Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CCE SPINCO, INC
CCE SPINCO, INC, a corporation organized and existing under the laws of the State of Delaware
(the Corporation), DOES HEREBY CERTIFY AS FOLLOWS:
1. The name of the Corporation is CCE Spinco, Inc. The Corporation was originally incorporated
under the name CCE Spinco, Inc and the original Certificate of Incorporation was filed with the
Secretary of State of the State of Delaware on August 2, 2005.
2. This Amended and Restated Certificate of Incorporation (this Certificate of
Incorporation) was duly adopted in accordance with Section 245 of the General Corporation Law of
the State of Delaware. Pursuant to Sections 242 and 228 of the General Corporation Law of the State
of Delaware, the amendments and restatement herein set forth have been duly adopted by the Board of
Directors and the sole stockholder of the Corporation.
3. Pursuant to Section 245 of the General Corporation Law of the State of Delaware, this
Certificate of Incorporation amends and integrates and restates the provisions of the Certificate
of Incorporation of this Corporation.
The text of this Certificate of Incorporation is hereby amended and restated to read in its
entirety as follows:
ARTICLE I
NAME
The name of the corporation (which is hereinafter referred to as the Corporation) is:
CCE SPINCO, INC.
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the Corporations registered office in the State of Delaware is Corporation
Service Company, 2711 Centerville Road, Suite 400, Wilmington, County of New Castle, Delaware
19808. The name of the Corporations registered agent at such address is Corporation Service
Company.
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ARTICLE III
PURPOSE
The purpose of the Corporation shall be to engage in any lawful act or activity for which
corporations may be organized and incorporated under the General Corporation Law of the State of
Delaware.
ARTICLE IV
CAPITAL STOCK
SECTION 1. The Corporation shall be authorized to issue Five Hundred Million (500,000,000)
shares of capital stock, of which (1) Four Hundred Fifty Million (450,000,000) shares shall be
shares of Common Stock, par value $.01 per share (the Common Stock), and (2) Fifty Million
(50,000,000) shares shall be shares of Preferred Stock, par value $.01 per share (the Preferred
Stock).
SECTION 2. Shares of Preferred Stock may be issued from time to time in one or more series.
The Board of Directors is hereby authorized by resolution or resolutions to provide, out of the
unissued shares of Preferred Stock, for series of Preferred Stock and, with respect to each such
series, to fix the voting powers, if any, designations, preferences and the relative,
participating, optional or other special rights, if any, and any qualifications, limitations or
restrictions thereof, of any such series, and to fix the number of shares constituting such series,
and to increase or decrease the number of shares of any such series (but not below the number of
shares thereof then outstanding). The authority of the Board of Directors with respect to each
series of Preferred Stock shall include, but not be limited to, determination of the following:
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the designation of the series, which may be by distinguishing number, letter or
title; |
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the number of shares of the series, which number the Board of Directors may
thereafter increase or decrease (but not below the number of shares thereof then
outstanding); |
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whether dividends, if any, shall be cumulative or noncumulative and the
dividend rate of the series; |
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dates at which dividends, if any, shall be payable; |
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the redemption rights and price or prices, if any, for shares of the series; |
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the terms and amount of any sinking fund provided for the purchase or
redemption of shares of the series; |
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the amounts payable on, and the preferences, if any, of shares of the series in
the event of any voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the Corporation; |
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whether the shares of the series shall be convertible into shares of any other
class or series, or any other security, of the Corporation or any other entity, and, if
so, the specification of such other class or series of such other security, the
conversion price or prices or rate or rates, any adjustments thereof, the date or dates
at which such shares shall be convertible and all other terms and conditions upon which
such conversion may be made; |
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restrictions on the issuance of shares of the same series or of any other class
or series; and |
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the voting rights, if any, of the holders of shares of the series. |
SECTION 3. The following is a statement of the voting powers, preferences and relative
participating, optional or other special rights, and the qualifications, limitations and
restrictions of the Common Stock:
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Subject to the other provisions of this Certificate of Incorporation and the
provisions of any Certificate of Designations (as defined in ARTICLE XI), the holders
of Common Stock shall be entitled to receive such dividends and other distributions, in
cash, stock of any entity or property of the Corporation, when and as may be declared
thereon by the Board of Directors from time to time out of assets or funds of the
Corporation legally available therefor, and shall share equally on a per share basis in
all such dividends and other distributions. |
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(a) Except as may be otherwise required by law or by this Certificate of
Incorporation and subject to any voting rights that may be granted to holders of
Preferred Stock pursuant to the provisions of a Certificate of Designations, all rights
to vote and all voting power of the capital stock of the Corporation, whether for the
election of directors or any other matter submitted to a vote of stockholders of the
Corporation, shall be vested exclusively in the holders of Common Stock. |
(b) At every meeting of the stockholders of the Corporation, every holder of Common
Stock shall be entitled to one vote in person or by proxy for each share of Common
Stock standing in such holders name on the transfer books of the Corporation in
connection with the election of directors and on all other matters submitted to a
vote of stockholders of the Corporation.
(c) Every reference in this Certificate of Incorporation to a majority or other
proportion of shares, or a majority or other proportion of the votes of shares, of
Common Stock shall refer to such majority or other proportion of the votes to which
such shares of Common Stock entitle their holders to cast as provided in this
Certificate of Incorporation.
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In the event of any dissolution, liquidation or winding up of the affairs of
the Corporation, whether voluntary or involuntary, after payment in full of the amounts
required to be paid to the holders of Preferred Stock pursuant to the provisions of a
Certificate of Designations, the remaining assets and funds of the |
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Corporation shall be distributed pro rata to the holders of Common Stock. For
purposes of this paragraph (3), the voluntary sale, conveyance, lease, license,
exchange or transfer (for cash, shares of stock, securities or other consideration)
of all or substantially all of the assets of the Corporation or a consolidation or
merger of the Corporation with one or more other entities (whether or not the
Corporation is the entity surviving such consolidation or merger) shall not be
deemed to be a liquidation, dissolution or winding up, voluntary or involuntary. |
SECTION 4. No stockholder shall be entitled to exercise any right of cumulative voting.
ARTICLE V
CORPORATE OPPORTUNITIES AND CONFLICTS OF INTEREST
SECTION 1. This ARTICLE V anticipates the possibility that (1) the Corporation will not be a
wholly-owned subsidiary of Clear Channel, (2) certain Clear Channel Officials may also serve as
Corporation Officials, and (3) benefits may be derived by the Corporation Entities through their
continued contractual, corporate and business relations with the Clear Channel Entities. The
provisions of this ARTICLE V shall, to the fullest extent permitted by law, define the conduct of
certain affairs of the Corporation Entities and Corporation Officials as they may involve the Clear
Channel Entities, and the powers, rights, duties and liabilities of the Corporation Entities and
Corporation Officials in connection therewith. Capitalized terms used and not previously defined in
this Certificate of Incorporation are defined, and shall have the meaning ascribed thereto, in
ARTICLE XI.
SECTION 2. No contract, agreement, arrangement or transaction (or any amendment, modification
or termination thereof) entered into between any Corporation Entity, on the one hand, and any Clear
Channel Entity, on the other hand, before the Corporation ceased to be a wholly-owned subsidiary of
Clear Channel shall be void or voidable or be considered unfair to the Corporation or any
Corporation Affiliate for the reason that any Clear Channel Entity is a party thereto, or because
any Clear Channel Official is a party thereto, or because any Clear Channel Official was present at
or participated in any meeting of the Board of Directors, or committee thereof, of the Corporation,
or the board of directors, or committee thereof, of any Corporation Affiliate, that authorized the
contract, agreement, arrangement or transaction (or any amendment, modification or termination
thereof), or because his, her or their votes were counted for such purpose. No such contract,
agreement, arrangement or transaction (or the amendment, modification or termination thereof) or
the performance thereof by any Corporation Entity shall be considered to be contrary to any
fiduciary duty owed to any of the Corporation Entities or to any of their respective stockholders
by any Clear Channel Entity or by any Corporation Official (including any Corporation Official who
may have been a Clear Channel Official) and each such Corporation Official shall be deemed to have
acted in good faith and in a manner such person reasonably believed to be in or not opposed to the
best interests of the Corporation Entities, and shall be deemed not to have breached his or her
duties of loyalty to the Corporation Entities and their respective stockholders, and not to have
derived an improper personal benefit therefrom. No Corporation Official shall have or be under any
fiduciary duty to any Corporation Entity or its stockholders to refrain from acting on behalf of
any such Corporation Entity (or on behalf of any Clear Channel Entity if such Corporation Official
is also a Clear Channel Official) in respect
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of any such contract, agreement, arrangement or transaction (or the amendment, modification,
or termination thereof) or to refrain from performing any such contract, agreement, arrangement or
transaction (or the amendment, modification or termination thereof) in accordance with its terms.
SECTION 3. (1) If a Corporation Official who is also a Clear Channel Official is offered, or
acquires knowledge, of a potential transaction or business opportunity that is or may be a
corporate opportunity for any Corporation Entity, the Corporation, on behalf of itself and each
Corporation Affiliate, to the fullest extent permitted by law except as provided in Section 3(3) of
this ARTICLE V, renounces any interest or expectancy in such potential transaction or business
opportunity and waives any claim that such potential transaction or business opportunity
constituted a corporate opportunity that should have been presented to the Corporation or any such
Corporation Affiliate.
(2) If a Corporation Official who is also a Clear Channel Official is offered, or acquires
knowledge, of a potential transaction or business opportunity that is or may be a corporate
opportunity for any Corporation Entity in any manner, such Corporation Official shall have no duty
to communicate or present such potential transaction or business opportunity to the Corporation or
any Corporation Affiliate and shall, to the fullest extent permitted by law, not be liable to any
Corporation Entity, or its stockholders, for breach of any fiduciary duty as a Corporation Official
including without limitation by reason of the fact that any one or more of the Clear Channel
Entities pursues or acquires such potential transaction or business opportunity for itself, directs
such potential transaction or business opportunity to another person or entity, or otherwise does
not communicate information regarding such potential transaction or business opportunity to the
Corporation or any Corporation Affiliate.
(3) Notwithstanding anything to the contrary in this Section 3, the Corporation does not
renounce any interest or expectancy it may have in any corporate opportunity that is expressly
offered to any Corporation Official in writing solely in his or her capacity as a Corporation
Official.
SECTION 4. No amendment or repeal of this ARTICLE V shall apply to or have any effect on the
liability or alleged liability of any Clear Channel Entity or Corporate Official for or with
respect to any corporate opportunity that such Clear Channel Entity or Corporate Official was
offered, or of which such Clear Channel Entity or Corporate Official acquired knowledge prior to
such amendment or repeal.
SECTION 5. In addition to, and notwithstanding the foregoing provisions of this ARTICLE V, a
potential transaction or business opportunity (1) that the Corporation Entities are not financially
able, contractually permitted or legally able to undertake, or (2) that is, from its nature, not in
the line of the Corporation Entities business, is of no practical advantage to any Corporation
Entity or that is one in which no Corporation Entity has any interest or reasonable expectancy,
shall not, in any such case, be deemed to constitute a corporate opportunity belonging to the
Corporation, or any Corporate Affiliate, and the Corporation, on behalf of itself and each
Corporation Affiliate, to the fullest extent permitted by law, hereby renounces any interest
therein.
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SECTION 6. Anything in this Certificate of Incorporation to the contrary notwithstanding, the
provisions of Sections 3, 4 and 5 of this ARTICLE V shall automatically terminate, expire and have
no further force and effect from and after the date on which no Corporation Official is also a
Clear Channel Official.
ARTICLE VI
BOARD OF DIRECTORS
SECTION 1. Subject to the rights of the holders of any series of Preferred Stock to elect
directors under specified circumstances, the number of directors of the Corporation shall be fixed,
and may be increased or decreased from time to time, exclusively by resolution adopted by a
majority of the entire Board of Directors.
SECTION 2. Unless and except to the extent that the By-Laws of the Corporation shall so
require, the election of directors of the Corporation need not be by written ballot.
SECTION 3. The directors, other than those who may be elected by the holders of any series of
Preferred Stock under specified circumstances, shall be apportioned, with respect to the time for
which they severally hold office, into three classes, as nearly equal in number as possible and
designated Class I, Class II and Class III. Class I shall be initially elected for a term expiring
at the annual meeting of stockholders to be held in 2007, Class II shall be initially elected for a
term expiring at the annual meeting of stockholders to be held in 2008, and Class III shall be
initially elected for a term expiring at the annual meeting of stockholders to be held in 2009.
Members of each class shall hold office until their successors are elected and qualified. At each
succeeding annual meeting of the stockholders of the Corporation, the successors of the class of
directors whose term expires at that meeting shall be elected for a term expiring at the annual
meeting of stockholders held in the third year following the year of their election. In case of any
increase or decrease, from time to time, in the number of directors, other than those who may be
elected by the holders of any series of Preferred Stock under specified circumstances, the number
of directors added to or eliminated from each class shall be apportioned so that the number of
directors in each class thereafter shall be as nearly equal as possible.
SECTION 4. Except as otherwise provided by a Certificate of Designations, any director or the
entire Board of Directors may be removed from office only for cause and only by the affirmative
vote of the holders of at least 80% of the total voting power of the Voting Stock (as defined in
ARTICLE XI).
SECTION 5. Except as otherwise provided by a Certificate of Designations, newly created
directorships resulting from any increase in the authorized number of directors or any vacancies in
the Board of Directors resulting from death, resignation, retirement, disqualification, removal
from office or other cause shall be filled solely by the affirmative vote of a majority of the
remaining directors then in office, even though less than a quorum of the Board of Directors, or by
the sole remaining director. Any director so chosen shall hold office until his or her successor
shall be elected and qualified and, if the Board of Directors at such time is classified, until the
next election of the class for which such director shall have been chosen. No decrease in the
number of directors shall shorten the term of any incumbent director.
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ARTICLE VII
BY-LAWS
In furtherance and not in limitation of the powers conferred by law, the Board of Directors is
expressly authorized and empowered to adopt, amend and repeal the By-Laws of the Corporation at any
regular or special meeting of the Board of Directors or by written consent, subject to the power of
the stockholders of the Corporation to adopt, amend or repeal any By-Laws. Notwithstanding any
other provision of this Certificate of Incorporation or any provision of law that might otherwise
permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of any
series of Preferred Stock required by law, by this Certificate of Incorporation or by a Certificate
of Designations, the affirmative vote of the holders of a majority of the total voting power of the
Voting Stock, voting together as a single class, shall be required for the stockholders of the
Corporation to alter, amend or repeal any provision of the By-Laws, or to adopt any new By-Law;
provided, however, that, the affirmative vote of the holders of at least 80% of the total voting
power of the Voting Stock, voting together as a single class, shall be required for the
stockholders of the Corporation to alter, amend or repeal, or adopt any By-Law inconsistent with,
the following provisions of the By-Laws: Sections 2.1, 2.2, 2.4, 2.5, 2.6, 2.8, 2.9 and 2.11 of
ARTICLE II; Sections 3.1, 3.2, 3.9 and 3.11 of ARTICLE III; Section 6.9 of ARTICLE VI; and Section
8.1 of ARTICLE VIII, or in each case, any successor provision (including, without limitation, any
such article or section as renumbered as a result of any amendment, alteration, change, repeal or
adoption of any other By-Law).
ARTICLE VIII
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation reserves the right at any time from time to time to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, and any other provisions
authorized by the laws of the State of Delaware at the time in force may be added or inserted, in
the manner now or hereafter prescribed by law. All rights, preferences and privileges of whatsoever
nature conferred upon stockholders, directors or any other persons or entities whomsoever by and
pursuant to this Certificate of Incorporation in its present form or as hereafter amended are
granted subject to the right reserved in this ARTICLE VIII. Notwithstanding any other provision of
this Certificate of Incorporation or any provision of law that might otherwise permit a lesser vote
or no vote, but in addition to any affirmative vote of the holders of any series of Preferred Stock
required by law, by this Certificate of Incorporation or by a Certificate of Designations, the
affirmative vote of a majority of the total voting power of the Voting Stock, voting together as a
single class, shall be required to amend, alter, change, repeal any provision of this Certificate
of Incorporation, or to adopt any new provision of this Certificate of Incorporation; provided,
however, that, the affirmative vote of the holders of at least 80% of the total voting power of the
Voting Stock, voting together as a single class, shall be required to amend, alter, change or
repeal, or adopt any provision inconsistent with, ARTICLE V, ARTICLE VI, ARTICLE VII, ARTICLE IX,
ARTICLE X and this sentence of this Certificate of Incorporation, or in each case, any successor
provision (including, without limitation, any such article or section as renumbered as a result of
any amendment, alteration, change, repeal or adoption of any other provision of this Certificate of
Incorporation). Any repeal
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or modification of ARTICLE V or ARTICLE IX shall not adversely affect any right or protection
of any person existing thereunder with respect to any act or omission occurring prior to such
repeal or modification.
ARTICLE IX
LIMITATIONS ON LIABILITY AND INDEMNIFICATION
OF DIRECTORS AND OFFICERS
SECTION 1. Elimination of Certain Liability of Directors. A director of the
Corporation shall not be personally liable to the Corporation, or its stockholders, for monetary
damages for breach of fiduciary duty as a director, except to the extent such exemption from
liability or limitation thereof is not permitted under the General Corporation Law of the State of
Delaware as the same exists at the time of the alleged breach.
SECTION 2. Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or is made a party or is threatened
to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a proceeding), by reason of the fact that he or she,
or a person of whom he or she is the legal representative, is or was a director or officer of the
Corporation, or while a director or officer of the Corporation is or was serving, at the request of
the Corporation, as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with respect to employee
benefit plans maintained or sponsored by the Corporation, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director or officer, employee or agent, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the General Corporation Law of the
State of Delaware, as the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior to such amendment),
against all expense, liability and loss (including attorneys fees, judgments, fines, amounts paid
or to be paid in settlement, and excise taxes or penalties arising under the Employee Retirement
Income Security Act of 1974) reasonably incurred or suffered by such person in connection therewith
and such indemnification shall continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of his or her heirs, executors and administrators;
provided, however, that the Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or
part thereof) was authorized by the Board of Directors. The right to indemnification conferred in
this Section shall be a contract right. The Corporation may, by action of the Board of Directors,
provide indemnification to employees and agents of the Corporation with the same scope and effect
as the foregoing indemnification of director and officers.
(b) Non-Exclusivity of Rights. The right to indemnification conferred in this Section
shall not be exclusive of any other right that any person may have or hereafter acquire under any
statute, provision of this Certificate of Incorporation, By-Law, agreement, vote of
stockholders or disinterested directors or otherwise.
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(c) Insurance. The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any such expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person against such expense,
liability or loss under the General Corporation Law of the State of Delaware.
ARTICLE X
STOCKHOLDER ACTION
Except as otherwise provided by a Certificate of Designations, any action required or
permitted to be taken by stockholders may be effected only at a duly called annual or special
meeting of stockholders and may not be effected by a written consent or consents by stockholders in
lieu of such a meeting.
Except as otherwise required by law or provided by a Certificate of Designations, special
meetings of stockholders of the Corporation may be called only by the Chairman of the Board of
Directors or the Board of Directors pursuant to a resolution approved by a majority of the entire
Board of Directors and any other power of stockholders to call a special meeting is specifically
denied. No business other than that stated in the notice of a special meeting of stockholders shall
be transacted at such special meeting.
ARTICLE XI
CERTAIN DEFINITIONS
For purposes of this Certificate of Incorporation:
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The terms beneficial owner and beneficial ownership shall have the meaning
ascribed to such terms in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended, and shall be determined in accordance with such rule; |
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the term Certificate of Designations shall mean the resolution or resolutions
adopted by the Board of Directors designating the rights, powers and preferences of any
series of Preferred Stock and the Certificate of Designations filed by the Corporation
with respect thereto; |
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the term Clear Channel shall mean Clear Channel Communications, Inc., a Texas
corporation; |
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the term Clear Channel Affiliate shall mean, other than the Corporation or
any Corporation Affiliate, (a) any corporation, partnership, limited liability company,
joint venture, association or other entity of which Clear Channel is the beneficial
owner (directly or indirectly) of 20% or more of the outstanding voting stock, voting
power, partnership interests or similar voting interests or (b) any other
corporation, partnership, joint venture, association or other entity that is
controlled by Clear Channel, controls Clear Channel or is under common control with
Clear Channel;
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the term Clear Channel Entity shall mean any one or more of Clear Channel and
the Clear Channel Affiliates; |
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the term Clear Channel Official shall mean each person who is a director or
an officer (or both) of Clear Channel and/or one or more Clear Channel Affiliates; |
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the term corporate opportunity shall include, but not be limited to, business
opportunities that (a) the Corporation or any Corporation Affiliate is financially able
to undertake, (b) are, from their nature, in the line of the Corporations or any
Corporation Affiliates business, and (c) are of practical advantage to the Corporation
or any Corporation Affiliate and ones in which the Corporation or any Corporation
Affiliate, but for the provisions of this ARTICLE V, would have an interest or a
reasonable expectancy; |
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the term Corporation Affiliate shall mean (a) any corporation, partnership,
limited liability company, joint venture, association or other entity of which the
Corporation is the beneficial owner (directly or indirectly) of 20% or more of the
outstanding voting stock, voting power, partnership interests or similar voting
interests or (b) any other corporation, partnership, joint venture, association or
other entity that is controlled by the Corporation; |
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the term Corporation Entity shall mean any one or more of the Corporation and
the Corporation Affiliates; |
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the term Corporation Official shall mean each person who is a director or an
officer (or both) of the Corporation and/or one or more Corporation Affiliates; and |
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the term Voting Stock shall mean all classes of the then outstanding capital
stock of the Corporation entitled to vote generally in the election of directors. |
For purpose of the foregoing definitions, the term control (including the terms controlling,
controlled by and under common control with) means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of an entity, whether through
the ownership of voting securities, by contract, or otherwise.
IN WITNESS WHEREOF, CCE Spinco, Inc has caused this Amended and Restated Certificate of
Incorporation to be executed by Michael Rapino, its Chief Executive Officer, this 9th day of
December, 2005.
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/s/ Michael Rapino
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Michael Rapino |
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Chief Executive Officer |
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