
of this definition, would be a Subsidiary of the Borrower (i) created,
invested in or acquired by the Borrower or any Subsidiary of the
Borrower after the Closing Date, other than pursuant to a Preapproved
Acquisition, (ii) designated by a resolution of the Board of Directors
of the Borrower as an Unrestricted Subsidiary and such designation and
the basis for such designation are provided in writing to the Agent,
and (iii)(A) into which the Borrower or any Subsidiary has made any
Investment with the proceeds of any issuance or sale of any class of
equity Securities of the Borrower or any Subsidiary or (B) acquired in
exchange, in whole or in part, for equity Securities of the Borrower
or any Subsidiary; provided that if such Subsidiary is a partnership,
such Subsidiary may be an Unrestricted Subsidiary only if neither the
Borrower nor a Subsidiary of the Borrower is a general partner of such
Subsidiary.
"Warrants": each of the warrants to purchase shares of common
stock or preferred capital stock of the Borrower.
"Working Day": shall mean any Business Day on which dealings
in foreign currencies and exchange between banks may be carried on in
London, England.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in any Notes or any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in any Notes, and any certificate or
other document made or delivered pursuant hereto, accounting terms relating to
the Borrower and its Subsidiaries not defined in subsection 1.1 and accounting
terms partly defined in subsection 1.1, to the extent not defined, shall have
the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
<PAGE> 34
28
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms
and conditions hereof, each Lender severally agrees to make revolving credit
loans ("Loans") to the Borrower from time to time during the Commitment Period
in an aggregate principal amount at any one time outstanding not to exceed the
amount of such Lender's Commitment. During the Commitment Period the Borrower
may use the Commitments by borrowing, prepaying the Loans in whole or in part,
and reborrowing, all in accordance with the terms and conditions hereof.
2.2 Procedure for Borrowing. (a) The Loans may from time to
time be (i) Eurodollar Loans or (ii) Base Rate Loans or (iii) a combination
thereof, as determined by the Borrower and notified to the Agent in accordance
with subsections 2.2(b) and 2.7, provided that no Loan shall be made as a
Eurodollar Loan after the day that is one month prior to the Termination Date.
(b) The Borrower may borrow under the Commitments during the
Commitment Period on any Working Day, if all or any part of such Loans are to
be initially Eurodollar Loans, or on a Business Day, if all of such Loans are
to be initially Base Rate Loans, provided that the Borrower shall give the
Agent irrevocable notice (which notice must be received by the Agent prior to
10:00 A.M., Los Angeles time, (a) three Business Days prior to the requested
Borrowing Date, if all or any part of the requested Loans are to be initially
Eurodollar Loans or (b) one Business Day prior to the requested Borrowing Date,
otherwise), specifying (i) the amount to be borrowed, (ii) the requested
Borrowing Date, (iii) whether the borrowing is to be Eurodollar Loans, Base
Rate Loans, or a combination thereof and (iv) if the borrowing is to be
entirely or partly of Eurodollar Loans, the respective amounts of each such
Type of Loan and the respective lengths of the initial Interest Periods
therefor. Each borrowing under the Commitments shall be in an amount equal to
(x) in the case of Base Rate Loans, $500,000 or a whole multiple of $100,000 in
excess thereof (or, if the then aggregate Available Commitments are less than
$100,000, such lesser amount) and (y) in the case of Eurodollar Loans,
$3,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt
of any such notice from the Borrower, the Agent shall promptly notify each
Lender thereof. Each Lender will make the amount of its pro rata share of each
borrowing available to the Agent for the account of the Borrower at the office
of the Agent specified in subsection 9.2 prior to 11:00 A.M., New York City
time, on the Borrowing Date requested by the Borrower in funds immediately
available to the Agent. Such borrowing will then be made available to the
Borrower by the Agent crediting the account of the Borrower on the books of
<PAGE> 35
29
such office with the aggregate of the amounts made available to the Agent by
the Lenders and in like funds as received by the Agent.
2.3 Commitment Fee. The Borrower agrees to pay to the Agent
for the account of each Lender a commitment fee for the duration of the
Commitment Period from and including the first day of the Commitment Period,
computed at the rate of 1/2 of 1% per annum on the average daily amount of the
Available Commitment of such Lender during the period for which payment is
made, payable quarterly in arrears on the last day of each March, June,
September and December and on the Termination Date or such earlier date as the
Commitments shall terminate as provided herein, commencing on the first of such
dates to occur after the date hereof.
2.4 Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay to the Agent for the account of each
Lender the then unpaid principal amount of each Loan of such Lender on the
Termination Date (or such earlier date on which the Loans become due and
payable pursuant to Section 7). The Borrower hereby further agrees to pay
interest on the unpaid principal amount of the Loans from time to time
outstanding from the date hereof until payment in full thereof at the rates per
annum, and on the dates, set forth in subsection 2.9.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to such
Lender resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Agent shall maintain the Register pursuant to
subsection 9.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Loan made hereunder, the Type thereof and each
Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) both the amount of any sum received by the Agent
hereunder from the Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to subsection 2.4(b) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Agent to maintain the Register or any such
account, or any error therein, shall not in any manner affect the obligation of
the Borrower to repay (with applicable interest) the Loans made to the
<PAGE> 36
30
Borrower by such Lender in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the Agent
by any Lender, the Borrower will execute and deliver to such Lender a
promissory note of the Borrower evidencing the Loans of such Lender,
substantially in the form of Exhibit A with appropriate insertions as to date
and principal amount (a "Note").
2.5 Optional Prepayments. The Borrower may, at any time and
from time to time, prepay the Loans, in whole or in part, without premium or
penalty, upon at least three Business Days' irrevocable notice to the Agent in
the case of Eurodollar Loans, and upon at least one Business Days' irrevocable
notice to the Agent in the case of Base Rate Loans, specifying the date and
amount of prepayment and whether the prepayment is of Eurodollar Loans, Base
Rate Loans or a combination thereof, and, if of a combination thereof, the
amount allocable to each. Upon receipt of any such notice the Agent shall
promptly notify each Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified
therein, together with any amounts payable pursuant to subsection 2.16.
Partial prepayments shall be in an aggregate principal amount of $250,000 or a
whole multiple of $50,000 in excess thereof.
2.6 Termination or Reduction of Commitments and Mandatory
Prepayments.
(a) The Borrower shall have the right, upon not less than
three Business Days' notice to the Agent, to terminate the Commitments or, from
time to time, to reduce the amount of the Commitments. Any such reduction
shall be in an amount equal to $500,000 or a whole multiple of $500,000 in
excess thereof and shall reduce permanently the Commitments then in effect.
Termination of the Commitments shall also terminate the obligation of the
Lenders to make Loans.
(b) On each March 31, June 30, September 30 and December 31
during the period from and including December 31, 1997 to the Termination Date,
the Commitment shall be reduced by the amount set forth below opposite the
period in which such date occurs:
<PAGE> 37
31
<TABLE>
<CAPTION>
Quarterly
Date or Period Commitment Reduction
--------------------------------- --------------------
<S> <C>
December 31, 1997 $10,000,000
January 1, 1998-December 31, 1998 $ 3,750,000
January 1, 1999-December 31, 1999 $ 5,000,000
January 1, 2000-December 31, 2000 $ 5,000,000
January 1, 2001-December 31, 2001 $ 5,000,000
January 1, 2002-June 30, 2002 $ 7,500,000
</TABLE>
(c) If any class of debt Securities or instruments of the
Borrower or any of its Subsidiaries shall be issued or sold or the Borrower or
its Subsidiaries shall incur any Indebtedness (other than any debt Securities
or instruments issued or Indebtedness incurred as permitted by subsection 6.2)
an amount equal to 100% of the Net Cash Proceeds from such issuance, sale or
incurrence shall be applied on the date of such issuance, sale or incurrence
toward the reduction of the Commitments in accordance with the provisions of
paragraph (g) of this subsection 2.6.
(d) If any class of common equity Securities of the Borrower
or any of its Subsidiaries shall be issued or sold, an amount of Net Cash
Proceeds received by the Borrower or its Subsidiaries (other than the first
$10,000,000 of such Net Cash Proceeds received by the Borrower from the
issuance or sale by the Borrower subsequent to the Closing Date of such
Securities pursuant to the exercise of stock options issued in favor of members
of management) shall be applied on the date of such issuance or sale toward the
prepayment of the Loans to such extent that, after giving effect thereto, the
Leverage Ratio is equal to or less than 6.25 to 1.00.
(e) The Commitments shall be reduced in accordance with the
provisions of paragraph (g) of this subsection 2.6 by an amount equal to the
aggregate amount of Net Cash Proceeds received by the Borrower and its
Subsidiaries from Asset Sales, except that the first $10,000,000 of such Net
Cash Proceeds received by the
<PAGE> 38
32
Borrower and its Subsidiaries during the Commitment Period need not be so
applied to reduce the Commitments to the extent the Borrower or any of its
Subsidiaries invests such Net Cash Proceeds in assets of the same type and
utility as the assets sold within twelve months of such Asset Sale (provided
that, as at the time of such investment and after giving effect thereto no
Default or Event of Default shall have occurred and be continuing or would
result therefrom).
(f) If, for the 1996 fiscal year of the Borrower and any
subsequent fiscal year of the Borrower, there shall be Excess Cash Flow, on the
relevant Excess Cash Flow Application Date (as defined below) there shall be
applied toward the reduction of the Commitment in accordance with the
provisions of paragraph (g) of this subsection 2.6, an amount equal to 50% of
such Excess Cash Flow. Each such Commitment reduction shall be made on the
date (an "Excess Cash Flow Application Date") that is five days after the
earlier of (i) the date on which the financial statements of the Borrower
referred to in subsection 5.1(b)(iii), for the fiscal year with respect to
which such prepayment is made, are required to be delivered to the Lenders and
(ii) the date such financial statements are actually delivered.
(g) Reductions of the Commitments pursuant to this subsection
2.6 shall be applied to the permanent reduction of the Commitments to the then
remaining scheduled Commitment reductions pro rata according to the respective
amounts thereof. Any reduction of the Commitments pursuant to this subsection
2.6 shall be accompanied by the prepayment of the Loans (including accrued
interest and any amounts due pursuant to subsection 2.16) to the extent, if
any, that the aggregate then outstanding principal amount of the Loans exceeds
the amount of the Commitments as so reduced.
2.7 Conversion and Continuation Options. (a) The Borrower
may elect from time to time to convert Eurodollar Loans to Base Rate Loans, by
giving the Agent at least two Business Days' prior irrevocable notice of such
election, provided that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert Base Rate Loans to Eurodollar Loans by
giving the Agent at least three Working Days' prior irrevocable notice of such
election. Any such notice of conversion to Eurodollar Loans shall specify the
length of the initial Interest Period or Interest Periods therefor. Upon
receipt of any such notice the Agent shall promptly notify each Lender thereof.
All or any part of outstanding Eurodollar Loans and Base Rate Loans may be
converted as provided herein, provided that (i) no Loan may be converted into a
Eurodollar Loan when any Event of Default has occurred and is continuing and
the Agent has or the Required Lenders have determined that such a conversion is
not appropriate and (ii) no Loan may be converted into a Eurodollar Loan after
the date that is one month prior to the Termination Date.
<PAGE> 39
33
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Agent, in accordance with the applicable
provisions of the term "Interest Period" set forth in subsection 1.1, of the
length of the next Interest Period to be applicable to such Loans, provided
that no Eurodollar Loan may be continued as such (i) when any Event of Default
has occurred and is continuing and the Agent has or the Required Lenders have
determined that such a continuation is not appropriate or (ii) after the date
that is one month prior to the Termination Date and provided, further, that if
the Borrower shall fail to give such notice or if such continuation is not
permitted such Loans shall be automatically converted to Base Rate Loans on the
last day of such then expiring Interest Period.
2.8 Minimum Amounts and Maximum Number of Tranches. All
borrowings, conversions and continuations of Loans hereunder and all selections
of Interest Periods hereunder shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, the aggregate principal
amount of the Loans comprising each Eurodollar Tranche shall be equal to
$3,000,000 or a whole multiple of $1,000,000 in excess thereof. In no event
shall there be more than 8 Eurodollar Tranches outstanding at any time.
2.9 Interest Rates and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined with
respect to such Loan for such day plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per
annum equal to the Base Rate plus the Applicable Margin.
(c) If all or a portion of (i) any principal of any Loan,
(ii) any interest payable thereon, (iii) any commitment fee or (iv) any other
amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), the principal of such overdue Loans
and any such overdue interest, commitment fee or other amount shall bear
interest at a rate per annum which is (x) in the case of principal, the rate
that would otherwise be applicable thereto pursuant to the foregoing provisions
of this subsection plus 2% or (y) in the case of any such overdue interest,
commitment fee or other amount, the rate described in paragraph (b) of this
subsection plus 2%, in each case from the date of such non-payment until such
overdue principal, interest, commitment fee or other amount is paid in full (as
well after as before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
<PAGE> 40
34
2.10 Computation of Interest and Fees. (a) Interest on Base
Rate Loans and commitment fees shall be calculated on the basis of a 365- (or
366-, as the case may be) day year for the actual days elapsed. Interest on
Eurodollar Loans shall be calculated on the basis of a 360-day year for the
actual days elapsed. The Agent shall as soon as practicable notify the
Borrower and the Lenders of each determination of a Eurodollar Rate. Any
change in the interest rate on a Loan resulting from a change in the Base Rate
or the Eurocurrency Reserve Requirements shall become effective as of the
opening of business on the day on which such change becomes effective. The
Agent shall as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower and the Lenders in the absence of manifest error. The Agent
shall, at the request of the Borrower, deliver to the Borrower a statement
showing the quotations used by the Agent in determining any interest rate
pursuant to subsection 2.9(a) or (b).
2.11 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Agent shall have determined (which determination
shall be conclusive and binding upon the Borrower) that, by reason of
circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for such
Interest Period, or
(b) the Agent shall have received notice from the Majority
Lenders that the Eurodollar Rate determined or to be determined for
such Interest Period will not adequately and fairly reflect the cost
to such Lenders (as conclusively certified by such Lenders) of making
or maintaining their affected Loans during such Interest Period,
the Agent shall give telecopy or telephonic notice thereof to the Borrower and
the Lenders as soon as practicable thereafter. If such notice is given (x) any
Eurodollar Loans requested to be made on the first day of such Interest Period
shall be made as Base Rate Loans, (y) any Loans that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be
continued as Base Rate Loans and (z) any affected outstanding Eurodollar Loans
shall be converted, on the first day of such Interest Period, to Base Rate
Loans. Until such notice has been withdrawn by the Agent, no further
Eurodollar Loans shall be made or continued as such, nor shall the Borrower
have the right to convert Loans to Eurodollar Loans.
2.12 Pro Rata Treatment and Payments. (a) Each borrowing by
the Borrower from the Lenders hereunder, each payment by the Borrower on
account of any commitment fee hereunder and any reduction of the Commitments of
the Lenders shall be made pro rata
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35
according to the respective Commitment Percentages of the Lenders. Each
payment (including each prepayment) by the Borrower on account of principal of
and interest on the Loans shall be made pro rata according to the respective
outstanding principal amounts of the Loans then held by the Lenders. All
payments (including prepayments) to be made by the Borrower hereunder, whether
on account of principal, interest, fees or otherwise, shall be made without set
off or counterclaim and shall be made prior to 11:00 A.M. Los Angeles time, on
the due date thereof to the Agent, for the account of the Lenders, at the
Agent's office specified in subsection 9.2, in Dollars and in immediately
available funds. The Agent shall distribute such payments to the Lenders
promptly upon receipt in like funds as received. If any payment hereunder
becomes due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day, and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension.
(b) Unless the Agent shall have been notified in writing by
any Lender prior to a borrowing that such Lender will not make the amount that
would constitute its Commitment Percentage of such borrowing available to the
Agent, the Agent may assume that such Lender is making such amount available to
the Agent, and the Agent may, in reliance upon such assumption, make available
to the Borrower a corresponding amount. If such amount is not made available
to the Agent by the required time on the Borrowing Date therefor, such Lender
shall pay to the Agent, on demand, such amount with interest thereon at a rate
equal to the daily average Federal Funds Rate for the period until such Lender
makes such amount immediately available to the Agent. A certificate of the
Agent submitted to any Lender with respect to any amounts owing under this
subsection shall be conclusive in the absence of manifest error. If such
Lender's Commitment Percentage of such borrowing is not made available to the
Agent by such Lender within three Business Days of such Borrowing Date, the
Agent shall also be entitled to recover such amount with interest thereon,
without duplication of any amounts received by the Agent from such Lender, at
the rate per annum applicable to Base Rate Loans hereunder, on demand, from the
Borrower.
2.13 Illegality. Notwithstanding any other provision herein,
if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert Base Rate Loans to Eurodollar Loans shall
forthwith be cancelled and (b) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans
on the respective last days of the then current Interest Periods with respect
to such Loans or within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last day of
the then current Interest Period with respect thereto, other than as a result
of the gross negligence or willful act of such Lender, the Borrower shall
<PAGE> 42
36
pay to such Lender such amounts, if any, as may be required pursuant to
subsection 2.16.
2.14 Requirements of Law. (a) If the adoption of or any
change in any Requirement of Law or in the interpretation or application
thereof or compliance by any Lender with any request or directive (whether or
not having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note or any Eurodollar
Loan made by it, or change the basis of taxation of payments to such
Lender in respect thereof (except for Non-Excluded Taxes covered by
subsection 2.15 and changes in the rate of tax on the overall net
income of such Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
thereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting
into, continuing or maintaining Eurodollar Loans or to reduce any amount
receivable hereunder in respect thereof, then, in any such case, such Lender
shall notify the Borrower of such increased cost or reduced amount receivable
and describe in reasonable detail the basis for such notification, and the
Borrower shall promptly pay such Lender such additional amount or amounts as
will compensate such Lender for such increased cost or reduced amount
receivable.
(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender
to be material, then from time to time, the Borrower shall promptly pay to such
Lender such additional amount or amounts as will compensate such Lender for
such reduction.
<PAGE> 43
37
(c) If any Lender becomes entitled to claim any additional
amounts pursuant to this subsection, it shall promptly notify the Borrower
(with a copy to the Agent) of the event by reason of which it has become so
entitled. A certificate as to any additional amounts payable pursuant to this
subsection submitted by such Lender to the Borrower (with a copy to the Agent)
shall be conclusive in the absence of manifest error. The agreements in this
subsection shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
(d) In the event any Lender delivers a certificate requesting
compensation pursuant to this subsection 2.14, the Borrower may, at its sole
expense and effort, upon notice to such Lender and the Agent, require such
Lender to transfer and assign, without recourse (in accordance with and subject
to the restrictions contained in subsection 9.6), all of its interests, rights
and obligations under this Agreement to an assignee which shall assume such
assigned obligations (which assignee may be another Lender, if a Lender accepts
such assignment); provided, however, that (x) such assignment shall not
conflict with any law, rule or regulation or order of any court or other
Governmental Authority having jurisdiction, (y) the Borrower shall have
received the prior written consent to such assignment of the Agent, which
consent shall not unreasonably be withheld, and (z) the Borrower or such
assignee shall have paid to the affected Lender in immediately available funds
an amount equal to the sum of the principal of the outstanding Loans of such
Lender plus all interest, fees and other amounts accrued and unpaid for the
account of such Lender hereunder (including any amounts under this subsection
2.14); provided, further, that if prior to any such transfer and assignment the
circumstances or event that resulted in such Lender's claim for compensation
under this subsection 2.14 cease to cause such Lender to suffer increased costs
or reductions in amounts received or receivable or reduction in return on
capital (including as a result of any action taken by such Lender pursuant to
subsection 2.17), or if, within twenty days after the Borrower shall have
notified such Lender of its election to exercise its rights pursuant to this
subsection, such Lender shall waive its right to claim further compensation
under this subsection 2.14 in respect of such circumstances or event, then such
Lender shall not thereafter be required to make any such transfer and
assignment hereunder.
2.15 Taxes. (a) All payments made by the Borrower under
this Agreement and any Notes shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, excluding net income taxes and franchise taxes
(imposed in lieu of net income taxes) imposed on the Agent or any Lender as a
result of a present or former connection between the Agent or such Lender and
the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Agent or such Lender having executed,
<PAGE> 44
38
delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any Note). If any such non-excluded taxes, levies,
imposts, duties, charges, fees deductions or withholdings ("Non-Excluded
Taxes") are required to be withheld from any amounts payable to the Agent or
any Lender hereunder or under any Note, the amounts so payable to the Agent or
such Lender shall be increased to the extent necessary to yield to the Agent or
such Lender (after payment of all Non-Excluded Taxes) interest or any such
other amounts payable hereunder at the rates or in the amounts specified in
this Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender that is not organized under the
laws of the United States of America or a state thereof if such Lender fails to
comply with the requirements of paragraph (b) of this subsection. Whenever any
Non-Excluded Taxes are payable by the Borrower, as promptly as possible
thereafter the Borrower shall send to the Agent for its own account or for the
account of such Lender, as the case may be, a certified copy of an original
official receipt received by the Borrower showing payment thereof. If the
Borrower fails to pay any Non-Excluded Taxes when due to the appropriate taxing
authority or fails to remit to the Agent the required receipts or other
required documentary evidence, the Borrower shall indemnify the Agent and the
Lenders for any incremental taxes, interest or penalties that may become
payable by the Agent or any Lender as a result of any such failure. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of
the United States of America or a state thereof shall:
(i) deliver to the Borrower and the Agent (A) two duly
completed copies of United States Internal Revenue Service Form 1001
or 4224, or successor applicable form, as the case may be, and (B) an
Internal Revenue Service Form W-8 or W-9, or successor applicable
form, as the case may be;
(ii) deliver to the Borrower and the Agent two further
copies of any such form or certification on or before the date that
any such form or certification expires or becomes obsolete and after
the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be requested
by the Borrower or the Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower and the Agent.
Such Lender shall certify (i) in the case of a Form 1001 or
<PAGE> 45
39
4224, that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes and (ii) in
the case of a Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax. Each Person that shall become a Lender or a
Participant pursuant to subsection 9.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms and statements
required pursuant to this subsection, provided that in the case of a
Participant such Participant shall furnish all such required forms and
statements to the Lender from which the related participation shall have been
purchased.
2.16 Indemnity. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans on a day which is not the last day of an Interest Period with respect
thereto. Such indemnification may include an amount equal to the excess, if
any, of (i) the amount of interest which would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from the
date of such prepayment or of such failure to borrow, convert or continue to
the last day of such Interest Period (or, in the case of a failure to borrow,
convert or continue, the Interest Period that would have commenced on the date
of such failure) in each case at the applicable rate of interest for such Loans
provided for herein (excluding, however, the Applicable Margin included
therein, if any) over (ii) the amount of interest (as reasonably determined by
such Lender) which would have accrued to such Lender on such amount by placing
such amount on deposit for a comparable period with leading banks in the
interbank eurodollar market. This covenant shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
2.17 Change of Lending Office. Each Lender agrees that if it
makes any demand for payment under subsection 2.14 or 2.15(a), or if any
adoption or change of the type described in subsection 2.13 shall occur with
respect to it, it will use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions and so long as such efforts would
not be disadvantageous to it, as determined in its sole discretion) to
designate a different lending office if the making of such a designation would
reduce or obviate the need for the Borrower to make payments under subsection
2.14 or 2.15(a), or would eliminate or reduce the effect of any adoption or
change described in subsection 2.13.
2.18 Further Assurances Regarding Security; Additional
Security. (a) The Borrower shall, and shall cause each of its
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Subsidiaries to, from time to time, execute and deliver to the Agent on behalf
of the Lenders, such additional Security Documents, statements, documents,
agreements and reports as it may from time to time reasonably request to
evidence, perfect or otherwise implement or assure the security for repayment
of the Obligations. With respect to the Lenders' insurance policies, upon the
Agent's reasonable request, the Borrower shall arrange for co-insurance and/or
reinsurance, with companies and in amounts satisfactory to the Agent. All
reinsurance policies shall include direct access agreements acceptable to the
Agent.
(b) Notwithstanding anything herein to the contrary, to the
extent this Agreement or any other Loan Document purports to require any Loan
Party to grant to the Agent, on behalf of Lenders, a security interest in the
FCC Licenses of any Loan Party now owned or hereafter acquired, as the case may
be, the Agent, on behalf of Lenders, shall only have a security interest in
such FCC Licenses at such times and to the extent that a security interest in
such licenses is permitted under applicable law. Notwithstanding anything to
the contrary set forth herein, the Agent, on behalf of Lenders, agrees that to
the extent prior FCC approval is required pursuant to the Communications Act
for (a) the operation and effectiveness of any grant, right or remedy hereunder
or under the Security Agreements or (b) taking any action that may be taken by
the Agent hereunder or under the Security Agreements, such grant, right, remedy
or actions will be subject to such prior FCC approval having been obtained by
or in favor of the Agent, on behalf of Lenders. The Borrower agrees that, upon
an Event of Default and at the Agent's request, the Borrower will, and will
cause its Subsidiaries to, immediately file, or cause to be filed, such
applications for approval and shall take all other and further actions
reasonably required by the Agent, on behalf of Lenders, to obtain such FCC
approvals or consents as are necessary to transfer ownership and control to the
Agent, on behalf of Lenders, or their successors, assigns or designees of the
FCC Licenses held by the Borrower, its License Subsidiaries or any of its other
Subsidiaries. To enforce the provisions of this subsection, the Agent is
empowered to request the appointment of a receiver from any court of competent
jurisdiction. Such receiver shall be instructed to seek from the FCC an
involuntary transfer of control of any such FCC License for the purpose of
seeking a bona fide purchaser to whom control will ultimately be transferred.
The Borrower hereby agrees to authorize, and to cause each of its Subsidiaries
to authorize, such an involuntary transfer of control upon the request of the
receiver so appointed, and, if the Borrower shall refuse to authorize or cause
any of its Subsidiaries to so authorize the transfer, its approval may be
required by the court. Upon the occurrence and continuance of an Event of
Default, and the request of the Agent, the Borrower shall further use its best
efforts to assist in obtaining approval of the FCC, if required, for any action
or transactions contemplated by this Agreement or the other Loan Documents,
including, without limitation, the preparation, execution and filing with the
FCC of the assignor's or transferor's portion of any application or
applications for consent to the assignment of any FCC License or transfer of
control
<PAGE> 47
41
necessary or appropriate under the FCC's rules and regulations for approval of
the transfer or assignment of any portion of the Collateral, together with any
FCC License or other authorization.
(c) The Borrower acknowledges that the assignment or transfer of such
FCC Licenses is integral to the Lenders' realization of the value of the
Collateral, that there is no adequate remedy at law for failure by the Borrower
to comply with the provisions of this subsection and that such failure would
not be adequately compensable in damages, and therefore agrees that the
agreements contained in this subsection may be specifically enforced.
(d) Notwithstanding anything to the contrary contained in this
Agreement or any other Loan Document, neither the Agent nor any Lender shall,
without first obtaining the approval of the FCC, take any action pursuant to
this Agreement or any other Loan Document which would constitute or result in
any assignment of an FCC License or any change of control of the Borrower or
any of its Subsidiaries if such assignment or change in control would require,
under then existing law (including the written rules and regulations
promulgated by the FCC), the prior approval of the FCC.
(e) At any time or from time to time upon the reasonable request of
the Agent, the Borrower shall, and shall cause each of its Subsidiaries to,
execute and deliver such further documents (including without limitation such
financing statements, continuation statements or amendments thereto and such
other documents and certificates as the Agent may reasonably request to perfect
and preserve the security interests granted or purported to be granted under
any of the Security Documents) and do such other acts and things as the Agent
may reasonably request to effect fully the purposes of this Agreement and the
other Loan Documents and to provide for payment of the Obligations in
accordance with the terms of this Agreement and the other Loan Documents.
Without limiting any of the foregoing, in the event a Person becomes a
Subsidiary of the Borrower after the Closing Date, the Borrower shall cause
such Subsidiary to execute and deliver such guarantees, Security Documents and
such other agreements, pledges, assignments, documents and certificates
(including, without limitation, any amendments to the Loan Documents) as the
Agent may reasonably request and do such other acts and things as the Agent may
reasonably request to have such Subsidiary guaranty the Obligations, grant,
subject to the limitation set forth in subsection 2.18(b), to the Agent on
behalf of Lenders, a duly perfected first priority Lien (subject to Liens
permitted hereunder) on all real, personal and mixed property (in each case, if
so requested by the Agent) of such Subsidiary, and effect fully the purposes of
this Agreement and the other Loan Documents and to provide for payment of the
Obligations in accordance with the terms of this Agreement and the other Loan
Documents. Without limiting the generality of the foregoing, in the event the
Borrower forms or otherwise acquires a Subsidiary after the Closing Date, the
Borrower shall (i) execute and deliver to the Agent a pledge agreement
substantially in the form attached hereto as Exhibit B and (ii) cause such
Subsidiary to execute and deliver a guarantee
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substantially in the form attached hereto as Exhibit E, a pledge agreement
substantially in the form attached hereto as Exhibit E and a security agreement
in the form of Exhibit F.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Lenders to enter into this
Agreement and to make the Loans, the Borrower hereby represents and warrants to
the Agent and each Lender that:
3.1 Organization, Powers, Good Standing and Business
(a) Organization and Powers. Each Loan Party is a
corporation or limited partnership, as the case may be, duly formed and validly
existing under the laws of the jurisdiction of its organization. Each Loan
Party has all requisite corporate or partnership, as the case may be, power and
authority to own and operate its properties, to carry on its business as now
conducted and proposed to be conducted, and each Loan Party has all requisite
corporate or partnership, as the case may be, power and authority to enter into
the Related Documents and the Loan Documents, to carry out the transactions
contemplated thereby and to issue the Notes, in each case to the extent it is a
party thereto.
(b) Good Standing. Each Loan Party is in good standing in
every jurisdiction where its assets are located and wherever necessary to carry
out its present business and operations, except where the failure to be so
qualified has not had and could not reasonably be expected to have a Material
Adverse Effect.
(c) Conduct of Business. The Loan Parties are engaged only
in the businesses permitted to be engaged in under subsection 6.13 and are
conducting their businesses in accordance with the provisions of subsection
6.13. Each Loan Party holds all licenses, permits, franchises, leases,
certificates of authority, or any waivers of the foregoing that are necessary
to permit each of them to conduct their respective businesses as now conducted
and to hold and operate their respective properties, except where the failure
to have such licenses, permits, franchises, leases and certificates of
authority, or waivers of any of the foregoing, could not reasonably be expected
to have a Material Adverse Effect. All such licenses, permits, franchises,
leases, certificates of authority and waivers are valid and in full force and
effect, except where the failure to be in full force and effect of such
licenses, permits, franchises, leases, certificates of authority and waivers
could not reasonably be expected to have a Material Adverse Effect.
(d) Ownership and Subsidiaries. All of the issued and
outstanding capital stock of each of the other Loan Parties is held directly or
indirectly by the Borrower. The ownership of each of the Loan Parties and each
of the Subsidiaries of each of the Loan Parties is specified correctly and
completely on Schedule 3.1(d) annexed hereto. None of the capital stock or
partnership or other
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equity interests of the Persons identified on Schedule 3.1(d) annexed hereto is
Margin Stock, except as specified on such Schedule. Each of the Subsidiaries
of the Loan Parties identified on Schedule 3.1(d) annexed hereto is validly
existing and in good standing under the laws of its respective jurisdiction of
incorporation or organization, as the case may be, and has full corporate or
partnership, as the case may be, power and authority to own its assets and
properties and to operate its business as presently owned and conducted except
where failure to be in good standing or a lack of corporate or partnership, as
the case may be, power and authority, has not had and could not reasonably be
expected to have a Material Adverse Effect.
(e) FCC Matters.
(i) Schedule 3.1(e) correctly sets forth all of the FCC
Licenses (other than auxiliary service licenses and receive only earth
stations) owned or held by any Subsidiary of the Borrower or their
respective Affiliates as of the Closing Date or, upon consummation of
any Preapproved Acquisition or Permitted Purchase, to be held by each
Loan Party and correctly sets forth the termination date, if any, of
each such FCC License. Each FCC License was duly and validly issued
by the FCC pursuant to procedures which comply with all requirements
of applicable law, and neither the Borrower nor any other Loan Party
has any knowledge of the occurrence of any event or the existence of
any circumstance which, in the reasonable judgment of the Borrower or
any other Loan Party, is likely to lead to the revocation or
suspension of any FCC License. The Loan Parties have the right to use
all FCC Licenses required in the ordinary course of business for the
operation of the Broadcast Stations. Each such FCC License is in full
force and effect, and each holder thereof is in substantial compliance
therewith with no known conflict with the valid rights of others which
could reasonably be expected to have a Material Adverse Effect. No
event has occurred which permits, or after notice or lapse of time or
both would permit, the revocation, termination, modification or
restriction of any such FCC License or other right which could
reasonably be expected to have a Material Adverse Effect. The
Borrower does not directly own or hold any FCC License.
(ii) The Loan Parties have duly filed in a timely manner
all material filings which are required to be filed by the Loan
Parties under the Communications Act and are in all material respects
in substantial compliance with the Communications Act, including,
without limitation, the rules and regulations of the FCC relating to
the broadcast of radio and television signals or the operation of the
Broadcast Stations.
(iii) None of the Facilities (including without
limitation, the transmitter and tower sites owned or used by the
Borrower or any of its Subsidiaries) violate in any
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material respect the provisions of any applicable building codes, fire
regulations, building restrictions or other governmental ordinances,
orders or regulations, and each such Facility is zoned so as to permit
the commercial uses intended by the owner or occupier thereof and
there are no outstanding variances or (except as set forth in Schedule
3.1(f)) special use permits materially affecting any of the Facilities
or the uses thereof.
(iv) The Ownership Report filed by the Borrower is true,
correct and complete in all material respects, and there has been no
change in control of the ownership of the Loan Parties or the FCC
Licenses of the Loan Parties since the most recently filed Ownership
Report for any of the Loan Parties other than as disclosed in writing
to the Agent and the Lenders.
(f) Real Property. Schedule 3.1(f) accurately states all
material real property interests held by the Loan Parties.
3.2 Authorization of Borrowing, etc.
(a) Authorization of Borrowing. The execution, delivery and
performance of the Loan Documents and the Related Documents and the issuance,
delivery and payment of the Notes have been duly authorized by all necessary
corporate or partnership, as the case may be, action by each Loan Party a party
thereto except, in the case of any Related Document, the failure of which could
not result in a Material Adverse Effect.
(b) No Conflict. The execution, delivery and performance by
each Loan Party of the Loan Documents and the Related Documents, the issuance,
delivery and performance of the Notes and any other transaction contemplated by
the Loan Documents or the Related Documents do not and will not (i) violate any
provision of law applicable to any Loan Party, the Certificate of
Incorporation, Bylaws, Partnership Agreement or other organizational documents
of any Loan Party or any order, judgment or decree of any court or other agency
of government binding on any Loan Party, (ii) conflict with, result in a breach
of or constitute (with due notice or lapse of time or both) a default under any
material Contractual Obligation of any Loan Party, (iii) result in or require
the creation or imposition of any material Lien upon any of the properties or
assets of any Loan Party (other than Liens hereunder in favor of the Agent on
behalf of the Lenders) or (iv) require any approval of stockholders or other
equity holders or any approval or consent of any Person under any Contractual
Obligation of any Loan Party, except for such approval or consents which have
been obtained by the Borrower or its Subsidiaries.
(c) Governmental Consents. The execution, delivery and
performance by each Loan Party of the Loan Documents and the Related Documents
to which it is a party, the issuance, delivery and performance of the Notes and
any other transactions contemplated by the Loan Documents or the Related
Documents, do not
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and will not require any registration with, consent or approval of, or notice
to, or other action to, with or by, any federal, state or other governmental
authority or regulatory body including, without limitation, the FCC and any
issuer of any permit or grant of authority relating to the Broadcast Stations,
except for filings required in connection with the perfection of the security
interests granted pursuant to the Loan Documents, the consent, if any, required
from the FCC in connection with the consummation or enforcement of the Loan
Documents and the Related Documents in each case to the extent such
consummation or enforcement involves the assignment of any FCC License or may
be deemed a "change of control" under the Communications Act, filings required
with the FCC in connection with any License Subsidiary transfer and the filing
with the FCC, for notice purposes only, of this Agreement and any of the other
Loan Documents and the Related Documents required to be filed, filings pursuant
to the Hart-Scott-Rodino Act in connection with any Preapproved Acquisition or
Permitted Purchase and, with respect to Related Documents, any registration
with, consent or approval of, or notice to, or other action to, the failure of
which to make or obtain could not reasonably be expected to have a Material
Adverse effect.
(d) Binding Obligation. Each of the Loan Documents and the
Related Documents has been duly executed and delivered by each Loan Party which
is a party thereto, and is the legally valid and binding obligation of such
Loan Party, enforceable against such Loan Party in accordance with their
respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally and subject to the availability of equitable remedies.
3.3 Financial Condition. The Borrower has heretofore
delivered to the Lenders, at the Lenders' request, the Financial Statements.
All such statements were prepared in conformity with GAAP and, together with
the accompanying notes thereto, if any, fairly present the financial position
(where applicable on a consolidated basis) of the entities described in such
financial statements as at the respective dates thereof and the results of
operations and changes in financial position (where applicable on a
consolidated basis) of the entities described therein for each of the periods
then ended (subject to, in the case of unaudited financial statements, normal
year-end adjustments). The Borrower has no (and will not following the funding
of the Loans have) material Contingent Obligation, contingent liability or
liability for taxes, long-term lease or unusual forward or long-term commitment
that is not (or will not be, upon the delivery thereof) reflected in the
foregoing financial statements or the notes thereto or in the annual financial
statements required to be delivered pursuant to subsection 5.1(b)(iii).
3.4 No Material Adverse Change; No Restricted Payments.
Since December 31, 1994, no event or change has occurred that has caused or
evidences, either individually or in the aggregate, a Material Adverse Effect
other than as set forth in Schedule 3.4 annexed hereto. Since December 31,
1994, the Borrower has not
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46
directly or indirectly declared, ordered, paid or made or set apart any sum or
property for any Restricted Payment or agreed so to do, except as permitted by
subsection 6.6 or as set forth in Schedule 3.4 annexed hereto.
3.5 Title To Properties; Liens. Each Loan Party holds (i)
good, marketable and insurable fee simple title, subject to Liens permitted by
subsection 6.3, to all its real property, (ii) good, sufficient, insurable and
valid leasehold title, subject to Liens permitted by subsection 6.3, to its
respective leased real property and (iii) good, sufficient and legal title,
subject to Liens permitted by subsection 6.3, to all of its material properties
and assets (other than as described in clauses (i) and (ii) of this sentence)
reflected in the balance sheet included with the Financial Statements referred
to in subsection 3.3 or in the most recent financial statements delivered
pursuant to subsection 5.1(b) of this Agreement, except for assets acquired or
disposed of since the date of such financial statements. Except as permitted
by subsection 6.3, all such properties and assets are free and clear of Liens.
3.6 Litigation; Adverse Facts. Except as set forth on
Schedule 3.6, there is no action, suit, proceeding, governmental arbitration or
governmental investigation (whether or not purportedly on behalf of any Loan
Party) at law or in equity or before or by any federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, including, without limitation, the FCC,
pending or, to the knowledge of the Borrower, threatened against or affecting
any Loan Party or any property of any Loan Party (but, in any event, excluding
suits or proceedings affecting the broadcasting industry generally) that has
had, or could reasonably be expected to result in any Material Adverse Effect.
Neither the Borrower nor any of its Subsidiaries has received any notice of
termination of any material contract, lease or other agreement, or suffered any
material damage, destruction or loss, (whether or not covered by insurance) or
had any employee strike, work-stoppage, slow-down or lock-out or any
substantial threat directed to it of any imminent strike, work-stoppage,
slow-down or lock-out, any of which remain pending and are material to the
conduct of the Borrower or its Subsidiaries' business as presently conducted
that could reasonably be expected to result in a Material Adverse Effect.
3.7 Payment of Taxes. Except to the extent permitted by
subsection 5.3, all tax returns and reports of the Borrower and its
Subsidiaries required to be filed by it or on its behalf have been timely
filed, and all taxes, assessments, fees and other governmental charges upon
such Persons and upon their respective properties, assets, income and
franchises which are due and payable have been paid when due and payable. The
Borrower does not know of any proposed tax assessment against any such Person
which is not being actively contested by such Person, in good faith and by
appropriate proceedings; provided that such reserves or other
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47
appropriate provisions, if any, as shall be required in conformity with GAAP
shall have been made or provided therefor.
3.8 Performance of Agreements. (a) No Loan Party is in
default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any of its Contractual
Obligations, and no condition exists that, with the giving of notice or the
lapse of time or both, would constitute such a default, except, in each case,
where the consequences, direct or indirect, of such default or defaults, if
any, could not have a Material Adverse Effect.
(b) No Loan Party is a party or subject to any agreement or
instrument which has or could reasonably be expected to have, individually or
the aggregate, a Material Adverse Effect.
3.9 Governmental Regulation. No Loan Party is subject to
regulation under the Public Utility Company Act of 1935, the Federal Power Act
or the Investment Company Act of 1940 or to any federal or state statute or
regulation limiting its ability to incur Indebtedness.
3.10 Securities Activities. Neither any Loan Party nor any
of their respective Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying any Margin Stock.
3.11 Employee Benefit Plans. (a) The Borrower and each
ERISA Affiliate is in substantial compliance with all provisions and
requirements of ERISA with respect to each Employee Benefit Plan, and have
substantially performed all their obligations under each Employee Benefit Plan.
There are no actions, suits or claims (other than routine claims for benefits)
pending or threatened against any Employee Benefit Plan or its assets, and, to
the best knowledge of the Borrower, no facts exist which could give rise to any
such actions, suits or claims.
(b) Within the period of five years ending on the Closing
Date, no ERISA Event has occurred, and there is no unpaid liability of the
Borrower or any ERISA Affiliate that arose in connection with any ERISA Event
that occurred prior to that five-year period. As of the Closing Date, no ERISA
Event is reasonably expected to occur with respect to any Employee Benefit
Plan.
(c) Except to the extent required under Section 4980B of the
Code, no Employee Benefit Plan provides health or welfare benefits (through the
purchase of insurance or otherwise) for any retired or former employees of the
Borrower or any ERISA Affiliate.
(d) As of the most recent valuation date for any Pension
Plan, the excess of the actuarial present value (determined on the basis of
reasonable assumptions employed by the independent actuary for such Pension
Plan) of the benefit liabilities (as defined in Section 4001(a)(16) of ERISA),
whether or not vested, over the fair
<PAGE> 54
48
market value of the assets of such Pension Plan, individually or in the
aggregate for all Pension Plans (excluding for purposes of such computation any
Pension Plans with respect to which there is no such excess), does not exceed
$500,000.
3.12 Certain Fees. No broker's or finder's fee or commission
will be payable by the Borrower or any of its Subsidiaries (or to the best
knowledge of the Borrower, by any other Person), other than to Communication
Equity Associates, Inc., with respect to the making of the Loans, or any of the
other transactions contemplated hereby (except that with respect to any
Preapproved Acquisition or Permitted Purchase the Borrower has or will inform
the Lenders of any such fees or commissions), and the Borrower hereby
indemnifies the Lenders against and agree that they will hold the Lenders
harmless from any claim, demand or liability for broker's or finder's fees
(other than any broker's or finder's fee of any broker or finder retained by
the Agent or the Lenders) alleged to have been incurred in connection with any
such offer, issuance and sale, or any of the other transactions contemplated
hereby or by the Related Documents and any expenses, including legal fees,
arising in connection with any such claim, demand or liability.
3.13 Environmental. Except as set forth in Schedule 3.13:
(i) the operations of the Borrower and its Subsidiaries
(including, without limitation, all operations and conditions at or in
the Facilities) comply, and for the period within any applicable
statute of limitations have complied, in all material respects with
all Environmental Laws;
(ii) the Borrower and each of its Subsidiaries has
obtained all permits under Environmental Laws necessary to their
respective operations, and all such permits are in good standing, and
the Borrower and each of its Subsidiaries is in compliance with all
material terms and conditions of such permits;
(iii) neither the Borrower nor any of its Subsidiaries
has received (a) any notice or claim to the effect that it is or may
be liable to any Person as a result of the Release or threatened
Release of any Hazardous Materials or (b) any letter or request for
information under Section 104 of the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. Section 9604) or
comparable state laws, and to the best of the Borrower's knowledge,
none of the operations of the Borrower or any of its Subsidiaries is
the subject of any federal or state investigation evaluating whether
any further investigation or remedial action is needed to respond to a
Release or threatened Release of any Hazardous Material at any
Facility or at any other location;
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49
(iv) none of the operations of the Borrower or any of
its Subsidiaries is subject to any judicial, administrative, or
arbitral proceeding alleging the violation of or liability under any
Environmental Laws which if adversely determined could reasonably be
expected to have a Material Adverse Effect;
(v) the Borrower and each of its Subsidiaries and all
of their Facilities or operations are not subject to any outstanding
written order or agreement with any governmental authority or private
party relating to (a) any Environmental Laws or (b) any Environmental
Claims that in each case could reasonably be expected to have a
Material Adverse Effect;
(vi) to the best knowledge of each Loan Party, neither
the Borrower nor any of its Subsidiaries has any contingent liability
in connection with any Release of any Hazardous Materials by the
Borrower or any Subsidiaries of the Borrower that could reasonably be
expected to have a Material Adverse Effect;
(vii) neither the Borrower nor any of its Subsidiaries
or, to the best of the Borrower's knowledge, any predecessor of the
Borrower or any Subsidiaries of the Borrower has filed any notice
under any Environmental Law indicating past or present treatment or
disposal of Hazardous Materials at any Facility, and none of the
Borrower's or any of its Subsidiary's operations involves the
generation, transportation, treatment, storage or disposal of
hazardous waste, as defined under 40 C.F.R. Parts 260-270 or any state
equivalent in material violation of any such law;
(viii) to the best knowledge of each Loan Party, no
Hazardous Material exists on, under or about any Facility in a manner
that could give rise to an Environmental Claim having a Material
Adverse Effect, and neither the Borrower nor any Subsidiary of the
Borrower has filed any notice or report of a Release of any Hazardous
Materials that could reasonably be expected to give rise to an
Environmental Claim having a Material Adverse Effect;
(ix) to the best knowledge of each Loan Party, neither
the Borrower nor any Subsidiary of the Borrower (or any of their
predecessors) has disposed of any Hazardous Materials in a manner that
could reasonably be expected to give rise to an Environmental Claim
having a Material Adverse Effect;
(x) no underground storage tanks or surface
impoundments are on or at the Facilities, other than those that could
not reasonably be expected to give rise to an Environmental Claim
having a Material Adverse Effect;
(xi) no Lien in favor of any Person for (a) any
liability under Environmental Laws, or (b) damages arising
<PAGE> 56
50
from or costs incurred by such Person in response to a Release has
been filed or has been attached to the Facilities;
(xii) there is no radio frequency radiation,
electromagnetic field or similar condition of or about any property
owned, operated, or otherwise used by any Loan Party that could
reasonably be expected to give rise to a Material Adverse Effect; and
(xiii) none of the matters referred to on Schedule 3.13,
individually or in the aggregate, is reasonably expected to give rise
to a Material Adverse Effect.
3.14 Solvency. Each Loan Party is, and on and after the
consummation of the transactions contemplated hereby will be, Solvent.
3.15 Related Documents. As of the Closing Date and with
respect to any Related Documents executed and delivered on any Borrowing Date,
as of such Borrowing Date, the Related Documents have been duly authorized,
executed and delivered by each Loan Party and their respective Subsidiaries, to
the extent each is a party thereto, and are in full force and effect and no
material term or condition thereof has been amended or modified in any respect
that could reasonably be expected to have a Material Adverse Effect, without
the consent of the Agent and the Required Lenders. The Borrower has delivered
or offered to deliver to the Lenders complete and correct copies of the Related
Documents and of all exhibits and schedules delivered to or by any Loan Party
or their respective Subsidiaries in connection with Related Documents.
3.16 Insurance. The Borrower and its Subsidiaries maintain,
with financially sound and reputable insurers, insurance with respect to its
properties and business and the properties and business of its Subsidiaries,
against loss or damage of the kinds customarily insured against by entities of
established reputation engaged in the same or similar business of such types
and in such amounts as are customarily carried under similar circumstances by
such other entities. Schedule 3.16 is a complete and accurate description of
all policies of insurance that will be in effect as of the Closing Date for the
Borrower and its Subsidiaries.
3.17 Intellectual Property. (a) The Borrower and its
Subsidiaries own, or are licensed to use, the Intellectual Property and all
such Intellectual Property is, in all material respects, fully protected and
duly and properly registered, filed or issued in the appropriate office and
jurisdictions for such registrations, filing or issuances.
(b) Except as disclosed on Schedule 3.17(b), (i) no material
claim has been asserted by any Person with respect to the use of any such
Intellectual Property, or challenging or questioning the validity or
effectiveness of any such Intellectual Property; (ii) to the best of the
Borrower's knowledge, the use of such Intellectual Property by the Borrower or
any of its
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51
Subsidiaries does not infringe on the rights of any Person, subject to such
claims and infringements as do not, in the aggregate, give rise to any
liabilities on the part of the Borrower or any of its Subsidiaries that are
material to the Borrower or any of its Subsidiaries; and (iii) the consummation
of the transactions contemplated by this Agreement will not in any material
manner or to any material extent impair the ownership of (or the license to
use, as the case may be) any of such Intellectual Property by the Borrower or
any of its Subsidiaries.
3.18 Disclosure. No representation or warranty of any Loan
Party contained in any Loan Document or Related Document or any other document,
certificate or written statement furnished to the Lenders by or on behalf of
any Loan Party for use in connection with the transactions contemplated by this
Agreement (including any Preapproved Acquisition or Permitted Purchase)
contains any untrue statement of a material fact or omits to state a material
fact (known to the Borrower in the case of any document not furnished by it)
necessary in order to make the statements contained herein or therein not
misleading in light of the circumstances in which the same were made. The
projections and pro forma financial information contained in such materials are
based upon good faith estimates and assumptions believed by the Borrower to be
reasonable at the time made, it being recognized by the Lenders that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ
from the projected results. There is no fact known (or which should upon the
reasonable exercise of diligence be known) to the Borrower (other than matters
of a general economic nature or relating to the broadcasting industry
generally) that has had or could reasonably be expected to have a Material
Adverse Effect and that has not been disclosed herein or in such other
documents, certificates and statements furnished to the Lenders for use in
connection with the transactions contemplated hereby.
3.19 Security Documents. (a) Each of the Pledge Agreements
is effective to create in favor of the Agent, for the benefit of the Lenders, a
legal, valid and enforceable security interest in the Pledged Securities
described therein and proceeds thereof and, when the Pledged Notes described
therein and stock certificates representing the Pledged Stock described therein
are delivered to the Agent, each such Pledge Agreement shall constitute a fully
perfected first priority Lien on, and security interest in, all right, title
and interest of the relevant Loan Party in such Pledged Securities and the
proceeds thereof, as security for the Obligations (as defined in the relevant
Pledge Agreement), in each case prior and superior in right to any other
Person.
(b) Each of the Security Agreements is effective to create in
favor of the Agent, for the benefit of the Lenders, a legal, valid and
enforceable security interest in the Collateral described therein and proceeds
thereof, and when financing statements in appropriate form are filed in the
offices specified on Schedule 3.19(b), each such Security Agreement shall
constitute
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52
a fully perfected Lien on, and security interest in, all right, title and
interest of the Loan Parties in such Collateral and the proceeds thereof, to
the extent permitted under the Communications Act, as security for the
Obligations (as defined in the relevant Security Agreement), in each case prior
and superior in right to any other Person, other than with respect to Liens
expressly permitted by subsection 6.3.
3.20 Purposes of Loans. The proceeds of the Loans may be
used by the Borrower to make Preapproved Acquisitions and Permitted Purchases,
and not more than $10,000,000 of the Loans at any time outstanding may be used
for working capital (excluding Acquisition Capital Expenditures) and other
general corporate purposes, including the payment of fees and expenses incurred
in connection with the execution and delivery of this Agreement.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Initial Loans. The agreement of each
Lender to make the initial Loan requested to be made by it is subject to the
satisfaction, immediately prior to or concurrently with the Closing Date (and,
in any event, on or prior to December 28, 1995), of the following conditions
precedent:
(a) Loan Documents. The Agent shall have received (i) this
Agreement, executed and delivered by a duly authorized officer of the
Borrower, with a counterpart for each Lender, (ii) each of the Pledge
Agreements, each executed and delivered by a duly authorized officer
of the parties thereto, with a counterpart or a conformed copy for
each Lender, (iii) the Subsidiaries Guarantee, executed and delivered
by a duly authorized officer of the parties thereto, with a
counterpart or a conformed copy for each Lender, (iv) the Security
Agreements, executed and delivered by a duly authorized officer of the
parties thereto, with a counterpart or a conformed copy for each
Lender and (v) for the account of each relevant Lender, Notes
conforming to the requirements hereof and executed and delivered by a
duly authorized officer of the Borrower.
(b) Related Agreements. The Agent shall have received, with
a copy for each Lender, true and correct copies, certified as to
authenticity by the Borrower, of the LMA Agreements, the Purchase
Agreements (to the extent requested by the Agent), the Indenture for
the Senior Subordinated Notes and such other documents or instruments
as may be reasonably requested by the Agent, including, without
limitation, a copy of any debt instrument, security agreement or other
material contract to which the Borrower or its Subsidiaries may be a
party.
(c) Borrowing Certificate. The Agent shall have received,
with a counterpart for each Lender, a certificate of each Loan Party,
dated the Closing Date, substantially in the
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53
form of Exhibit G, with appropriate insertions and attachments,
satisfactory in form and substance to the Agent, executed by the
President or any Vice President and the Secretary or any Assistant
Secretary of the Borrower.
(d) Corporate Proceedings of the Borrower. The Agent shall
have received, with a counterpart for each Lender, a copy of the
resolutions, in form and substance satisfactory to the Agent, of the
Board of Directors of the Borrower authorizing (i) the execution,
delivery and performance of this Agreement and the other Loan
Documents to which it is a party, (ii) the borrowings contemplated
hereunder and (iii) the granting by it of the Liens created pursuant
to the Borrower Security Documents, certified by the Secretary or an
Assistant Secretary of the Borrower as of the Closing Date, which
certificate shall be in form and substance satisfactory to the Agent
and its counsel and shall state that the resolutions thereby certified
have not been amended, modified, revoked or rescinded.
(e) Borrower Incumbency Certificate. The Agent shall have
received, with a counterpart for each Lender, a Certificate of the
Borrower, dated the Closing Date, as to the incumbency and signature
of the officers of the Borrower executing any Loan Document
satisfactory in form and substance to the Agent, executed by the
President or any Vice President and the Secretary or any Assistant
Secretary of the Borrower.
(f) Organizational Proceedings of Subsidiaries. The Agent
shall have received, with a counterpart for each Lender, a copy of the
resolutions, in form and substance satisfactory to the Agent, of the
Board of Directors of each Subsidiary (and its general partner, if
applicable) which is a party to a Loan Document authorizing (i) the
execution, delivery and performance of the Loan Documents to which it
is a party and (ii) the granting by it of the Liens created pursuant
to the Subsidiaries Security Documents to which it is a party,
certified by the Secretary or an Assistant Secretary of each such
Subsidiary (and its general partner, if applicable) as of the Closing
Date, which certificate shall be in form and substance satisfactory to
the Agent and shall state that the resolutions thereby certified have
not been amended, modified, revoked or rescinded.
(g) Subsidiary Incumbency Certificates. The Agent shall have
received, with a counterpart for each Lender, a certificate of each
Subsidiary of the Borrower which is a Loan Party, dated the Closing
Date, as to the incumbency and signature of the officers of such
Subsidiaries (and its general partner, if applicable) executing any
Loan Document, satisfactory in form and substance to the Agent,
executed by the President or any Vice President and the Secretary or
any Assistant Secretary of each such Subsidiary (and its general
partner, if applicable).
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54
(h) Organizational Documents. The Agent shall have received,
with a counterpart for each Lender, true and complete copies of the
certificate of incorporation and by-laws or other organizational
documents of each Loan Party, certified as of the Closing Date as
complete and correct copies thereof by the Secretary or an Assistant
Secretary of the such Loan Party.
(i) Senior Subordinated Notes. The Senior Subordinated Notes
due October 1, 2002 (the "Senior Subordinated Notes") of the Borrower
in the aggregate principal amount of $230,000,000 have been issued on
the terms and conditions set forth in the offering memorandum dated
September 21, 1995 with respect thereto.
(j) Corporate Overhead Account. The Agent shall have
deposited approximately $5,000,000 into a separate account maintained
by the Borrower with Union Bank (the amounts on deposit in which will
be invested by Union Bank in Cash Equivalents in accordance with the
directions of the Borrower), which account shall fund the Consolidated
Corporate Overhead to be paid by the Borrower and its Subsidiaries
from the Closing Date through December 31, 1996.
(k) Fees. The Agent shall have received the fees and
expenses to be received on the Closing Date.
(l) Legal Opinions. The Agent shall have received, with a
counterpart for each Lender, the following executed legal opinions:
(i) the executed legal opinion of Holland &
Knight, counsel to the Borrower and the other Loan Parties, in
form and substance satisfactory to the Agent and the Lenders;
(ii) the executed legal opinion of Dow Lohnes &
Albertson, special FCC counsel to the Borrower and the other
Loan Parties, in form and substance satisfactory to the Agent
and the Lenders; and
(iii) the executed legal opinion of Anthony L.
Morrison, General Counsel to the Borrower, in form and
substance satisfactory to the Agent and the Lenders.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Agent may
reasonably require.
(m) Pledged Stock; Stock Powers; Pledged Notes. The Agent
shall have received the certificates representing the shares pledged
pursuant to each of the Pledge Agreements, together with an undated
stock power for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof, and the notes pledged
pursuant to each of the Pledge
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55
Agreements, each endorsed in blank by a duly authorized officer of the
pledgor thereof.
(n) Actions to Perfect Liens. The Agent shall have received
evidence in form and substance satisfactory to it that all filings,
recordings, registrations and other actions, including, without
limitation, the filing of duly executed financing statements on form
UCC-1, necessary or, in the opinion of the Agent, desirable to perfect
the Liens created by the Security Documents shall have been completed.
(o) Lien Searches. The Agent shall have received the results
of a recent search by a Person satisfactory to the Agent, of the
Uniform Commercial Code, judgement and tax lien filings which may have
been filed with respect to personal property of the Borrower, and the
results of such search shall be satisfactory to the Agent.
(p) Insurance. The Agent shall have received evidence in
form and substance satisfactory to it that all of the requirements of
subsection 5.4.
4.2 Conditions to Each Loan. The agreement of each Lender to
make any Loan requested to be made by it on any date (including, without
limitation, its initial Loan) is subject to the satisfaction of the following
conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Borrower and its
Subsidiaries in or pursuant to the Loan Documents shall be true and
correct in all material respects on and as of such date as if made on
and as of such date except for any representation and warranty which
is expressly made as of an earlier date, which representation and
warranty shall have been true and correct in all material respects as
of such earlier date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Loans requested to be made on such date.
(c) Acquisition Compliance Certificate. With respect to any
borrowing of Loans the proceeds of which shall be used by the Borrower
or any of its Subsidiaries to make a Preapproved Acquisition or
Permitted Purchase, the Agent shall have received a certificate which
sets forth in reasonable detail a calculation of the Leverage Ratio of
the Borrower and its Subsidiaries as at the date of such Loan.
(d) Indebtedness Incurrence Certificate. The Agent shall
have received a certificate indicating compliance with Section 4.06
(Limitation on Additional Indebtedness) of the Indenture after giving
effect to the Loans requested to be made on such date.
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56
(e) Additional Matters. All corporate and other proceedings,
and all documents, instruments and other legal matters in connection
with the transactions contemplated by this Agreement, the other Loan
Documents shall be reasonably satisfactory in form and substance to
the Agent, and the Agent shall have received such other documents and
legal opinions in respect of any aspect or consequence of the
transactions contemplated hereby or thereby as it shall reasonably
request.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date thereof that the conditions contained
in this subsection have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect or any amount is owing to any Lender or the Agent hereunder or
under any other Loan Document, the Borrower shall and (except in the case of
delivery of financial information, reports and notices) shall cause each of its
Subsidiaries to:
5.1 Financial Statements and Systems.
(a) Accounting System: Maintain a system of accounting
established and administered in accordance with sound business practices to
permit preparation of financial statements in conformity with GAAP.
(b) Financial Statements and Other Reports: Deliver to
the Lenders:
(i) Monthly Financials: as soon as practicable and in
any event within 30 days after the end of each fiscal month of the
Borrower, copies of the monthly sales pacing reports and operating
cash flow statements for each operating property for such month, and
copies of the consolidated and consolidating income statement,
operating cash flow statement and performance to budget analysis for
the Borrower and its Subsidiaries for and as of the end of such fiscal
month;
(ii) Quarterly Financials: as soon as practicable and in
any event within 45 days after the end of each fiscal quarter of the
Borrower ending after the Closing Date, a consolidated balance sheet
of the Borrower and its consolidated Subsidiaries as at the end of
such period, and the related unaudited consolidated statements of
income and of cash flows, as contained in the Form 10-Q for such
fiscal quarter provided by the Borrower to the Securities and Exchange
Commission (or any successor or analogous Governmental Authority), and
if such Form 10-Q is no longer required to be so provided by the
Borrower, then the Borrower shall provide the Lenders with comparable
financial statements, certified by the chief
<PAGE> 63
57
financial officer of the Borrower that they fairly present the
financial condition and results of operations of the Borrower and its
Subsidiaries, as appropriate, as at the end of such periods and for
such periods, subject to changes resulting from audit and normal
year-end adjustments;
(iii) Year-End Financials: as soon as practicable and in
any event within 90 days after the end of each fiscal year of the
Borrower, the audited consolidated balance sheet of the Borrower and
its consolidated Subsidiaries, as at the end of such year, and the
related consolidated statements of income, shareholders' equity and
cash flows of the Borrower and its Subsidiaries for such fiscal year,
(a) accompanied by a report thereon of independent certified public
accountants of recognized national standing selected by the Borrower
and reasonably satisfactory to Agent and the Required Lenders, which
report shall contain no qualifications with respect to the continuance
of the Borrower and its consolidated Subsidiaries as going concerns
and shall state that such financial statements present fairly the
financial position of the Borrower and its consolidated Subsidiaries
as at the dates indicated and the statements of income and cash flows
for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years (except as otherwise stated therein) and
that the examination by such accountants in connection with such
financial statements has been made in accordance with generally
accepted auditing standards without any limitations being imposed on
the scope of such examination and (b) certified by the chief financial
officer of the Borrower that they fairly present the financial
condition and results of operations of the Borrower and its
Subsidiaries, as at the dates and for the periods indicated, as
appropriate;
(iv) Officers' and Compliance Certificates: together
with each delivery of financial statements of the Borrower and its
Subsidiaries pursuant to subdivisions (ii) and (iii) above, (a) an
Officer's Certificate of the Borrower stating that the signers have
reviewed the terms of this Agreement and the Notes and have made, or
caused to be made under their supervision, a review in reasonable
detail of the transactions and condition of the Borrower and its
Subsidiaries during the accounting period covered by such financial
statements and that such review has not disclosed the existence during
or at the end of such accounting period, and that the signers do not
have knowledge of the existence as at the date of such Officers'
Certificate, of any condition or event which constitutes an Event of
Default or Default, or, if any such condition or event existed or
exists, specifying the nature and period of existence thereof and what
action the Borrower has taken, is taking and proposes to take with
respect thereto; and (b) a certificate (a "Compliance Certificate") in
a form satisfactory to the Agent demonstrating in reasonable detail
compliance during and at the end of the applicable accounting periods
with the provisions of subsection 2.6 and Section 6;
<PAGE> 64
58
(v) Reconciliation Statement: if, as a result of any
change in accounting principles and policies from those used in the
preparation of the Financial Statements, the financial statements of
the Borrower and its consolidated Subsidiaries delivered pursuant to
subsections (ii), (iii) or (xii) of this subsection 5.1(b) will differ
in any material respect from the financial statements that would have
been delivered pursuant to such subsections had no such change in
accounting principles and policies been made, then, together with the
first delivery of financial statements pursuant to subsection (ii),
(iii) or (xii) following such change, financial statements of the
Borrower and its consolidated Subsidiaries prepared on a pro forma
basis, for (y) the current year to the effective date of such change
and (z) the one full fiscal year immediately preceding the fiscal year
in which such change is made, as if such change had been in effect
during such period;
(vi) Accountants' Certification: together with each
delivery of consolidated financial statements of the Borrower and its
Subsidiaries pursuant to subdivision (iii) above, to the extent
available, a written statement by the independent public accountants
giving the report thereon (a) stating that their audit examination has
included a review of the terms of this Agreement and the Notes as they
relate to accounting matters, (b) stating whether, in connection with
their audit examination, any condition or event that constitutes an
Event of Default or Default has come to their attention and, if such a
condition or event has come to their attention, specifying the nature
and period of existence thereof; provided that such accountants
shall not be liable by reason of any failure to obtain knowledge of any
such Event of Default or Default with respect to accounting matters
that would not be disclosed in the course of their audit examination
and (c) stating that, based on their audit examinations nothing has
come to their attention that causes them to believe that the
information contained in the Compliance Certificate delivered therewith
pursuant to clause (b) of subdivision (iv) above for the applicable
fiscal year are not stated in accordance with the terms of this
Agreement;
(vii) Accountants' Reports: promptly upon receipt
thereof (unless restricted by applicable professional standards),
copies of all significant reports submitted to the Borrower by
independent public accountants in connection with each annual, interim
or special audit of the financial statements of the Borrower made by
such accountants, including, without limitation, the comment letter
submitted by such accountants to management in connection with their
annual audit;
(viii) Reports and Filings: within five days after the
same are sent, copies of all financial statements and reports which
the Borrower sends to its stockholders, and within five days after the
same are filed, copies of all financial
<PAGE> 65
59
statements and reports which the Borrower may make to, or file with,
the Securities and Exchange Commission or any successor or analogous
Governmental Authority;
(ix) Events of Default etc.: promptly upon, but in any
event no later than two Business Days after, any officer of the
Borrower obtaining knowledge (a) of any condition or event that
constitutes an Event of Default or Default, or becoming aware that any
Lender or the Agent has given any notice or taken any other action
with respect to a claimed Event of Default or Default under this
Agreement, (b) that any Person has given any notice to the Borrower or
any of its Subsidiaries or taken any other action with respect to a
claimed default or event or condition of the type referred to in
Section 7(b) and (e), (c) of any condition or event that would be
required to be disclosed in a current report filed by the Borrower
with the Securities and Exchange Commission on Form 8-K (Items 1, 2, 4
and 5 of such Form as in effect on the date hereof) or (d) of any
condition or event which has had or could reasonably be expected to
have a Material Adverse Effect (which, for such purposes, shall be
determined with respect to the Borrower individually), an Officer's
Certificate specifying the nature and period of existence of such
condition or event, or specifying the notice given or action taken by
such holder or Person and the nature of such claimed default, Event of
Default, Default, event or condition, and what action the Borrower has
taken, is taking and proposes to take with respect thereto;
(x) Litigation: promptly upon any officer of the
Borrower obtaining knowledge of (a) the institution of any action,
suit, proceeding, governmental investigation or arbitration against or
affecting any Loan Party or any property of any Loan Party not
previously disclosed by the Borrower or the other Loan Parties to the
Lenders or (b) any material adverse development in any such action,
suit, proceeding, governmental investigation or arbitration that, in
any case:
(y) involves claims in excess of $1,000,000 in
the aggregate; or
(z) would reasonably be expected to cause a
Material Adverse Effect;
the Borrower shall promptly give notice thereof to the Lenders and
provide such other information as may be reasonably available to them
to enable the Lenders and their counsel to evaluate such matters;
(xi) ERISA Events: promptly upon becoming aware of the
occurrence of or forthcoming occurrence of any ERISA Event in
connection with any Employee Benefit Plan or any trust created
thereunder, with a written notice specifying the nature thereof, what
action the Borrower or ERISA Affiliate has
<PAGE> 66
60
taken, is taking or proposes to take with respect thereto and, when
known, any action taken or threatened by the Internal Revenue Service,
the Department of Labor or the PBGC with respect thereto;
(xii) ERISA Notices: with reasonable promptness, copies
of (a) all notices received by the Borrower or any of its ERISA
Affiliates from the PBGC relating to an ERISA Event, (b) each Schedule
B (Actuarial Information) to the annual report (Form 5500 Series)
filed by the Borrower or any of its ERISA Affiliates with the Internal
Revenue Service with respect to each Pension Plan, if any, and (c) all
notices received by the Borrower or any of its ERISA Affiliates from a
Multiemployer Plan sponsor concerning an ERISA Event;
(xiii) Corporate Overhead Statement: as soon as
practicable and in any event within 45 days after the end of each
fiscal quarter of the Borrower ending after the Closing Date, a
statement in a form reasonably satisfactory to the Agent specifying
the Consolidated Corporate Overhead of the Borrower and its
Subsidiaries for such fiscal quarter and reconciling such amount to
the amount previously proposed pursuant to this subsection, and the
proposed Consolidated Corporate Overhead of the Borrower and its
Subsidiaries for the succeeding two fiscal quarters of the Borrower
and its Subsidiaries;
(xiv) Financial Plans: as soon as practicable and in any
event no later than the 30 days after the end of any fiscal year of
the Borrower, a budget and financial forecast for the Borrower and its
Subsidiaries including, (a) a forecasted operating cash flows
statement of the Borrower and its Subsidiaries for the next succeeding
fiscal year, (b) forecasted operating cash flows statement of the
Borrower and its Subsidiaries for each fiscal quarter of the next
succeeding fiscal year and (c) such other information and projections
as any Lender may reasonably request, in each case, in a format
satisfactory to the Agent; and
(xv) Other Information: with reasonable promptness,
such other information and data with respect to the Borrower or any of
its Subsidiaries or Affiliates as from time to time may be reasonably
requested by any Lender.
5.2 Maintenance of Existence, etc.. Except as permitted by
subsection 6.7, preserve and keep in full force and effect its corporate or
partnership existence, as the case may be, and rights and franchises material
to its business.
5.3 Payment of Taxes and Claims; Tax Consolidation. Pay all
taxes, assessments and other governmental charges imposed upon it or any of its
properties or assets or in respect of any of its franchises, business, income
or property, non-payment of which would cause a Material Adverse Effect, before
any penalty accrues thereon, and all claims (including, without limitation,
claims for
<PAGE> 67
61
labor, services, materials and supplies) for sums that have become due and
payable and that by law have or may become a material Lien upon any of its
properties or assets, prior to the time when any penalty or fine shall be
incurred with respect thereto; provided that no such tax, assessment, charge or
claim need be paid if being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted and if such reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made therefor. Neither the Borrower nor any of its
Subsidiaries will file or consent to the filing of any consolidated income tax
return with any Person (other than the Borrower or its Subsidiaries).
5.4 Maintenance of Properties; Insurance. Maintain in good
repair, working order and condition all material properties used or useful in
the business of the Borrower and its Subsidiaries (including, without
limitation, Intellectual Property) and from time to time will make or cause to
be made all appropriate (as reasonably determined by the Borrower) repairs,
renewals and replacements thereof. The Borrower will maintain or cause to be
maintained, with financially sound and reputable insurers, insurance with
respect to its properties and business and the properties and business of its
Subsidiaries (including without limitation, business interruption insurance and
insurance on plant, property and equipment) against loss or damage of the kinds
customarily carried or maintained under similar circumstances by entities of
established reputation engaged in similar businesses and shall maintain key man
life insurance in a benefit amount payable to the Company of not less than
$5,000,000 for Paxson. On or before the end of the second fiscal quarter of
each fiscal year, the Borrower shall submit to the Agent an Officers'
Certificate updating the information contained in Schedule 3.16 as of such
date. Each such policy of insurance (other than business interruption
insurance) shall name the Agent as the loss payee or as additional insured, as
the Agent may require, for the benefit of the Lenders thereunder and provide
for at least thirty (30) days prior written notice (or such other period as is
customary in the industry) to the Agent of any material modification or any
cancellation of such policies.
5.5 Inspection; Lender Meeting. Subject to subsection 9.15,
permit any authorized representatives designated by the Agent to visit and
inspect any of the properties of the Borrower, any of its Subsidiaries or any
Broadcast Station, including its and their financial and accounting records,
and to make copies and take extracts therefrom, and to discuss its and their
affairs, finances and accounts with its and their officers and independent
public accountants, all upon reasonable notice and at such reasonable times
during normal business hours and as often as may be reasonably requested.
Without in any way limiting the foregoing, the Borrower will, upon the request
of the Required Lenders, participate in a meeting with the Agent and the
Lenders once during each fiscal year to be held at the Borrower's corporate
offices at such time as may be agreed to by the Borrower and the Required
Lenders.
<PAGE> 68
62
5.6 Compliance with Laws, etc. (a)(i) Comply with the
requirements of all applicable laws, rules, regulations and orders of any
Governmental Authority, including, without limitation, the Communications Act,
noncompliance with which could reasonably be expected to cause a Material
Adverse Effect and (ii) comply in all material respects at all times with all
provisions of all FCC Licenses, certifications and permits, franchises or other
permits and authorizations relating to the operation of the Broadcast Stations
and all other material agreements, licenses and leases to which it is a party
or of which it is a beneficiary and suffer no loss or forfeiture thereof or
thereunder except for any non-compliance or a loss or forfeiture which does not
have and could not reasonably be expected to have a Material Adverse Effect;
and
(b) Not engage in any transaction or permit the occurrence of
any act or omission, and shall cause each ERISA Affiliate not to engage in any
transaction or to permit the occurrence of any act or omission, which would
constitute, or would give rise to, an ERISA Event which would cause a Material
Adverse Effect.
5.7 Compliance with Related Documents. Comply at all times
with the covenants under the Related Documents except for any failure to comply
which could not reasonably be expected to result in a Material Adverse Effect
or an Event of Default or Default, or otherwise adversely affect the interests
of the Lenders under this Agreement or any of the other Loan Documents. The
Borrower and its Subsidiaries shall deliver to the Agent copies of all reports,
notices and other information received or required to be delivered by the
Borrower and its Subsidiaries with respect to the Related Documents, if so
requested by any Lender or if such information relates to any matter or matters
which, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
5.8 Environmental Disclosure and Inspection. (a) Comply,
and undertake all reasonable efforts to ensure that all tenants under any lease
or occupancy agreement affecting any portion of the Facilities and all other
Persons on or occupying such property comply, in all materials respects with
all Environmental Laws, provided that upon learning of any noncompliance with
Environmental Laws by the Borrower or any of its Subsidiaries, shall promptly
undertake all reasonable efforts to remedy such non-compliance.
(b) Agree that the Agent is entitled (but has no obligation),
from time to time (upon the Agent's determination in its reasonable discretion
that any of the following is advisable), upon notice to the Borrower and as
often as may reasonably be requested, retain, at the Borrower's expense, an
independent professional consultant to review any report relating to Hazardous
Materials prepared by or for the Borrower and to conduct its own investigation
of any Facility. The Borrower hereby grants to the Agent, its agents,
employees, consultants and contractors the right to enter into or on to the
Facilities upon reasonable notice and at
<PAGE> 69
63
such times during normal business hours and as often as may reasonably be
requested to perform such tests on such property as are reasonably necessary to
conduct such a review and/or investigation. The Borrower may receive copies of
any reports prepared by independent experts, but the Lenders shall have no duty
to disclose or discuss any information produced by such reviews or
investigations with the Borrower or any of its Subsidiaries.
(c) Promptly advise the Lenders in writing and in reasonable
detail of (i) any Release of any Hazardous Material (of which the Borrower is
aware) required to be reported to any federal, state or local governmental or
regulatory agency under any applicable Environmental Laws, (ii) any and all
written communications with respect to Environmental Claims or any Release of
Hazardous Material required to be reported to any federal, state or local
governmental or regulatory agency, (iii) any remedial action taken by the
Borrower or any other Person in response to (a) any Hazardous Material on,
under or about any Facility, the existence of which could reasonably be
expected to result in an Environmental Claim having a Material Adverse Effect
or (b) any Environmental Claim that could reasonably be expected to have a
Material Adverse Effect, (iv) the Borrower's discovery of any occurrence or
condition on any real property adjoining or in the vicinity of any Facility
that could cause such Facility or any part thereof to be classified as a
"border-zone property" or to be otherwise subject to any restrictions on the
ownership, occupancy, transferability or use thereof under any Environmental
Laws that could reasonably be expected to have a Material Adverse Effect, and
(v) any request for information from any governmental agency that indicates
such agency is investigating whether the Borrower or any of its Subsidiaries
may be potentially responsible for a Release of Hazardous Materials.
(d) Promptly notify the Lenders of any proposed acquisition
or disposition of stock, assets, or property by any Loan Party, that could
reasonably be expected to expose the Borrower or any of its Subsidiaries to, or
result in, Environmental Claims that could have a Material Adverse Effect and
of any proposed action to be taken by the Borrower or any of its Subsidiaries
to commence or cease manufacturing, industrial or other operations that could
reasonably be expected to subject the Borrower or any of its Subsidiaries to
additional laws, rules or regulations, including, without limitation, laws,
rules and regulations requiring additional environmental permits or licenses.
(e) At their own expense, provide copies of such documents or
information as the Agent may reasonably request in relation to any matters
disclosed pursuant to this subsection.
5.9 Hazardous Materials; the Borrower's Remedial Action.
Take promptly any and all necessary remedial action required by all applicable
Environmental Laws and perform such remedial action in compliance with all
applicable Environmental Laws and orders and directives of all federal, state
and local governmental authorities except when and only to the extent that the
Borrower's or such
<PAGE> 70
64
Subsidiary's liability for the presence, storage, use, disposal, transportation
or discharge of any Hazardous Material is being contested in good faith by the
Borrower or such Subsidiary by appropriate proceedings, and the pendency of
such proceedings is not reasonably likely to give rise to a Material Adverse
Effect.
5.10 FCC Licenses. (a) Use their best efforts to keep in
full force and effect all of the FCC Licenses of the Borrower, if any, and its
Subsidiaries. The Loan Parties shall provide a copy of any (or, in the event
of any notice based on knowledge of such Loan Party, a brief description of
such default and the basis of such knowledge) notice from the FCC of any
violation with respect to any FCC License received by it or any of its
respective Subsidiaries (or with respect to which any of such Loan Parties may
have any knowledge).
(b) The Borrower shall establish and maintain wholly-owned
License Subsidiaries for the purpose of holding the FCC Licenses related to the
Broadcast Stations owned by them on and after the Closing Date and shall cause
the License Subsidiaries not to own any material assets other than the FCC
Licenses or to have any material liabilities (other than pursuant to the
Subsidiary Guarantee or the guarantees with respect to the Senior Subordinated
Notes). At all times on and after the Closing Date, the Borrower shall, and
shall cause its Subsidiaries to, cause each new FCC License issued by the FCC
to be issued to, and held by, a License Subsidiary.
5.11 Additional Loan Parties. In the event that (i) any
Preapproved Acquisition or Permitted Purchase is to be made by any Subsidiary
or Affiliate of the Borrower and such Subsidiary or Affiliate is not a Loan
Party hereunder or under any of the other Loan Documents immediately prior to
the consummation of any such transaction, or (ii) the Borrower proposes for any
other reason to add any Subsidiary or Affiliate thereof as a Loan Party
hereunder and such proposal is approved in writing by the Required Lenders
(each such Subsidiary or Affiliate in any case referred to herein as an
"Additional Loan Party" and collectively as the "Additional Loan Parties"),
then, on or before the consummation of any such transaction or addition as a
Loan Party hereunder, such Additional Loan Party shall deliver appropriate
counterparts and assumptions of each Loan Document to which it is to be a party
and all such documents, opinions of counsel, certificate and instruments as
such Additional Loan Party would have been required to deliver pursuant to
subsection 4.1 had such Additional Loan Party been a Loan Party hereunder on
the Closing Date and such other documents, certificates, instruments and
assurances as are consistent with the provisions of subsection 2.18 and Section
4 in relation to such Additional Loan Party's proposed status hereunder and
under the other Loan Documents (including, without limitation, taking into
consideration whether the obligations of such Additional Loan Party are to be
of a limited recourse nature or otherwise), all as shall be determined at the
time such Additional Loan Party is approved by the Agent. Upon satisfaction of
the foregoing conditions, such
<PAGE> 71
65
Additional Loan Party shall be a Loan Party for all purposes hereunder and
under the other Loan Documents.
5.12 Schedule Supplements. Each of the Schedules referred to
in subsection 3.1 shall be automatically amended from time to time upon written
notice by the Borrower to the Agent and the Lenders to reflect additional
information described in such notice under this Agreement including, without
limitation, the addition (or deletion) of any Subsidiaries, Broadcast Stations,
FCC Licenses or LMA Agreements resulting from a Permitted Purchase or any other
transaction permitted hereunder, and any modifications resulting from the
renewal or additional grant of any FCC Licenses or LMA Agreements. Without
limiting the foregoing, on the request of the Agent or any Lender (in the event
that such information is not otherwise delivered by the Borrower to the Agent
or the Lenders pursuant to this Agreement), the Borrower will supplement each
Schedule hereto, or representation herein or in any other Loan Document with
respect to any matter hereafter arising which, if existing or occurring at the
date of this Agreement, would have been required to be set forth or described
in such Schedule or as an exception to such representation or which is
necessary to correct any information in such Schedule or representation which
has been rendered inaccurate thereby; provided, that such supplement to such
Schedule or representation shall not be deemed an amendment thereof if such
amendment would require the consent of the Required Lenders under the terms of
this Agreement, unless expressly consented to in writing by the Required
Lenders, and no such amendments, except as the same may be consented to in a
writing which expressly includes a waiver, shall be or be deemed a waiver by
the Lenders of any Event of Default or Default disclosed therein.
5.13 Corporate Separateness; Tax Sharing Agreement. (a)
Cause the management, business and affairs of each Unrestricted Subsidiary to
be conducted in such a manner so that such Unrestricted Subsidiary will be
perceived as a legal entity separate and distinct from the Borrower and its
Subsidiaries.
(b) Enter in a tax sharing agreement on terms and conditions
customary and reasonably satisfactory to the Agent if the Agent shall
reasonably determine that such an agreement is necessary to provide for the
fair and reasonable allocation of federal, state and local tax liabilities and
benefits between and among (i) the Borrower and its Subsidiaries and (ii) any
Unrestricted Subsidiaries.
SECTION 6. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect or any amount is owing to any Lender or the Agent hereunder or
under any other Loan Document, the Borrower shall not, and shall not permit any
of its Subsidiaries to, directly or indirectly:
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66
6.1 Financial Condition Covenants. (a) Leverage Ratio.
Permit the Leverage Ratio as of the last day of each calendar quarter occurring
during any of the periods set forth below to be greater than the correlative
ratio indicated:
<TABLE>
<CAPTION>
Total Debt
Period Ended to Cash Flow Ratio
------------------------------------ ------------------
<S> <C>
Closing Date - September 30, 1996 6.75:1.00
October 1, 1996 - September 30, 1997 5.75:1.00
October 1, 1997 - September 30, 1998 5.25:1.00
October 1, 1998 - September 30, 1999 4.50:1.00
October 1, 1999 and thereafter 4.00:1.00
</TABLE>
provided that if the Borrower shall sell or issue any equity Securities during
the period from the Closing Date to September 30, 1996, thereafter for the
remainder of such period the Leverage Ratio shall be no greater than 6.25:1.00.
(b) Cash Interest Coverage. Permit the ratio of (y) Adjusted
Consolidated Operating Cash Flow to (z) Consolidated Cash Interest Expense of
the Borrower and its Subsidiaries for the four quarter period ending on the
last day of each calendar quarter occurring during the periods specified below
to be less than the correlative ratio indicated:
<TABLE>
<CAPTION>
Cash Interest
Period Coverage Ratio
----------------------------------- --------------
<S> <C>
Closing Date -
December 31, 1996 1.50:1.00
January 1, 1997 - December 31, 1997 1.75:1.00
Thereafter 2.00:1.00
</TABLE>
(c) Fixed Charge Coverage. Permit the ratio of (y) Adjusted
Consolidated Operating Cash Flow to (z) Consolidated Fixed Charges of the
Borrower and its Subsidiaries for the twelve consecutive month period ending as
of the last day of any calendar quarter to be less than 1.15:1.00.
(d) Consolidated Corporate Overhead. Permit the Consolidated
Corporate Overhead for the Borrower and its
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67
Subsidiaries for the period from the Closing Date to December 31, 1996 to
exceed $6,500,000, except to the extent such excess is funded with the the
portion of the Net Cash Proceeds of the sale or issuance of any class of equity
Securities of the Borrower or its Subsidiaries which is not required to be used
to make a prepayment pursuant to subsection 2.6(d) and the Agent is promptly
notified of such funding.
6.2 Limitation on Indebtedness. Create, incur, assume,
guaranty, or otherwise become or remain directly or indirectly liable with
respect to, any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Contingent Obligations permitted by subsection 6.5 and,
upon any obligations actually arising pursuant thereto, the
Indebtedness corresponding to the Contingent Obligations so
extinguished;
(c) purchase money Indebtedness incurred in the ordinary
course of business not in excess of $10,000,000 in the aggregate
outstanding at any time;
(d) Indebtedness in respect of Capital Leases not in excess
of $5,000,000 in the aggregate outstanding at any time;
(e) Indebtedness existing as of the Closing Date as set forth
in Schedule 6.2(e) hereto, and renewals, refinancings, extensions and
modifications thereof which do not increase the principal amount
thereof;
(f) Indebtedness of the Borrower or any Subsidiary to any
Subsidiary and of any Subsidiary to the Borrower or any Subsidiary;
and
(g) additional unsecured Indebtedness of the Borrower not
exceeding $5,000,000 in the aggregate principal amount at any one time
outstanding.
6.3 Liens and Related Matters.
(a) Prohibitions on Liens. Create, incur, assume or permit
to exist any Lien on or with respect to any property or asset (including any
document or instrument in respect of goods or accounts receivable) of the
Borrower or any of its Subsidiaries, whether now owned or hereafter acquired,
or any income or profits therefrom, except:
(i) Permitted Encumbrances;
(ii) Liens securing purchase money Indebtedness
permitted pursuant to subsection 6.2(c); provided that such Liens
shall encumber only the assets purchased with the proceeds of such
Indebtedness;
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68
(iii) Liens granted pursuant to the Loan Documents;
(iv) Liens securing Capital Leases permitted under
subsection 6.2(d); and
(v) Liens on assets listed on Schedule 6.2(e) securing
Indebtedness on Schedule 6.2(e), other than Liens in respect of the
Senior Notes and the Preferred Stock.
(b) Equitable Lien in Favor of the Lenders. Create or assume
any Lien upon any of its property or assets, whether now owned or hereafter
acquired, other than Liens excepted by the provisions of this subsection,
unless the Borrower and its Subsidiaries make or cause to be made effective
provision whereby the Obligations will be secured by such Lien equally and
ratably with any and all other Indebtedness thereby secured as long as any such
Indebtedness shall be secured; provided that, notwithstanding the foregoing,
this covenant shall not be construed as a consent by the Required Lenders to
any creation or assumption of any such Lien not permitted by the provisions of
this subsection.
(c) No Further Negative Pledges. Except with respect to
specific property encumbered to secure payment of particular Indebtedness
otherwise permitted pursuant to subsections 6.2 and 6.3 or to be sold pursuant
to an executed agreement with respect to an Asset Sale, enter into any
agreement prohibiting (i) the creation or assumption of any Lien upon its
properties or assets, whether now owned or hereafter acquired or (ii) any
incurrence of any Contingent Obligations.
(d) No Restrictions on Subsidiary Distributions to the
Borrower. Except as provided herein, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction of any kind
on the ability of any Subsidiary to (a) pay dividends or make any other
distribution on any of such Subsidiary's capital stock, partnership interests
or other interests, as the case may be, owned by the Borrower or any Subsidiary
of the Borrower, (b) subject to subordination provisions any payments in
respect of any Indebtedness owed to the Borrower or any Subsidiary of the
Borrower, (c) make loans or advances to the Borrower or any Subsidiary of the
Borrower or (d) transfer any of its property or assets to the Borrower or any
Subsidiary of the Borrower.
6.4 Investments; Joint Ventures. Make or own any Investment,
directly or indirectly, in any Person including any Joint Venture, except:
(a) Investments in Cash and Cash Equivalents;
(b) Consolidated Capital Expenditures permitted by subsection
6.8;
(c) Investments arising from Barter Transactions; provided,
however, that no Barter Transaction giving rise to
<PAGE> 75
69
Investments may be consummated (A) if (i) at such time of consummation
an Event of Default or Default shall have occurred and be continuing
or (ii) after giving effect to such Barter Transaction, the aggregate
value of advertising sold pursuant to all Barter Transactions for the
Borrower and its Subsidiaries during any calendar year would exceed
$5,000,000, and (B) unless all personal property received by the
Borrower pursuant to any one or more Barter Transactions (including,
without limitation, any notes, instruments, securities or other
evidence of equity interests or indebtedness) the value of which
exceeds $1,000,000 shall be pledged and, if required by the Security
Documents, delivered to the Agent, on behalf of the Lenders, unless
otherwise consented to in writing by the Agent, as "Collateral" under
the Borrower Pledge Agreement or the Borrower Security Agreement;
(d) the Preapproved Acquisitions in accordance with the terms
and conditions set forth in the respective Purchase Agreement;
(e) Investments made solely with (x) any proceeds of the sale
or issuance of equity Securities by the Borrower or any Subsidiary
which are not (i) required to be used to make a prepayment pursuant to
subsection 2.6(d), (ii) used prior to December 31, 1996 to fund
Consolidated Corporate Overhead or (iii) used to make an optional
payment or prepayment permitted by subsection 6.14(c) or (y) with
equity Securities of the Borrower;
(f) time brokerage agreements in effect on the Closing Date
as set forth on Schedule 6.4(f);
(g) Investments in Shop at Home the cash portion of which
shall be in an amount not to exceed $16,000,000;
(h) Investments consisting of promissory notes or other
securities issued by a purchaser to the extent the Borrower or any
Subsidiary receives less than 100% cash consideration in an Asset Sale
as permitted by subsection 6.7(b);
(i) LMA Agreements, options to acquire LMA Radio Stations and
LMA Television Stations (including the exercise thereof on terms and
conditions approved by all the Lenders), loans to, and guarantees of
loans by third parties to, owners or holders of options to acquire LMA
Radio Stations or LMA Television Stations, in each case (a) as in
effect on the Closing Date or (b) entered into in connection with the
consummation of any Preapproved Acquisition or Permitted Purchase and
disclosed to the Lenders in connection with their approval of such
Preapproved Acquisition or Permitted Purchase;
(j) any acquisition not otherwise permitted under this
subsection 6.4 (each such transaction referred to herein as a "
Permitted Acquisition" and collectively as the "Permitted
<PAGE> 76
70
Acquisitions"), on the following terms and conditions: (i) such
Permitted Acquisition involves the acquisition of a radio or
television broadcast property in an "Area of Dominant Influence"
ranked numbers 1 to 75 and such radio or television broadcast property
is projected by the Borrower to have operating cash flow for the
period commencing on the date of such Permitted Acquisition through
the Termination Date in an amount reasonably satisfactory to the
Required Lenders; (ii) after giving effect to the borrowing of any
Loan to consummate such Permitted Acquisition, no Event of Default or
Default shall exist; (iii) such Permitted Acquisition shall be
consummated pursuant to documents containing terms and conditions
satisfying subsection 5.11 and otherwise in form and substance
satisfactory to the Required Lenders and (iv) the Required Lenders
shall have consented in writing to such proposed Permitted
Acquisition;
(k) Investments by the Borrower in its Subsidiaries and
Investments by Subsidiaries in the Borrower and in other Subsidiaries;
and
(l) additional Investments in any FCC-regulated Person in an
aggregate amount at any time not to exceed $10,000,000, so long as at
the time of such Investment no Default or Event of Default shall have
occurred and be continuing or would result therefrom.
6.5 Contingent Obligations. Create or become or be liable,
directly or indirectly, with respect to any Contingent Obligation except:
(a) Contingent Obligations incurred pursuant to the Loan
Documents;
(b) Contingent Obligations in respect of Interest Rate
Agreements in a notional amount not in excess of the aggregate
principal amount of the Indebtedness of the Borrower and its
Subsidiaries the interest rate on which is not fixed;
(c) Contingent Obligations resulting from the endorsement of
negotiable instruments for collection in the ordinary course of
business;
(d) Contingent Obligations in respect of Operating Leases;
(e) Contingent Obligations in respect of Indebtedness
permitted under subsection 6.2(e); and
(f) Contingent Obligations under indemnity agreements to
title insurers to cause such title insurers to issue to the Agent
mortgage title insurance policies, as provided in subsection 4.1(q).
<PAGE> 77
71
6.6 Restricted Payments. Declare, order, pay, make or set
apart any sum, directly or indirectly for any Restricted Payment except, so
long as no Event of Default or Default has occurred and is continuing or would
result therefrom:
(a) so long as the Leverage Ratio of the Borrower and its
Subsidiaries as of the last day of the most recently ended calendar
quarter is less than 3.50:1.00, the Borrower may pay annual dividends
owed to the holders of the Cumulative Preferred Stock in accordance
with the terms and conditions of the Certificate of Designations in an
aggregate amount in any calendar year not exceeding 50% of any Excess
Cash Flow for the prior calendar year of the Borrower and its
Subsidiaries;
(b) Restricted Payments with any proceeds from the
issuance of equity Securities permitted by subsection 6.7(d);
(c) payments under time brokerage agreements with
Whitehead Media Inc., entered into in connection with WTVX-TV, Fort
Pierce, Florida; WOAC-TV, Canton, Ohio; and WMGM-TV, Athens, Georgia;
provided such payments are made in the ordinary course of
business and such time brokerage agreements are no less favorable to
the Borrower or any Subsidiary, as the case may be, than those that
would otherwise be obtained in an arms-length transaction; and
(d) any Subsidiary may make Restricted Payments to the
Borrower or any Subsidiary Guarantor.
6.7 Restriction on Fundamental Changes; Asset Sales. Alter
the corporate, partnership, capital or legal structure of the Borrower or any
of its Subsidiaries or enter into any transaction of merger, or consolidate, or
liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease, sub-lease, transfer or otherwise dispose
of, in one transaction or a series of transactions, all or any part of its
business, property or assets (including, without limitation, any of the capital
stock or partnership interests held by such Person in any of its Subsidiaries),
whether now owned or hereafter acquired (other than in the ordinary course of
business), or acquire by purchase, lease or otherwise (in one transaction or a
series of related transactions) all or any part of the business, property or
fixed assets of, or stock or other evidence of beneficial ownership of, any
Person (other than purchases or other acquisitions of inventory, leases,
materials, property and equipment in the ordinary course of business) or agree
to do any of the foregoing at any future time, except:
(a) Consolidated Capital Expenditures permitted under
subsection 6.8;
(b) Asset Sales so long as (w) the consideration received
shall be an amount at least equal to the fair market value thereof;
(x) at least 85% of the consideration received shall be Cash; (y) the
proceeds of such Asset Sale are applied
<PAGE> 78
72
as required by subsection 2.6(e); and (z) no Default or Event of
Default shall have occurred and be continuing or would result
therefrom;
(c) Investments permitted by subsection 6.4; and
(d) the issuance of equity Securities of the Borrower and its
Subsidiaries not otherwise prohibited by this Agreement, provided,
however, that the Net Cash Proceeds, if any, from the issuance of such
equity Securities shall be applied first to prepay the Loans as
provided in subsection 2.6(d).
6.8 Consolidated Capital Expenditures. Incur Consolidated
Capital Expenditures in any calendar year set forth below (excluding, for
purposes of this subsection, expenditures of proceeds of casualty insurance
policies reasonably and promptly applied to replace insured assets and
Acquisition Capital Expenditures) if, after giving effect to the incurrence
thereof, either the aggregate amount of Consolidated Capital Expenditures
actually made for such calendar year exceeds the sum of (i) (x) in the case of
Non-INTV Properties, the amount permitted for such year as set forth in the
table below with respect to Non-INTV Properties and (y) in the case of INTV
Properties, (A) the amount set forth below with respect to INTV Properties
times (B) the number of INTV Properties, plus, with respect to (x) and (y)
collectively, (ii) for any calendar year, the amount (the "Capex Carryforward
Amount"), which shall not exceed $1,000,000 for any calendar year, equal to the
excess, if any, of the amount of permitted Consolidated Capital Expenditures
for the previous calendar year (as adjusted for any Capex Carryforward Amount
for such previous calendar year) over the actual amount of Consolidated Capital
Expenditures incurred for such previous calendar year:
<TABLE>
<CAPTION>
Non-INTV INTV
Properties Properties
Calendar Year Amount Amount
---------------------- --------------------- ----------------------
<S> <C> <C>
1996 $3,000,000 $150,000
1997 $3,150,000 $157,500
1998 $3,307,500 $165,375
1999 $3,472,875 $173,650
2000 $3,646,525 $182,330
2001 $3,828,850 $191,440
2002 $2,010,150 $100,510
</TABLE>
6.9 Sales and Lease-Backs. Become or remain liable, directly
or indirectly, as lessee or as guarantor or other surety with respect to any
lease, whether an Operating Lease or a Capital Lease, of any property (whether
real or personal or mixed) whether now owned or hereafter acquired, (i) which
the Borrower or any of its Subsidiaries has sold or transferred or is to sell
or transfer to any other Person (other than the Borrower or any of its
Subsidiaries), or (ii) which the Borrower or any such Subsidiary of
<PAGE> 79
73
the Borrower intends to use for substantially the same purpose as any other
property which has been or is to be sold or transferred by the Borrower or any
such Subsidiary of the Borrower to any Person (other than the Borrower or one
of its Subsidiaries) in connection with such lease.
6.10 Sale or Discount of Receivables. Sell, directly or
indirectly, any of their notes or accounts receivable other than in the
ordinary course of business.
6.11 Transactions with Shareholders and Affiliates. Enter
into or permit to exist any transaction (including, without limitation, the
purchase, sale, lease or exchange of any property or the rendering of any
service), directly or indirectly, with any holder (other than any Subsidiary
directly or indirectly wholly owned by the Borrower) of 5% or more of any class
of equity Securities or other interests of the Borrower or any of its
Subsidiaries or with any Affiliate of the Borrower or of any such holder, as
the case may be, on terms that are less favorable to the Borrower or any
Subsidiary, as the case may be, than those that might be obtained at the time
from Persons who are not such a holder or Affiliate.
6.12 Disposal of Subsidiary Stock. Except as permitted by
subsection 6.7:
(i) directly or indirectly sell, assign, pledge or
otherwise encumber or dispose of any shares of capital stock,
partnership interests, or other equity securities of (or warrants,
rights or options to acquire shares or other equity securities of) any
of its Subsidiaries, except to qualify directors if required by
applicable law; or
(ii) permit any of its Subsidiaries directly or
indirectly to sell, assign, pledge or otherwise encumber or dispose of
any shares of capital stock, partnership interests, or other
securities of (or warrants, rights or options to acquire shares or
other securities of) any of its Subsidiaries, except to the Borrower,
a Subsidiary of the Borrower, or to qualify directors if required by
applicable law.
6.13 Conduct of Business. Engage in any business other than
(i) the business engaged in by the Borrower and its Subsidiaries on the Closing
Date, and similar or related businesses, and (ii) such other lines of business
as may be consented to by the Agent and the Required Lenders; provided that
neither the Borrower nor any of its Subsidiaries (other than a License
Subsidiary) shall directly own or hold any FCC License applicable to its
business, it being understood that all such interests, if owned, shall be owned
and maintained by the License Subsidiaries. Notwithstanding anything to the
contrary in this Agreement, including, without limitation, any references to
"Subsidiaries", (A) neither the Borrower nor any of its Subsidiaries shall (i)
except as permitted by subsection
<PAGE> 80
74
6.4, create or acquire any interest in a Subsidiary after the Closing Date
other than maintenance of their interests in their respective Subsidiaries as
of the Closing Date, or (ii) operate, or hold any interest in, any television
or radio broadcast station, cable, microwave or other television signal
transmission system other than the ownership and operation of Broadcast
Stations and (B) no License Subsidiary of the Borrower shall engage in any
business or incur any liabilities other than the ownership of its FCC Licenses
and the execution, delivery and performance of the Loan Documents and Related
Documents to which it is a party and activities necessary to the foregoing.
6.14 Amendments or Waivers of Related Documents and Charter
Documents; Limitation on Optional Payments.
(a) Agree to any amendment to, or waive any of its rights
under, any of the Related Documents (other than non-material amendments or
waivers which individually, or together with all other amendments, waivers or
changes made, would not be adverse to the Borrower or any of its Subsidiaries
or the Agent or any Lender), without obtaining the written consent, not to be
unreasonably withheld, of the Agent and the Required Lenders to such amendment
or waiver.
(b) Agree to any amendment to, or waive any of its rights
under, its articles of incorporation, by-laws, partnership agreement or other
documents relating to its capital stock or other equity interests of the
Borrower or its Subsidiaries (other than amendments or waivers which
individually, or together with all other amendments, waivers or changes made,
would not be adverse to the Borrower or any of its Subsidiaries or the Agent or
any Lender) without, in each case, obtaining the written consent of the Agent
and the Required Lenders to such amendment or waiver.
(c) Other than with the Net Cash Proceeds of the sale or
issuance of equity Securities which is not required to be used to make a
prepayment pursuant to subsection 2.6(d) or in connection with any refinancing
or Indebtedness permitted under subsection 6.2, make any optional payment or
prepayment on or redemption, defeasance or purchase of any Indebtedness
(including but not limited to the Senior Subordinated Notes); or amend, modify
or change, or consent or agree to any amendment, modification or change to any
of the terms relating to (i) any Indebtedness other than preferred stock (other
than any such amendment, modification or change which would extend the maturity
or reduce the amount of any payment of principal thereof or which would reduce
the rate or extend the date for payment of interest thereon), or (ii) the
subordination of the Senior Subordinated Notes.
6.15 Fiscal Year. Change its fiscal year-end from December
31 without the consent of the Required Lenders.
<PAGE> 81
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SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Failure of any Loan Party to pay any installment of
principal of any Loan when due in accordance with the terms thereof or
hereof; or any Loan Party shall fail to pay any interest on any Loan
when due or any other amount due pursuant to the Loan Documents within
two Business Days after the date due in accordance with the terms
thereof or hereof; or
(b) Failure of any Loan Party or any of their respective
Subsidiaries or any Unrestricted Subsidiary, to pay when due (x) any
principal or interest on any Indebtedness (other than Indebtedness
referred to in paragraph (a) of this Section and intercompany debt) in
an individual principal amount of $2,500,000 or more or items of
Indebtedness with an aggregate principal amount of $2,500,000 or more
or (y) any Contingent Obligation in an individual principal amount of
$2,500,000 or more or Contingent Obligations with an aggregate
principal amount of $2,500,000 or more, in each case beyond the end of
any grace period provided therefor; or
(c) Breach or default of any Loan Party or any of their
respective Subsidiaries or any Unrestricted Subsidiary, with respect
to any other material term of (i) (x) any evidence of any Indebtedness
(other than intercompany debt) in an individual principal amount of
$2,500,000 or more or items of Indebtedness (other than intercompany
debt) with an aggregate principal amount of $2,500,000 or more or any
Contingent Obligation in an individual principal amount of $2,500,000
or more or Contingent Obligations with an aggregate principal amount
of $2,500,000 or more or (y) any loan agreement, mortgage, indenture
or other agreement relating thereto, if the effect of such failure,
default or breach is to cause, or to permit the holder or holders of
that Indebtedness or Contingent Obligation (or a trustee on behalf of
such holder or holders) then to cause, that Indebtedness or Contingent
Obligation to become or be declared due prior to its stated maturity
(or the stated maturity of any underlying obligation, as the case may
be) or (ii) the Related Documents; or
(d) Failure of the Borrower to perform or comply with any
term or condition contained in subsection 5.2 or Section 6; or
(e) Any representation, warranty, certification or other
statement made by any Loan Party in any Loan Document or in any
statement or certificate at any time given by any Loan Party in
writing pursuant hereto or in connection herewith or therewith, shall
be false in any material respect on the date as of which made; or
<PAGE> 82
76
(f) Any Loan Party shall default in the performance of or
compliance with any term contained in this Agreement or the other Loan
Documents, applicable to that Loan Party, other than those referred to
elsewhere in this Section 7 and such default shall not have been
remedied or waived within 30 days after the earlier of (i) receipt by
the Borrower of notice from any Lender or the Agent of such default or
(ii) the Borrower's knowledge of such default; or
(g) (i) A court having jurisdiction in the premises shall
enter a decree or order for relief in respect of any Loan Party or any
of their respective Subsidiaries or any Unrestricted Subsidiary in an
involuntary case under the Bankruptcy Code or any applicable
bankruptcy, insolvency or other similar law now or hereafter in
effect, which decree or order is not stayed; or any other similar
relief shall be granted under any applicable federal or state law; or
(ii) an involuntary case is commenced against any Loan Party or any of
their respective Subsidiaries or any Unrestricted Subsidiary under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver,
liquidator, sequestrator, trustee, custodian or other officer having
similar powers over any Loan Party or any of their respective
Subsidiaries or any Unrestricted Subsidiary, or over all or a
substantial part of its property, shall have been entered; or the
involuntary appointment of an interim receiver, trustee or other
custodian of any Loan Party or any of their respective Subsidiaries or
any Unrestricted Subsidiary for all or a substantial part of its
property; or the issuance of a warrant of attachment, execution or
similar process against any substantial part of the property of any
Loan Party or any of their respective Subsidiaries or any Unrestricted
Subsidiary, and the continuance of any such event in clause (ii) for
60 days unless dismissed, bonded or discharged; or
(h) Any Loan Party or any of their respective Subsidiaries or
any Unrestricted Subsidiary shall have an order for relief entered
with respect to it or commence a voluntary case under the Bankruptcy
Code or any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or shall consent to the entry of an order for
relief in an involuntary case, or to the conversion of an involuntary
case to a voluntary case, under any such law, or shall consent to the
appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of its property; the making by
any Loan Party or any of their respective Subsidiaries or any
Unrestricted Subsidiary of any assignment for the benefit of
creditors; or
(i) The inability or failure of any Loan Party or any of
their respective Subsidiaries or any Unrestricted Subsidiary, or the
admission by any Loan Party or any of their respective Subsidiaries or
any Unrestricted Subsidiary in writing of its
<PAGE> 83
77
inability, to pay its debts as such debts become due; or the Board of
Directors (or any committee thereof) of any Loan Party or any of their
respective Subsidiaries or any Unrestricted Subsidiary adopts any
resolution or otherwise authorizes action to approve any of the
actions referred to in this clause (i); or
(j) Any money judgment, writ or warrant of attachment, or
similar process involving (i) in any individual case an amount in
excess of $2,500,000, or (ii) in the aggregate at any time an amount
in excess of $2,500,000, and in either case not adequately covered by
insurance as to which the insurance company has acknowledged coverage
shall be entered or filed against any Loan Party or any of their
respective Subsidiaries or any of their respective assets and shall
remain undischarged, unvacated, unbonded or unstayed for a period of
30 days or in any event later than five days prior to the date of any
proposed sale thereunder; or
(k) Any order, judgment or decree shall be entered against
any Loan Party or any of their respective Subsidiaries decreeing a
dissolution or split-up of any Loan Party or any of their respective
Subsidiaries, and such order shall remain undischarged or unstayed for
a period in excess of 30 days; or
(l) There occurs one or more ERISA Events which singly or in
the aggregate results in liability to the Borrower or any ERISA
Affiliate in excess of $500,000; or there exists, as of any valuation
date for a Pension Plan, an excess of the actuarial present value
(determined on the basis of reasonable assumptions employed by the
independent actuary for such Pension Plan) of the benefit liabilities
(as defined in Section 4001(a)(16) of ERISA), whether or not vested
over the fair market value of the assets of such Pension Plan,
individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which
there is no such excess) which exceeds $500,000; or
(m) Any Guaranty for any reason, other than the satisfaction
in full of all Obligations, ceases to be in full force and effect
(other than in accordance with its terms) or is declared to be null
and void, or any Loan Party denies that it has any further liability,
including without limitation with respect to future advances by the
Lenders, under any Loan Document to which it is a party, or gives
notice to such effect; or
(n) Any Security Document shall, at any time, cease to be in
full force and effect (other than by reason of a release of Collateral
in accordance with the terms thereof) or shall be declared null and
void, or the validity or enforceability thereof shall be contested by
any Loan Party or the Agent shall not have or cease to have a valid
and perfected first priority security interest in the Collateral other
than the
<PAGE> 84
78
failure of the Agent or any Lender to take any action within its
control; or
(o) Any FCC License shall be (i) canceled, terminated or
finally denied renewal for any reason; or (ii) renewed on terms which
materially adversely affect the economic or commercial value or
usefulness thereof; or
(p) Any event having a Material Adverse Effect shall occur
and such default shall not have been remedied or waived within 30 days
after receipt by the Borrower of notice from any Lender or the Agent
of such default; or
(q) The Borrower or any of its Subsidiaries shall fail to
comply with the requirements of any FCC consent obtained to consummate
any acquisition; or
(r) Any of the following shall occur: (i) any Subsidiary of
the Borrower shall issue or have outstanding any Capital Stock (or any
security convertible into any of its Capital Stock) which is not
pledged to the Agent for the benefit of the Lenders in a manner
reasonably satisfactory to the Required Lenders; (ii) the Borrower or
a Subsidiary of the Borrower shall fail to own and control, of record
and beneficially, 100% of the issued and outstanding Capital Stock of
each License Subsidiary free and clear of all Liens (except Liens
created pursuant to the Borrower Pledge Agreement or the Subsidiaries
Pledge Agreement); (iii) Paxson (or, after his death, collectively,
his heirs or estate or both) shall cease to own and control, of record
and beneficially, Capital Stock of the Borrower possessing the voting
power under normal circumstances to cast 51% or more of the total
votes entitled to be cast for the election of directors of the
Borrower and (iv) Paxson (or, after his death, collectively, his heirs
or estate or both) shall no longer have the voting power or the
contractual right to elect a majority of the Borrower's directors;
then, and in any such event, (A) if such event is an Event of Default specified
in paragraphs (g), (h) or (i) of this Section with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement shall immediately become due and payable, and (B) if such event
is any other Event of Default, either or both of the following actions may be
taken: (i) with the consent of the Required Lenders, the Agent may, or upon
the request of the Required Lenders, the Agent shall, by notice to the Borrower
declare the Commitments to be terminated forthwith, whereupon the Commitments
shall immediately terminate; and (ii) with the consent of the Required Lenders,
the Agent may, or upon the request of the Required Lenders, the Agent shall, by
notice to the Borrower, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement to be due and payable
forthwith, whereupon the same shall immediately become due and payable. Except
as expressly provided
<PAGE> 85
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above in this Section, presentment, demand, protest and all other notices of
any kind are hereby expressly waived.
SECTION 8. THE AGENT
8.1 Appointment. Each Lender hereby irrevocably designates
and appoints the Agent as the agent of such Lender under this Agreement and the
other Loan Documents, and each such Lender irrevocably authorizes the Agent, in
such capacity, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Agent.
8.2 Delegation of Duties. The Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys in-fact selected by it with
reasonable care.
8.3 Exculpatory Provisions. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall
be (i) liable for any action lawfully taken or omitted to be taken by it or
such Person under or in connection with this Agreement or any other Loan
Document (except for its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by the Borrower or any
officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided
for in, or received by the Agent under or in connection with, this Agreement or
any other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of the Borrower to perform its obligations hereunder or
thereunder. The Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower.
8.4 Reliance by the Agent. The Agent shall be entitled to
rely, and shall be fully protected in relying, upon any Note, writing,
resolution, notice, consent, certificate, affidavit,
<PAGE> 86
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letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the Agent.
The Agent may deem and treat the payee of any Note as the owner thereof for all
purposes unless a written notice of assignment, negotiation or transfer thereof
shall have been filed with the Agent. The Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such
action. The Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Required Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.
8.5 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the Agent
receives such a notice, the Agent shall give notice thereof to the Lenders.
The Agent shall take such action with respect to such Default or Event of
Default as shall be reasonably directed by the Required Lenders; provided that
unless and until the Agent shall have received such directions, the Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Lenders.
8.6 Non-Reliance on the Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Agent hereinafter
taken, including any review of the affairs of the Borrower, shall be deemed to
constitute any representation or warranty by the Agent to any Lender. Each
Lender represents to the Agent that it has, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, operations, property, financial and other condition and
creditworthiness of the Borrower and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon the Agent or any other Lender,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action
<PAGE> 87
81
under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrower. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Agent hereunder, the Agent shall not have
any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of the Borrower which may come
into the possession of the Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
8.7 Indemnification. The Lenders agree to indemnify the
Agent in its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according to
their respective Commitment Percentages in effect on the date on which
indemnification is sought (or, if indemnification is sought after the date upon
which the Commitments shall have terminated and the Loans shall have been paid
in full, ratably in accordance with their Commitment Percentages immediately
prior to such date), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Loans) be imposed on,
incurred by or asserted against the Agent in any way relating to or arising out
of, the Commitments, this Agreement, any of the other Loan Documents or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Agent
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from the Agent's gross negligence or willful
misconduct. The agreements in this subsection shall survive the payment of the
Loans and all other amounts payable hereunder.
8.8 The Agent in Its Individual Capacity. The Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Borrower as though the Agent were not the Agent
hereunder and under the other Loan Documents. With respect to the Loans made
by it, the Agent shall have the same rights and powers under this Agreement and
the other Loan Documents as any Lender and may exercise the same as though it
were not the Agent, and the terms "Lender" and "Lenders" shall include the
Agent in its individual capacity.
8.9 Successor the Agent. The Agent may resign as the Agent
upon 10 days' notice to the Lenders and the Agent may be removed at any time
with or without cause by an instrument or concurrent instruments in writing
delivered to the Borrower and Agent and signed by Required Lenders. If the
Agent shall resign or be removed as the Agent under this Agreement and the
other Loan
<PAGE> 88
82
Documents, then the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders, which successor agent shall be approved by the
Borrower, whereupon such successor agent shall succeed to the rights, powers
and duties of the Agent, and the term "the Agent" shall mean such successor
agent effective upon such appointment and approval, and the former the Agent's
rights, powers and duties as the Agent shall be terminated, without any other
or further act or deed on the part of such former the Agent or any of the
parties to this Agreement or any holders of the Loans. After any retiring the
Agent's resignation as the Agent, the provisions of this Section 8 shall inure
to its benefit as to any actions taken or omitted to be taken by it while it
was the Agent under this Agreement and the other Loan Documents.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement nor any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
subsection. The Required Lenders may, or, with the written consent of the
Required Lenders, the Agent may, from time to time, (a) enter into with the
Borrower written amendments, supplements or modifications hereto and to the
other Loan Documents for the purpose of adding any provisions to this Agreement
or the other Loan Documents or changing in any manner the rights of the Lenders
or of the Borrower hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders or the Agent, as the case may be, may
specify in such instrument, any of the requirements of this Agreement or the
other Loan Documents or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, supplement or
modification shall (i) reduce the amount or extend the scheduled date of
maturity of any scheduled payment of any Loan or of any scheduled installment
thereof, or reduce the stated rate of any interest or fee payable hereunder or
extend the scheduled date of any payment thereof or increase the aggregate
amount or extend the expiration date of any Lender's Commitments, in each case
without the consent of each Lender affected thereby, or (ii) amend, modify or
waive any provision of this subsection or reduce the percentage specified in
the definition of Required Lenders, or consent to the assignment or transfer by
the Borrower of any of its rights and obligations under this Agreement and the
other Loan Documents or release all or substantially all of the Collateral or
any material Subsidiary from the Subsidiaries Guarantee, in each case except in
connection with any Asset Sale permitted by subsection 6.7, and in each case
without the written consent of all the Lenders, or (iii) amend, modify or waive
any provision of Section 8 without the written consent of the then the Agent.
Any such waiver and any such amendment, supplement, modification or release
shall apply equally to each of the Lenders and shall be binding upon the
Borrower, the Lenders, the Agent and all future holders of the Loans. In the
case of any waiver, the Borrower, the Lenders and the Agent shall be restored
to their former positions and rights hereunder and under the other Loan
Documents, and any Default or
<PAGE> 89
83
Event of Default waived shall be deemed to be cured and not continuing; no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereon.
9.2 Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three days after being
deposited in the mails, postage prepaid, or (c) in the case of delivery by
facsimile transmission, when sent and receipt has been confirmed, addressed as
follows in the case of the Borrower and the Agent, and as set forth in Schedule
1.1A in the case of the other parties hereto, or to such other address as may
be hereafter notified by the respective parties hereto:
The Borrower: Paxson Communications Corporation
601 Clearwater Park Road
West Palm Beach, Florida 33401
Attention: Arthur Tek
Fax: 407-659-4252
with a copy to Anthony Morrison at the foregoing
address
The Agent: Union Bank
445 South Figueroa Street
Los Angeles, California 90071-1602
Attention: Christine A. Ball
Fax: 213-236-4096
with a copy to Gabriel Renga at the foregoing address
provided that any notice, request or demand to or upon the Agent or the Lenders
pursuant to subsection 2.2, 2.5, 2.6, 2.7, 2.12 or 9.6 shall not be effective
until received.
9.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
9.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
<PAGE> 90
84
9.5 Payment of Expenses and Taxes. The Borrower agrees (a)
to pay or reimburse the Agent for all its reasonable out-of-pocket costs and
expenses incurred in connection with the development, preparation and execution
of, and any amendment, supplement or modification to, this Agreement and the
other Loan Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, the reasonable
fees and disbursements of counsel to the Agent, (b) to pay or reimburse each
Lender and the Agent for all its costs and expenses incurred in connection with
the enforcement or preservation of any rights under this Agreement, the other
Loan Documents and any such other documents, including, without limitation, the
fees and disbursements of counsel (including the allocated fees and expenses of
in-house counsel) to each Lender and of counsel to the Agent, (c) to pay,
indemnify, and hold each Lender and the Agent harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other taxes (which are
Non-Excluded Taxes), if any, which may be payable or determined to be payable
in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents, and (d)
to pay, indemnify, and hold each Lender and the Agent harmless from and against
any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan Documents and
any such other documents, including, without limitation, any of the foregoing
relating to the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower, any of its
Subsidiaries or any of its properties or assets (all the foregoing in this
clause (d), collectively, the "indemnified liabilities"), provided, that the
Borrower shall have no obligation under this subsection 9.5 to the Agent or any
Lender with respect to indemnified liabilities arising from the gross
negligence or willful misconduct of the Agent or any such Lender. The
agreements in this subsection shall survive repayment of the Loans and all
other amounts payable hereunder.
9.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Agent and their respective successors and assigns,
except that the Borrower may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to one
or more banks or other entities ("Participants") participating interests in any
Loan owing to such Lender, any Commitment of such Lender or any other interest
of such
<PAGE> 91
85
Lender hereunder and under the other Loan Documents. In the event of any such
sale by a Lender of a participating interest to a Participant, such Lender's
obligations under this Agreement to the other parties to this Agreement shall
remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Loan for
all purposes under this Agreement and the other Loan Documents, and the
Borrower and the Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. The Borrower agrees that if amounts
outstanding under this Agreement are due or unpaid, or shall have been declared
or shall have become due and payable upon the occurrence of an Event of
Default, each Participant shall, to the maximum extent permitted by applicable
law, be deemed to have the right of setoff in respect of its participating
interest in amounts owing under this Agreement to the same extent as if the
amount of its participating interest were owing directly to it as a Lender
under this Agreement, provided that, in purchasing such participating interest,
such Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in subsection 9.7(a) as fully as if it were a
Lender hereunder. The Borrower also agrees that each Participant shall be
entitled to the benefits of subsections 2.14, 2.15, 2.16 with respect to its
participation in the Commitments and the Loans outstanding from time to time as
if it was a Lender; provided that, in the case of subsection 2.15, such
Participant shall have complied with the requirements of said subsection and
provided, further, that no Participant shall be entitled to receive any greater
amount pursuant to any such subsection than the transferor Lender would have
been entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such transfer
occurred.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time and from
time to time assign to any Lender or any affiliate thereof or, with the consent
of the Borrower and the Agent (which in each case shall not be unreasonably
withheld), to an additional bank or financial institution ("an Assignee") all
or any part of its rights and obligations under this Agreement and the other
Loan Documents pursuant to an Assignment and Acceptance, substantially in the
form of Exhibit H, executed by such Assignee, such assigning Lender (and, in
the case of an Assignee that is not then a Lender or an affiliate thereof, by
the Borrower and the Agent) and delivered to the Agent for its acceptance and
recording in the Register provided that (i) no such assignment to an Assignee
(other than any Lender or any affiliate thereof) shall be in an aggregate
principal amount of less than $5,000,000 (other than in the case of an
assignment of all of a Lender's interests under this Agreement) and (ii) after
giving effect to any such assignment (other than an assignment of all of a
Lender's interests under this Agreement), the assigning Lender (together with
any Lender which is an affiliate of such assigning Lender) shall retain Loans
and/or Commitments aggregating not less than $5,000,000. Upon such execution,
delivery, acceptance and recording, from and after the
<PAGE> 92
86
effective date determined pursuant to such Assignment and Acceptance, (x) the
Assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Commitment as set forth therein, and (y) the assigning Lender
thereunder shall, to the extent provided in such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such assigning Lender
shall cease to be a party hereto). Notwithstanding any provision of this
paragraph (c) and paragraph (e) of this subsection, the consent of the Borrower
shall not be required, and, unless requested by the Assignee and/or the
assigning Lender, new Notes shall not be required to be executed and delivered
by the Borrower, for any assignment which occurs at any time when any of the
events described in paragraphs (g), (h) or (i) of Section 7 shall have occurred
and be continuing.
(d) The Agent, on behalf of the Borrower, shall maintain at
the address of the Agent referred to in subsection 9.2 a copy of each
Assignment and Acceptance delivered to it and a register (the "Register") for
the recordation of the names and addresses of the Lenders and the Commitments
of, and principal amounts of the Loans owing to, each Lender from time to time.
The entries in the Register shall be conclusive, in the absence of manifest
error, and the Borrower, the Agent and the Lenders may (and, in the case of any
Loan or other obligation hereunder not evidenced by a Note, shall) treat each
Person whose name is recorded in the Register as the owner of a Loan or other
obligation hereunder as the owner thereof for all purposes of this Agreement
and the other Loan Documents, notwithstanding any notice to the contrary. Any
assignment of any Loan or other obligation hereunder not evidenced by a Note
shall be effective only upon appropriate entries with respect thereto being
made in the Register. The Register shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender or an affiliate thereof, by the Borrower and the Agent)
together with payment by such Lender or Assignee to the Agent of a registration
and processing fee of $2,500 the Agent shall (i) promptly accept such
Assignment and Acceptance and (ii) on the effective date determined pursuant
thereto record the information contained therein in the Register and give
notice of such acceptance and recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee that agrees to be bound by the terms and conditions of
subsection 9.15 (each, a "Transferee") and any prospective Transferee any and
all financial information in such Lender's possession concerning the Borrower
and its Affiliates which has been delivered to such Lender by or on behalf of
the Borrower pursuant to this Agreement or which has been delivered to
<PAGE> 93
87
such Lender by or on behalf of the Borrower in connection with such Lender's
credit evaluation of the Borrower and its Affiliates prior to becoming a party
to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
9.7 Adjustments; Set-off. (a) If any Lender (a "benefitted
Lender") shall at any time receive any payment of all or part of its Loans, or
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in paragraphs (g), (h) or (i) of Section 7, or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender's Loans,
or interest thereon, such benefitted Lender shall purchase for cash from the
other Lenders a participating interest in such portion of each such other
Lender's Loan, or shall provide such other Lenders with the benefits of any
such collateral, or the proceeds thereof, as shall be necessary to cause such
benefitted Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided, however, that if all or
any portion of such excess payment or benefits is thereafter recovered from
such benefitted Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender
agrees promptly to notify the Borrower and the Agent after any such set-off and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application.
9.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and
<PAGE> 94
88
the same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Agent.
9.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.10 Integration. This Agreement and the other Loan
Documents represent the agreement of the Borrower, the Agent and the Lenders
with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Agent or any Lender relative
to subject matter hereof not expressly set forth or referred to herein or in
the other Loan Documents.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.12 Submission To Jurisdiction; Waivers. The Borrower
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action
or proceeding relating to this Agreement and the other Loan Documents
to which it is a party, or for recognition and enforcement of any
judgement in respect thereof, to the non-exclusive general
jurisdiction of the Courts of the State of New York, the courts of the
United States of America for the Southern District of New York, and
appellate courts from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in subsection 9.2 or
at such other address of which the Agent shall have been notified
pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action
<PAGE> 95
89
or proceeding referred to in this subsection any special, exemplary,
punitive or consequential damages.
9.13 Acknowledgements. The Borrower hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and
the relationship between the Agent and the Lenders, on one hand, and
the Borrower, on the other hand, in connection herewith or therewith
is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
9.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENT AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND
FOR ANY COUNTERCLAIM THEREIN.
9.15 Confidentiality. Each Lender agrees to keep
confidential all non-public information provided to it by the Borrower pursuant
to this Agreement that is designated by the Borrower in writing as
confidential; provided that nothing herein shall prevent any Lender from
disclosing any such information (i) to the Agent or any other Lender, (ii) to
any Transferee, (iii) to its employees, directors, agents, attorneys,
accountants and other professional advisors, (iv) upon the request or demand of
any Governmental Authority having jurisdiction over such Lender, (v) in
response to any order of any court or other Governmental Authority or as may
otherwise be required pursuant to any Requirement of Law, (vi) which has been
publicly disclosed other than in breach of this Agreement, or (vii) in
connection with the exercise of any remedy hereunder.
<PAGE> 96
90
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
PAXSON COMMUNICATIONS CORPORATION
By:/s/ Arthur Tek
------------------------------
Title: Treasurer
UNION BANK,
as the Agent and as a Lender
By:/s/ Gabe Renga
------------------------------
Title: Senior Vice President
THE BANK OF NEW YORK
By:/s/ Edward F. Ryan Jr.
------------------------------
Title: Senior Vice President
CIBC, INC.
By:/s/ Lorain C. Granberg
------------------------------
Title: Director
THE FIRST NATIONAL BANK OF BOSTON
By:/s/ Mark S. Denomme
------------------------------
Title: Vice President
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By:/s/ Bruce W. Loftin
------------------------------
Title: Senior Vice President
<PAGE> 97
Schedule 1.1B
<TABLE>
<CAPTION>
Applicable Margin
-----------------
Eurodollar Base Rate
---------- ---------
Closing Date -- Closing Date --
15 Month Anniversary of 15 Month Anniversary of
Leverage Ratio the Closing Date Thereafter the Closing Date Thereafter
-------------- ---------------- ---------- ---------------- ----------
<S> <C> <C> <C> <C>
>6.00x 3.25% 2.75% 2.00% 1.50%
-
>5.50x<6.00x 3.00% 2.50% 1.75% 1.25%
-
>5.00x<5.50x 2.50% 2.00% 1.25% 0.75%
-
>4.50x<5.00x 2.25% 1.75% 1.00% 0.50%
-
>4.00x<4.50x 2.00% 1.50% 0.75% 0.25%
-
<4.00x 1.75% 1.25% 0.50%
</TABLE>
<PAGE> 1
EXHIBIT 21
<PAGE> 2
EXHIBIT 21
LIST OF SUBSIDIARIES
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
State or
Other
Jurisdiction of
Incorporation/
Name Organization D/B/A
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Paxson Communications of Florida, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications LP, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications Management Company Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications Marketing, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications Networks, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Excel Marketing Enterprises, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Outdoor, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Networks, Inc. Florida Tennessee Radio Network
Virginia Sports Networks
Georgia Sports Network
South Carolina Radio Network
Florida's Radio Networks
Pennsylvania Sports Network
Florida Sports Network
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications Television, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Broadcasting of Jacksonville, Limited Partnership Florida WROO - FM
WNZS - AM
WZNZ - AM
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Broadcasting of Miami, Limited Partnership Florida WZTA - FM
WLVE - FM
WINZ - AM
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Broadcasting of Orlando, Limited Partnership Florida WJRR - FM
WMGF - FM
WWZN - AM
WWNZ - AM
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Broadcasting of Tampa, Limited Partnership Florida WHPT - FM
WHNZ - AM
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Tampa License Limited Partnership Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Jacksonville License Limited Partnership Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Miami License Limited Partnership Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Orlando License Limited Partnership Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of Atlanta-14, Inc. Florida WTLK - TV
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Atlanta License, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of Boston-60, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Boston License, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of Dallas-68, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Dallas License, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of New London-26, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson New London License, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of Philadelphia-61, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Philadelphia License, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of Miami-35, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of San Jose-65, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson San Jose License, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of Tampa-66, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of West Palm Beach-25, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson West Palm Beach License, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of Los Angeles-30, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Los Angeles License, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of Minneapolis-41, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of St. Louis-13 Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Minneapolis License, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of Cookeville, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Cookeville License, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of Ft. Pierce-34, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
State or
Other
Jurisdiction of
Incorporation/
Name Organization D/B/A
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
Paxson Communications of Orlando-56, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of Houston-49, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Houston License, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Infomall TV Network, Inc. Delaware
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson St. Louis License, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Infomall Cable Network, Inc. Delaware
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of Cleveland-67, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of Washington-60, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Washington License, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of Phoenix-13, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Phoenix License, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Infomall Los Angeles, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of Milwaukee-55, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of Denver-59, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of New York-43, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson New York License, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of Akron-23, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Akron License, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of Dayton-26, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of Battle Creek-43, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of Albany-55, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
Paxson Communications of Raleigh Durham-47, Inc. Florida
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE> 1
EXHIBIT 23.1
<PAGE> 2
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the use in the Prospectus constituting part of this
Registration Statement on Form S-4 of Paxson Communications Corporation of: our
report dated March 15, 1995 relating to the consolidated financial statements
of Paxson Communications Corp.; our report dated July 17, 1995 relating to the
financial statements of KZKI-TV (a division of Sandino Telecasters); our report
dated August 21, 1995 relating to the financial statements of Paugus
Television, Inc. (WGOT-TV); our report dated August 21, 1995 relating to the
financial statements of Delaware Valley Broadcasters Limited Partnership
(WTGI-TV); our report dated August 21, 1995 relating to the combined financial
statements of San Jacinto Television Corporation and DuPont Investment Group,
85 Ltd.; and our report dated October 11, 1995 relating to the financial
statements of WTVX-TV Krypton Broadcasting of Ft. Pierce, Inc., which appears
in such Prospectus. We also consent to the references to us under the heading
"Experts" in such Prospectus.
/s/ PRICE WATERHOUSE LLP
- ------------------------
PRICE WATERHOUSE LLP
Tampa, Florida
January 22, 1996
<PAGE> 1
EXHIBIT 23.2
<PAGE> 2
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-4 of Paxson
Communications Corporation of our report dated June 20, 1994, relating to the
consolidated financial statements of Paxson Communications Corporation which
appears on page F-4 of Paxson Communications Corporation's Registration
Statement on Form S-4 (Registration No. 33-84416). We also consent to the
references to us under the heading "Experts" in such Prospectus.
/S/ BRIMMER, BUREK, KEELAN & MCNALLY LLP
- --------------------------------------------------------------------------
BRIMMER, BUREK, KEELAN & MCNALLY LLP, SUCCESSOR TO RYALS, BRIMMER, BUREK &
KEELAN
Tampa, Florida
January 22, 1996
<PAGE> 1
EXHIBIT 99.1
<PAGE> 2
LETTER OF TRANSMITTAL EXHIBIT 99.1
To Tender for Exchange
11 5/8% Senior Subordinated Notes due 2002
(CUSIP NO. 704231-AA-7)
of
PAXSON COMMUNICATIONS CORPORATION
(a Delaware corporation)
Pursuant to the Prospectus dated , 1996
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON , 1996, UNLESS EXTENDED.
To: The Bank of New York, as Exchange Agent
By Registered or Certified Mail:
The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Arwen Gibbons, Corporate Dept. Operations,
Floor 7E
By Overnight Courier or By Hand:
The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Arwen Gibbons, Corporate Dept. Operations,
Floor 7E
By Facsimile: (212) 571-3083
Confirm by Telephone: (212) 815-6333
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE
OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE NUMBER OTHER THAN THE ONE
LISTED ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. THE INSTRUCTIONS
ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY
BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
The undersigned acknowledges that he or she has received the
Prospectus dated , 1996 (the "Prospectus") of Paxson Communications
Corporation (the "Company") and this Letter of Transmittal (the "Letter of
Transmittal"), which together constitute the Company's offer (the "Exchange
Offer") to exchange up to $230,000,000 in aggregate principal amount of the
Company's 11 5/8% Senior Subordinated Notes due 2002 (CUSIP No. _________),
which have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), pursuant to a Registration Statement of which the Prospectus
is a part (the "New Notes"), for a like principal amount of the Company's
outstanding 11 5/8% Senior Subordinated Notes due 2002 (CUSIP No. 704231-AA-7)
(the "Original Notes"), of which $230,000,000 aggregate principal amount is
outstanding. The term "Expiration Date" shall mean 5:00 p.m., New York City
time, on ___________, 1996, unless the Company, in its sole discretion, extends
the Exchange Offer, in which case the term "Expiration Date" shall mean the
latest date and time to which the Exchange Offer is extended. Capitalized
terms used but not defined herein have the meaning given to them in the
Prospectus.
1
<PAGE> 3
The Letter of Transmittal is to be used by holders of Original Notes
whether (i) certificates representing the Original Notes are to be physically
delivered herewith, (ii) the guaranteed delivery procedures described in the
Prospectus are to be utilized, or (iii) tenders are to be made by book-entry
transfer to the account maintained by the Exchange Agent at The Depository
Trust Company, New York, New York ("DTC" or the "Book-Entry Transfer
Facility"), pursuant to the procedures set forth in the Prospectus. Delivery
of documents to DTC does not constitute delivery to the Exchange Agent.
Unless the context requires otherwise, the term "Holder" with respect
to the Exchange Offer means any person in whose name Original Notes are
registered on the books of the Company or the Registrar or any other person who
has obtained a properly completed bond power from the registered holder or any
person whose Original Notes are held of record by the Book-Entry Transfer
Facility who desires to deliver such Original Notes by book-entry transfer at
the Book-Entry Transfer Facility. The undersigned has completed, executed and
delivered this Letter of Transmittal to indicate the action the undersigned
desires to take with respect to the Exchange Offer. Holders who wish to tender
their Original Notes must complete this Letter of Transmittal in its entirety.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL CAREFULLY
BEFORE COMPLETING ANY BOX BELOW
<TABLE>
<CAPTION>
================================================================================================================================
DESCRIPTION OF 11 5/8% SENIOR SUBORDINATED NOTES DUE 2002 BEING TENDERED
- --------------------------------------------------------------------------------------------------------------------------------
Names and Addresses of Aggregate Principal Amount Principal Amount Tendered
Registered Holder(s) Certificate Represented by (must be in Integral
(Please fill in, if blank) Number(s) Certificate(s) (1) Multiples of $1,000) (2)
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
Total
- --------------------------------------------------------------------------------------------------------------------------------
(1) Need not be completed by Holders tendering by book-entry transfer.
(2) Unless otherwise indicated in the column labeled "Principal Amount Tendered," any tendering Holder will be deemed to
have tendered the full aggregate amount represented by such Original Notes.
================================================================================================================================
</TABLE>
Holders of Original Notes who wish to tender and whose Original Notes
are not immediately available or who cannot deliver their Original Notes and
all other documents required hereby to the Exchange Agent prior to the
Expiration Date or whose Original Note(s) cannot be delivered on a timely basis
pursuant to the rules for book-entry transfer may tender Original Notes
according to the guaranteed delivery procedures set forth in the Prospectus
under the caption "The Exchange Offer -- Procedures for Tendering." See
Instruction 1 below.
2
<PAGE> 4
<TABLE>
<S> <C>
/ / CHECK HERE IF TENDERED ORIGINAL NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN ACCOUNT MAINTAINED
BY THE EXCHANGE AGENT WITH DTC AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:
----------------------------------------------------------------------------------
Account Number:
-------------------------------------------------------------------------------------------------
Transaction Code Number:
-----------------------------------------------------------------------------------------
/ / CHECK HERE IF TENDERED ORIGINAL NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY AND
COMPLETE THE FOLLOWING:
Name of Registered Holder(s):
------------------------------------------------------------------------------------
Name of Eligible Institution that guaranteed delivery:
----------------------------------------------------------
Account Number (if delivered by book-entry transfer):
-----------------------------------------------------------
/ / CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES
OF ANY AMENDMENT OR SUPPLEMENT TO THE PROSPECTUS.
Name:
-----------------------------------------------------------------------------------------------------------
Address:
--------------------------------------------------------------------------------------------------------
SPECIAL REGISTRATION INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 3, 4 and 5) (See Instructions 4, 5 and 6)
To be completed ONLY if certificates for To be completed ONLY if certificates for
Original Notes in a principal amount not Original Notes in a principal amount not
tendered, or New Notes issued in exchange for tendered, or New Notes issued in exchange for
Original Notes accepted for exchange, are to be Original Notes accepted for exchange, are to be
issued in the name of someone other than the sent to someone other than the undersigned, or
undersigned or if Original Notes tendered by to the undersigned at an address other than
book-entry transfer which are not exchanged that shown above.
and/or any New Notes are to be returned by
credit to an account maintained by DTC other
than the account designated above.
Deliver certificate(s) to:
Issue certificate(s) to:
DTC Account Number: Name:
----------------------------- -------------------------------------------
(Please Print)
Name:
-------------------------------------------
(Please Print) Address:
---------------------------------------
---------------------------------------
Address:
--------------------------------------- ---------------------------------------
(Including Zip Code)
---------------------------------------
---------------------------------------
(Including Zip Code)
------------------------------------------------
(Identification or Social Security Number)
------------------------------------------------
(Identification or Social Security No.)
</TABLE>
3
<PAGE> 5
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Subject to the terms and conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the principal amount of Original
Notes indicated above. Subject to and effective upon the acceptance for
exchange of the principal amount of Original Notes tendered in accordance with
this Letter of Transmittal, the undersigned exchanges, assigns and transfers
to, or upon the order of, the Company, all right, title and interest in and to
the Original Notes tendered hereby and accepted for exchange pursuant to the
Exchange Offer. The undersigned hereby irrevocably constitutes and appoints
the Exchange Agent its, his or her agent and attorney-in-fact (with full
knowledge that the Exchange Agent also acts as the agent of the Company) with
respect to the tendered Original Notes with full power of substitution to (i)
deliver certificates for such Original Notes to the Company or its agent or
transfer ownership of such Original Notes on the account books maintained by
DTC, together in either such case with all accompanying evidences of transfer
and authenticity to, or upon the order of, the Company upon receipt by the
Exchange Agent, as the undersigned's agent, of the New Notes and (ii) present
such Original Notes for cancellation and transfer on the books of the Company
and receive all benefits and otherwise exercise all rights of beneficial
ownership of such Original Notes, all in accordance with the terms of the
Exchange Offer. The power of attorney granted in this paragraph shall be
deemed to be irrevocable and coupled with an interest.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT IT, HE OR SHE HAS
FULL POWER AND AUTHORITY TO TENDER, SELL, ASSIGN AND TRANSFER THE ORIGINAL
NOTES TENDERED HEREBY AND THAT THE COMPANY WILL ACQUIRE GOOD AND UNENCUMBERED
TITLE THERETO, FREE AND CLEAR OF ALL LIENS, RESTRICTIONS, CHARGES AND
ENCUMBRANCES AND NOT SUBJECT TO ANY ADVERSE CLAIM, WHEN THE SAME ARE ACQUIRED
BY THE COMPANY. THE UNDERSIGNED WILL, UPON REQUEST, EXECUTE AND DELIVER ANY
ADDITIONAL DOCUMENTS DEEMED BY THE EXCHANGE AGENT OR THE COMPANY TO BE
NECESSARY OR DESIRABLE TO COMPLETE THE ASSIGNMENT, TRANSFER AND EXCHANGE OF THE
ORIGINAL NOTES TENDERED HEREBY.
The undersigned also acknowledges that the Exchange Offer is being
made in reliance on interpretations by the staff of the Securities and Exchange
Commission (the "Commission") that the New Notes issued in exchange for the
Original Notes pursuant to the Exchange Offer may be offered for resale, resold
or otherwise transferred by Holders thereof (other than any Holder that is an
affiliate of the Company within the meaning of Rule 405 of the Securities Act)
without compliance with the registration and prospectus delivery provisions of
the Securities Act, provided that such New Notes are acquired in the ordinary
course of such Holders' business and such Holders have no arrangements or
understanding with any person to participate in the distribution of the New
Notes. If the undersigned is not a broker-dealer or is a broker-dealer but
will not receive New Notes for its own account in exchange for Original Notes,
the undersigned represents that it is not engaged in, and does not intend to
engage in, a distribution of New Notes. If the undersigned is a broker-dealer
that will receive New Notes for its own account in exchange for Original Notes
that were acquired as a result of market-making activities or other trading
activities, it acknowledges that it will deliver a Prospectus in connection
with any resale of such New Notes, however, by so acknowledging and by
delivering a Prospectus, the undersigned will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act.
By acceptance of the Exchange Offer, such broker-dealer that receives
New Notes pursuant to the Exchange Offer hereby acknowledges and agrees that,
upon receipt of notice by the Company of the happening of any event which makes
any statement in the Prospectus untrue in any material respect or which
requires the making of any changes in the Prospectus in order to make the
Statements therein not misleading (which notice the Company agrees to deliver
promptly to such broker-dealer), such broker-dealer will suspend use of the
Prospectus until the Company has amended or supplemented the Prospectus to
correct such misstatement or omission and has furnished copies of the amended
or supplemented Prospectus to such broker-dealer.
The undersigned represents that (i) the New Notes acquired pursuant to
the Exchange Offer are being obtained in the ordinary course of such Holder's
business, (ii) such Holder has no arrangement with any other person to
participate in the distribution of such New Notes and (iii) such Holder is not
an "affiliate" of the Company as defined under Rule 405 of the Securities Act,
or if such Holder is an affiliate, that such Holder will comply with the
registration and prospectus delivery requirements of the Securities Act to the
extent applicable.
4
<PAGE> 6
The undersigned understands that, upon acceptance by the Company of
the Original Notes tendered under the Exchange Offer, the undersigned will be
deemed to have accepted the New Notes and will be deemed to have relinquished
all rights with respect to the Original Notes so accepted.
The undersigned understands that the Company may accept the
undersigned's tender at any time on or after the Expiration Date by delivering
oral or written notice of acceptance to the Exchange Agent. Tenders of
Original Notes may be withdrawn at any time prior to the Expiration Date,
unless theretofore accepted for exchange as provided in the Exchange Offer.
The undersigned understands that the Company reserves the right, at
any time and from time to time, in its sole discretion, (such to its
obligations under the Registration Rights Agreement) (i) to delay accepting any
Original Notes or to delay the issuance and exchange of New Notes for Original
Notes, to extend the Exchange Offer, or if any of the conditions set forth in
the Prospectus under the caption "The Exchange Offer -- Conditions to the
Exchange Offer" shall not have been satisfied to terminate the Exchange Offer,
by giving oral (promptly confirmed in writing) or written notice of such delay,
extension or termination to the Exchange Agent or (ii) to amend the terms of
the Exchange Offer in any manner.
If any tendered Original Notes are not accepted for exchange pursuant
to the Exchange Offer for any reason, certificates for any such unaccepted
Original Notes will be returned, without expense to the tendering Holder
thereof, to the undersigned at the address shown below or at a different
address as may be indicated herein under "Special Delivery Instructions" (or,
in the case of Original Notes tendered by book-entry transfer, such Original
Notes will be credited to the account of such Holder maintained at the
Book-Entry Transfer Facility) as promptly as practicable after the expiration
or termination of the Exchange Offer.
All authority conferred or aimed to be conferred by this Letter of
Transmittal shall survive the death, incapacity or dissolution of the
undersigned, and every obligation of the undersigned under this Letter of
Transmittal shall be binding upon the undersigned's heirs, personal
representatives, successors and assigns.
The undersigned understands that tenders of Original Notes pursuant to
the procedures described under the caption "The Exchange Offer -- Procedures
for Tendering" in the Prospectus and in the instructions hereto will constitute
a binding agreement between the undersigned and the Company upon the terms and
subject to the conditions of the Exchange Offer. Any tender of Original Notes
pursuant to this Letter of Transmittal may be withdrawn only in accordance with
the applicable procedures set forth in the Prospectus.
The New Notes exchanged for the tendered Original Notes will be issued
to the undersigned and mailed to the address (or credited to the account
maintained at the Book-Entry Transfer Facility above) unless otherwise
indicated under the "Special Registration Instructions" or the "Special
Delivery Instructions" above.
The undersigned understands that the Company has no obligation
pursuant to the "Special Registration Instructions" and "Special Delivery
Instructions" to transfer any Original Notes from the name of the registered
Holder(s) thereof if the Company does not accept for exchange any of the
Original Notes so tendered.
Holders who wish to tender their Original Notes and (i) whose Original
Notes are not immediately available or (ii) who cannot deliver their Original
Notes (or complete the procedures for book-entry transfer), this Letter of
Transmittal or any other documents required hereby to the Exchange Agent prior
to the Expiration Date may tender their Original Notes according to the
guaranteed delivery procedures set forth in the Prospectus under the caption
"The Exchange Offer -- Guaranteed Delivery Procedures." See Instruction 1
printed below regarding the completion of this Letter of Transmittal.
5
<PAGE> 7
<TABLE>
<S> <C>
PLEASE SIGN HERE WHETHER OR NOT
ORIGINAL NOTES ARE BEING PHYSICALLY TENDERED HEREBY
X
--------------------------------------------------- ------------------------------------------------
Date
X
--------------------------------------------------- ------------------------------------------------
Signature(s) of Registered Date
Holder(s) or Authorized
Signatory
Area Code and Telephone Number:
----------------------------------------------------------------------------
The above lines must be signed by the registered Holder(s) as their name(s) appear(s) on the
Original Notes or on a security position listing at the Book-Entry Transfer Facility as the owner of the
Original Notes or by person(s) authorized to become registered Holder(s), a copy of which must be
transmitted with this Letter of Transmittal. If Original Notes to which this Letter of Transmittal relate
are held of record by two or more joint Holders, then all such Holders must sign this Letter of
Transmittal. If required by Instruction 4 hereto, the signatures on the above lines must be guaranteed by
an Eligible Institution.
If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity, then such person must
(i) set forth his or her full title below and (ii) unless waived by the Company, submit evidence
satisfactory to the Company of such person's authority so to act with this Letter. See Instruction 4
regarding the completion of this Letter of Transmittal printed below.
Name(s)
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
(Please Print)
Capacity (full title)
--------------------------------------------------------------------------------------
Address:
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone No.
-------------------------------------------------------------------------------
Tax Identification or
Social Security No(s).
------------------------------------------------------------------------------------
Please Complete Substitute Form W-9
GUARANTEE OF SIGNATURE(S)
(SIGNATURE(S) MUST BE GUARANTEED IF REQUIRED BY INSTRUCTION 4)
Authorized Signature:
-------------------------------------------------------------------------------------
Dated , 1996
-------------------
Name and Title:
-------------------------------------------------------------------------------------------
(Please Print)
Name of Firm:
---------------------------------------------------------------------------------------------
</TABLE>
6
<PAGE> 8
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS
OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND ORIGINAL NOTES OR
BOOK-ENTRY CONFIRMATIONS. Certificates for all physically tendered Original
Notes, or confirmation of a book-entry transfer into the Exchange Agent's
account at the Book-Entry Transfer Facility of Original Notes tendered
electronically, together in each case with a properly completed and duly
executed copy of this Letter of Transmittal and any other documents required by
this Letter of Transmittal or the Prospectus, must be received by the Exchange
Agent at its address set forth herein prior to 5:00 p.m., New York City time,
on the Expiration Date unless the tendering Holder complies with the guaranteed
delivery procedures described in the following paragraph. The method of
delivery of Original Notes, this Letter of Transmittal and all other required
documents to the Exchange Agent is at the election and risk of the Holder and,
except as otherwise provided below, the delivery will be deemed made only when
actually received by the Exchange Agent. Instead of delivery by mail, it is
recommended that the Holder use an overnight or hand delivery service. In all
cases, sufficient time should be allowed to assure timely delivery. No Letter
of Transmittal, certificates representing Original Notes or any other required
documents should be sent to the Company.
Holders who wish to tender their Original Notes and (i) whose Original
Notes are not immediately available, or (ii) who cannot deliver their Original
Notes (or complete the procedure for book-entry transfer), this Letter of
Transmittal or any other documents required hereby to the Exchange Agent prior
to the Expiration Date, must tender their Original Notes according to the
guaranteed delivery procedure set forth in the Prospectus. Pursuant to such
procedures: (i) such tender must be made by or through a firm that is a member
of a registered national securities exchange or of the National Association of
Securities Dealers, Inc., a commercial bank or trust company having an office
or correspondent in the United States or an eligible guarantor institution
within the meaning of Rule 17Ad-15 under the Securities Exchange Act of 1934,
as amended (each an "Eligible Institution"); (ii) prior to the Expiration Date,
the Exchange Agent must have received from the Eligible Institution a properly
completed and duly executed Notice of Guaranteed Delivery (by facsimile
transmission, mail, hand delivery or overnight courier, setting forth the name
and address of the Holder, any certificate numbers and the principal amount of
such Original Notes tendered, stating that the tender is being made thereby and
guaranteeing that, within five (5) New York Stock Exchange trading days after
the Expiration Date, this Letter of Transmittal (or facsimile hereof) together
with certificate(s) representing the Original Notes (or, with respect to a
book-entry transfer, confirmation of a book-entry transfer of the Original
Notes into the Exchange Agent's account at the Book-Entry Transfer Facility)
and any other required documents will be deposited by the Eligible Institution
with the Exchange Agent; and (iii) such properly completed and executed Letter
of Transmittal (or facsimile hereof), as well as all other documents required
by this Letter of Transmittal and the certificate(s) representing all tendered
Original Notes in proper form for transfer (or, with respect to a book-entry
transfer, confirmation of a book-entry transfer of the Original Notes into the
Exchange Agent's Account at the Book-Entry Transfer Facility), must be received
by the Exchange Agent within five (5) New York Stock Exchange trading days
after the Expiration Date, all as provided in the Prospectus under the caption
"The Exchange Offer -- Guaranteed Delivery Procedures." Any Holder who wishes
to tender his, her or its Original Notes pursuant to the guaranteed delivery
procedures described above must ensure that the Exchange Agent receives the
Notice of Guaranteed Delivery from the Eligible Institution prior to 5:00 p.m.,
New York City time, on the Expiration Date. Upon request to the Exchange
Agent, a duplicate Notice of Guaranteed Delivery will be sent to Holders. A
Notice of Guaranteed Delivery has been included with the Prospectus and the
Letter of Transmittal for use by Holders who wish to tender their Original
Notes according to the guaranteed delivery procedures set forth above.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance of tendered Original Notes, and withdrawal of tendered
Original Notes will be determined by the Company in its sole discretion, which
determination will be final and binding. The Company reserves the absolute
right to reject any and all Original Notes determined by the Company not to be
validly tendered or any Original Notes the acceptance of which would, in the
opinion of counsel for the Company, be unlawful. The Company also reserves the
absolute right to waive any defects, irregularities or conditions of tender to
particular Original Notes. The Company's interpretation of the terms and
conditions of the Exchange Offer (including the instructions in this Letter of
Transmittal) will be final and binding on all parties. Unless waived, any
defects or irregularities in connection with tenders of Original Notes will
render such tenders invalid unless such defects or irregularities are cured
within such time as the Company shall determine. Any Original Notes received
by the Exchange Agent that are not properly tendered and as to which the
defects or irregularities have not been cured or waived will be returned by the
Exchange Agent to the tendering Holders, unless otherwise provided in this
Letter of Transmittal, as soon as practicable following the Expiration Date.
7
<PAGE> 9
No alternative, conditional or contingent tender will be accepted.
All tendering Holders, by execution of this Letter of Transmittal, waive any
rights to receive any notice of the acceptance of their tender.
2. TENDER OF HOLDER. Only a Holder of Original Notes may tender
such Original Notes in the Exchange Offer. Any beneficial owner of Original
Notes who is not the registered Holder and who wishes to tender should arrange
with such registered Holder to execute and deliver this Letter of Transmittal
on such owner's behalf or must, prior to completing and executing this Letter
of Transmittal and delivering his Original Notes, either make appropriate
arrangements to register ownership of the Original Notes in such owner's name
or obtain a properly completed bond power from the registered Holder.
3. PARTIAL TENDERS; WITHDRAWALS. (Not applicable to Holders who
tender by book-entry transfer.) Tenders of Original Notes will be accepted
only in integral multiples of $1,000. If less than the entire principal amount
of any Original Notes evidenced by a certificate is tendered, the tendering
Holder should fill in the principal amount tendered in the fourth column of the
box entitled "Description of 11 5/8% Senior Subordinated Notes Due 2002 Being
Tendered" above. The entire principal amount of any Original Notes delivered
to the Exchange Agent will be deemed to have been tendered unless otherwise
indicated. If the entire principal amount of all Original Notes evidenced by a
certificate is not tendered, then Original Notes for the principal amount of
Original Notes not tendered and a certificate or certificates representing New
Notes (subject to the denomination requirements discussed in the Prospectus)
issued in exchange for any Original Notes accepted will be sent to the Holder
at its, his or her registered address, unless a different address is provided
in the appropriate box on this Letter of Transmittal promptly after the
Original Notes are accepted for exchange.
A tender pursuant to the Exchange Offer may be withdrawn subject to
the procedures set forth in this Letter of Transmittal and the Prospectus at
any time prior to the acceptance thereof on the Expiration Date. To withdraw a
tender of Original Notes in the Exchange Offer, a written or facsimile
transmission notice of withdrawal must be received by the Exchange Agent at its
address set forth herein prior to 5:00 p.m., New York City time, on the
Expiration Date. Any such notice of withdrawal must (i) specify the name of
the person having deposited the Original Notes to be withdrawn (the
"Depositor"), (ii) specify the serial numbers on the particular certificates
evidencing the Original Notes to be withdrawn and the name of the registered
Holder thereof (if certificates have been delivered or otherwise identified to
the Exchange Agent) or the name and number of the account at DTC to be credited
with withdrawn Original Notes (if the Original Notes have been tendered
pursuant to the procedures for book-entry transfer), (iii) be signed by the
Holder in the same manner as the original signature on the Letter of
Transmittal by which such Original Notes were tendered (including any required
signature guarantees) or be accompanied by documents of transfer sufficient to
have the Registrar with respect to the Original Notes register the transfer of
such Original Notes into the name of the person withdrawing the tender and (iv)
specify the name in which any such Original Notes are to be registered, if
different from that of the Depositor. All questions as to the validity, form
and eligibility (including time of receipt) of such notices will be determined
by the Company in its sole discretion, which determination shall be final, and
binding on all parties. Any Original Notes so withdrawn will be deemed not to
have been validly tendered for purposes of the Exchange Offer and no New Notes
will be issued with respect thereto unless the Original Notes so withdrawn are
validly retendered. Properly withdrawn Original Notes may be retendered by
following one of the procedures described in the Prospectus under the caption
"The Exchange Offer -- Procedures for Tendering" at any time prior to the
Expiration Date.
4. SIGNATURES ON THE LETTER OF TRANSMITTAL, BOND POWERS AND
ENDORSEMENTS; GUARANTEE OF SIGNATURES. If this Letter of Transmittal (or
facsimile hereof) is signed by the registered Holder(s) of the Original Notes
tendered hereby, the signature must correspond (i) with the name(s) as written
on the face of the certificate without alteration, enlargement or any change
whatsoever, or (ii) in the case of Original Notes held by book-entry, with the
name as contained on the security position listing at the Book-Entry Transfer
Facility.
If this Letter of Transmittal (or facsimile hereof) is signed by the
registered Holder of Original Notes tendered and the New Notes issued in
exchange therefor are to be issued (or any untendered principal amount of
Original Notes is to be reissued) to the registered Holder, then such Holder
need not and should not endorse any tendered Original Notes, nor provide a
separate bond power. In any other case such Holder must either properly
endorse the certificates tendered or transmit a properly completed separate
bond power with this Letter of Transmittal with the signatures on the
endorsement or bond power guaranteed by an Eligible Institution.
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<PAGE> 10
If this Letter of Transmittal is signed by a person other than the
registered Holder of any Original Notes or if delivery of the Original Notes is
to be made to a person other than the registered Holder, such Original Notes
must be endorsed or accompanied by appropriate bond powers, in either case
signed as the name of the registered Holder appears on the Original Notes.
If this Letter of Transmittal (or facsimile hereof) or any Original
Notes or bond powers are signed by trustees, executors, administrators,
guardians, attorneys-in-fact, or officers of corporations or others acting in a
fiduciary or representative capacity, such persons should so indicate when
signing, and, unless waived by the Company, evidence satisfactory to the
Company of their authority so to act must be submitted with this Letter of
Transmittal.
Except as otherwise provided below, all signatures on this Letter of
Transmittal must be guaranteed by an Eligible Institution. Signatures on this
Letter of Transmittal need not be guaranteed if (a) this Letter of Transmittal
is signed by the registered Holder(s) of the Original Notes tendered herewith
in connection with the Exchange Offer and such Holder(s) have not completed the
box set forth herein entitled "Special Registration Instructions" or "Special
Delivery Instructions," (b) such Original Notes are tendered for the account of
an Eligible Institution, or (c) such Original Notes are tendered for the
account of DTC.
5. SPECIAL REGISTRATION AND DELIVERY INSTRUCTIONS. Tendering
Holders should indicate, in the applicable box or boxes, the name and address
to which New Notes or substitute Original Notes for principal amounts not
tendered or not accepted for exchange are to be issued or sent,or the account
number at the Book-Entry Transfer Facility to which the New Notes are to be
credited, if different from the name and address, or account number of the
person signing this Letter of Transmittal. In the case of issuance in a
different name or to a different account number, the taxpayer identification or
social security number of the person named (or to whose account the New Notes
are credited) must also be indicated. Holders tendering Original Notes by
book-entry transfer may request that Original Notes not exchanged be credited
to such Holders' accounts maintained at the Book-Entry Transfer Facility.
6. TRANSFER TAXES. The Company will pay all transfer taxes, if
any, applicable to the exchange of Original Notes pursuant to the Exchange
Offer. If, however, certificates representing New Notes or Original Notes for
principal amounts not tendered or accepted for exchange are to be delivered to,
or are to be issued in the name or credited to the account of, any person other
than the registered Holder of the Original Notes tendered hereby, or if
tendered Original Notes are registered in the name of any person other than the
person signing this Letter of Transmittal, or if a transfer tax is imposed for
any reason other than the exchange of Original Notes pursuant to the Exchange
Offer, then the amount of any such transfer taxes (whether imposed on the
registered Holder or on any other persons) will be payable by the tendering
Holder. If satisfactory evidence of payment of such taxes or exemption
therefrom is not submitted with this Letter of Transmittal, the amount of such
transfer taxes will be billed directly to such tendering Holder.
Except as provided in this Instruction 6, it will not be necessary for
transfer tax stamps to be affixed to the Original Notes listed in this Letter
of Transmittal.
7. WAIVER OF CONDITIONS. The Company reserves the right, in its
sole discretion, to amend, waive or modify specified conditions in the Exchange
Offer in the case of any Original Notes tendered.
8. MUTILATED, LOST, STOLEN OR DESTROYED ORIGINAL NOTES. Any
tendering Holder whose Original Notes have been mutilated, lost, stolen or
destroyed should contact the Exchange Agent at the address indicated herein for
further instructions. This Letter of Transmittal and any related documents
cannot be processed until the procedures for replacing mutilated, lost, stolen
or destroyed certificates have been followed.
9. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and
requests for additional copies of the Prospectus or this Letter of Transmittal
may be directed to the Exchange Agent at the address specified in the
Prospectus. Holders may also contact their broker, dealer, commercial bank,
trust company or other nominee for assistance concerning the Exchange Offer.
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<PAGE> 11
IMPORTANT TAX INFORMATION
Under current federal income tax law, a Holder whose tendered Original
Notes are accepted for exchange is required to provide the Company (as payor),
through the Exchange Agent, with such Holder's correct taxpayer identification
number ("TIN") on Substitute Form W-9 or otherwise establish a basis for
exemption from backup withholding. If such Holder is an individual, the TIN is
such Holder's social security number. If the Exchange Agent is not provided
with the correct TIN or an adequate basis for exemption, the Holder may be
subject to a $50 penalty imposed by the Internal Revenue Service (the "IRS").
In addition, delivery of such Holder's New Notes may be subject to backup
withholding.
Certain Holders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. Exempt Holders should indicate their exempt status on the
Substitute Form W-9 enclosed herewith. A foreign individual may qualify as an
exempt recipient by submitting to the Exchange Agent a properly completed IRS
Form W-8 (which the Exchange Agent will provide upon request) signed under
penalty of perjury, attesting to the Holder's exempt status.
If backup withholding applies, the Company is required to withhold 31%
of any payment made to the Holder or other payee. Backup withholding is not an
additional federal income tax. Rather, the federal income tax liability of
persons subject to backup withholding will be reduced by the amount of tax
withheld. If withholding results in an overpayment of taxes, a refund may be
obtained from the IRS.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments that are made with respect
to Original Notes exchanged in the Exchange Offer, each Holder is required to
provide the Exchange Agent with either: (i) the Holder's correct TIN by
completing the form below, certifying that the TIN provided on Substitute Form
W-9 is correct (or that such Holder is awaiting a TIN) and that (A) the Holder
has not been notified by the IRS that he or she is subject to backup
withholding as a result of a failure to report all interest or dividends or (B)
the IRS has notified the Holder that he or she is no longer subject to backup
withholding, or (ii) an adequate basis for exemption.
WHAT NUMBER TO GIVE THE EXCHANGE AGENT
The Holder is required to give the Exchange Agent the TIN (e.g.,
social security number or employer identification number) of the record owner
of the Original Notes. If the Original Notes are held in more than one name or
are not held in the name of the actual owner, consult the Substitute Form W-9
for additional guidance regarding which number to be reported.
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<TABLE>
<S> <C> <C>
PAYER'S NAME: THE BANK OF NEW YORK
Name (if joint names, list first
and circle the name of the person
or entity whose number you enter in
SUBSTITUTE Part 1 below.)
FORM W-9 Social Security Number
DEPARTMENT OF THE TREASURY OR
Employer Identification Number
------------------------------------
INTERNAL REVENUE SERVICE ------------------------------------ ----------------------------------
Address
------------------------------------
City, State and Zip Code
Payer's Request for
Taxpayer ------------------------------------ PART 3--AWAITING TIN [ ]
Identification Number (TIN) PART 1--PLEASE PROVIDE YOUR TIN IN
THE BOX AT RIGHT AND CERTIFY BY
SIGNING AND DATING BELOW.
-------------------------------------------------------------------------------------------------------
PART 2--CERTIFICATION--Under Penalties of Perjury, I certify that:
(1) The number shown on this form is my correct Taxpayer Identification Number (or I am waiting
for a number to be issued to me), and
(2) I am not subject to backup withholding either because I have not been notified by the
Internal Revenue Service (the "IRS") that I am subject to backup withholding as a result of a
failure to report all interest or dividends, or the IRS has notified me that I am no longer
subject to backup withholding.
CERTIFICATION INSTRUCTIONS--You must cross out item (2) in Part 2 above if you have been notified by
the IRS that you are subject to backup withholding because of underreporting interest or dividends on
your tax return. However, if after being notified by the IRS that you were subject to backup
withholding you received another notification from the IRS stating that you are no longer subject to
backup withholding, do not cross out item (2).
-------------------------------------------------------------------------------------------------------
SIGNATURE DATE
--------------------------------------------------- -------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENT MADE TO YOU PURSUANT TO THE EXCHANGE
OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
DETAILS.
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<PAGE> 13
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU
CHECKED THE BOX IN PART 3 OF SUBSTITUTE FORM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer
identification number has not been issued to me, and either (a) I have
mailed or delivered an application to receive a taxpayer
identification number to the appropriate Internal Revenue Service
Center or Social Security Administration Office or (b) I intend to
mail or deliver such an application in the near future. I understand
that if I do not provide a taxpayer identification number within
sixty (60) days, 31% of all reportable payments made to me
thereafter will be withheld until I provide such a number.
___________________________ ___________________________
Signature Date
<TABLE>
(DO NOT WRITE IN SPACE BELOW)
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Principal Amount of Principal Amount of
Certificate Surrendered Original Notes Tendered Original Notes Accepted
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
Delivery Prepared by Checked by Date
------------- ----------------------- -------------------------------
</TABLE>
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