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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
HEARST-ARGYLE TELEVISION, INC.
(Exact name of registrant as specified in its charter)
Delaware 74-2717523
(State of incorporation or organization) (I.R.S. Employer Identification No.)
888 Seventh Avenue 10106
New York, New York (Zip Code)
(Address of principal executive offices)
If this Form relates to the registration of a class of debt securities
and is effective upon filing pursuant to General Instruction A.(c)(1), please
check the following box [_].
If this Form relates to the registration of a class of debt securities
and is to become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box [_].
Securities to be registered pursuant
to Section 12(b) of the Act:
NONE
Securities to be registered pursuant
to Section 12(g) of the Act:
SERIES A COMMON STOCK, PAR VALUE $.01 PER SHARE
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Item 1. Description of Registrant's Securities to be Registered
Set forth below is a description of the capital stock of Hearst-Argyle
Television, Inc. (the "Company") pursuant to the Company's Amended and Restated
Certificate of Incorporation (the "Certificate of Incorporation"), which
description replaces in its entirety the description of the capital stock of
Argyle Television, Inc. contained in a Form 8-A dated October 17, 1995.
Common Stock. The Company has 200 million shares of authorized common
stock, par value $.01 per share, with 100 million shares designated as Series A
Common Stock ("Series A Common Stock") and 100 million shares designated as
Series B Common Stock ("Series B Common Stock"). Except as otherwise described
below, the issued and outstanding shares of Series A Common Stock and Series B
Common Stock will vote together as a single class on all matters submitted to a
vote of stockholders, with each issued and outstanding share of Series A Common
Stock and Series B Common Stock entitling the holder thereof to one vote on all
such matters. With respect to any election of directors, (i) the holders of the
shares of Series A Common Stock will be entitled to vote separately as a class
to elect two members of the Company's Board of Directors (the Series A
Directors) and (ii) the holders of the shares of Series B Common Stock will be
entitled to vote separately as a class to elect the balance of the Company's
Board of Directors (the Series B Directors); provided, however, that the number
of Series B Directors shall not constitute less than a majority of the Company's
Board of Directors. Any director may resign at any time upon giving written
notice to the Company. The directors may only be removed for cause by a vote of
the holders of a majority of the Company's Common Stock voting together as a
class. Any Series A Director who resigns or is removed may be replaced only by
the remaining Series A Director or, if there are no remaining Series A
Directors, by a vote of the holders of a majority of the Series A Common Stock
voting separately as a class. Similarly, any Series B Director who resigns or is
removed may be replaced only by the remaining Series B Directors or, if there
are no remaining Series B Directors, by a vote of the holders of a majority of
the Series B Common Stock voting separately as a class. If no shares of Series A
Common Stock are issued and outstanding at any given time, then the holders of
shares of Series B Common Stock will elect all of the Company's directors.
Conversely, if no shares of Series B Common Stock are issued and outstanding,
then the holders of the shares of Series A Common Stock will elect all of the
Company's directors.
All of the outstanding shares of Series B Common Stock are required to
be held by The Hearst Corporation, a Delaware corporation ("Hearst"), or a
Permitted Transferee (as defined below). No holder of shares of Series B Common
Stock may transfer any such shares to any person other than to (i) Hearst; (ii)
any corporation into which Hearst is merged or consolidated or to which all or
substantially all of Hearst's assets are transferred; or, (iii) any entity
controlled by Hearst (each a "Permitted Transferee"). Series B Common Stock,
however, may be converted at any time into Series A Common Stock and freely
transferred, subject to the terms and conditions of the Company's Certificate of
Incorporation and to applicable securities laws limitations. If at any time the
Permitted Transferees first hold in the aggregate less than 20% of all shares of
the Company's Common Stock that are then issued and outstanding, then each
issued and outstanding share of Series B Common Stock automatically will be
converted into one fully-paid and nonassessable share of Series A Common Stock,
and the Company will not be entitled to issue any additional shares of Series B
Common Stock. Notwithstanding any other provision to the contrary, no holder of
Series B Common Stock shall (i) transfer any shares of Series B
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Common Stock; (ii) convert Series B Common Stock; or, (iii) be entitled to
receive any cash, stock, other securities or other property with respect to or
in exchange for any shares of Series B Common Stock in connection with any
merger or consolidation or sale or conveyance of all or substantially all of the
property or business of the Company as an entity, unless all necessary approvals
of the Federal Communications Commission ("FCC") as required by the
Communications Act of 1934, as amended (the "Communications Act"), and the rules
and regulations thereunder have been obtained or waived.
Preferred Stock. The Company has one million shares of authorized
preferred stock, par value $.01 per share. Under the Company's Certificate of
Incorporation, the Company has two issued and outstanding series of preferred
stock, Series A Preferred Stock and Series B Preferred Stock (collectively, the
"Preferred Stock"). Each series of Preferred Stock has 10,938 shares issued and
outstanding. The Preferred Stock has a cash dividend feature whereby each share
will accrue $65 per share annually, to be paid quarterly. The Series A Preferred
Stock is convertible at the option of the holders, at any time, into Series A
Common Stock at a conversion price of (i) on or before December 31, 2000, $35;
(ii) during the calendar year December 31, 2001, the product of 1.1 times $35;
and, (iii) during each calendar year after December 31, 2001, the product of 1.1
times the preceding year's conversion price. The Company has the option to
redeem all or a portion of the Series A Preferred Stock at any time after June
11, 2001 at a price equal to $1,000 per share plus any accrued and unpaid
dividends.
The holders of Series B Preferred Stock have the option to convert such
Series B Preferred Stock into shares of Series A Common Stock at any time after
June 11, 2001 at the average of the closing prices for the Series A Common Stock
for each of the 10 trading days prior to such conversion date. The Company has
the option to redeem all or a portion of the Series B Preferred Stock at any
time on or after June 11, 2001, at a price equal to $1,000 per share plus any
accrued and unpaid dividends.
The issued and outstanding shares of Series A Preferred Stock and
Series B Preferred Stock are entitled to vote on all matters submitted to a vote
of holders of Series A Common Stock, with such shares of Series A Preferred
Stock and Series B Preferred Stock voting together as a single class with the
shares of Series A Common Stock. Each share of Series A Preferred Stock is
entitled to the number of votes (rounded up to the next whole number) equal to
the number of shares of Series A Common Stock into which such share is
convertible. Each share of Series B Preferred Stock is entitled to (i) 29 votes,
if the record date for the stockholder meeting at which such votes are to be
cast is before July 11, 2001 or (ii) thereafter, the number of votes (rounded up
to the next whole number) equal to the number of shares of Series A Common Stock
into which such share is convertible. Except with respect to any proposal to
amend the Company's Certificate of Incorporation that may adversely affect the
rights of the respective series of Preferred Stock and except as required by
Delaware General Corporation Law ("DGCL"), neither the Series A Preferred Stock
nor the Series B Preferred Stock is entitled to vote separately as a class.
Foreign Ownership
Pursuant to the Company's Certificate of Incorporation and in order to
comply with FCC rules and regulations, the Company will not be permitted to
issue any shares of capital stock of
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the Company to (i) a person who is a citizen of a country other than the U.S.;
(ii) any entity organized under the laws of a government other than the
government of the U.S. or any state, territory or possession of the U.S.; (iii)
a government other than the government of the U.S. or any state, territory or
possession of the U.S.; (iv) a representative of, or an individual or entity
controlled by, any of the foregoing; or, (v) any other person or entity whose
alien status would be cognizable under the Communications Act (individually, an
"Alien;" collectively, "Aliens"), if such issuance would result in the total
number of shares of such capital stock held or voted by Aliens exceeding 25% of
(x) the capital stock outstanding at any time and from time to time or (y) the
total voting power of all shares of such capital stock outstanding and entitled
to vote at any time and from time to time. In addition, the Company will not be
permitted to transfer on the books of the Company any capital stock to any Alien
that would result in the total number of shares of such capital stock held or
voted by Aliens exceeding such 25% limits. The Company's Certificate of
Incorporation also provides that no Alien or Aliens, individually or
collectively, will be entitled to vote or direct or control the vote of more
than 25% of (i) the total number of all shares of capital stock of the Company
outstanding at any time and from time to time or (ii) the total voting power of
all shares of capital stock of the Company outstanding and entitled to vote at
any time and from time to time (or such limits greater or lesser than 25% as may
be subsequently imposed by statute or regulation). The Company's Board of
Directors will have the right to redeem any shares determined to be owned by an
Alien or Aliens, at the fair market value of the shares to be redeemed, if the
Board of Directors determines such redemption is necessary to comply with these
Alien ownership restrictions of the Communications Act and rules of the FCC.
Certain Anti-Takeover Matters
General. Certain provisions of the Company's Certificate of
Incorporation and the DGCL may have the effect of impeding the acquisition of
control of the Company by means of a tender offer, a proxy fight, open market
purchases or otherwise in a transaction not approved by the Company's Board of
Directors.
The provisions of the Company's Certificate of Incorporation and the
DGCL described below are designed to reduce, or have the effect of reducing, the
vulnerability of the Company to an unsolicited proposal for the restructuring or
sale of all or substantially all of the assets of the Company or an unsolicited
takeover attempt that is unfair to the Company's stockholders. The summary of
such provisions set forth below does not purport to be complete and is subject
to and qualified in its entirety by reference to the Company's Certificate of
Incorporation, the Company's bylaws and the DGCL.
The Company's Board of Directors has no present intention to introduce
additional measures that might have an anti-takeover effect. The Company's Board
of Directors, however, expressly reserves the right to introduce such measures
in the future.
Classified Board; Removal of Directors. The Company's Certificate of
Incorporation provides that the Company's Board of Directors shall consist of
not less than seven directors, with the exact number of directors to be
determined from time to time by the Company's Board of Directors and designated
in the bylaws. The Company's bylaws provide that the number of directors will be
11 and thereafter the minimum number of directors will be seven and the
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maximum number of directors will be 15. The Company's Certificate of
Incorporation further provides that the Company's Board of Directors will be
divided into two classes, as long as there are no more than two Series A
Directors, and that, after an initial term, each director will be elected for a
two-year term. The Company's Certificate of Incorporation also provides that, in
the event there are three or more Series A directors, the Company's Board of
Directors will be divided into three classes, and that, after an initial term,
each director will be elected for a three-year term. Whether there are two or
three classes of directors, the Series A Directors are to be divided among the
classes as equally as possible. A classified Board of Directors is intended to
assure the continuity and stability of the Company's Board of Directors and the
Company's business strategies and policies. The classified board provision could
increase the likelihood that, in the event of a takeover of the Company,
incumbent directors will retain their positions. In addition, the classified
board provision helps ensure that the Company's Board of Directors, if
confronted with an unsolicited proposal from a third party that has acquired a
block of the voting stock of the Company, will have sufficient time to review
the proposal and appropriate alternatives and to seek the best available result
for all stockholders. The directors may only be removed for cause by a vote of
the holders of a majority of the Company's Common Stock voting together as a
class.
Business Combinations. The Company, as a Delaware corporation, is
subject to Section 203 ("Section 203") of the DGCL. In general, subject to
certain exceptions, Section 203 prohibits a Delaware corporation from engaging
in a "business combination" with an "interested stockholder" for a period of
three years following the date that such stockholder became an interested
stockholder, unless (i) prior to such date the Board approved either the
business combination or the transaction that resulted in the stockholder
becoming an interested stockholder; (ii) upon consummation of the transaction
that resulted in the stockholder becoming an interested stockholder, the
interested stockholder owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced (excluding for purposes of
determining the number of shares outstanding those shares owned by (x) persons
who are directors and also officers and (y) employee stock plans in which
employee participants do not have the right to determine confidentially whether
or not shares held subject to the plan will be tendered in a tender or exchange
offer); or, (iii) at or subsequent to such time, the business combination is
approved by the Board and authorized at an annual or special meeting of
stockholders, and not by written consent, by the affirmative vote of at least
662/3% of the outstanding voting stock that is not owned by the interested
stockholder. Section 203 defines a "business combination" to include certain
mergers, consolidations, asset sales and stock issuances and certain other
transactions resulting in a financial benefit to an "interested stockholder." In
addition, Section 203 defines an "interested stockholder" to include any entity
or person beneficially owning 15% or more of the outstanding voting stock of the
corporation and any entity or person affiliated with such an entity or person.
Controlling Stockholder. Hearst currently owns 100% of the Company's
issued and outstanding Series B Common Stock, initially constituting in excess
of 80% of the outstanding shares of the Company's Common Stock. Hearst's
ownership of the Series B Common Stock may have the effect of impeding the
acquisition of control of the Company.
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Limitations on Director Liability
The Company's Certificate of Incorporation provides that, to the
fullest extent permitted by the DGCL, a director or former director of the
Company shall not be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director.
Registration Rights
The Company has executed a Registration Rights Agreement for the
benefit of certain holders of Series A Common Stock that are former partners of
Argyle Television Investors, L.P. (collectively, the "ATI Holders"). The
Registration Rights Agreement provides that the ATI Holders have the right,
subject to certain limitations and conditions, to require the Company to
register for distribution through a firm commitment underwriting all or any
portion of Series A Common Stock issued to them in the merger effective as of
August 29, 1997 of a wholly-owned subsidiary of Hearst with and into Argyle
Television, Inc. ("Argyle"), with Argyle as the surviving corporation renamed
"Hearst-Argyle Television, Inc." In addition, the ATI Holders also will have
piggyback registration rights with respect to any proposed offering of Series A
Common Stock for cash through a firm commitment underwriting sought by the
Company.
Transfer Agent and Registrar
The Transfer Agent and Registrar of Series A Common Stock is Harris
Trust and Savings Bank.
Listing
The Series A Common Stock is quoted on the Nasdaq National Market under
the trading symbol "HATV."
Item 2. Exhibits
2.1 Amended and Restated Agreement and Plan of Merger, dated as of
March 26, 1997, by and among The Hearst Corporation, HAT
Merger Sub, Inc., HAT Contribution Sub, Inc. and Argyle
Television, Inc. (incorporated by reference to Exhibit 2.1 of
the Company's Registration Statement on Form S-4 (File No.
333- 32487)).
4.1 Amended and Restated Certificate of Incorporation of the
Company (incorporated by reference to Appendix C of the
Company's Registration Statement on Form S-4 (File No.
333-32487)).
4.2 Amended and Restated Bylaws of the Company.
4.3 Form of specimen certificate representing shares of Series A
Common Stock.
4.4 Form of Registration Rights Agreement among the Company and
the Holders (incorporated by reference to Exhibit B to Exhibit
2.1 of the Company's Registration Statement on Form S-4 (File
No. 333-32487)).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
HEARST-ARGYLE TELEVISION, INC.
By: /s/ Dean H. Blythe
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Dean H. Blythe
Senior Vice President-Corporate Development,
Secretary and General Counsel
Date: September 5, 1997
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Exhibit Page
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<S> <C> <C>
2.1 Amended and Restated Agreement and Plan of
Merger, dated as of March 26, 1997, by and among
The Hearst Corporation, HAT Merger Sub, Inc., HAT
Contribution Sub, Inc. and Argyle Television, Inc.
(incorporated by reference to Exhibit 2.1 of the
Company's Registration Statement on Form S-4 (File
No. 333-32487)).
4.1 Amended and Restated Certificate of Incorporation of
the Company (incorporated by reference to Appendix
C of the Company's Registration Statement on Form
S-4 (File No. 333-32487)).
4.2 Amended and Restated Bylaws of the Company.
4.3 Form of specimen certificate representing shares of
Series A Common Stock.
4.4 Form of Registration Rights Agreement among the
Company and the Holders (incorporated by reference
to Exhibit B to Exhibit 2.1 of the Company's
Registration Statement on Form S-4 (File No. 333-
32487)).
</TABLE>
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EXHIBIT 4.2
AMENDED AND RESTATED BYLAWS
OF
HEARST-ARGYLE TELEVISION, INC.
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TABLE OF CONTENTS
AMENDED AND RESTATED BYLAWS
OF
HEARST-ARGYLE TELEVISION, INC.
<TABLE>
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Page
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<S> <C> <C>
ARTICLE I - OFFICES.................................................................. 1
Section 1. Registered Office............................................... 1
Section 2. Other Offices................................................... 1
ARTICLE II - MEETINGS OF THE STOCKHOLDERS............................................ 1
Section 1. Place of Meetings............................................... 1
Section 2. Annual Meeting.................................................. 1
Section 3. Special Meeting................................................. 1
Section 4. Notice of Annual or Special Meeting............................. 1
Section 5. Business at Special Meeting..................................... 2
Section 6. Quorum of Stockholders.......................................... 2
Section 7. Act of Stockholders' Meeting.................................... 2
Section 8. Voting of Shares................................................ 2
Section 9. Proxies......................................................... 3
Section 10. Voting List..................................................... 3
Section 11. Action by Written Consent Without a Meeting..................... 3
ARTICLE III - BOARD OF DIRECTORS..................................................... 4
Section 1. Powers.......................................................... 4
Section 2. Number of Directors............................................. 4
Section 3. Election and Term............................................... 4
Section 4. Vacancies....................................................... 4
Section 5. Resignation and Removal......................................... 5
Section 6. Compensation of Directors....................................... 5
Section 7. Chairman of the Board........................................... 5
ARTICLE IV - MEETINGS OF THE BOARD................................................... 5
Section 1. First Meeting................................................... 6
Section 2. Regular Meetings................................................ 6
Section 3. Special Meetings................................................ 6
Section 4. Business at Regular or Special Meeting.......................... 6
Section 5. Quorum of Directors............................................. 6
Section 6. Act of Directors' Meeting....................................... 6
Section 7. Action by Unanimous Written Consent Without a Meeting........... 6
Section 8. Interested Directors............................................ 6
ARTICLE V - COMMITTEES............................................................... 7
</TABLE>
(i)
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<TABLE>
<S> <C> <C>
ARTICLE VI - NOTICES................................................................. 8
Section 1. Methods of Giving Notice........................................ 8
Section 2. Waiver of Notice................................................ 8
Section 3. Attendance as Waiver............................................ 8
ARTICLE VII - DIRECTORS' ACTION WITHOUT A MEETING BY USE
OF CONFERENCE TELEPHONE................................................ 8
ARTICLE VIII - OFFICERS.............................................................. 9
Section 1. Executive Officers.............................................. 9
Section 2. Election and Qualification...................................... 9
Section 3. Salaries........................................................ 9
Section 4. Term, Removal and Vacancies..................................... 9
Section 5. Chief Executive Officer......................................... 9
Section 6. President....................................................... 9
Section 7. Vice Presidents................................................. 10
Section 8. Secretary....................................................... 10
Section 9. Chief Financial Officer......................................... 10
Section 10. Assistant Secretaries........................................... 10
Section 11. Treasurer....................................................... 10
Section 12. Assistant Treasurer............................................. 11
Section 13. Officers' Bond.................................................. 11
ARTICLE IX - CERTIFICATES FOR SHARES................................................. 11
Section 1. Certificates Representing Shares................................ 11
Section 2. Restriction on Transfer of Shares............................... 12
Section 3. Voting Agreements............................................... 12
Section 4. Transfer of Shares.............................................. 12
Section 5. Lost, Stolen or Destroyed Certificate........................... 12
Section 6. Closing of Transfer Books and Fixing Record Date................ 12
Section 7. Registered Stockholders......................................... 13
ARTICLE X - GENERAL PROVISIONS....................................................... 14
Section 1. Dividends....................................................... 14
Section 2. Reserves........................................................ 14
Section 3. Negotiable Instruments.......................................... 14
Section 4. Fiscal Year..................................................... 14
Section 5. Seal............................................................ 14
Section 6. Books and Records............................................... 14
ARTICLE XI - INDEMNIFICATION......................................................... 15
Section 1. Mandatory Indemnification....................................... 15
Section 2. Mandatory Advancement of Expenses............................... 15
ARTICLE XII - AMENDMENTS............................................................. 15
</TABLE>
(ii)
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AMENDED AND RESTATED BYLAWS
OF
HEARST-ARGYLE TELEVISION, INC.
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office shall be located in
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the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The corporation also may have offices at such
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other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or as the business of the corporation
may require.
ARTICLE II
MEETINGS OF THE STOCKHOLDERS
Section 1. Place of Meetings. All meetings of the stockholders for the
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election of directors or for any other proper purpose shall be held at such
place either within or without the State of Delaware as the Board of Directors
may from time to time designate, as stated in the notice of such meeting or a
duly executed waiver of notice thereof.
Section 2. Annual Meeting. An annual meeting of the stockholders shall
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be held at such time and date as the Board of Directors may determine. At such
meeting the stockholders entitled to vote thereat shall elect a Board of
Directors and may transact such other business as properly may be brought before
the meeting.
Section 3. Special Meeting. Special meetings of the stockholders may be
---------------
called by the Chairman of the Board of Directors, the President, the Board of
Directors or the holders of not less than ten percent (10%) of all shares
entitled to vote at the meeting.
Section 4. Notice of Annual or Special Meeting. Written or printed
-----------------------------------
notice stating the location, day and hour of the meeting and, in case of a
special meeting, the purpose or purposes for which the meeting is called, shall
be delivered not less than ten (10) nor more than sixty (60) days before the
date of the meeting, either personally or by mail, by or at the direction of the
Chairman of the Board, the President, the Secretary, or the officer or person
calling the meeting, to each stockholder of record entitled to vote at such
meeting. If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail, addressed to the stockholder at his address as it
appears on the stock transfer books of the corporation, with postage thereon
prepaid.
<PAGE>
Section 5. Business at Special Meeting. The business transacted at any
---------------------------
special meeting of the stockholders shall be limited to the purposes stated in
the notice thereof.
Section 6. Quorum of Stockholders. Unless otherwise provided in the
----------------------
Certificate of Incorporation or applicable law, the holders of a majority of the
shares entitled to vote, represented in person or by proxy, shall constitute a
quorum at a meeting of the stockholders. If, however, a quorum shall not be
present or represented at any meeting of the stockholders, the stockholders
present in person or represented by proxy shall have power to adjourn the
meeting from time to time, without notice other than announcement of location,
day, and hour of the adjourned meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified, unless the adjournment is for more than
thirty (30) days or a new record date is fixed for the adjourned meeting, in
which case notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at such meeting. The stockholders present at a duly
organized meeting may continue to transact business until adjournment, and the
subsequent withdrawal of any stockholder or the refusal of any stockholder to
vote shall not affect the presence of quorum at the meeting.
Section 7. Act of Stockholders' Meeting. Except with respect to the
----------------------------
election of directors, the vote of the holders of a majority of the shares
entitled to vote and represented in person or by proxy at a meeting at which a
quorum is present shall be the act of the stockholders' meeting, unless the vote
of a greater number is required by law or the Certificate of Incorporation.
Unless otherwise provided in the Certificate of Incorporation, directors shall
be elected by a plurality of the votes cast by the holders of shares entitled to
vote in the election of directors at a meeting of stockholders at which a quorum
is present and all elections of directors shall be by written ballot. Where a
separate vote by a class or classes is required, a majority of the outstanding
shares of such class or classes, present in person or represented by proxy,
shall constitute a quorum entitled to take action with respect to that vote on
that matter and the affirmative vote of the majority of shares of such class or
classes present in person or represented by proxy at the meeting shall be the
act of such class.
Section 8. Voting of Shares. Each outstanding share shall be entitled
----------------
to one vote on each matter submitted to a vote at a meeting of the stockholders,
except to the extent that the voting rights of the shares of any class are
limited or denied by the Certificate of Incorporation or by a resolution of the
Board of Directors designating a series of preferred stock. At each election for
directors, every stockholder entitled to vote at such election shall have the
right to vote, in person or by proxy, the number of shares owned by him for as
many persons as there are directors to be elected and for whose election he has
the right to vote. Unless permitted by the Certificate of Incorporation, no
stockholder shall be entitled to cumulate his votes by giving one candidate as
many votes as the number of such
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directors to be elected multiplied by the number of shares owned by such
stockholder or by distributing such votes on the same principle among any number
of such candidates.
Section 9. Proxies. At any meeting of the stockholders, each
-------
stockholder having the right to vote shall be entitled to vote either in person
or by proxy executed in writing by the stockholder or by his duly authorized
attorney-in-fact. No proxy shall be valid after three (3) years from its date of
execution unless otherwise provided in the proxy. Each proxy shall be revocable
unless expressly provided therein to be irrevocable and the proxy is coupled
with an interest or otherwise made irrevocable by law.
Section 10. Voting List. The officer or agent having charge of the
-----------
stock ledger of the corporation shall make, at least ten (10) days before each
meeting of the stockholders, a complete list of the stockholders entitled to
vote at such meeting or any adjournment thereof, arranged in alphabetical order,
with the address of and number of shares held by each, which list shall be
maintained, for a period of ten (10) days prior to such meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held, and shall be subject to inspection by any
stockholder at any time during ordinary business hours. Such list shall also be
produced and kept open at the time and place of the meeting and shall be subject
to the inspection of any stockholder during the whole time of the meeting. The
original stock ledger shall be the only evidence as to who are the stockholders
entitled to examine such list or transfer books of the corporation or to vote at
any such meeting of stockholders.
Section 11. Action by Written Consent Without a Meeting. Any action
-------------------------------------------
required or permitted by law, the Certificate of Incorporation, or these Bylaws
to be taken at a meeting of the stockholders may be taken without a meeting,
without prior notice, and without a vote, if a consent in writing, setting forth
the action so taken, is signed by the holders of stock having not less than the
minimum number of votes that would be necessary to take such action at a meeting
at which the holders of all shares entitled to vote on the action were present
and voting. Consent does not have to be unanimous. Every written consent must
bear the date of signature of each stockholder who signs the consent. No written
consent shall be effective to take the action that is the subject of the consent
unless, within sixty (60) days after the date of the earliest dated consent
delivered to the corporation in the manner required by this Section 11, a
consent or consents signed by the holder or holders of shares having not less
than the minimum number of votes that would be necessary to take the action that
is the subject of the consent are delivered to the corporation by delivery to
its registered office, its principal place of business, or an officer or agent
of the corporation having custody of the books in which proceedings of meetings
of stockholders are recorded. Delivery shall be by hand or certified or
registered mail, return receipt requested. Delivery to the corporation's
principal place of business shall be addressed to the President or Chief
Executive Officer of the Corporation. Prompt notice of the taking
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of any action by stockholders without a meeting by less than unanimous written
consent shall be given to those stockholders who did not consent in writing to
the action.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Powers. The business and affairs of the corporation shall be
------
managed by or under the direction of its Board of Directors, which may exercise
all such powers of the corporation and do all such lawful acts and things as are
not by statute or by the Certificate of Incorporation or by these Bylaws
directed or required to be exercised and done by the stockholders.
Section 2. Number of Directors. The number of directors shall be eleven
-------------------
(11); thereafter, the number of directors shall consist of no fewer than seven
(7) members and no more than fifteen (15) members as determined from time to
time in accordance with these Bylaws by resolution of the Board of Directors,
but no decrease in the number of directors shall have the effect of shortening
the term of any incumbent director.
Section 3. Election and Term. The directors shall be elected at the
-----------------
annual meetings of stockholders as specified in the Certificate of Incorporation
except as otherwise provided in the Certificate of Incorporation and in Section
4 of this Article, and each director of the corporation shall hold office until
such director's successor is elected and qualified or until such director's
earlier death, resignation or removal. Unless required by the Certificate of
Incorporation, directors need not be residents of the State of Delaware or
stockholders of the corporation.
Section 4. Vacancies. Any vacancy occurring in the Board of Directors
---------
shall be filled by the affirmative vote of a majority of the remaining directors
though less than a quorum of the Board of Directors, or by a sole remaining
director, or if no directors remain, by an election at an annual or special
meeting of the stockholders called for that purpose. 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 may be filled by the affirmative vote of a majority of the directors.
A director elected to fill a newly created directorship shall hold office until
his successor is elected and qualified or until his death, resignation or
removal.
Notwithstanding the preceding provisions of this Section 4, whenever
the holders of any class or series of shares are entitled to elect one or more
directors by the provisions of the Certificate of Incorporation, any vacancies
in such directorships and any newly created directorships of such class or
series to be filled by reason of an increase in the number of
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such directors may be filled by the affirmative vote of a majority of the
directors elected by such class or series then in office or by a sole remaining
director so elected.
Unless otherwise provided in the Certificate of Incorporation or these
Bylaws, when one (1) or more directors shall resign from the Board of Directors
effective at a future date, a majority of the directors then in office,
including those who so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or resignations
shall become effective, and each director so chosen shall hold office as
provided in this Section 4 in the filling of other vacancies.
Section 5. Resignation and Removal. Any director may resign at any time
-----------------------
upon giving written notice to the corporation. Except as otherwise provided by
the Certificate of Incorporation, at any meeting of stockholders called
expressly for the purpose of removing a director or directors, any director or
the entire Board of Directors may be removed, for cause, by a vote of the
holders of a majority of the shares then entitled to vote at an election of
directors.
Section 6. Compensation of Directors. As specifically prescribed from
-------------------------
time to time by resolution of the Board of Directors, the directors of the
corporation may be paid their expenses of attendance at each meeting of the
Board and may be paid a fixed sum for attendance at each meeting of the Board or
a stated salary in their capacity as directors. This provision shall not
preclude any director from serving the corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees may
be allowed like compensation for attending committee meetings.
Section 7. Chairman of the Board. The Board of Directors, at its first
---------------------
meeting after each annual meeting of stockholders, shall elect one of its
members Chairman of the Board. The Chairman of the Board shall preside at all
meetings of the Board of Directors and shall have such other powers and duties
as usually pertain to such position or as may be delegated by the Board of
Directors.
ARTICLE IV
MEETINGS OF THE BOARD
Section 1. First Meeting. The first meeting of each newly elected Board
-------------
of Directors shall be held immediately following the annual meeting of the
stockholders and no notice of such meeting shall be necessary to the newly
elected directors in order legally to constitute the meeting, provided a quorum
shall be present.
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Section 2. Regular Meetings. Regular meetings of the Board of Directors
----------------
may be held with or without notice at such time and at such place either within
or without the State of Delaware as from time to time shall be prescribed by the
Board of Directors.
Section 3. Special Meetings. Special meetings of the Board of Directors
----------------
may be called by the Chairman of the Board, the President or by a majority of
the Board of Directors. Written notice of special meetings of the Board of
Directors shall be given to each director at least twenty-four (24) hours before
the time of the meeting.
Section 4. Business at Regular or Special Meeting. Neither the business
--------------------------------------
to be transacted at, nor the purpose of, any regular or special meeting of the
Board of Directors need be specified in the notice or waiver of notice of such
meeting.
Section 5. Quorum of Directors. A majority of the Board of Directors
-------------------
shall constitute a quorum for the transaction of business, unless a greater
number is required by law or the Certificate of Incorporation. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 6. Act of Directors' Meeting. The act of a 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 act of a greater number is required by law or
the Certificate of Incorporation.
Section 7. Action by Unanimous Written Consent Without a Meeting. Any
-----------------------------------------------------
action required or permitted to be taken at a meeting of the Board of Directors
or any executive committee under the provisions of any applicable law, the
Certificate of Incorporation or these Bylaws may be taken without a meeting if a
consent in writing setting forth the action so taken is signed by all members of
the Board of Directors or of the executive committee, as the case may be, and
such consent is filed with the minutes of proceedings of the Board of Directors
or the executive committee, as the case may be. Such consent shall have the same
force and effect as a unanimous vote of the Board of Directors or of the
executive committee, as the case may be.
Section 8. Interested Directors. No contract or transaction between the
--------------------
corporation and one or more of its directors or officers, or between the
corporation and any other corporation, partnership, association, or other
organization in which one (1) or more of its directors or officers are directors
or officers or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof that
authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose, if:
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(a) The material facts as to his relationship or interest and
as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board of Directors or
committee in good faith authorizes the contract or transaction by the
affirmative vote of a majority of the disinterested directors, even
though the disinterested directors be less than a quorum; or
(b) The material facts as to his relationship or interest and
as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction
is specifically approved in good faith by vote of the stockholders; or
(c) The contract or transaction is fair as to the corporation
as of the time it is authorized, approved, or ratified by the Board of
Directors, a committee thereof, or the stockholders.
Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee that authorizes
the contract or transaction.
ARTICLE V
COMMITTEES
The Board of Directors, by resolution adopted by a majority of the full
Board of Directors, may designate from among its members an executive committee
and one or more other committees, each of which, to the extent provided in such
resolution or in the Certificate of Incorporation or in these Bylaws, shall have
and may exercise all the authority of the Board of Directors, subject to the
limitations imposed by applicable law. The Board of Directors, by resolution
adopted by a majority of the full Board of Directors, may designate one or more
of its members as alternate members of any committee, who may, subject to any
limitations imposed by the Board of Directors, replace absent or disqualified
members at any meeting of that committee. Vacancies in the membership of any
such committee shall be filled by resolution adopted by the majority of the full
Board of Directors at a regular or special meeting of the Board. The designation
of any such committee and the delegation thereto of authority shall not operate
to relieve the Board of Directors, or any member thereof, of any responsibility
imposed upon it or him by law. All committees shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required. To the
extent applicable, the provisions of Article IV of these Bylaws governing the
meetings of the Board of Directors shall likewise govern the meetings of any
committee thereof. Any member of the executive committee or any other committee
may be removed by the Board of Directors by the affirmative vote of a majority
of the full Board, whenever in its judgment the best interests of the
corporation will be served thereby.
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ARTICLE VI
NOTICES
Section 1. Methods of Giving Notice. Whenever any notice is required to
------------------------
be given to any stockholder or director under the provisions of any law, the
Certificate of Incorporation or these Bylaws, it shall be given in writing and
delivered personally or mailed to such stockholder or director at such address
as appears on the books of the corporation, and such notice shall be deemed to
be given at the time the same shall be deposited in the United States mail with
sufficient postage thereon prepaid. Notice to directors may also be given by
telegram, telex, telecopy or similar means of visual data transmission, and
notice given by any of such means shall be deemed to be delivered when
transmitted for delivery to the recipient.
Section 2. Waiver of Notice. Whenever any notice is required to be
----------------
given to any stockholder or director under the provisions of any law, the
Certificate of Incorporation or these Bylaws, a waiver thereof in writing signed
by the person or persons entitled to said notice, whether before or after the
time stated therein, shall be deemed equivalent to the giving of such notice.
Section 3. Attendance as Waiver. Attendance of a stockholder or
--------------------
director at a meeting shall constitute a waiver of notice of such meeting,
except where a stockholder or director attends a meeting for the express purpose
of objecting, at the beginning of the meeting, to the transaction of any
business on the ground that the meeting is not lawfully called or convened.
Neither the business to be transacted at, nor the purpose of, a meeting need be
specified in any written waiver unless required by the Certificate of
Incorporation or these Bylaws.
ARTICLE VII
DIRECTORS' ACTION WITHOUT A MEETING BY USE
OF CONFERENCE TELEPHONE
Subject to the provisions required or permitted for notice of meetings,
unless otherwise restricted by the Certificate of Incorporation or these Bylaws,
members of the Board of Directors or members of any committee designated by such
Board of Directors may participate in and hold a meeting of such Board of
Directors or committee by conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in such a meeting shall constitute presence in
person at such meeting, except where a person participates in the meeting for
the express purpose of objecting, at the beginning of the meeting, to the
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transaction of any business on the ground that the meeting is not lawfully
called or convened.
ARTICLE VIII
OFFICERS
Section 1. Executive Officers. The officers of the corporation shall
------------------
consist of a President and a Secretary, and may also include one or more Vice
Presidents, a Treasurer, and such other officers as are provided for in this
Article VIII, each of whom shall be elected by the Board of Directors as
provided in Section 2 of this Article. Any two (2) or more offices may be held
by the same person.
Section 2. Election and Qualification. The Board of Directors, at its
--------------------------
first meeting held immediately after each annual meeting of stockholders, shall
choose a President and a Secretary. The Board of Directors also may elect one or
more Vice Presidents, a Treasurer, and such other officers, including assistant
officers and agents as may be deemed necessary, who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors.
Section 3. Salaries. The compensation of all officers and agents of the
--------
corporation shall be determined by the Board of Directors.
Section 4. Term, Removal and Vacancies. Each officer of the corporation
---------------------------
shall hold office until his successor is chosen and qualified or until his
death, resignation, or removal. Any officer may resign at any time upon giving
written notice to the corporation. Any officer or agent or member of the
executive committee elected or appointed by the Board of Directors may be
removed by the Board of Directors with or without cause, but such removal shall
be without prejudice to the contract rights, if any, of the person so removed.
Election or appointment of an officer or agent shall not of itself create
contract rights. Any vacancy occurring in any office of the corporation by
death, resignation, removal or otherwise shall be filled by the Board of
Directors.
Section 5. Chief Executive Officer. Unless the Board of Directors
-----------------------
designates otherwise, the President shall be the Chief Executive Officer of the
corporation. The Chief Executive Officer shall preside at all meetings of the
stockholders. The Chief Executive Officer shall have such other powers and
duties as usually pertain to such office or as may be delegated by the Board of
Directors.
Section 6. President. The President shall be ex-officio a member of all
---------
standing committees and shall have general powers of oversight, supervision and
management of the business and affairs of the corporation, and shall see that
all orders and resolutions of the Board of Directors are carried into effect.
The President shall have such other powers and
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duties as usually pertain to such office or as may be prescribed by the Board of
Directors. He shall execute bonds, mortgages, instruments, contracts,
agreements, and other documentation, except where the signing and execution
thereof shall be expressly delegated by the Board of Directors to some other
officer or agent of the corporation.
Section 7. Vice Presidents. Unless otherwise determined by the Board of
---------------
Directors, the Vice Presidents, in the order of their seniority as such
seniority may from time to time be designated by the Board of Directors, shall
perform the duties and exercise the powers of the President in the absence or
disability of the President. They shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
Section 8. Secretary. The Secretary shall attend all meetings of the
---------
Board of Directors and all meetings of the stockholders, and shall record all
the proceedings of the meetings of the stockholders and of the Board of
Directors in books to be kept for that purpose, and shall perform like duties
for the standing committees when required. He shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the Board
of Directors. He shall keep in safe custody the seal of the corporation, and,
when authorized by the Board of Directors, affix the same to any instrument
requiring it. When so affixed, such seal shall be attested by his signature or
by the signature of the Treasurer or an Assistant Secretary.
Section 9. Chief Financial Officer. The Chief Financial Officer shall
-----------------------
oversee all financial affairs of the corporation and shall perform such other
duties as may be prescribed from time to time by the Board of Directors, the
Chief Executive Officer, or the President.
Section 10. Assistant Secretaries. Unless otherwise determined by the
---------------------
Board of Directors, the Assistant Secretaries, in the order of their seniority
as such seniority may from time to time be designated by the Board of Directors,
shall perform the duties and exercise the powers of the Secretary in the absence
or disability of the Secretary. They shall perform such other duties and have
such other powers as the Board of Directors may from time to time prescribe.
Section 11. Treasurer. The Treasurer shall have the custody of the
---------
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the corporation as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements, and shall
perform such other duties and have such other powers as the Board of Directors
may from time to time prescribe.
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Section 12. Assistant Treasurer. Unless otherwise determined by the
-------------------
Board of Directors, the Assistant Treasurer shall perform the duties and
exercise the powers of the Treasurer in the absence or disability of the
Treasurer. He shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
Section 13. Officers' Bond. If required by the Board of Directors, any
--------------
officer so required shall give the corporation a bond (which shall be renewed as
the Board of Directors may require) in such sum and with such surety or sureties
as shall be satisfactory to the Board of Directors for the faithful performance
of the duties of his office and for the restoration to the corporation, in case
of his death, resignation, retirement or removal from office, of any and all
books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the corporation.
ARTICLE IX
CERTIFICATES FOR SHARES
Section 1. Certificates Representing Shares. The corporation shall
--------------------------------
deliver certificates representing all shares to which stockholders are entitled.
Such certificates shall be numbered and shall be entered in the books of the
corporation as they are issued, and shall be signed by the Chairman of the Board
of Directors, the President or a Vice President, and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
corporation, and may be sealed with the seal of the corporation or a facsimile
thereof. Any or all signatures on the certificate may be a facsimile. In case
any officer who has signed or whose facsimile signature has been placed upon
such certificate shall have ceased to be such officer before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer at the date of its issuance. If the corporation is authorized to
issue shares of more than one class, there shall be set forth upon the face or
back of the certificate a statement that the corporation will furnish to any
stockholder upon request and without charge a full statement of all of the
powers, designations, preferences, limitations and relative, participating,
optional, or other special rights of the shares of each class authorized to be
issued and the qualifications, limitations or restrictions of such preferences
and/or rights and, if the corporation is authorized to issue any preferred or
special class in series, the variations in the relative rights and preferences
between the shares of each such series so far as the same have been fixed and
determined and the authority of the Board of Directors to fix and determine the
relative rights and preferences of subsequent series. Each certificate
representing shares shall state upon the face thereof that the corporation is
organized under the laws of the State of Delaware, the name of the person to
whom issued, the number and the class and the designation of the series, if any,
which such certificate represents and the par value of each share represented by
such certificate or a statement that the shares are without par value. No
certificate shall be issued for any share until the consideration therefor has
been fully paid.
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Section 2. Restriction on Transfer of Shares. If any restriction on the
---------------------------------
transfer, or registration of the transfer, of shares shall be imposed or agreed
to by the corporation, as permitted by law, the Certificate of Incorporation, or
these Bylaws, such restriction shall be noted conspicuously on each certificate
representing shares in accordance with applicable law.
Section 3. Voting Agreements. A written counterpart of any voting
-----------------
agreement entered into among any number of stockholders of the corporation, or
any number of stockholders of the corporation and the corporation itself, for
the purpose of providing that shares of the corporation shall be voted in the
manner prescribed in the agreement shall be deposited with the corporation at
its registered office in Delaware and shall be subject to the inspection by any
stockholder of the corporation or any beneficiary of the agreement daily during
business hours. In addition, certificates of stock or uncertificated stock shall
be issued to the person or persons, or corporation or corporations authorized to
act as trustee for purposes of vesting in such person or persons, corporation or
corporations, the right to vote such shares, to represent any stock of an
original issue so deposited with him or them, and any certificates of stock or
uncertificated stock so transferred to the voting trustee or trustees shall be
surrendered and cancelled and new certificates or uncertificated stock shall be
issued therefore to the voting trustee or trustees. In the certificate so
issued, if any, it shall be stated that it is issued pursuant to such agreement,
and that fact shall also be stated in the stock ledger of the corporation.
Section 4. Transfer of Shares. Subject to the provisions of Section 7
------------------
of this Article IX, upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate, and record the transaction upon its books.
Section 5. Lost, Stolen or Destroyed Certificate. The Board of
-------------------------------------
Directors may direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the corporation alleged to
have been lost, stolen or destroyed upon the making of an affidavit of that fact
by the person claiming the certificate to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors, in its discretion and as a condition precedent to the issuance
thereof, may require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the corporation a bond in such sum as it may
direct to indemnify the corporation against any claim that may be made against
the corporation with respect to the certificate alleged to have been lost,
stolen or destroyed or the issuance of such new certificate.
Section 6. Closing of Transfer Books and Fixing Record Date. For the
------------------------------------------------
purpose of determining stockholders entitled to notice of or to vote at any
meeting of stockholders
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or any adjournment thereof, or entitled to receive payment of any dividend or
other distribution, or in order to make a determination of stockholders for any
other proper purpose (other than determining stockholders entitled to consent to
action taken by stockholders that is proposed to be taken without a meeting of
stockholders), the Board of Directors may fix a date as the record date for any
such determination of stockholders, such date to not precede the date of
adoption of the resolution fixing the record date, and such date to be not more
than sixty (60) days, and, in case of a meeting of stockholders, not less than
ten (10) 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 of or to vote at a meeting of
stockholders, or stockholders entitled to receive payment of a dividend or other
distribution, or for any other proper purpose, the close of business on the day
next preceding the date on which notice of the meeting is mailed or if notice is
waived, the close of business on the day next preceding the day on which the
meeting is held or the date on which the resolution of the Board of Directors
declaring such dividend or relating to such other proper purpose 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 6, such
determination shall apply to any adjournment thereof; provided that the Board of
Directors may fix a new record date for the adjourned meeting. Whenever action
by stockholders is proposed to be taken by consent in writing without a meeting
of stockholders, the Board of Directors may fix a record date for the purpose of
determining stockholders entitled to consent to that action, which record date
shall not precede, and shall not be more than ten (10) days after, the date upon
which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors and the
prior action of the Board of Directors is not required by law, the record date
for determining stockholders entitled to consent to action in writing without a
meeting shall be the first date on which a signed written consent setting forth
the action taken or proposed to be taken is delivered to the corporation by
delivery to its registered office, its principal place of business, or an
officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery to the
corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date shall have been fixed by the
Board of Directors and prior action of the Board of Directors is required by
law, the record date for determining stockholders entitled to consent to action
in writing without a meeting shall be at the close of business on the date on
which the Board of Directors adopts a resolution taking such prior action.
Section 7. Registered Stockholders. The corporation shall be entitled
-----------------------
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and shall not
be bound to recognize any equitable or other claim to or interest in such share
or shares on the part of any other person, whether or not it shall have express
or other notice thereof, except as otherwise provided by the laws of the State
of Delaware.
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ARTICLE X
GENERAL PROVISIONS
Section 1. Dividends. The Board of Directors from time to time may
---------
declare, and the corporation may pay, dividends on its outstanding shares in
cash, property, or its own shares pursuant to law and subject to the provisions
of the Certificate of Incorporation and these Bylaws.
Section 2. Reserves. The Board of Directors may by resolution create a
--------
reserve or reserves out of earned surplus for any proper purpose or purposes,
and may abolish any such reserve in the same manner.
Section 3. Negotiable Instruments. All bills, notes, checks or
----------------------
instruments for the payment of money shall be signed by such officer or officers
or such other person or persons as permitted by these Bylaws or in such manner
as the Board of Directors from time to time may designate.
Section 4. Fiscal Year. The fiscal year of the corporation shall be
-----------
fixed by resolution of the Board of Directors.
Section 5. Seal. The corporate seal shall have inscribed thereon the
----
name of the corporation and may be used by causing it or a facsimile thereof to
be impressed or affixed or in any other manner reproduced.
Section 6. Books and Records. The corporation shall keep books and
-----------------
records of account and shall keep minutes of the proceedings of the
stockholders, the Board of Directors, and each committee of the Board of
Directors. The corporation shall keep at its registered office or principal
place of business, or at the office of its transfer agent or registrar, a record
of the original issuance of shares issued by the corporation and a record of
each transfer of those shares that have been presented to the corporation for
registration of transfer. Such records shall contain the names and addresses of
all past and current stockholders of the corporation and the number and class of
shares issued by the corporation held by each of them. Any books, records,
minutes, and share transfer records may be in written form or in any other form
capable of being converted into written form within a reasonable time.
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ARTICLE XI
INDEMNIFICATION
Section 1. Mandatory Indemnification. To the fullest extent permitted
-------------------------
by the General Corporation Law of Delaware, as the same may be amended from time
to time, the corporation shall indemnify any and all of its directors and
officers, or former directors and officers, or any person who is serving or has
served at the corporation's request as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise.
Section 2. Mandatory Advancement of Expenses. To the fullest extent
---------------------------------
permitted by the General Corporation Law of Delaware, as the same may be amended
from time to time, the corporation shall pay in advance all expenses (including
attorneys' fees) incurred by any director or officer, or former director or
officer, or any person who is serving or has served at the corporation's request
as a director or officer of another corporation, partnership, joint venture,
trust or other enterprise, in defending any civil, criminal, administrative or
investigative action, suit or proceeding. Such person shall repay such amount to
the corporation if it shall ultimately be determined that he is not entitled to
be indemnified by the corporation as authorized by this Article XI.
ARTICLE XII
AMENDMENTS
These Bylaws may be altered, amended, or repealed or new Bylaws may be
adopted by the Board of Directors at any regular or special meeting of the
Board, subject to the stockholders' right to adopt, amend or repeal these Bylaws
or adopt new Bylaws.
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CERTIFICATE OF SECRETARY
------------------------
The undersigned does hereby certify that (i) he is the duly elected and
qualified Secretary of Hearst-Argyle Television, Inc., a Delaware corporation
(the "Corporation"), and (ii) the foregoing is a true and correct copy of the
Amended and Restated Bylaws of the Corporation.
/s/ Dean H. Blythe
-----------------------------------
Dean H. Blythe
September 3, 1997
------------------------------------
Date
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EXHIBIT 4.3
Hearst-Argyle
---------------------
TELEVISION, INC.
NUMBER SHARES
- ------------------ -----------------
HA
HEARST-ARGYLE TELEVISION, INC.
- ------------------ -----------------
THIS CERTIFICATE IS TRANSFERABLE IN CHICAGO, ILLINOIS AND NEW YORK, NEW YORK
PAR VALUE $.01 PER SHARE
INCORPORATED UNDER SEE REVERSE SIDE FOR CUSIP 422317 10 7
THE LAWS OF THE RESTRICTIVE LEGENDS SEE REVERSE FOR
STATE OF DELAWARE CERTAIN DEFINITIONS
- --------------------------------------------------------------------------------
THIS CERTIFIES THAT
is the owner of
- --------------------------------------------------------------------------------
FULLY PAID AND NON-ASSESSABLE SHARES OF SERIES A COMMON STOCK OF
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- ------------------------HEARST-ARGYLE TELEVISION, INC.--------------------------
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transferable on the books of the Corporation by the holder hereof in person or
by duly authorized Attorney, upon surrender of this Certificate, properly
endorsed.
This Certificate is not valid until countersigned and registered by the
Transfer Agent and Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signatures
of its duly authorized officers.
CERTIFICATE OF STOCK
Dated:
[CORPORATE SEAL OF
/s/ Dean H. Blythe HEARST-ARGYLE /s/ Bob Marbut
TELEVISION, INC.
Secretary APPEARS HERE] Chairman
COUNTERSIGNED AND REGISTERED;
HARRIS TRUST AND SAVINGS BANK
(CHICAGO, ILLINOIS)
TRANSFER AGENT AND REGISTRAR
BY
AUTHORIZED SIGNATURE
(C) SECURITY-COLUMBIAN UNITED STATES BANKNOTE COMPANY 1960
<PAGE>
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO
REQUESTS THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF AND
THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR
RIGHTS.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT -- ____________________ Custodian ____________________
(Cust) (Minor)
under Uniform Gifts to Minors
Act ________________________________
(State)
Additional abbreviations may also be used though not in the above list.
For Value Received, ______________________ hereby sell, assign and
transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
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________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
_________________________________________________________________________ Shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
_______________________________________________________________________ Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated ______________________________
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NOTICE: THE SIGNATURE TO THIS ASSIGNMENT
MUST CORRESPOND WITH THE NAME AS WRITTEN
UPON THE FACE OF THE CERTIFICATE IN
EVERY PARTICULAR WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER.
Signature Guaranteed:
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THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND
LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN
AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM),
PURSUANT TO S.E.C. RULE 17Ad-15.
PURSUANT TO THE AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF
HEARST-ARGYLE TELEVISION, INC. (THE "CORPORATION") ON FILE IN THE OFFICE OF THE
SECRETARY OF STATE OF THE STATE OF DELAWARE, THE CORPORATION HAS THE RIGHT UNDER
CERTAIN CIRCUMSTANCES TO REPURCHASE SHARES OF THE COMMON STOCK OF THE
CORPORATION OWNED BY PERSONS WHO ARE ALIENS TO THE UNITED STATES OF AMERICA. THE
CORPORATION WILL FURNISH A COPY OF SAID AMENDED AND RESTATED CERTIFICATE OF
INCORPORATION, AS FURTHER AMENDED FROM TIME TO TIME, TO THE RECORD HOLDER OF
THIS CERTIFICATE WITHOUT CHARGE UPON WRITTEN REQUEST TO THE CORPORATION AT ITS
PRINCIPAL PLACE OF BUSINESS OR REGISTERED OFFICE.
