TRIBUNE COMPANY
435 North Michigan Avenue
Chicago, Illinois 60611
Dear Stockholder:
You are cordially invited to attend the annual meeting of stockholders of Tribune
Company, to be held at 3:00 p.m., Pacific time, on July 14, 2014, at the Omni Hotel, 251 S.
Olive St., Los Angeles, California 90012. All holders of our outstanding common shares of
Class A common stock and, for certain matters, Class B common stock, as of the close of
business on June 9, 2014 are entitled to vote at the meeting.
Your vote is important. Whether you plan to attend the annual meeting or not, you are
encouraged to submit your proxy via the internet or by telephone, both of which are described on
your enclosed proxy card, or by signing, dating and returning the proxy card in the envelope
provided. If you plan to attend the annual meeting, you may vote in person.
Registration and seating will begin at 2:30 p.m., Pacific time. Each stockholder will be
asked to bring an admittance card and may be asked to present a valid picture identification.
Stockholders holding stock in brokerage accounts will need to bring a legal proxy from such
broker or custodian in order to vote in person at the annual meeting. Cameras and recording
devices will not be permitted at the meeting.
Details of the business to be conducted at the annual meeting are given in the notice of
annual meeting of stockholders and the proxy statement enclosed herewith.
On behalf of the Board of Directors, I want to thank you for your support of Tribune
Company.
Sincerely,
Peter Liguori
President and Chief Executive Officer
June 13, 2014
Chicago, Illinois
TRIBUNE COMPANY
435 North Michigan Avenue
Chicago, Illinois 60611
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON JULY 14, 2014
The 2014 Annual Meeting of Stockholders of Tribune Company, a Delaware corporation
(the “Company”), will be held at the Omni Hotel, 251 S. Olive St., Los Angeles, California
90012, at 3:00 p.m., Pacific time, on July 14, 2014, for the following purposes:
1.
To elect two directors to the Board of Directors to serve as Class I directors;
2.
To act upon a proposal to approve the Company’s Second Amended and Restated
Certificate of Incorporation, which amends and restates the Company’s Amended and
Restated Certificate of Incorporation to, among other things, (i) clarify an ambiguity with
respect to provisions relating to the classification of directors, (ii) subject the Company to
Section 203 of the Delaware General Corporation Law (the “DGCL”) effective at such
time as the Company has a class of voting stock that is listed on a national securities
exchange, (iii) prohibit stockholders of the Company from calling a special meeting of
stockholders, (iv) prohibit stockholders of the Company from acting by written consent,
(v) provide for a supermajority requirement for an amendment to certain provisions of the
Company’s Second Amended and Restated Certificate of Incorporation, (vi) provide for a
supermajority requirement for an amendment to the Company’s Amended and Restated
Bylaws (the “Bylaws”), (vii) provide for the Court of Chancery of the State of Delaware
to be the sole and exclusive forum for certain actions involving the Company and its
directors, officers and employees, (viii) increase the number of authorized shares of Class
A common stock and Class B common stock and (ix) change the Company name to
“Tribune Media Company”;
3.
To ratify the appointment of PricewaterhouseCoopers LLP as the Company’s
independent registered public accounting firm for the fiscal year ending December 28,
2014; and
4.
To transact such other business as may properly come before the Annual Meeting or at
any adjournments or postponements thereof.
Only stockholders of record as of the close of business on June 9, 2014 will be entitled to
notice of the Annual Meeting and to vote at the Annual Meeting and any adjournments or
postponements thereof. A list of stockholders of the Company entitled to vote at the meeting
will be available for inspection by a stockholder at the Annual Meeting and during normal
business hours at the Company’s corporate offices during the ten-day period immediately prior
to the Annual Meeting.
The Board of Directors hopes you will be able to attend the Annual Meeting, but
whether or not you plan to attend, please ensure that your shares are voted at the Annual
Meeting by submitting a proxy in one of the following ways:
•
•
•
Marking, signing, dating, and returning the enclosed proxy card as soon as
possible;
Calling the toll-free number listed on the proxy card; or
Accessing the Internet as instructed on the proxy card.
Submitting a proxy will not prevent you from voting your shares in person in the manner
described in the accompanying proxy statement if you subsequently choose to attend the Annual
Meeting. If you hold your shares in “street name” through a bank, broker, or custodian, you
must obtain a legal proxy from such custodian in order to vote in person at the Annual Meeting.
Edward Lazarus
Executive Vice President, General Counsel and
Secretary
June 13, 2014
Chicago, Illinois
TRIBUNE COMPANY
435 North Michigan Avenue
Chicago, Illinois 60611
ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON JULY 14, 2014
This proxy statement and the accompanying form of proxy are being mailed on or about
June 13, 2014 to the stockholders of Tribune Company (the “Company”). They are being
furnished in connection with the solicitation by the Board of Directors of proxies to be voted at
the 2014 Annual Meeting of Stockholders (the “Annual Meeting”) to be held at the Omni Hotel,
251 S. Olive St., Los Angeles, California 90012, at 3:00 p.m., Pacific time, on July 14, 2014, and
at any adjournments or postponements thereof. The cost of such solicitation will be borne by the
Company.
Only the holders of record of the outstanding shares of Class A common stock and, for
certain matters, Class B common stock of the Company on June 9, 2014 (the “Record Date”) will
be entitled to vote at the Annual Meeting. A stockholder giving a proxy may revoke it at any
time by giving written notice of such revocation to the Secretary of the Company before it is
exercised. A proxy may also be revoked by executing a later dated proxy or by attending the
Annual Meeting and voting in person.
At the close of business on May 31, 2014, there were outstanding 93,386,784 shares of
the Company’s Class A common stock and 2,945,997 shares of the Company’s Class B common
stock. Each holder of shares entitled to vote has the right to one vote for each share standing in
the holder’s name on the books of the Company.
The shares represented by each properly executed proxy will be voted in the manner
specified by the stockholder. If you execute and return a proxy card, but instructions are not
given, the shares will be voted by the persons named in the accompanying proxy for the election
of directors, for the approval of the Company’s Second Amended and Restated Certificate of
Incorporation, for the ratification of the appointment of the independent registered public
accounting firm, and in their discretion on any other matters properly coming before the Annual
Meeting or any adjournment or postponement thereof.
Under Delaware law and the Company’s Bylaws, the presence, in person or by proxy, of
holders of a majority of the votes entitled to be cast at the Annual Meeting will constitute a
quorum, provided that, with respect to the proposal to approve the Second Amended and
Restated Certificate of Incorporation, where separate class votes are required, the holders of a
majority of each of the outstanding shares of Class A common stock and Class B common stock
present, in person or represented by proxy, shall also be required to constitute a quorum. If a
quorum is present, we can hold the Annual Meeting and conduct business. Abstentions and
broker non-votes will be treated as present for purposes of determining the presence of a quorum.
Directors are elected by a majority of the votes cast by holders of Class A common stock
at the Annual Meeting, unless there are more nominees for election than positions on the Board
of Directors to be filled by election at the Annual Meeting, in which case, directors will be
elected by a plurality of the votes cast. See “Proposal #1: Election of Directors—Nominees for
Director” for additional information regarding the election of directors. Abstentions and broker
non-votes will have no effect on the outcome of the vote for the election of directors.
The affirmative vote of a majority of the shares outstanding of each of (i) the Class A
common stock and Class B common stock, voting together as a class, (ii) the Class A common
stock, voting separately as a single class, and (iii) the Class B common stock, voting separately
as a single class, is required to approve the Company’s Second Amended and Restated
Certificate of Incorporation. If less than a majority of the Class A common stock and Class B
common stock, voting together as a class, vote to approve the Company’s Second Amended and
Restated Certificate of Incorporation, this proposal will not be approved. If less than a majority
of the Class A common stock, voting as a separate class, or a majority of the Class B common
stock, voting as a separate class, vote to approve the proposal, but a majority of the Class A
common stock and Class B common stock, voting together as a class, vote to approve the
proposal, the provisions of the Second Amended and Restated Certificate of Incorporation that
do not require a separate class vote of the Class A common stock or Class B common stock
under applicable law will be adopted and the provisions that do require a separate class vote of
the Class A common stock or Class B common stock under applicable law will not be adopted.
See “Proposal #2: Approval of the Company’s Second Amended and Restated Certificate of
Incorporation—Our Proposal” for further information. Directions to withhold authority,
abstentions and broker non-votes will have the same effect as a vote against the proposal.
The affirmative vote of a majority of the votes cast by holders of Class A common stock
on the proposal to ratify the appointment of the Company’s independent registered public
accounting firm will constitute the ratification of the appointment of PricewaterhouseCoopers
LLP as the Company’s independent registered public accounting firm for the fiscal year ending
December 28, 2014. Directions to withhold authority, abstentions and broker non-votes will
have no effect on the outcome of the vote. Although stockholder ratification is not required, the
Company considers such ratification to be a desirable corporate practice, and if the affirmative
vote is less than a majority of the votes cast, the Board will consider the results of the vote on
any future appointment.
FINANCIAL INFORMATION
The Company’s consolidated financial statements and “Management’s discussion and
Analysis of Financial Condition and Results of Operations” as of and for the quarter ended
March 30, 2014 and consolidated financial statements, “Management’s discussion and Analysis
of Financial Condition and Results of Operations” and “Risk Factors” as of and for the fiscal
year ended December 29, 2013 are posted in the financial information section of the Company’s
website at www.tribune.com.
2
QUESTIONS AND ANSWERS ABOUT THE PROXY MATERIALS AND
THE ANNUAL MEETING
This proxy statement and proxy card are furnished in connection with the solicitation of
proxies to be voted at our annual meeting of stockholders, which will be held at the Omni Hotel,
251 S. Olive St., Los Angeles, California 90012, on July 14, 2014, at 3:00 p.m., Pacific time (the
“Annual Meeting”). On June 13, 2014, we began mailing to stockholders of record this proxy
statement and proxy card.
Why am I receiving this proxy statement and proxy card?
You have received these proxy materials because our Board of Directors is soliciting
your proxy to vote your shares at the Annual Meeting. This proxy statement describes issues on
which we would like you to vote at our Annual Meeting of stockholders. It also gives you
information on these issues so that you can make an informed decision.
Our Board of Directors has made this proxy statement and proxy card available to you on
the Internet because you own shares of the Company’s common stock, in addition to delivering
printed versions of this proxy statement and proxy card to certain stockholders by mail.
If you submit a proxy by using the Internet, by calling or by signing and returning the
proxy card, you will appoint Edward Lazarus, Executive Vice President, General Counsel and
Secretary of Tribune Company (with full power of substitution) as your representative at the
Annual Meeting. He will vote your shares at the Annual Meeting as you have instructed him or,
if an issue that is not on the proxy card comes up for vote, in accordance with his best judgment.
By submitting a proxy, you can ensure your shares will be voted whether or not you attend the
Annual Meeting. Even if you plan to attend the Annual Meeting, we encourage you to submit a
proxy in advance by using the Internet, by calling or by signing and returning your proxy card.
If you vote by Internet or by calling, you do not need to return your proxy card.
Who is entitled to vote?
Holders of our common stock at the close of business on June 9, 2014 are entitled to vote.
June 9, 2014 is referred to as the record date. In accordance with Delaware law, a list of
stockholders entitled to vote at the meeting will be available at the place of the Annual Meeting
on July 14, 2014 and will be accessible for ten days before the meeting at our principal place of
business, 435 North Michigan Avenue, Chicago, Illinois 60611, between the hours of 9:00 a.m.
and 5:00 p.m.
To how many votes is each share of common stock entitled?
Holders of Class A common stock, and, for certain matters, Class B common stock, at the
close of business on the record date are entitled to one vote per share. On May 31, 2014, there
were 93,386,784 shares of our Class A common stock and 2,945,997 shares of our Class B
common stock outstanding.
3
How do I vote?
Stockholders of record may ensure their shares are voted at the Annual Meeting by
submitting a proxy by using the Internet, by calling the toll-free number listed on the proxy card
or by mail as described below. Stockholders also may attend the meeting and vote in person. If
you hold shares through a bank or broker, please refer to your proxy card or other information
forwarded by your bank or broker to see which voting options are available to you.
•
•
•
You may submit your proxy by using the Internet. The addresses of the websites for
submitting your proxy via the Internet are:
o www.envisionreports.com/TRBAA for registered holders of Class A common
stock;
o www.envisionreports.com/TRBAB for registered holders of Class B common
stock;
o www.edocumentview.com/TRBAA for beneficial owners of Class A common
stock holding in street name; and
o www.edocumentview.com/TRBAB for beneficial owners of Class B common
stock holding in street name.
Internet proxy submission is available 24 hours a day and will be accessible until
11:59 p.m. Eastern Time on July 13, 2014. Easy-to-follow instructions allow you to
submit your proxy and confirm that your instructions have been properly recorded.
You may submit your proxy by calling. The phone number for submitting your proxy
by phone is 1-800-652-VOTE (8683). Submitting your proxy by phone is available
24 hours a day and will be accessible until 11:59 p.m. Eastern Time on July 13, 2014.
You may submit your proxy by mail. Simply mark your proxy card, date and sign it,
and return it in the postage-paid envelope.
Submitting your proxy will not limit your right to vote at the Annual Meeting if you
decide to attend in person. Written ballots will be passed out to anyone who wants to vote at the
Annual Meeting. If you hold your shares in “street name,” you must obtain a proxy, executed in
your favor, from the holder of record to be able to vote in person at the Annual Meeting.
What if I change my mind after I return my proxy?
You may revoke your proxy and submit a new proxy at any time before your proxy is
voted at the Annual Meeting. You may do this by:
•
•
•
submitting a subsequent proxy by using the Internet, by calling or by mail with a later
date;
sending written notice of revocation to our Corporate Secretary at 435 North
Michigan Avenue, Chicago, Illinois 60611; or
voting in person at the Annual Meeting.
If you hold shares through a bank or broker, please refer to your proxy card or other
information forwarded by your bank or broker to see how you can revoke your proxy and change
your vote.
4
Attendance at the meeting will not by itself revoke a proxy.
How many votes do you need to hold the Annual Meeting?
The presence, in person or by proxy, of the holders of a majority of the votes entitled to
be cast at the Annual Meeting will constitute a quorum, provided that, with respect to the
proposal to approve the Second Amended and Restated Certificate of Incorporation, where
separate class votes are required, the holders of a majority of each of the outstanding shares of
Class A common stock and Class B common stock present, in person or represented by proxy,
shall also be required to constitute a quorum. If a quorum is present, we can hold the Annual
Meeting and conduct business.
On what items am I voting?
You are being asked to vote on three items:
•
•
•
to elect two directors nominated by the Board of Directors and named in this proxy
statement to serve until our 2017 annual meeting of stockholders and until their
successors are elected and qualify;
to act upon a proposal to approve the Company’s Second Amended and Restated
Certificate of Incorporation, which amends and restates the Company’s Amended and
Restated Certificate of Incorporation to, among other things, (i) clarify an ambiguity
with respect to provisions relating to the classification of directors, (ii) subject the
Company to Section 203 of the DGCL effective at such time as the Company has a
class of voting stock that is listed on a national securities exchange, (iii) prohibit
stockholders of the Company from calling a special meeting of stockholders, (iv)
prohibit stockholders of the Company from acting by written consent, (v) provide for
a supermajority requirement for an amendment to certain provisions of the
Company’s Second Amended and Restated Certificate of Incorporation, (vi) provide
for a supermajority requirement for an amendment to the Company’s Bylaws, (vii)
provide for the Court of Chancery of the State of Delaware to be the sole and
exclusive forum for certain actions involving the Company and its directors, officers
and employees, (viii) increase the number of authorized shares of Class A common
stock and Class B common stock and (ix) change the Company name to “Tribune
Media Company”; and
to ratify the appointment of PricewaterhouseCooopers LLP as our independent
registered public accounting firm for the fiscal year ending December 28, 2014.
No cumulative voting rights are authorized, and appraisal rights are not applicable to
these matters.
How does the Board of Directors recommend that I vote?
The Board of Directors recommends that you vote as follows:
•
FOR both director nominees;
5
•
•
FOR the approval of the Company’s Second Amended and Restated Certificate of
Incorporation; and
FOR the ratification of the appointment of our independent registered public
accounting firm.
How may I vote in the election of directors, and how many votes must the nominees receive to
be elected?
With respect to the election of directors, you may:
•
•
•
vote FOR the two nominees for director;
vote FOR one nominee for director and AGAINST the other nominee for director; or
AGAINST either of the nominees for director.
The Company’s Bylaws provide for the election of directors by a majority of the votes
cast by holders of Class A common stock, except in the case of a contested election. A majority
of the votes cast in an election of directors shall mean that the number of shares voted “FOR” a
director’s election must exceed the number of votes cast “AGAINST” that director’s election
and, unless otherwise provided by law, shares not present, “broker non-votes” and abstentions
shall not be counted as a vote cast either “FOR” or “AGAINST” a director’s election. An
election shall be considered contested if, as of the record date, there are more nominees for
election than positions on the Board of Directors to be filled by election at the Annual Meeting.
See “Proposal #1: Election of Directors—Nominees for Director” for additional information
regarding the election of directors in a contested election.
What happens if a nominee is unable to stand for election?
If a nominee is unable to stand for election, the Board may designate a substitute
nominee, or, if not, then there will remain a vacancy on the Board. If the Board designates a
substitute nominee, shares represented by proxies voted for the nominee who is unable to stand
for election will be voted for the substitute nominee.
How may I vote for the proposal to approve the Company’s Second Amended and Restated
Certificate of Incorporation, and how many votes must this proposal receive to pass?
With respect to this proposal, you may:
•
•
•
vote FOR the approval of the Company’s Second Amended and Restated Certificate
of Incorporation;
vote AGAINST the approval of the Company’s Second Amended and Restated
Certificate of Incorporation; or
ABSTAIN from voting on the proposal.
In order to pass, the proposal must receive the affirmative vote of a majority of the shares
outstanding of each of (i) the Class A common stock and Class B common stock, voting together
as a class, (ii) the Class A common stock, voting separately as a single class, and (iii) the Class B
common stock, voting separately as a single class. If you abstain from voting on the proposal or
6
your broker is unable to vote your shares, it will have the same effect as a vote against the
proposal. If less than a majority of the Class A common stock and Class B common stock,
voting together as a class, vote to approve the Company’s Second Amended and Restated
Certificate of Incorporation, this proposal will not be approved. If less than a majority of the
Class A common stock, voting as a separate class, or a majority of the Class B common stock,
voting as a separate class, vote to approve the proposal, but a majority of the Class A common
stock and Class B common stock, voting together as a class, vote to approve the proposal, the
provisions of the Second Amended and Restated Certificate of Incorporation that do not require a
separate class vote of the Class A common stock or Class B common stock under applicable law
will be adopted and the provisions that do require a separate class vote of the Class A common
stock or Class B common stock under applicable law will not be adopted. See “Proposal #2:
Approval of the Company’s Second Amended and Restated Certificate of Incorporation—Our
Proposal” for further information.
How may I vote for the proposal to ratify the appointment of our independent registered public
accounting firm, and how many votes must this proposal receive to pass?
With respect to this proposal, you may:
•
•
•
vote FOR the ratification of the accounting firm;
vote AGAINST the ratification of the accounting firm; or
ABSTAIN from voting on the proposal.
In order to pass, the proposal must receive the affirmative vote of a majority of the votes
cast by holders of Class A common stock at the Annual Meeting by the holders who are present
in person, electronically or by proxy. If you abstain from voting on the proposal or your broker
is unable to vote your shares, it will not have an effect on the proposal.
Will my shares be voted if I do not submit a proxy by using the Internet, by calling, or by
signing and returning my proxy card?
If you do not submit a proxy by using the Internet, by calling or by signing and returning
your proxy card, then your shares will not be voted and will not count in deciding the matters
presented for stockholder consideration at the Annual Meeting unless you attend the meeting and
vote in person.
If your shares are held in street name through a bank or broker, your bank or broker may
vote your shares under certain limited circumstances if you do not provide voting instructions
before the Annual Meeting. These circumstances include voting your shares on “routine
matters,” such as the ratification of the appointment of our independent registered public
accountants described in this proxy statement. With respect to the proposal to ratify the
appointment of our independent public account, therefore, if you do not vote your shares, your
bank or broker may vote your shares on your behalf or leave your shares unvoted.
The election of directors and approval of the Company’s Second Amended and Restated
Certificate of Incorporation are not considered routine matters. When a proposal is not a routine
matter and the brokerage firm has not received voting instructions from the beneficial owner of
7
the shares with respect to that proposal, the brokerage firm cannot vote the shares on that
proposal. This is called a “broker non-vote.” Broker non-votes that are represented at the
Annual Meeting will be counted for purposes of establishing a quorum, but cannot vote for or
against the non-routine matter.
We encourage you to provide voting instructions to your bank or brokerage firm. This
action ensures your shares will be voted at the meeting in accordance with your wishes.
What is the vote required for each proposal to pass, and what is the effect of uninstructed
shares held in street name and abstentions on the proposals?
The following table summarizes the Board’s recommendation on each proposal, the vote
required for each proposal to pass and the effect of uninstructed shares held in street name and
abstentions on each proposal.
Proposal
Number
Item
Board Voting
Recommendation
Votes Required for Approval
Abstentions
Broker
Non-Votes
1
Election of Directors
FOR
Each nominee who receives a
majority of the voting power of the
shares of Class A common stock
present in person, electronically or by
proxy and entitled to vote, except in
the case of a contested election
No effect
Discretionary
voting by broker
not permitted
(No effect)
2
Approval of the
Company’s Second
Amended and Restated
Certificate of
Incorporation
FOR
Majority of the outstanding shares of
each of (i) the Class A common stock
and the Class B common stock,
voting together as a class, (ii) for
certain proposed amendments, the
Class A common stock, voting
separately as a class, and (iii) for
certain proposed amendments, the
Class B common stock voting
separately as a class
Count as
votes against
Discretionary
voting by broker
not permitted
(Count as votes
against)
3
Ratification of
independent registered
public accounting firm
FOR
Majority of the voting power of the
shares of Class A common stock
present in person, electronically or by
proxy and entitled to vote
No effect
Discretionary
voting by broker
permitted
What do I need to show to attend the Annual Meeting in person?
You will need proof of your share ownership (such as a recent brokerage statement or
letter from your broker showing that you owned shares of Tribune Company common stock as of
June 9, 2014) and a form of government-issued photo identification. If you do not have proof of
ownership and valid photo identification, you may not be admitted to the Annual Meeting. All
bags, briefcases and packages will be held at registration and will not be allowed in the meeting.
8
PROPOSAL #1: ELECTION OF DIRECTORS
Our Proposal
The Board of Directors has nominated the two persons named below for election as
directors at the Annual Meeting to serve until the 2017 annual meeting and until their respective
successors are elected. If any nominee is unable to serve as a director, which we do not
anticipate, the Board by resolution may choose a substitute nominee or, if not, then there will
remain a vacancy on the Board.
Nominees for Director
•
•
Craig A. Jacobson
Laura R. Walker
The Company’s Bylaws provide that the Board of Directors shall consist of not fewer
than seven nor more than nine directors, with the exact number to be fixed by the Board of
Directors. The Board of Directors has fixed the current number of directors at seven.
Our Board of Directors is currently divided into separate classes. Upon the effectiveness
of the Company’s Second Amended and Restated Certificate of Incorporation, Class I and Class
II will have two directors each and Class III will have three directors.
Director
Craig A. Jacobson
Laura R. Walker
Kenneth Liang
Peter Liguori
Bruce A. Karsh
Ross Levinsohn
Peter E. Murphy
Age
Position
Class I Directors for election at the 2014 Annual Meeting
62
Director
56
Director
Class II Directors for election at the 2015 Annual Meeting
52
Director
53
Director, President and
Chief Executive Officer
Class III Directors for election at the 2016 Annual Meeting
59
Director
50
Director
51
Director
Director Since
2012
n/a
2012
2012
2012
2012
2012
At each annual meeting of the stockholders, the successors of the directors whose term
expires at that meeting are elected to hold office for a term expiring at the annual meeting of
stockholders held in the third year following the year of their election. The Board of Directors is
therefore asking you to elect the two nominees for director whose term expires at the Annual
Meeting. Craig Jacobson, currently a Class I director, has been nominated for reelection at the
Annual Meeting. Eddy Hartenstein currently serves as a Class I director, but has declined to
stand for reelection at the Annual Meeting and, assuming that our nominee is elected at the
Annual Meeting, will resign from the Board of Directors effective immediately upon the election
of Laura Walker.
Directors are elected by a majority of the votes cast by holders of Class A common stock,
except in the case of contested election. A majority of the votes cast in an election of directors
shall mean that the number of shares voted “FOR” a director’s election must exceed the number
9
of votes cast “AGAINST” that director’s election and, unless otherwise provided by law, shares
not present, “broker non-votes” and abstentions shall not be counted as a vote cast either “FOR”
or “AGAINST” a director’s election. An election shall be considered contested if, as of the
record date, there are more nominees for election than positions on the Board of Directors to be
filled by election at the Annual Meeting. In a contested election, directors shall be elected by a
plurality of the votes cast at a meeting of stockholders by the holders of shares entitled to vote in
the election. This means that, in a contested election, the two individuals nominated for election
to the Board of Directors who receive the most “FOR” votes (among votes properly cast in
person, electronically or by proxy) will be elected. There is no cumulative voting. If you sign
and return the accompanying proxy card, your shares will be voted for the election of the two
nominees recommended by the Board of Directors unless you choose to abstain or vote
“AGAINST” either of the nominees. If either nominee for any reason is unable to serve or will
not serve, proxies may be voted for such substitute nominee as the proxy holder may determine.
The Company is not aware of any nominee who will be unable to or will not serve as a director.
Set forth below is biographical information as well as background information relating to
each nominee’s and continuing director’s business experience and background. The persons
who have been nominated for election and are to be voted upon at the Annual Meeting are listed
first, with continuing directors following thereafter.
Class I Nominees
Craig A. Jacobson has been a director since December 31, 2012 and is a member of the
Audit Committee and the Compensation Committee. Mr. Jacobson is a founding partner at the
law firm of Hansen, Jacobson, Teller, Hoberman, Newman, Warren, Richman, Rush & Kaller,
L.L.P., where he has practiced entertainment law for the past 20 years. Mr. Jacobson is a
member of the board of directors of Expedia, Inc. and presently serves on the board of directors
of Charter Communications, Inc. Mr. Jacobson was a director of Ticketmaster from August
2008 until its merger with Live-Nation, Inc. in January 2010. Mr. Jacobson also previously
served on the board of Aver Media, a privately held Canadian lending institution.
Laura R. Walker is President and CEO of New York Public Radio, which owns and
operates WNYC-FM, WNYC-AM, WQXR, WQXW, New Jersey Public Radio, The Jerome L.
Greene Performance Space and a variety of digital properties, including wnyc.org, wqxr.org and
thegreenespace.org. Ms. Walker began her professional career as a journalist and producer at
National Public Radio, where she received a Peabody Award for Broadcast Excellence. In 1983,
she joined the staff of Carnegie Hall, where she launched the award-winning series AT&T
Presents Carnegie Hall Tonight. She joined the Sesame Workshop (formerly Children’s
Television Workshop) in 1987, where for eight years she worked on programming and
development initiatives, and led the organization’s efforts to establish a cable television channel
(now Noggin). In addition to the New York Public Radio Board of Trustees, Ms. Walker sits on
the boards of Saint Ann’s School, the Women’s Forum, Inc., the Yale Center for Customer
Insights and the Hudson Square Business Improvement District. She is the Chair of the Station
Resource Group. Previously, Ms. Walker sat on the Board of Advisors for the Yale School of
Management and the Board of Directors for Public Radio International.
10
Continuing Directors
Class II Directors – Terms Expiring at the 2015 Annual Meeting:
Kenneth Liang has been a director since December 31, 2012 and is a member of the
Compensation Committee. Mr. Liang is a Managing Director and Head of Restructurings in the
Distressed Debt Group of Oaktree Capital Management, a Los Angeles-based investment
management firm. Mr. Liang has worked with a number of Oaktree’s portfolio companies
including STORE Capital (specialty REIT), Jackson Square Aviation (aircraft leasing), TekniPlex (packaging and tubing manufacturer) and Taylor Morrison (North American homebuilder).
From Oaktree’s formation in 1995 until June 2001, Mr. Liang was Oaktree’s General Counsel.
Earlier, he served as a Senior Vice President at Trust Company of the West with primary legal
and restructuring responsibility for Special Credits Funds investments and, before that, he was an
associate at the law firm of O’Melveny & Myers.
Peter Liguori has been a director since December 31, 2012. Mr. Liguori is the President
and Chief Executive Officer of Tribune Company. Mr. Liguori previously served as Chief
Operating Officer of Discovery Communications. Before joining Discovery in 2009, Mr.
Liguori served as Chairman of entertainment for the Fox Broadcasting Company. Prior to
assuming that position in 2005, Mr. Liguori was president and CEO of News Corp.’s FX
Networks since 1998, overseeing business and programming operations for FX and Fox Movie
Channel. Mr. Liguori joined Fox/Liberty Networks in 1996 as senior vice president, marketing,
for a new joint venture, which now includes Fox Sports Net, FX, Fox Sports World, SPEED and
National Geographic Channel. Prior to joining Fox, Mr. Liguori was vice president, consumer
marketing, at HBO. He also held several positions in HBO’s Home Video Division, including
vice president, marketing, and senior vice president, marketing. Liguori also has experience as a
producer of the widely acclaimed independent feature film, “Big Night.” Prior to HBO, he
worked in advertising at Ogilvy & Mather and Saatchi & Saatchi. Mr. Liguori serves on the
board of directors of Yahoo!.
Class III Directors – Terms Expiring at the 2016 Annual Meeting:
Bruce A. Karsh has been a director since December 31, 2012 and is a member of the
Compensation Committee and the Nominating and Corporate Governance Committee. Mr.
Karsh has served as President, Chief Executive Officer and co-founder of Oaktree Capital
Management, L.P., formerly Oaktree Capital Management, LLC, a Los Angeles-based
investment management firm since 1995. Prior to co-founding Oaktree, Mr. Karsh was a
Managing Director of the TCW Group and the portfolio manager of its Special Credits Funds for
seven years. Prior to joining TCW, Mr. Karsh worked as Assistant to the Chairman of Sun Life
Insurance Company of America and of SunAmerica, Inc., its parent. Prior to that, Mr. Karsh was
an attorney with the law firm of O’Melveny & Myers. Mr. Karsh serves on the board of
directors of Oaktree Capital Group, LLC. Mr. Karsh also serves on the Duke University Board
of Trustees.
Ross Levinsohn has been a director since December 31, 2012 and is a member of the
Audit Committee and the Nominating and Corporate Governance Committee. Mr. Levinsohn
recently served as CEO at Guggenheim Digital Media. Mr. Levinsohn previously served as
11
Interim CEO and Head of Global Media at Yahoo! Inc. Prior to that post he was Executive Vice
President of the Americas region for Yahoo!. Mr. Levinsohn co-founded Fuse Capital, an
investment and strategic equity management firm focused on investing in and building digital
media and communications companies. Prior to Fuse Capital, Mr. Levinsohn spent six years at
News Corporation, serving as Senior Vice President and then President of Fox Interactive Media.
Mr. Levinsohn also held senior management positions with AltaVista, CBS Sportsline and HBO.
Mr. Levinsohn currently serves on the board of Millennial Media, Zefr, Inc, which provides
solutions for professional content owners on YouTube and the National Association of
Television Program Executives (NATPE), and previously held board positions with Freedom
Communications, Napster, Inc., Generate, BBE, Crowd Fusion and True/Slant.
Peter E. Murphy has been a director since December 31, 2012 and is a member of the
Audit Committee and the Nominating and Corporate Governance Committee. Mr. Murphy is the
founder of Wentworth Capital Management, a private investment and venture capital firm
focused on media, technology, and branded consumer businesses. Mr. Murphy previously
served as President, Strategy & Development of Caesars Entertainment, an Apollo-TPG portfolio
company and the world’s largest gaming company. Prior to Caesars, Mr. Murphy was an
operating partner at Apollo Global Management focused on media and entertainment investing.
Previously, Mr. Murphy spent 18 years at The Walt Disney Company in senior executive roles,
serving as Disney’s senior executive vice president, chief strategic officer, senior advisor to the
CEO, a member of the company’s executive management committee, and CFO of ABC, Inc.
Mr. Murphy currently serves on the board of directors of Malibu Boats, where he also serves as
chairman of the compensation committee, and Revel Entertainment, where he also serves as
chairman of the board, and he also serves as a board advisor to DECA TV. He previously served
on the board of directors of Fisher Communications and Dial Global.
Recommendation
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR”
THE ELECTION OF THE TWO NOMINEES NAMED HEREIN AS
CLASS I DIRECTORS OF THE COMPANY.
12
PROPOSAL #2: APPROVAL OF THE COMPANY’S
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
Our Proposal
On May 29, 2014, the Board of Directors voted to propose and recommend the approval
of a Second Amended and Restated Certificate of Incorporation of the Company, the effect of
which is to (i) clarify an ambiguity with respect to provisions relating to the classification of
directors, (ii) subject the Company to Section 203 of the DGCL effective at such time as the
Company has a class of voting stock that is listed on a national securities exchange, (iii) prohibit
stockholders of the Company from calling a special meeting of stockholders, (iv) prohibit
stockholders of the Company from acting by written consent, (v) provide for a supermajority
requirement for an amendment to certain provisions of the Company’s Second Amended and
Restated Certificate of Incorporation, (vi) provide for a supermajority requirement for an
amendment to the Company’s Bylaws, (vii) provide for the Court of Chancery of the State of
Delaware to be the sole and exclusive forum for certain actions involving the Company and its
directors, officers and employees, (viii) increase the number of authorized shares of Class A
common stock and Class B common stock and (ix) change the Company name to “Tribune
Media Company”. The descriptions of the Second Amended and Restated Certificate of
Incorporation contained herein are qualified in their entirety by the full text thereof, a copy of
which is attached hereto as Appendix A.
If less than a majority of the Class A common stock and Class B common stock, voting
together as a class, vote to approve the Company’s Second Amended and Restated Certificate of
Incorporation, this proposal will not be approved. If less than a majority of the Class A common
stock, voting as a separate class, or a majority of the Class B common stock, voting as a separate
class, vote to approve the proposal, but a majority of the Class A common stock and Class B
common stock, voting together as a class, vote to approve the proposal, the provisions of the
Second Amended and Restated Certificate of Incorporation that do not require a separate class
vote of the Class A common stock or Class B common stock under applicable law will be
adopted and the provisions that do require a separate class vote of the Class A common stock or
Class B common stock under applicable law will not be adopted. The provisions that will not be
included in the Second Amended and Restated Certificate of Incorporation if the proposal does
not receive approval of a majority of the Class A common stock or the Class B common stock,
each voting separately as a class, are:
•
a prohibition of stockholders of the Company from calling a special meeting of
stockholders;
•
a prohibition of stockholders of the Company from acting by written consent;
•
a supermajority requirement for an amendment to certain provisions of the
Company’s Second Amended and Restated Certificate of Incorporation;
•
a supermajority requirement for an amendment to the Company’s Bylaws; and
13
•
an increase in the number of authorized shares of the class of common stock that
did not receive a majority of the vote to approve the proposal, voting as a separate
class.
If a majority of each of the Class A common stock and Class B common stock, voting
together as a class, but less than a majority of either of the Class A common stock or the Class B
common stock vote to approve the proposal, only the following provisions will be adopted in the
Second Amended and Restated Certificate of Incorporation:
•
a clarification of an ambiguity with respect to provisions relating to the
classification of our Board of Directors;
•
subjecting the Company to Section 203 of the DGCL effective at such time as the
Company has a class of voting stock that is listed on a national securities
exchange;
•
providing for the Court of Chancery of the State of Delaware to be the sole and
exclusive forum for certain actions involving the Company and its directors,
officers and employees;
•
an increase in the number of authorized shares of the class of common stock that
did receive a majority of the vote to approve the proposal, voting as a separate
class; and
•
changing the Company name to “Tribune Media Company”.
Impact on Existing Stockholders
The provisions of our Second Amended and Restated Certificate of Incorporation are
designed, in part, to encourage persons seeking to acquire control of us to first negotiate with our
Board of Directors, which could result in an improvement of their terms. These provisions may
also have an anti-takeover effect and may delay, defer or prevent a tender offer or takeover
attempt that you might consider in your best interest, including an attempt that might result in
your receipt of a premium over the market price for your shares.
Director Classification
Our Second Amended and Restated Certificate of Incorporation will clarify an ambiguity
in our Amended and Restated Certificate of Incorporation relating to the classification of
directors. Our Board of Directors is currently divided into separate classes. If adopted, our
Second Amended and Restated Certificate of Incorporation will clarify that all members of the
Board of Directors are assigned to one of three classes and serve three-year terms expiring in
successive years.
Upon effectiveness of our Second Amended and Restated Certificate of Incorporation,
and assuming the election of the Class I nominees to be elected at the Annual Meeting, our Class
I directors will be Mr. Jacobson and Ms. Walker, our Class II directors will be Messrs. Liang and
Liguori, and our Class III directors will be Messrs. Karsh, Levinsohn and Murphy.
14
Section 203 of the Delaware General Corporation Law
Our Second Amended and Restated Certificate of Incorporation will provide that, once
the Company has a class of voting stock that is listed on a national securities exchange, we will
be subject to Section 203 of the DGCL. Section 203 prohibits a publicly held Delaware
corporation from engaging in a business combination, such as a merger, with a person or group
owning 15% or more of the corporation’s outstanding voting stock (an “interested stockholder”)
for a period of three years following the date the person became an interested stockholder,
unless:
•
prior to such time, the board of directors of the corporation approved either the
business combination or the transaction which resulted in the stockholder
becoming an interested stockholder;
•
upon consummation of the transaction which 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 voting stock outstanding,
but not the outstanding voting stock owned by the interested stockholder, those
shares owned (i) by persons who are directors and also officers and (ii) employee
stock plans in which employee participants do not have the right to determine
confidentially whether shares held subject to the plan will be tendered in a tender
or exchange offer; or
•
at or subsequent to such time, the business combination is approved by the board
of directors and authorized at an annual or special meeting of stockholders, and
not by written consent, by the affirmative vote of at least 66 2/3% of the
outstanding voting stock that is not owned by the interested stockholder.
Generally, a business combination includes a merger, asset or stock sale, or other
transaction resulting in a financial benefit to the interested stockholder, subject to certain
exceptions. An “interested stockholder” is any entity or person who, together with affiliates and
associates, owns, or within the previous three years owned, 15% or more of the outstanding
voting stock of the corporation. We expect the existence of this provision to have an antitakeover effect with respect to transactions our Board of Directors does not approve in advance.
We also anticipate that Section 203 may discourage attempts that might result in a premium over
the market price for the shares of common stock held by stockholders.
Special Stockholder Meetings
Our Second Amended and Restated Certificate of Incorporation will provide that a
special meeting of stockholders may be called only by or at the direction of our Board of
Directors pursuant to a resolution adopted by a majority of our Board of Directors. Stockholders
will not be permitted to call a special meeting. This provision is designed to protect stockholder
interests in the event of hostile takeover attempts against the Company by enabling the Company
to more effectively consider any proposed takeover attempt and to negotiate terms that maximize
the benefit to the Company and its stockholders.
15
Delaware law provides that special meetings of stockholders may only be called by the
board or by any other person as may be designated in the certificate of incorporation or bylaws.
The Board of Directors has proposed a provision in the Second Amended and Restated
Certificate of Incorporation providing that special meetings of stockholders may be called only
by the Board of Directors or the Chairman of the Board. Such a provision precludes a
stockholder from mounting a proxy contest until the next annual meeting. Such a provision
could have the effect of deterring efforts to seek control of the Company on a basis which some
stockholders might deem favorable.
No Stockholder Action by Written Consent
Our Second Amended and Restated Certificate of Incorporation will provide that
stockholder action may be taken only at an annual meeting or special meeting of stockholders
and may not be taken by written consent in lieu of a meeting. The inclusion of this provision in
the Second Amended and Restated Certificate of Incorporation is designed to protect stockholder
interests in the event of hostile takeover attempts against the Company by enabling the Company
to more effectively consider any proposed takeover attempt and to negotiate terms that maximize
the benefit to the Company and its stockholders.
This provision could have the effect of delaying consideration of a stockholder proposal
until the next annual meeting, unless a special meeting is called to consider the matter. This
provision would also prevent the holders of a majority of the voting power of our common stock
from unilaterally using the written consent procedure to take stockholder action.
Supermajority Requirement for Amendment of the Certificate of Incorporation and Bylaws
Our Second Amended and Restated Certificate of Incorporation will provide that our
Second Amended and Restated Certificate of Incorporation may be amended by the affirmative
vote of the holders of a majority of the outstanding shares of our common stock then entitled to
vote at any annual or special meeting of stockholders; provided that specified provisions of our
Second Amended and Restated Certificate of Incorporation may not be amended, altered or
repealed unless the amendment is approved by the affirmative vote of the holders of at least 66
2/3% of the outstanding shares of our common stock then entitled to vote at any annual or
special meeting of stockholders, including the provisions governing elimination of stockholder
action by written consent and prohibition on the rights of stockholders to call a special meeting.
In addition, our Second Amended and Restated Certificate of Incorporation will provide
that our Bylaws may be amended, altered or repealed, or new bylaws may be adopted, by either
(i) the affirmative vote of a majority of the Board of Directors or (ii) the affirmative vote of the
holders of at least 66 2/3% of the outstanding shares of our common stock then entitled to vote at
any annual or special meeting of stockholders.
Choice of Forum
Our Second Amended and Restated Certificate of Incorporation will provide that the
Court of Chancery of the State of Delaware will, to the fullest extent permitted by law, be the
sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of Tribune
Company, (ii) any action asserting a claim of breach of a fiduciary duty owed to Tribune
16
Company or Tribune Company’s stockholders by any of Tribune Company’s directors, officers,
employees or agents, (iii) any action asserting a claim arising under the DGCL or (iv) any action
asserting a claim that is governed by the internal affairs doctrine. We may consent in writing to
alternative forums. As a stockholder of Tribune Company, you will be deemed to have notice of
and have consented to the provisions of our Second Amended and Restated Certificate of
Incorporation related to choice of forum.
Increase the Number of Authorized Shares of Class A Common Stock and Class B Common
Stock
We currently have a total of 440,000,000 shares of capital stock authorized under our
Amended and Restated Certificate of Incorporation, consisting of 200,000,000 shares of Class A
common stock, 200,000,000 shares of Class B common stock and 40,000,000 shares of Preferred
Stock. Our Board of Directors is asking our stockholders to approve an amendment that will
increase the number of authorized shares of Class A common stock from 200,000,000 to
1,000,000,000, increase the number of authorized shares of Class B common stock from
200,000,000 to 1,000,000,000 and increase the number of authorized shares of all classes of
stock from 440,000,000 to 2,040,000,000. The number of shares of Preferred Stock would
remain unchanged. Our Board of Directors has determined that it would be in our best interests
to increase the number of authorized shares of Class A common stock and Class B common
stock in order to provide the Company with the flexibility to pursue all finance and corporate
opportunities involving our common stock, which may include private or public offerings of our
equity securities, or to issue stock dividends, without the need to obtain additional stockholder
approvals. There are currently no formal proposals or agreements that would require an increase
in our authorized shares of common stock. Each additional authorized share of Class A common
stock and Class B common stock would have the same rights and privileges as each share of
currently authorized Class A common stock and Class B common stock, respectively.
As of May 31, 2014, there were 93,386,784 shares of Class A common stock outstanding,
leaving 106,613,216 shares of Class A common stock available for issuance, and 2,945,997
shares of Class B common stock outstanding, leaving 197,054,003 shares of Class B common
stock available for issuance. Additionally, as of May 31, 2014, we had warrants outstanding to
purchase 3,822,598 shares of Class A common stock. As of May 31, 2014, there were no shares
of Preferred Stock outstanding.
At present, our Board of Directors has no immediate plans, arrangements or
understandings to issue any additional shares of Class A common stock or Class B common
stock. However, it desires to have the shares available to provide additional flexibility to use our
Class A common stock for business and financial purposes in the future as well to have sufficient
shares available to provide appropriate equity incentives for our employees. The issuance of
additional shares of Class A common stock or Class B common stock in the future would have
the effect of diluting earnings per share, voting power and common shareholdings of
stockholders. It could also have the effect of making it more difficult for a third party to acquire
control of the Company. The shares will be available for issuance by our Board of Directors for
proper corporate purposes, including but not limited to, stock dividends, acquisitions, financings
and equity compensation plans.
17
Name Change
The name change to “Tribune Media Company” is intended to better reflect the
Company’s operations, portfolio of assets and strategic priorities, particularly following the
anticipated spin-off of its publishing business, while maintaining the value and name recognition
of the Tribune brand.
Recommendation
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” THE APPROVAL OF
THE COMPANY’S SECOND AMENDED AND RESTATED CERTIFICATE OF
INCORPORATION.
18
PROPOSAL #3: RATIFICATION OF THE APPOINTMENT OF INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
Our Proposal
The Board of Directors has selected PricewaterhouseCoopers LLP to serve as the
Company’s independent registered public accounting firm for the fiscal year ending December
28, 2014. Neither the Company’s Bylaws nor other governing documents or law require
stockholder ratification of the selection of PricewaterhouseCoopers LLP as the Company’s
independent registered public accounting firm. However, the Company is asking stockholders to
ratify this appointment as a matter of good corporate practice. If ratification by the stockholders
of the appointment of PricewaterhouseCoopers LLP as the Company’s independent registered
public accounting firm is not obtained, the Board of Directors will consider the results of the
vote on any future appointments. Even if the appointment is ratified, the Board of Directors, in
its discretion, may appoint a different independent registered public accounting firm at any time
during the year if the Board of Directors determines that such a change would be in the best
interests of the Company and its stockholders.
Recommendation
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” THE
RATIFICATION OF THE APPOINTMENT OF PRICEWATERSHOUSECOOPERS
LLP AS THE COMPANY’S INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM FOR THE FISCAL YEAR ENDING DECEMBER 28, 2014.
19
OTHER MATTERS
No business other than that set forth in the attached Notice of Meeting is expected to
come before the Annual Meeting, but should any other matters requiring a vote of stockholders
arise, including a question of adjourning the meeting, the persons named in the accompanying
proxy will vote thereon according to their best judgment in the interests of the Company. In the
event any of the nominees for the office of director should withdraw or otherwise become
unavailable for reasons not presently known, the persons named as proxies will vote for other
persons in their place in what they consider the best interests of the Company.
Edward Lazarus
Executive Vice President, General Counsel and
Secretary
June 13, 2014
Chicago, Illinois
20
APPENDIX A
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
TRIBUNE MEDIA COMPANY
Tribune Media Company (the “Corporation”), a corporation organized and
existing by virtue of the General Corporation Law of the State of Delaware (as amended
from time to time, the “DGCL”), does hereby certify as follows:
The date of the filing of its original Certificate of Incorporation with the Secretary
of State of the State of Delaware was March 19, 1968. This Second Amended and
Restated Certificate of Incorporation was duly adopted in accordance with the provisions
of Sections 242 and 245 of the DGCL, and amends and restates, in their entirety, the
provisions of the Corporation’s Certificate of Incorporation so as to read in its entirety as
follows:
1.
Name. The name of the corporation is Tribune Media Company.
2.
Registered Office and Agent. The registered office of the Corporation in
the State of Delaware is located at 2711 Centerville Road, Suite 400, in the City of
Wilmington, County of New Castle, 19808. The name of its registered agent at such
address is Corporation Service Company.
3.
Nature of Business; Purpose. The nature of the business or purpose to be
conducted or promoted by the Corporation is to engage in any lawful act or activity for
which corporations may be organized under the DGCL.
4.
Capital Stock. The total number of shares of capital stock which the
Corporation shall have authority to issue is two billion, forty million (2,040,000,000)
shares, consisting of: (a) one billion (1,000,000,000) shares of Class A Common Stock,
par value $0.001 per share (“Class A Common Stock”); (b) one billion (1,000,000,000)
shares of Class B Common Stock, par value $0.001 per share (“Class B Common Stock”
and, together with the Class A Common Stock, the “Common Stock”); and (c) forty
million (40,000,000) shares of preferred stock, par value $0.001 per share (the “Preferred
Stock”), issuable in one or more series as hereinafter provided. Pursuant to Section
1123(a)(6) of chapter 11 of title 11 of the United States Code, as amended (the
“Bankruptcy Code”), the Corporation shall not issue any non-voting capital stock of any
class, series or other designation; provided, however, that the provisions of this sentence
shall (i) have no further force or effect beyond what is required by Section 1123(a)(6) of
the Bankruptcy Code and (ii) only have such force and effect to the extent and for so long
as Section 1123(a)(6) of the Bankruptcy Code is in effect and applies to the Corporation.
Shares of Class A Common Stock and Class B Common Stock which have been
redeemed, repurchased or otherwise acquired by the Corporation, or which are converted
into or exchanged for (whether by the holder thereof or by the Corporation) shares of any
other class or series of capital stock of the Corporation (or warrants to acquire shares of
capital stock of the Corporation), shall have the status of authorized and unissued shares
of Class A Common Stock or Class B Common Stock, respectively, and may be reissued
as shares of Class A Common Stock or Class B Common Stock, as the case may be.
A.
Common Stock.
(i)
Class A Common Stock.
(a)
Voting. A holder of Class A Common Stock shall be
entitled to one vote for each share of Class A Common Stock held by such holder of
record on the books of the Corporation for all matters on which stockholders of the
Corporation are entitled to vote.
(b)
Conversion Rights for Class A Common Stock. Subject to
Section A(iii)(c) of this Article 4 and Article 5, each share of Class A Common Stock
shall be convertible, at the option of the holder thereof, at any time after the date of
issuance of such share into one fully paid and nonassessable share of Class B Common
Stock; provided, however, that such conversion shall not be permitted if, following and
after giving effect to such conversion, no shares of Class A Common Stock would remain
issued and outstanding; provided, further, that any required approval from the Federal
Communications Commission or any successor governmental agency (the “FCC”) shall
have been received prior to any such conversion.
(ii)
Class B Common Stock.
(a)
Voting. Except as otherwise required by law or expressly
provided in this Section A(ii), the holders of Class B Common Stock shall not be entitled
to vote on any matter submitted to a vote of the stockholders of the Corporation, except:
(1) a holder of Class B Common Stock shall be entitled to one vote per share of Class B
Common Stock held by such holder on the books of the Corporation and the holders of
Class B Common Stock shall be entitled to vote as a separate class on any amendment,
alteration, change or repeal of any provision of this Amended and Restated Certificate of
Incorporation that adversely affects the powers, preferences or special rights of the Class
B Common Stock in a manner different from the adverse effect on the powers,
preferences or special rights of the Class A Common Stock; and (2) the holders of Class
B Common Stock shall be entitled to one vote per share of Class B Common Stock,
voting together with the holders of Class A Common Stock as a single class, on the
following non-ordinary course transactions to the extent that any such transaction is
submitted to a vote of the holders of Class A Common Stock: (A) any authorization of, or
2
increase in the number of authorized shares of, any class of capital stock ranking pari
passu with or senior to the Class A Common Stock or Class B Common Stock as to
dividends or liquidation preference, including additional shares of Class A Common
Stock or Class B Common Stock; (B) any amendment to this Amended and Restated
Certificate of Incorporation or the Bylaws of the Corporation; (C) any amendment to any
stockholders or comparable agreement; (D) any sale, lease or other disposition of all or
substantially all of the assets of the Corporation through one or more transactions;
(E) any recapitalization, reorganization, share exchange, consolidation or merger of the
Corporation or its capital stock; (F) any issuance or entry into an agreement for the
issuance of capital stock of the Corporation (or any rights, options, warrants or other
securities exercisable or exchangeable for or convertible into capital stock of the
Corporation), including any stock option or stock incentive plan; (G) any redemption,
purchase or other acquisition by the Corporation of any of its capital stock (except for
purchases from employees upon termination of employment); and (H) any liquidation,
dissolution, distribution of all or substantially all of the assets or winding-up of the
Corporation.
(b)
Conversion Rights for Class B Common Stock. Subject to
Section A(iii)(c) of this Article 4 and Article 5, each share of Class B Common Stock
shall be convertible, at the option of the holder thereof, at any time after the date of
issuance of such share into one fully paid and nonassessable share of Class A Common
Stock; provided, however, that any required approval of the FCC shall have been
received prior to any such conversion.
(iii)
Provisions Applicable to All Common Stock.
(a)
General. Except as otherwise expressly provided in this
Amended and Restated Certificate of Incorporation or as otherwise required by law, all
shares of Common Stock shall have identical powers, rights and privileges in each and
every respect. Except as otherwise provided by (1) the DGCL, (2) this Article 4 or
(3) resolutions, if any, of the Board of Directors of the Corporation (the “Board of
Directors”) fixing the relative powers, preferences and rights and the qualifications,
limitations or restrictions of the Preferred Stock of any series, the entire voting power of
the shares of the Corporation for the election of directors and for all other purposes shall
be vested exclusively in the Common Stock as provided in this Article 4. There shall be
no cumulative voting.
(b)
Dividends. Subject to the prior rights and preferences, if
any, applicable to shares of Preferred Stock, and subject to Article 5, the holders of Class
A Common Stock and the holders of Class B Common Stock shall be entitled to
participate ratably, on a share-for-share basis as if all shares of Common Stock were of a
single class, in such dividends, whether in cash, property, stock or otherwise, as may be
declared by the Board of Directors from time to time out of assets or funds of the
Corporation legally available therefor; provided, however, that any dividends payable in
3
shares of Common Stock (or payable in rights to subscribe for or to purchase shares of
Common Stock or securities or indebtedness convertible into or exercisable or
exchangeable for shares of Common Stock) shall be declared and paid at the same rate on
each class of Common Stock and dividends payable in shares of Class A Common Stock
(or rights to subscribe for or to purchase shares of Class A Common Stock or securities or
indebtedness convertible into or exercisable or exchangeable for shares of Class A
Common Stock) shall only be paid to holders of Class A Common Stock and dividends
payable in shares of Class B Common Stock (or rights to subscribe for or to purchase
shares of Class B Common Stock or securities or indebtedness convertible into or
exercisable or exchangeable for shares of Class B Common Stock) shall only be paid to
holders of Class B Common Stock.
(c)
Conversion. To effect a conversion of Common Stock
permitted by this Article 4, a holder of Common Stock shall deliver to the transfer agent
for the Class A Common Stock or the Class B Common Stock, as the case may be, the
certificate or certificates representing the shares of Common Stock to be converted, duly
endorsed in blank or accompanied by duly executed proper instruments of conversion and
transfer, or, in the case of shares held in book-entry form, deliver written notice to the
transfer agent for the Class A Common Stock or the Class B Common Stock, as the case
may be, with a copy to the Secretary of the Corporation at its principal corporate office,
stating that such holder elects to convert such shares and stating the name or names of the
person or persons in which the shares of Common Stock issued upon such conversion are
to be issued (and setting forth the addresses of such persons), together with proper
instruments of conversion and transfer in accordance with the procedures of the transfer
agent and The Depository Trust Company or any successor depositary (“DTC”), as
applicable. Subject to Article 5, conversion shall be deemed to have been effected at the
time and date when the conversion is reflected in the books of the transfer agent
following compliance with the requirements described in the immediately preceding
sentence, as applicable, with respect to the shares to be converted, and the person
exercising such voluntary conversion (or, if the notice specifies another person to whom
shares are to be issued upon conversion, such other person) shall be deemed to be the
holder of record of the number of shares of Common Stock issuable upon such
conversion at such time; provided, however, that, if, as a result of such requested
conversion, the holder seeking conversion or any other holder of Common Stock would
acquire or be deemed to hold an interest subject to FCC media ownership and
qualifications reporting requirements (including without limitation an “attributable
interest” in the Corporation within the meaning of Section 73.3555 of the FCC’s
regulations as set forth in 47 C.F.R. § 73.3555 or any successor rules or regulations), the
conversion shall not become effective until the Corporation shall have requested and
received, pursuant to Section B of Article 5, information sufficient in the Corporation’s
reasonable judgment to determine whether to exercise its rights under Section C of
Article 5 with respect to the conversion and the Corporation in its reasonable judgment
has determined not to exercise such rights. If a requested conversion would cause any
4
holder other than the converting holder (“Other Holder”) to acquire or be deemed to hold
an attributable interest in the Corporation under the Federal Communications Laws (as
defined in Section A of Article 5), the Corporation shall have the discretion to convert
shares of Class A Common Stock held by such Other Holders to Class B Common Stock
but only to the extent reasonably necessary to ensure that such Other Holders will remain
non-attributable in the Corporation, provided, however, that (1) each such Other Holder
will be given prior written notice indicating the number of shares of such Other Holder’s
Class A Common Stock that the Corporation proposes to convert to Class B Common
Stock, (2) each such Other Holder will be given a reasonable opportunity to make a
showing that such Other Holder may hold an attributable interest in the Corporation
consistent with the Federal Communications Laws, (3) at the request of any such Other
Holder, the proposed conversion to Class B Common Stock shall not be made with
respect to such Other Holder if the showing required in the preceding clause (2) is made
to the reasonable satisfaction of the Corporation and (4) the Corporation shall have no
other authority in the circumstances set forth in this subsection (c) to alter the Common
Stock holdings of any such Other Holder without such Other Holder’s prior written
consent. As promptly as practicable following any holder’s conversion of shares of
Common Stock as aforesaid, the Corporation shall (1) in the case of conversions of
certificated Class A Common Stock or Class B Common Stock, issue and deliver to the
converting holder, or to such holder’s transferee, as the case may be, one or more
certificates (as such holder may request) evidencing the shares of Common Stock
issuable upon such conversion and if the certificates surrendered by the converting holder
evidence more shares of Common Stock than the holder has elected to convert, one or
more certificates (as such holder may request) evidencing the shares of Common Stock
which have not been converted and (2) in the case of conversions of book-entry Class A
Common Stock or Class B Common Stock, cause the transfer agent to effect (directly or
through DTC) a book-entry deposit of the shares of Common Stock issuable upon such
conversion to the converting holder, or to such holder’s transferee, as the case may be.
Subject to Article 5, in the case of certificated shares of Common Stock, after the
conversion is reflected in the books of the transfer agent and pending the issuance and
delivery of such certificates, the certificate or certificates evidencing the shares of
Common Stock that have been surrendered for conversion shall be deemed to evidence
the shares of Common Stock issuable upon such conversion. Any dividends declared and
not paid on shares of Common Stock prior to their conversion as provided above shall be
paid, on the payment date, to the holder or holders entitled thereto on the record date for
such dividend payment notwithstanding such conversion, and no holder of shares of
Common Stock issued upon a conversion occurring after a record date for a declared and
unpaid dividend shall be entitled to receive any payment of such dividend with respect to
such shares of Common Stock. The Corporation shall at all times reserve and keep
available out of its authorized but unissued shares of Class A Common Stock and Class B
Common Stock, solely for the purpose of effecting the conversions provided for in this
Article 4, such number of shares of Class A Common Stock and such number of shares of
Class B Common Stock, respectively, as shall from time to time be sufficient to effect
5
any conversion provided for in this Article 4 and shall take all such corporate action as
may be necessary to assure that such shares of Class A Common Stock and such shares of
Class B Common Stock shall be validly issued, fully paid and non-assessable upon such
conversion.
(d)
Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution, distribution of all or substantially all of the assets or winding-up
of the Corporation, after all creditors of the Corporation shall have been paid in full and
after payment of all sums, if any, payable in respect of Preferred Stock, if any, the holders
of the Common Stock shall be entitled to share ratably, on a share-for-share basis as if all
shares of Common Stock were of a single class, in all distributions of assets pursuant to
such voluntary or involuntary liquidation, dissolution, distribution of all or substantially
all of the assets or winding-up of the Corporation. For purposes of this Section A(iii)(d),
neither the merger or the consolidation of the Corporation into or with another entity, the
conversion of the Corporation into another entity, the merger or consolidation of any
other entity into or with the Corporation nor the sale, transfer or other disposition of all or
substantially all of the assets of the Corporation shall be deemed to be a voluntary or
involuntary liquidation, dissolution, distribution of all or substantially all of the assets or
winding-up of the Corporation.
(e)
Split, Subdivision or Combination. If the Corporation shall
in any manner split, subdivide or combine the outstanding shares of Class A Common
Stock or Class B Common Stock, the outstanding shares of the other class of Common
Stock shall be proportionally split, subdivided or combined in the same manner and on
the same basis as the outstanding shares of the class of Common Stock that has been so
split, subdivided or combined.
B.
Preferred Stock. The Preferred Stock may be issued from time to
time in one or more series. The Board of Directors is hereby authorized to provide for the
issuance of shares of Preferred Stock in such series and, by filing a certificate pursuant to
the DGCL (each a “Preferred Stock Designation”), to fix from time to time the number of
shares to be included in any such series and the designations, powers, preferences, and
rights of the shares of each such series and the qualifications, limitations and restrictions
thereof. The authority of the Board of Directors with respect to each such series shall
include, without limiting the generality of the foregoing, the determination of any or all
of the following: (i) the number of shares of such series and the designation to distinguish
the shares of such series from the shares of all other series; (ii) the voting powers, if any,
of the holders of shares of such series and whether such voting powers are full or limited;
(iii) the redemption rights, if any, applicable to such series, including, without limitation,
the redemption price or prices, if any, to be paid for the shares of such series;
(iv) whether dividends on such series, if any, will be cumulative or noncumulative, the
dividend rate of such series, and the dates and preferences of dividends on such series;
(v) the rights of the holders of shares of such series upon the voluntary or involuntary
6
liquidation, dissolution or winding up of the affairs of, or upon any distribution of the
assets of, the Corporation; (vi) whether the shares of such series shall be convertible into
or exchangeable for shares of any other class or series of stock, or any other security, of
the Corporation or any other entity, and, if so, the specification of such other class or
series of stock or such other security, the conversion or exchange price or prices or rate or
rates, any adjustments thereof, the date or dates at which such shares shall be convertible
or exchangeable and all other terms and conditions upon which such conversion or
exchange may be made; (vii) the right, if any, of holders of shares of such series to
subscribe for or to purchase any securities of the Corporation or any other entity;
(viii) the terms and amount of any sinking fund, if any, applicable to such series; and
(ix) any other preferences or relative, participating, optional or other special rights,
qualifications, limitations or restrictions thereof. Shares of any series of Preferred Stock
which have been redeemed (whether through the operation of a sinking fund or
otherwise) or otherwise acquired by the Corporation, or which, if convertible or
exchangeable, have been converted into or exchanged for shares of stock of any other
class or classes or series or any other security shall have the status of authorized and
unissued shares of Preferred Stock and may be reissued as a part of the series of which
they were originally a part or may be reclassified and reissued as part of a new series of
Preferred Stock to be issued from time to time as set forth above, all subject to the
conditions or restrictions on issuance set forth in a Preferred Stock Designation providing
for the issue of any series of Preferred Stock and to any filing required by law.
5.
Stock Ownership and the Federal Communications Laws.
A.
Restrictions on Stock Ownership or Transfer. As contemplated by
this Article 5, the Corporation may restrict the ownership, conversion, or proposed
ownership, of shares of capital stock of the Corporation by any person if such ownership,
conversion or proposed ownership, either alone or in combination with other actual or
proposed ownership (including due to conversion) of shares of capital stock of any other
person, would (i) be inconsistent with, or in violation of, any provision of the Federal
Communications Laws (as hereinafter defined), (ii) materially limit or materially impair
any existing business activity of the Corporation or any of its subsidiaries under the
Federal Communications Laws, (iii) materially limit or materially impair under the
Federal Communications Laws the acquisition of an attributable interest in a full-power
television station, a full-power radio station or a daily newspaper (which, as used herein,
shall mean “daily newspaper” within the meaning of the Federal Communications Laws)
by the Corporation or any of its subsidiaries for which the Corporation or its subsidiary
has entered into a definitive agreement with a third party or (iv) subject the Corporation
or any of its subsidiaries to any regulation under the Federal Communications Laws
having a material effect on the Corporation or any subsidiary of the Corporation to which
the Corporation or any subsidiary of the Corporation would not be subject but for such
ownership, conversion or proposed ownership. For purposes of this Article 5, the term
“Federal Communications Laws” shall mean any law administered or enforced by the
7
FCC, including, without limitation, the Communications Act of 1934, as amended (the
“Communications Act”), and regulations thereunder pertaining to the ownership and/or
operation or regulating the business activities of (a) any television or radio station, daily
newspaper, cable television system or other medium of mass communications or (b) any
provider of programming content to any such medium. The Corporation may, but is not
required to, take any action permitted under this Article 5; and the grant of specific
powers to the Corporation under this Article 5 shall not be deemed to restrict the
Corporation from pursuing, alternatively or concurrently, any other remedy or alternative
course of action available to the Corporation.
B.
Requests for Information. If the Corporation believes that the
ownership or proposed ownership of shares of capital stock of the Corporation by any
person (whether by reason of a change in such person’s ownership, a change in the
number of shares outstanding overall or in any class, or for any other reason) may
(i) result in any inconsistency with or violation of the Federal Communications Laws as
set forth in Section A of this Article 5, including, without limitation, any inconsistency
with or violation of Section 310(b) of the Communications Act or Section 73.3555 of the
FCC’s regulations as set forth in 47 C.F.R. 73.3555, (ii) materially limit or materially
impair any existing business activity of the Corporation or any of its subsidiaries under
the Federal Communications Laws, (iii) materially limit or materially impair under the
Federal Communications Laws the acquisition of an attributable interest in a full-power
television station, a full-power radio station or a daily newspaper by the Corporation or
any of its subsidiaries for which the Corporation or its subsidiary is considering entering
into a definitive agreement with a third party, (iv) subject the Corporation or any of its
subsidiaries to any regulation under the Federal Communications Laws having a material
effect on the Corporation or any subsidiary of the Corporation to which the Corporation
or any subsidiary of the Corporation would not be subject but for such ownership or
proposed ownership or (v) be subject to FCC reporting requirements regarding such
person, such person shall furnish promptly to the Corporation such information
(including, without limitation, information with respect to its citizenship, ownership
structure, and other ownership interests and affiliations) as the Corporation shall
reasonably request.
C.
Denial of Rights, Refusal to Transfer. (i) If (a) any person from
whom information is requested pursuant to Section B of this Article 5 does not provide
all the information requested by the Corporation completely and accurately in a timely
manner or (b) the Corporation shall conclude that a stockholder’s ownership, conversion,
or proposed ownership of, or that a stockholder’s exercise of any rights of ownership
with respect to, shares of capital stock of the Corporation, either alone or in combination
with other existing or proposed ownership of shares of capital stock of any other person,
would result in (1) an inconsistency with or violation of the Federal Communications
Laws, (2) a material limitation or material impairment of any existing business activity of
the Corporation or any of its subsidiaries under the Federal Communications Laws, (3) a
8
material limitation or material impairment under the Federal Communications Laws of
the acquisition of an attributable interest in a full-power television station, a full-power
radio station or a daily newspaper by the Corporation or any of its subsidiaries for which
the Corporation or its subsidiary has entered into a definitive agreement with a third party
or (4) subjecting the Corporation or any of its subsidiaries to any regulation under the
Federal Communications Laws having a material effect on the Corporation or any
subsidiary of the Corporation to which the Corporation or any subsidiary of the
Corporation would not be subject but for such ownership or proposed ownership, then in
the case of either clause (a) or any provision of clause (b) of this Section C(i), the
Corporation may (A) refuse to permit the transfer to such proposed stockholder or
conversion by such stockholder of shares of capital stock of the Corporation, (B) suspend
those rights of stock ownership, the exercise of which causes or could cause any situation
described in any provision of clause (b) of this Section C(i) to occur, (C) require the
conversion of any or all shares of capital stock held by such stockholder into shares of
any other class of capital stock in the Corporation with equivalent economic value (it
being understood that for such purposes a share of Class A Common Stock and a share of
Class B Common Stock are deemed to have an equivalent economic value), (D) require
the exchange of any or all shares of capital stock held by such stockholder for warrants to
acquire, at a nominal exercise price, the same number and class of shares of capital stock
in the Corporation, (E) condition the acquisition (including due to conversion) of such
shares of capital stock on the prior consent of the FCC, to the extent such consent is
required, (F) to the extent that the remedies in the foregoing clauses (A) through (E) are
not reasonably feasible, redeem any or all such shares of capital stock of the Corporation
held by such stockholder in accordance with the terms and conditions set forth in Section
C(ii) of this Article 5, and/or (G) exercise any and all appropriate remedies, at law or in
equity, in any court of competent jurisdiction, against any such stockholder or proposed
stockholder, with a view towards obtaining such information or preventing or curing any
situation described in clause (a) or in any provision of clause (b) of this Section C(i);
provided, however, that, to the extent reasonably feasible without materially adversely
affecting the ability of the Corporation to prevent or cure the situation described in clause
(a) and/or (b) of this Section C(i), the Corporation shall use its good faith efforts (y) to
cause any of the remedies listed in the preceding clauses (A) through (G) to be imposed
on similarly situated persons or stockholders in a substantially similar manner and (z) to
minimize the impact of the exercise of any such remedy on the interests in the
Corporation of the subject stockholders or subject persons or other stockholders of the
Corporation or other persons with an interest in the Corporation, subject in all cases to the
primary goal of preventing or curing any situation described in clause (a) or any
provision of clause (b) of this Section C(i); provided, further, that in the circumstances set
forth in Section (A)(iii)(c) of Article 4 the only remedy available to the Corporation with
respect to Other Holders will be the remedy set forth therein. Any such refusal of transfer
or suspension of rights pursuant to clause (A) or (B) of the immediately preceding
sentence shall remain in effect until the requested information has been received and the
Corporation has determined that such transfer, or the exercise of such suspended rights,
9
as the case may be, will not result in any of the situations described in clause (a) or in any
provision of clause (b) of this Section C(i).
(ii)
Without limiting the foregoing, the terms and conditions of
redemption pursuant to Section C(i)(F) of this Article 5 shall be as follows:
(a)
the redemption price of any shares of capital stock of the
Corporation to be redeemed pursuant to Section C(i)(F) of this Article 5 shall be
equal to the Fair Market Value (as hereinafter defined) of such shares;
(b)
the redemption price of such shares will be paid in cash;
(c)
if less than all such shares are to be redeemed, the shares to
be redeemed shall be selected in such manner as shall be determined by the Board
of Directors in good faith, which may include selection first of the most recently
purchased shares thereof, selection by lot or selection in any other manner
determined by the Board of Directors in good faith;
(d)
at least 15 days’ prior written notice of the Redemption
Date (as hereinafter defined) shall be given to the record holders of the shares
selected to be redeemed (unless waived in writing by any such holder); provided
that the Redemption Date shall be the date on which written notice shall be given
to record holders if the cash necessary to effect the redemption shall have been
indefeasibly deposited in trust for the benefit of such record holders and is then
subject to immediate payment to them upon surrender of the stock certificates or
compliance with DTC policies and procedures for the redemption of book-entry
securities for their redeemed shares;
(e)
from and after the Redemption Date, any and all rights of
whatever nature in respect of the shares selected for redemption (including,
without limitation, any rights to vote or participate in dividends declared on
capital stock (including declared and unpaid dividends) of the same class or series
as such shares), shall cease and terminate and the holders of such shares shall
thenceforth be entitled only to receive the cash payable upon redemption; and
(f)
such other terms and conditions as the Board of Directors
shall determine in good faith.
(iii)
For purposes of this Section C:
(a)
“Fair Market Value” shall mean, with respect to a share of
the Corporation’s capital stock of any class or series, the volume weighted
average sales price for such a share on the national securities exchange (if any) on
which such capital stock is then listed during the 30 most recent days on which
10
shares of stock of such class or series shall have been traded preceding the day on
which notice of redemption shall be given pursuant to Section C(ii)(d) of this
Article 5; provided, however, that if such shares of capital stock are not traded on
any national securities exchange, Fair Market Value shall mean the average of the
reported bid and asked prices in any over-the-counter quotation system selected
by the Corporation during the 30 most recent days during which such shares were
traded immediately preceding the day on which notice of redemption shall be
given pursuant to Section C(ii)(d) of this Article 5, or if trading of such shares is
not reported in any over-the-counter quotation system, Fair Market Value shall be
determined by the Board of Directors in good faith; and provided, further, that
“Fair Market Value” as to any stockholder who purchased such stockholder’s
shares of capital stock within 120 days of a Redemption Date need not (unless
otherwise determined by the Board of Directors) exceed the purchase price paid
by such stockholder.
(b)
“person” shall mean not only natural persons but
partnerships (limited or general), associations, corporations, limited liability
companies, joint ventures, trusts and other legal entities.
(c)
“Redemption Date” shall mean the date fixed by the Board
of Directors for the redemption of any shares of capital stock of the Corporation
pursuant to Section C(i)(F) of this Article 5 or the date specified in Section
C(ii)(d) of this Article 5, as the case may be.
(d)
“regulation” shall include not only regulations but rules,
published policies and published controlling interpretations by an administrative
agency or body empowered to administer a statutory provision of the Federal
Communications Laws.
(iv)
The Corporation shall instruct the Corporation’s transfer agent that
the shares of capital stock of the Corporation are subject to the restrictions set forth in this
Article 5 and such restrictions shall be noted conspicuously on the certificate or
certificates representing such capital stock or, in the case of uncertificated securities,
contained in the notice or notices sent as required by law or pursuant to the policies and
procedures of DTC in the case of book-entry securities.
D.
Authority of Board of Directors. In the case of an ambiguity in the
application of any of the provisions of this Article 5, including any definition used herein,
the Board of Directors shall have the power to determine the application of such
provisions with respect to any situation based on its reasonable belief, understanding or
knowledge of the circumstances. In the event this Article 5 permits any action by the
Corporation but fails to provide specific guidance with respect to such action, the Board
of Directors shall have the power to determine whether to take any action and the action
to be taken (if any) so long as such action is not contrary to the provisions of this Article
11
5. All such actions, calculations, interpretations and determinations which are done or
made by the Board of Directors in good faith shall be conclusive and binding on the
Corporation and all other persons for all other purposes of this Article 5. The Board of
Directors may delegate all or any portion of its powers under this Article 5 to a
committee of the Board of Directors as it deems necessary or advisable and, to the fullest
extent permitted by law, may exercise the authority granted by this Article 5 through duly
authorized officers or agents of the Corporation. Nothing in this Article 5 shall be
construed to limit or restrict the Board of Directors in the exercise of its fiduciary duties
under applicable law.
E.
Reliance. To the fullest extent permitted by law, the Corporation
and the members of the Board of Directors shall be fully protected in relying in good
faith upon any information provided by any person pursuant to this Article 5 (including,
without limitation, Section B of this Article 5) and the information, opinions, reports or
statements of the chief executive officer, the chief financial officer or the principal
accounting officer of the Corporation and the Corporation’s legal counsel, independent
auditors, transfer agent, investment bankers or other employees and agents in making any
determinations and findings contemplated by this Article 5. The members of the Board of
Directors shall not be responsible for any good faith errors made in connection therewith.
For purposes of determining the existence and identity of, and the amount of any shares
of stock of the Corporation owned by any stockholder, the Corporation is entitled to rely
on the existence or absence of filings of Schedule 13D or 13G under the Securities
Exchange Act of 1934, as amended (or similar filings), as of any date, subject to its actual
knowledge of the ownership of shares of stock of the Corporation.
F.
Severability. If any provision of this Article 5 or the application of
any such provision to any person under any circumstance shall be held invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, such invalidity,
illegality or unenforceability shall not affect any other provision of this Article 5 or the
application of such provision to any other person.
6.
Board of Directors.
A.
General. (i) The business and affairs of the Corporation shall be
managed by or under the direction of a Board of Directors. The Board of Directors shall
initially consist of seven directors and the number of directors constituting the Board of
Directors shall thereafter be determined as set forth in the Bylaws of the Corporation. The
initial members of the Board of Directors shall be designated in the manner and for the
terms set forth in the Plan of Reorganization.
(ii)
Subject to any rights of holders of any series of Preferred Stock to
elect additional directors under specified circumstances, the directors shall be divided
into three classes, designated Class I, Class II and Class III. Each class shall consist, as
nearly as may be possible, of one-third of the total number of directors constituting the
12
entire Board of Directors. Each director shall serve for a term ending on the date of the
third annual meeting of stockholders next following the annual meeting at which such
director was elected; provided that directors initially designated as Class I directors shall
serve for a term ending on the date of the 2014 annual meeting, directors initially
designated as Class II directors shall serve for a term ending on the 2015 annual meeting,
and directors initially designated as Class III directors shall serve for a term ending on the
date of the 2016 annual meeting. Notwithstanding the foregoing, each director shall hold
office until such director’s successor shall have been duly elected and qualified or until
such director’s earlier death, resignation or removal. In the event of any change in the
number of directors, the Board of Directors shall apportion any newly created
directorships among, or reduce the number of directorships in, such class or classes as
shall equalize, as nearly as possible, the number of directors in each class. In no event
will a decrease in the number of directors shorten the term of any incumbent director.
(iii)
There shall be no cumulative voting in the election of directors.
(iv)
Vacancies on the Board of Directors resulting from death,
resignation, removal or otherwise and newly created directorships resulting from any
increase in the number of directors may be filled solely by a majority of the directors then
in office (although less than a quorum) or by the sole remaining director, and each
director so elected shall hold office for a term that shall coincide with the term of the
Class to which such director shall have been elected; provided that any vacancy on the
Board of Directors resulting from the death, resignation, removal or otherwise of any of
the initial members of the Board of Directors designated by Oaktree Capital
Management, L.P., Angelo, Gordon & Co., L.P. or JPMorgan Chase Bank, N.A. (each a
“Creditor Proponent”) pursuant to the Plan of Reorganization may be filled solely by the
Creditor Proponent(s) that designated such initial director, and each successor director so
designated shall hold office for a term that shall coincide with the term of the Class to
which such initial director shall have been designated.
(v)
Subject to the rights of holders of any series of Preferred Stock
then outstanding with respect to directors appointed or elected by the holders of such
series of Preferred Stock, no director may be removed from office by the stockholders
except for cause with the affirmative vote of the holders of not less than a majority of the
total voting power of all outstanding capital stock of the Corporation entitled to vote in
the election of the directors of the Corporation generally, voting together as a single class.
(vi)
If the number of directors is hereafter changed, any increase or
decrease shall be apportioned among the classes so as to maintain the number of directors
in each class as nearly equal as possible, except as may be expressly provided as to any
directors who may be elected by the holders of any series of Preferred Stock.
B.
Written Ballot. Election of directors need not be by written ballot
unless the Bylaws of the Corporation so provide.
13
7.
Personal Liability. To the fullest extent permitted by law, 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. If the DGCL is amended or
any other law of the State of Delaware is adopted or amended to authorize corporate
action further eliminating or limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the fullest extent
permitted by the DGCL as so amended, or such other law of the State of Delaware. Any
repeal or modification of the foregoing provisions of this Article 7 by the stockholders of
the Corporation or adoption of any provision of this Amended and Restated Certificate of
Incorporation inconsistent with this Article 7 shall not adversely affect any right or
protection of a director of the Corporation existing at the time of, or increase the liability
of any director of the Corporation with respect to any acts or omissions of such director
occurring prior to, such repeal, modification or adoption of any inconsistent provision.
8.
Right to Indemnification.
A.
Right to Indemnification of Directors and Officers. The
Corporation shall indemnify and hold harmless, to the fullest extent permitted by law as it
presently exists or may hereafter be amended, any person (an “Indemnified Person”) who
was or is a party or is threatened to be made a party to or is otherwise involved in any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (a “Proceeding”), by reason of the fact that such person, or
a person for whom such person 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, trustee, manager, employee or agent
of another corporation or of a partnership, joint venture, limited liability company, trust,
enterprise, nonprofit entity or other entity of any type, including service with respect to
any employee benefit plan, whether the basis of such Proceeding is alleged action in an
official capacity as a director or officer or in any other capacity while serving, at the
request of the Corporation, as a director, officer, trustee, manager, employee or agent,
against all liability and loss suffered and expenses (including attorneys’ fees) actually and
reasonably incurred by such Indemnified Person in such Proceeding; provided that, as
provided in the Plan of Reorganization, no such indemnification or reimbursement rights
shall apply to any LBO-Related Causes of Action (as defined in the Plan of
Reorganization) arising prior to December 8, 2008. Notwithstanding the preceding
sentence, except as otherwise provided in Section C of this Article 8, the Corporation
shall be required to indemnify an Indemnified Person in connection with a Proceeding (or
part thereof) commenced by or on behalf of such Indemnified Person only if the
commencement of such Proceeding (or part thereof) by the Indemnified Person was
authorized in advance by the Board of Directors. The Corporation hereby agrees: (i) that
it is the indemnitor of first resort (i.e., in the event any Indemnified Person has the right
to receive indemnification from one or more sponsors, affiliates or third parties, the
Corporation’s obligations to such Indemnified Person are primary); and (ii) that it shall
14
be required to pay the full amount of expenses (including attorneys’ fees) actually and
reasonably incurred by such Indemnified Person in connection with any Proceeding in
advance of its final disposition as required by the terms of this Certificate of
Incorporation, without regard to (A) any rights such Indemnified Person may have, or the
exercise of any such rights by such Indemnified Person, against any other sponsors,
affiliates or third parties or (B) any advance or payment made by such sponsors, affiliates
or third parties on behalf of such Indemnified Person with respect to any claim for which
such Indemnified Person is entitled to indemnification from the Corporation; and (iii) that
it irrevocably waives, relinquishes and releases such sponsors or affiliates from any and
all claims against such sponsors or affiliates for contribution, subrogation or any other
recovery of any kind in respect thereof.
B.
Prepayment of Expenses. The Corporation shall pay the expenses
(including attorneys’ fees) actually and reasonably incurred by an Indemnified Person in
connection with any Proceeding in advance of its final disposition; provided, however,
that, to the extent required by law, such payment of expenses in advance of the final
disposition of the Proceeding shall be made only upon receipt of an undertaking by the
Indemnified Person to repay all amounts advanced if it should be ultimately determined
that the Indemnified Person is not entitled to be indemnified under this Article 8 or
otherwise.
C.
Claims by Indemnified Persons. If a claim for indemnification or
advancement of expenses under this Article 8 is not paid in full within 30 days after a
written claim therefor by the Indemnified Person has been received by the Corporation
(and any undertaking required under Section B of this Article 8), the Indemnified Person
may file suit to recover the unpaid amount of such claim. If successful in whole or in part
in any such suit, or in a suit brought by the Corporation to recover an advancement of
expenses, the Indemnified Person shall be entitled to be paid the expense of prosecuting
or defending such claim. In any such action, the Corporation shall have the burden of
proving that the Indemnified Person is not entitled to the requested indemnification or
advancement of expenses under applicable law.
D.
Indemnification of Employees and Agents. The Corporation may
indemnify and advance expenses to any person who was or is made or is threatened to be
made or is otherwise involved in any Proceeding by reason of the fact that such person,
or a person for whom such person is the legal representative, is or was an employee or
agent of the Corporation or, while an employee or agent of the Corporation, is or was
serving at the request of the Corporation as a director, officer, trustee, manager, employee
or agent of another corporation or of a partnership, joint venture, limited liability
company, trust, enterprise, nonprofit entity or other entity of any type, including service
with respect to any employee benefit plan, against all liability and loss suffered and
expenses (including attorneys’ fees) reasonably incurred by such person in connection
with such Proceeding. The ultimate determination of entitlement to indemnification of
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persons who are non-director or non-officer employees or agents shall be made in such
manner as is determined by the Board of Directors in its sole discretion. Notwithstanding
the foregoing sentence, the Corporation shall not be required to indemnify a person
described therein in connection with a Proceeding initiated by or on behalf of such person
if the Proceeding was not authorized in advance by the Board of Directors.
E.
Advancement of Expenses of Employees and Agents. The
Corporation may pay the expenses (including attorneys’ fees) actually and reasonably
incurred by an employee or agent in defending any Proceeding in advance of its final
disposition on such terms and conditions as may be determined by the Board of
Directors.
F.
Non-Exclusivity of Rights. The rights conferred on any person by
this Article 8 shall not be exclusive of any other rights which such person may have
under the certificate of incorporation of the Corporation prior to the effectiveness of this
Amended and Restated Certificate of Incorporation or have or hereafter acquire under
any statute, provision of this Amended and Restated Certificate of Incorporation, bylaws,
agreement, vote of stockholders or disinterested directors or otherwise.
G.
Other Indemnification. Except as provided in Article 8.A, the
Corporation’s obligation under the provisions of this Article 8, if any, to indemnify any
person who was or is serving at its request as a director, officer, trustee, manager,
employee or agent of another corporation or of a partnership, joint venture, limited
liability company, trust, enterprise, nonprofit entity or other entity of any type, including
service with respect to any employee benefit plan, shall be reduced by any amount such
person collects as indemnification from such other corporation or such partnership, joint
venture, limited liability company, trust, enterprise, nonprofit entity or other entity of any
type; provided that no Indemnified Person shall have the obligation to reduce, offset,
allocate, pursue or apportion any indemnification advancement, contribution or insurance
coverage among multiple parties possessing such duties to such Indemnified Person prior
to the Corporation’s satisfaction of its obligations under the provisions of this Article 8.
H.
Insurance. The Board of Directors may, to the full extent
permitted by law as it presently exists, or may hereafter be amended from time to time,
authorize an appropriate officer or officers to purchase and maintain, at the Corporation’s
expense, insurance: (i) to indemnify the Corporation for any obligation which it incurs as
a result of the indemnification of directors, officers, employees and agents under the
provisions of this Article 8; and (ii) to indemnify or insure directors, officers, employees
and agents against liability in instances in which they may not otherwise be indemnified
by the Corporation under the provisions of this Article 8.
I.
Amendment or Repeal. Any repeal or modification of the
foregoing provisions of this Article 8, or adoption of any provision of this Amended and
Restated Certificate of Incorporation inconsistent with this Article 8, shall not adversely
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affect any right or protection hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal, modification or adoption of any inconsistent
provision. The rights provided hereunder shall inure to the benefit of any Indemnified
Person and such person’s heirs, executors and administrators.
9.
Stockholder Action by Written Consent. Any action required or permitted
to be taken at any annual or special meeting of stockholders of the Corporation may be
taken only upon the vote of the stockholders at an annual or special meeting duly called
and may not be taken by written consent of the stockholders. The Bylaws may establish
procedures regulating the submission by stockholders of nominations and proposals for
consideration at meetings of stockholders of the Corporation.
10.
Special Meetings. Except as otherwise required by law and subject to any
rights granted to holders of shares of any class or series of Preferred Stock then
outstanding, special meetings of the stockholders of the Corporation for any purpose or
purposes may be called only by the Chairman of the Board of Directors or pursuant to a
resolution of the Board of Directors adopted by at least a majority of the directors then in
office. The stockholders of the Corporation shall not have the power to call a special
meeting of the stockholders of the Corporation or to request the Secretary of the
Corporation to call a special meeting of the stockholders.
11.
Forum. Unless the Corporation consents in writing to the selection of an
alternative forum, the Court of Chancery of the State of Delaware shall to the fullest
extent permitted by law be the sole and exclusive forum for (i) any derivative action or
proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of
breach of a fiduciary duty owed by any director, officer, employee or agent of the
Corporation to the Corporation or the Corporation’s stockholders, (iii) any action
asserting a claim arising pursuant to any provision of the DGCL or the Corporation’s
Second Amended and Restated Certificate of Incorporation or Bylaws, or (iv) any action
asserting a claim governed by the internal affairs doctrine. Any person or entity
purchasing or otherwise acquiring an interest in shares of capital stock of the Corporation
shall be deemed to have notice of and consented to the provisions of this Article 11.
12.
Amendment of the Certificate of Incorporation. Subject to Article 7 and
Article 8, the Corporation reserves the right at any time from time to time to amend, alter,
change or repeal any provision contained in this Second Amended and Restated
Certificate of Incorporation, and any other provisions authorized by the laws of the State
of Delaware at the time in force that may be added or inserted, in the manner now or
hereafter prescribed by law. Subject to Article 7 and Article 8, all rights, preferences and
privileges of whatsoever nature conferred upon stockholders, directors, officers or any
other persons whomsoever by and pursuant to this Second Amended and Restated
Certificate of Incorporation in its present form or as hereafter amended are granted
subject to the right reserved in this Article 12. Notwithstanding the foregoing, the
provisions set forth in Articles 6, 8.A, 9 and 10 may not be repealed or amended in any
17
respect, and no other provision may be adopted, amended or repealed which would have
the effect of modifying or permitting the circumvention of the provisions set forth in
Articles 6, 8.A, 9 and 10, unless such action is approved by the affirmative vote of the
holders of at least two-thirds (66 2/3%) of the outstanding shares of Common Stock
entitled to vote at any annual or special meeting of stockholders, voting together as a
single class.
13.
Amendment of the Bylaws. In furtherance and not in limitation of the
powers conferred by law, the Board of Directors is expressly authorized to amend, alter
or repeal the Bylaws of the Corporation, without the assent or vote of stockholders of the
Corporation. Any amendment, alteration or repeal of the Bylaws of the Corporation by
the Board of Directors shall require the affirmative vote of at least a majority of the
directors then in office. In addition to any other vote otherwise required by law, the
stockholders of the Corporation may amend, alter or repeal the Bylaws of the
Corporation, provided that any such action will require the affirmative vote of the holders
of at least two-thirds (66 2/3%) of the outstanding shares of Common Stock entitled to
vote at any annual or special meeting of stockholders, voting together as a single class.
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IN WITNESS WHEREOF, the Corporation has caused this Second Amended and
Restated Certificate of Incorporation to be signed by Edward Lazarus, its Executive Vice
President and General Counsel, this ____ day of _______, 2014.
TRIBUNE MEDIA COMPANY
By:
Name: Edward Lazarus
Title: Executive Vice President and
General Counsel
Second Amended and Restated Certificate of Incorporation
of Tribune Media Company