Quarterly Report — Form 10-Q Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: 10-Q Quarterly Report HTML 237K
2: EX-3.1 Fourth Amended and Restated Certificate of HTML 63K Incorporation
3: EX-10.1 Seventh Amendment to Credit Agreement HTML 73K
4: EX-10.2 Shareholders' Agreement HTML 145K
5: EX-31.1 Certification Pursuant to Section 302 HTML 12K
6: EX-31.2 Certification Pursuant to Section 302 HTML 12K
7: EX-31.3 Certification Pursuant to Section 302 HTML 11K
8: EX-32.1 Certification Pursuant to Section 906 HTML 9K
9: EX-32.2 Certification Pursuant to Section 906 HTML 8K
EX-3.1 — Fourth Amended and Restated Certificate of Incorporation
MediaNews Group, Inc. (the “Corporation”), a corporation organized and existing under
and by virtue of the provisions of the General Corporation Law of the State of Delaware, hereby
certifies as follows:
1. The name of the Corporation is MediaNews Group, Inc. and it was originally incorporated
under the name Affiliated Newspapers Investments, Inc. The original certificate of incorporation
was filed on January 25, 1994 with the Secretary of State of the State of Delaware.
2. The Board of Directors of the Corporation duly adopted resolutions proposing to amend and
restate the certificate of incorporation of the Corporation, declaring a Fourth Amended and
Restated Certificate of Incorporation of the Corporation to be advisable, and authorizing the
appropriate officers of the Corporation to solicit the approval of the stockholders therefor, such
Fourth Amended and Restated Certificate of Incorporation to read as follows:
FIRST: The name of the Corporation is MediaNews Group, Inc. (hereinafter, the
“Corporation”).
SECOND: The address, including street, number, city and county, of the registered
office of the Corporation in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington,
County of New Castle, State of Delaware 19808, and the name of the registered agent of the
Corporation in the State of Delaware at such address is Corporation Service Company.
THIRD: The nature of the business and of the purpose to be conducted and promoted by
the Corporation shall be to conduct any lawful business, to promote any lawful purpose, and to
engage in any lawful act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: The total number of shares of capital stock which the Corporation shall have
authority to issue is Three Million One Hundred Fifty Thousand One Hundred (3,150,100) shares,
consisting of (i) Three Million (3,000,000) shares of Class A Common Stock, with a par value of
One-Thousandth of a Dollar ($0.001) per share (the “Class A Common Stock”), (ii) One
Hundred Fifty Thousand (150,000) shares of Class B Common Stock, with a par value of One-Thousandth
of a Dollar ($0.001) per share (the “Class B Common Stock”), and (iii) One Hundred (100)
shares of Class C Common Stock, with a par value of One-Thousandth of a Dollar ($0.001) per share
(the “Class C Common Stock”, and together with the Class A Common Stock and the Class B
Common Stock, the “Common Stock”). Each of the Class A Common Stock, Class B Common Stock
and Class C Common Stock is sometimes referred to herein as a “class of Common Stock”.
COMMON STOCK
1. Voting Rights.
(a) Class A Common Stock. Except as otherwise provided by law and in Section 1(c)
below, the holders of Class A Common Stock shall have the exclusive right to vote for the election
of directors and for all other purposes. In connection with all such matters, the number of votes
to which each holder of Class A Common Stock shall be entitled shall be as set forth in Article
EIGHTH of this Fourth Amended and Restated Certificate of Incorporation. No election of directors
need be by written ballot.
(b) Class B Common Stock. The holders of Class B Common Stock shall have no voting
rights, except for such rights as may be required by the first sentence of paragraph (b)(2) of
Section 242 of the General Corporation Law of the State of Delaware or any similar provision
hereafter enacted. The number of authorized shares of Class B Common Stock may be increased or
decreased (but not below the number of shares of Class B Common Stock then outstanding or reserved
for issuance) by the affirmative vote of the holders of a majority of the Class A Common Stock,
voting as a single class, without a vote by holders of the Class B Common Stock.
(c) Class C Common Stock. The holders of Class C Common Stock shall have no voting
rights, except for such rights as may be required by (i) this Fourth Amended and Restated
Certificate of Incorporation and (ii) the first sentence of paragraph (b)(2) of Section 242 of the
General Corporation Law of the State of Delaware or any similar provision hereafter enacted.
Without limitation of the exception set forth in clause (ii) of the preceding sentence, the
following actions shall not be taken without the affirmative vote of the holders of a majority of
the Class C Common Stock, voting as a single class:
(i) any increase or decrease in the authorized number of shares of Class C Common
Stock;
(ii) any increase or decrease in the number of outstanding shares of Class C Common
Stock;
(iii) any change in the par value of the Class C Common Stock; and
(iv) any alteration or change in the powers or other rights of the Class C Common Stock
set forth in this Fourth Amended and Restated Certificate of Incorporation in any way that
affects the Class C Common Stock adversely.
2. Removal of Directors for Cause. A director may be removed for cause by a vote of
the majority of the outstanding shares of Class A Common Stock. The cumulative voting provisions
of Article EIGHTH of this Fourth Amended and Restated Certificate of Incorporation shall not apply
to a vote for removal of a director for cause, and each holder of Class A Common Stock shall be
entitled to one vote for each share held.
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3. Dividends.
(a) General. The holders of Class A Common Stock and the holders of Class C Common
Stock shall be entitled to receive, when, as and if declared by the Board of Directors, out of
funds legally available therefor (and subject to the limitations provided for below in this Section
3), dividends payable in cash, stock or otherwise. In connection with all dividends paid to
holders of Class A Common Stock, each share of Class A Common Stock shall have equal rights of
participation with all other shares of Class A Common Stock, in all respects. In connection with
all dividends paid to holders of Class C Common Stock, each share of Class C Common Stock shall
have equal rights of participation with all other shares of Class C Common Stock, in all respects.
No dividends shall be paid to holders of Class B Common Stock.
(b) Class A Common Stock. Dividends on Class A Common Stock may be declared and paid
only to the extent of the excess, if any, of (i) the assets of the Corporation legally available
therefor over (ii) the Class C Available Dividend Amount (such excess, the “Class A
Available Dividend Amount”).
(c) Class C Common Stock. Dividends on Class C Common Stock may be declared and paid
only out of the lesser of (i) the assets of the Corporation legally available therefor and (ii) the
Class C Available Dividend Amount.
(d) Relationship Between Dividends.
(i) The Board of Directors shall have the discretion to determine whether dividends
paid on the Class A Common Stock are paid out of assets comprising the Bay Area Business or
assets comprising the Non-Bay Area Business. In declaring a dividend on Class A Common
Stock, the Board of Directors shall specify the extent to which such dividend is paid out of
assets comprising the Bay Area Business and/or the Non-Bay Area Business.
(ii) If and to the extent that the Board of Directors shall desire to declare a
dividend from the assets comprising the Non-Bay Area Business, then the Board of Directors
shall declare dividends on both the Class A Common Stock and the Class C Common Stock such
that the holders of Class C Common Stock receive in the aggregate an amount equal to (i) the
Class C Allocation Percentage multipliedby (ii) the sum of such dividends
paid to the holders of Class C Common Stock and Class A Common Stock, respectively, out of
assets comprising the Non-Bay Area Business; provided, however, that the Board of Directors
may on or after the date this Fourth Amended and Restated Certificate of Incorporation is
filed with the Secretary of State of the State of Delaware declare and pay dividends on the
Class A Common Stock from the assets comprising the Non-Bay Area Business in the cumulative
aggregate amount of $25,000,000 without declaring dividends on the Class C Common Stock.
(e) Share Distributions. The Board of Directors may declare and pay dividends to
holders of any class of Common Stock consisting of any securities of the Corporation, any
Subsidiary of the Corporation, or any other Person, including, without limitation, a dividend
consisting of shares of any class of Common Stock (or any Convertible Securities). However,
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securities of (or convertible into) a class of Common Stock may be distributed to holders of
another class of Common Stock only for consideration.
4. Rights on Liquidation.
(a) Liquidation Percentages. In the event of a liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary (a “Liquidation”), after payment or
provision for payment of the debts and other liabilities of the Corporation, the funds of the
Corporation remaining for distribution to holders of all classes of Common Stock shall be
apportioned between the holders of Class A Common Stock and Class B Common Stock, on the one hand,
and the holders of Class C Common Stock, on the other hand, based on the ratio of the aggregate
Fair Value of the outstanding shares of Class A Common Stock and Class B Common Stock (as if such
Class B Common Stock had been converted into Class A Common Stock), on the one hand, to the
aggregate Fair Value of the outstanding shares of Class C Common Stock, on the other hand (the
“Class A/B Liquidation Amount” and the “Class C Liquidation Amount”, respectively).
Each holder of record of Class A Common Stock and each holder of record of Class B Common Stock
shall participate in the Class A/B Liquidation Amount on a pro rata basis with respect to each
other holder of record of Class A Common Stock and each other holder of record of Class B Common
Stock (as if such classes of Common Stock constituted a single class of capital stock). Each
holder of record of Class C Common Stock shall participate in the Class C Liquidation Amount on a
pro rata basis with respect to each other holder of record of Class C Common Stock.
(b) Certain Transactions. For purposes of this Section 4, a merger, statutory share
exchange, consolidation or similar corporate transaction involving the Corporation (whether or not
the Corporation is the surviving entity), or the sale, transfer or lease by the Corporation of all
or substantially all its assets, shall not constitute or be deemed a Liquidation.
5. Split, Subdivision or Combination. If the Corporation shall in any manner split,
subdivide or combine the outstanding shares of any class of Common Stock (the “Affected
Class”), the outstanding shares of the other classes 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 Affected Class have been split, subdivided or combined.
6. Mandatory Conversion of Class B Common Stock.
(a) Upon (x) the consummation of a public offering by the Corporation or its stockholders of
shares of the Corporation’s Class A Common Stock pursuant to a registration statement under the
Securities Act of 1933, as amended, that results in (i) aggregate cash proceeds to the Corporation
and selling stockholders of an amount equal to or greater than $50 million (before deduction of
underwriting discounts and commissions) and (ii) the listing of such Class A Common Stock on any
national securities exchange, (y) consummation of any transaction that results in (i) the listing
of Class A Common Stock on any national securities exchange and (ii) shares of such Class A Common
Stock having a market value of at least $50 million held by Persons that are not “affiliates” of
the Corporation (as such term is used in Rule 144 under the Securities Act of 1933, as amended) or
(z) such date as shall have been determined by the Board of Directors (the “Class B Conversion
Date”), all outstanding shares of Class B
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Common Stock shall automatically be converted into an equal number of shares of Class A Common
Stock.
(b) All holders of record of shares of Class B Common Stock shall be given written notice of
the Class B Conversion Date and the place designated for mandatory conversion of all such shares of
Class B Common Stock pursuant to this Section 6. Such notice need not be given in advance of the
occurrence of the Class B Conversion Date. Such notice shall be sent by first class or registered
mail, postage prepaid, or given by electronic communication in compliance with the provisions of
the General Corporation Law of the State of Delaware, to each record holder of Class B Common
Stock. Upon receipt of such notice, each holder of shares of Class B Common Stock shall surrender
such holder’s certificate or certificates for all such shares to the Corporation at the place
designated in such notice, and shall thereafter receive certificates for the number of shares of
Class A Common Stock to which such holder is entitled pursuant to this Section 6. On the Class B
Conversion Date, all outstanding shares of Class B Common Stock shall be deemed to have been
converted into shares of Class A Common Stock, which shall be deemed to be outstanding of record,
and all rights with respect to the Class B Common Stock so converted, including the rights, if any,
to receive notices and vote (other than as a holder of Class A Common Stock), will terminate,
except only the rights of the holders thereof, upon surrender of their certificate or certificates
therefor, to receive certificates for the number of shares of Class A Common Stock to which such
holder is entitled pursuant to this Section 6. If so required by the Corporation, certificates
surrendered for conversion shall be endorsed or accompanied by written instrument or instruments of
transfer, in form satisfactory to the Corporation, duly executed by the registered holder or by
his, her or its attorney duly authorized in writing. As soon as practicable after the Class B
Conversion Date and the surrender of the certificate or certificates for Class B Common Stock, the
Corporation shall cause to be issued and delivered to such holder, or on his, her or its written
order, a certificate or certificates for the number of full shares of Class A Common Stock issuable
on such conversion in accordance with the provisions hereof.
(c) If any certificate representing shares of Class A Common Stock is to be issued in a name
other than that in which the certificate representing shares of Class B Common Stock surrendered
for conversion thereof is registered, it shall be a condition of such issuance that the person
requesting the issuance pays any transfer or other taxes required by reason of the issuance of
certificates for such shares of Class A Common Stock in a name other than that of the record holder
of the certificate surrendered, or establishes, to the satisfaction of the Corporation or its
agent, that such tax has been paid or is not applicable. Under no circumstances shall the
Corporation be liable to a holder of shares of Class B Common Stock for any shares of Class A
Common Stock or dividends or distributions thereon delivered to a public official pursuant to any
applicable abandoned property, escheat or similar law.
(d) All certificates evidencing shares of Class B Common Stock which are required to be
surrendered for conversion in accordance with the provisions hereof shall, from and after the Class
B Conversion Date and until such surrender be deemed to represent the number of shares of Class A
Common Stock into which the shares of Class B Common Stock represented thereby were converted.
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(e) The Corporation shall at all times reserve and keep available out of its authorized but
unissued shares of Class A Common Stock solely for the purpose of effecting the conversion of the
shares of Class B Common Stock such number of its shares of Class A Common Stock as shall from time
to time be sufficient to effect the conversion of all outstanding shares of Class B Common Stock;
and if at any time the number of authorized but unissued shares of Class A Common Stock shall not
be sufficient to effect the conversion of all then outstanding shares of Class B Common Stock, the
Corporation will take such corporate action as may be necessary to increase its authorized but
unissued shares of Class A Common Stock to such number of shares as shall be sufficient for such
purpose.
7. Redemption of Class C Common Stock. The Class C Common Stock will be subject to
redemption by the Corporation on the terms set forth below in this Section 7.
(a) Redemption at Option of Board of Directors Following Occurrence of Tax Event. At
any time following the occurrence of a Tax Event, the Board of Directors, in its sole discretion,
provided that there are assets of the Corporation legally available therefor and that the Board of
Directors determines that there is no other reasonable course of action available to it that could
as effectively eliminate or mitigate the adverse effects associated with the Tax Event, may cause
the Corporation to redeem all, and not less than all, of the outstanding shares of Class C Common
Stock for an amount per share in cash equal to the greater of (x) the Fair Value thereof and (y)
the per share consideration paid to the Company upon the issuance of each share of Class C Common
Stock (the “Class C Redemption Price”), in accordance with the redemption procedures set
forth in Section 7(b) of this Article FOURTH.
(b) Redemption Procedures for Class C Common Stock.
(i) No adjustments in respect of dividends shall be made upon the redemption of any
shares of Class C Common Stock; provided, however, that, if the date fixed by the Board of
Directors for redemption (the “Effective Date”) shall be subsequent to the record
date for the payment of a dividend or other distribution on or with respect to Class C
Common Stock but prior to the payment or distribution thereof, the registered holders of
such shares at the close of business on such record date shall be entitled to receive the
dividend or other distribution payable on such shares on the date set for payment of such
dividend or other distribution, notwithstanding the redemption of such shares.
(ii) In the event that the Board of Directors exercises its right to cause the
Corporation to redeem the shares of Class C Common Stock, the Corporation shall give written
notice of such redemption to the holders of Class C Common Stock (a “Class C
Notice”) as soon as practicable before or after the Effective Date, by first class or
registered mail, postage prepaid, or by electronic communication in compliance with the
provisions of the General Corporation Law of the State of Delaware. The Class C Notice
shall specify the Effective Date and may be conditioned on or otherwise subject to such
terms as the Board of Directors may determine in its sole discretion and which terms and
conditions shall be stated in the Class C Notice. As soon as practicable after the
determination of the Class C Redemption Price (and unless such information was
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previously included in the Class C Notice), the Corporation shall send a written notice
to the holders of Class C Common Stock setting forth the Class C Redemption Price.
(iii) Upon receipt of a Class C Notice with respect to the redemption of Class C Common
Stock, each holder of shares of Class C Common Stock shall surrender such holder’s
certificate or certificates for all such shares to the Corporation at the place designated
in such notice, and shall thereafter receive a payment from the Corporation equal to the
number of shares of Class C Common Stock owned by such holder multipliedby
the Class C Redemption Price (the “Class C Redemption Payment”). On the Effective
Date, all outstanding shares of Class C Common Stock shall be deemed to have been redeemed,
as the case may be, and all rights with respect to the Class C Common Stock so converted or
redeemed, including the rights, if any, to receive notices and vote (other than as a holder
of Class A Common Stock if applicable), will terminate, except only the rights of the
holders thereof, upon surrender of their certificate or certificates therefor, to receive
the Class C Redemption Payment. If so required by the Corporation, certificates surrendered
to the Corporation shall be endorsed or accompanied by written instrument or instruments of
transfer, in form satisfactory to the Corporation, duly executed by the registered holder or
by his, her or its attorney duly authorized in writing. As soon as practicable after the
Effective Date and the surrender of the certificate or certificates for Class C Common
Stock, the Corporation shall cause to be delivered to such holder, or on such holder’s
written order, the Class C Redemption Payment.
(iv) All certificates evidencing shares of Class C Common Stock which are required to
be surrendered for redemption in accordance with the provisions hereof shall, from and after
the Effective Date and until such surrender, be deemed to represent the right to receive the
Class C Redemption Payment.
8. Adjustment of the Class C Allocation Percentage. The Class C Allocation Percentage
shall be adjusted from time to time without a vote of the stockholders of the Corporation (i) to
reflect issuances or redemptions of stock by the Corporation or capital contributions by
stockholders, (ii) to reflect the Fair Value of capital contributions to the Bay Area Business or
Non-Bay Area Business, (iii) in accordance with the provisos to the definitions of Bay Area
Business and Non-Bay Area Business, (iv) as provided in Sections 2.4 and 9.5(b) of the Stock
Purchase Agreement, dated as of August 2, 2006, between the Corporation and The Hearst Corporation,
as amended from time to time, and (v) under such other circumstances as the Board of Directors
determines appropriate to reflect the economic substance of any other event or circumstance,
provided that, in each case of clauses (i), (ii), (iii) and (v), the adjustment shall be made
pursuant to the policies established by the Board of Directors from time to time for determining
Fair Value and adjustments to the Class C Allocation Percentage (the “Fair Value
Policies”). The Corporation shall prepare a statement of any such adjustment, and shall file
such statement with the Secretary of the Corporation.
9. Certain Definitions. As used in this Article FOURTH:
“Affiliate” shall mean, with respect to any Person, any Person that directly or
indirectly through one or more intermediaries controls, is controlled by, or is under common
control with
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such Person. “control” (including, with correlative meanings, “controlled
by”, “under common control with” and “controlling”) means possession, directly
or indirectly, of the power to direct or cause the direction of management or policies of the
relevant Person (whether through ownership of securities, partnership interests or other ownership
interests, by contract, by membership or involvement in the board of directors, management
committee or other management structure of such Affiliate, or otherwise).
“Applicable Business” shall mean the Bay Area Business or the Non-Bay Area Business,
as the case may be.
“Bay Area Business” shall mean, as of any date of determination,
(i) all right, title and interest of the Corporation in and to the Bay Area Newspapers
including, without limitation, any indirect interest therein owned through partnerships or
corporations in which the Corporation has a direct or indirect ownership interest;
(ii) all other assets and liabilities of the Corporation and its Subsidiaries that the
Board of Directors has, at any time, attributed to the Bay Area Business in accordance with
policies established by the Board of Directors from time to time (including, but not limited
to, notional intercompany indebtedness, proceeds of issuances or stock or incurrence of
indebtedness, income tax liabilities, working capital and corporate overhead);
(iii) any earnings and expenditures attributable to any of the foregoing; and
(iv) the proceeds of any Disposition of any of the foregoing;
provided, however, that if (x) one of the Applicable Businesses is unable to satisfy a liability
when due out of its liquid assets, it may satisfy such liability out of liquid assets of the other
Applicable Business, or (y) required under agreements or indentures governing indebtedness for
borrowed money of the Corporation or its Subsidiaries, funds of one of the Applicable Businesses
may be used to satisfy indebtedness for borrowed money allocated to the other Applicable Business,
and in each such case at the election of the Board of Directors, either (a) such payments shall be
treated as a notional loan from the Applicable Business providing the funds to the other Applicable
Business, bearing interest at a rate equal to the cost of funds from time to time under the
Corporation’s senior debt facility (or in the case of clause (y), the indebtedness repaid) or (b)
the Class C Allocation Percentage shall be adjusted accordingly in accordance with the Fair Value
Policies.
“Bay Area Newspapers” shall mean (i) each of the publications set forth in the
following sentence and (ii) any other publication acquired after this Fourth Amended and Restated
Certificate of Incorporation is filed with the Secretary of State of the State of Delaware and
designated by the Board of Directors as a Bay Area Newspaper. The initial Bay Area Newspapers are:
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Alameda Journal
Fremont Bulletin
Rose Garden Resident
Alameda Times-Star
Home & Design (Spaces)
SV Home
Almaden Resident
Image
Santa Cruz Classifieds
The Argus (Fremont)
Jobs and Careers
Santa Cruz Magazine
Auto Finder
The Journal (El Cerrito)
Santa Cruz Sentinel
Berkeley Voice
La Ganga
San Jose City Times
The Berryessa Sun (Pleasanton)
Los Gatos Daily News
San Jose Mercury News
Brentwood News
Los Gatos Weekly Times
The San Mateo County Times
Burlingame Daily News
Marin Independent Journal
San Mateo Daily News
Campbell Reporter
Mendocino Beacon
Saratoga News
Classified Gazette (Marin)
Milpitas Post
Sunnyvale Sun
Contra Costa Times
The Montclarion (North Oakland)
The Tri-Valley Herald (Pleasanton)
Cupertino Courier
The Oakland Tribune
Vallejo Times Herald
The Daily Review (Hayward)
The Pacifica Tribune
The Valley Times
Dream Homes
Palo Alto Daily News
The Wave (Pacifica)
East Bay Daily News
The Piedmonter
Willow Glen Resident
East Bay Real Estate Connection (Oakland)
Redwood City Daily News
West San Jose Resident
Enhance
The Reporter (Vacaville)
“Class C Allocation Percentage” shall mean 31%, subject to adjustment from time to
time as described in this Article FOURTH; provided, however, that such fraction shall in no event
be greater than one.
“Class C Available Dividend Amount” shall mean, as of any date of determination, the
amount determined by multiplying the Class C Allocation Percentage by: (1) the excess of (i) the
amount by which the total assets of the Non-Bay Area Business as of such date exceed the total
liabilities of the Non-Bay Area Business as of such date over (ii) the amount of the
Corporation’s stated capital with respect to the Class C Common Stock, or (2) in case there shall
be no excess under clause (1) above, the net profits of the Non-Bay Area Business for the fiscal
year in which the dividend is declared and/or the preceding fiscal year.
“Convertible Securities” shall mean any securities of the Corporation or any
Subsidiary of the Corporation that are convertible into, exchangeable for or evidence the right to
purchase any shares of any class of Common Stock (or any other class or series of capital stock of
the Corporation), whether upon conversion, exercise or exchange, or pursuant to anti-dilution
provisions of such securities or otherwise.
“Disposition” shall mean the sale, transfer, assignment or other disposition (whether
by merger, consolidation, sale or contribution of assets or stock, or otherwise) by the Corporation
of any of its properties or assets to any Third Party. “Disposition” shall not include a merger,
consolidation, exchange of shares or other business combination transaction involving the
Corporation in which the Corporation (or, if applicable, a parent entity of the Corporation)
continues immediately following such transaction to directly or indirectly hold the same interest
in the assets and liabilities comprising the Applicable Business that the Corporation held
immediately prior to such transaction.
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“Fair Value” shall mean, in the case of any share of any class of Common Stock or of
any other assets or property, the value thereof, as determined in a manner approved by the Board of
Directors in good faith and in accordance with the Fair Value Policies. The Corporation shall
prepare a statement of any determination by the Board of Directors respecting the Fair Value of any
properties, assets or securities, and shall file such statement with the Secretary of the
Corporation.
“Fair Value Policies” shall have the meaning given to such term in Section 8 of this
Fourth Amended and Restated Certificate of Incorporation.
“Non-Bay Area Business” shall mean, as of any date of determination, all of the
businesses, assets and liabilities of the Corporation and its Subsidiaries, other than the
businesses, assets and liabilities that comprise the Bay Area Business including, without
limitation,
(i) all right, title and interest of the Corporation in and to any newspaper that is
not a Bay Area Newspaper including, without limitation, any indirect interest therein owned
through partnerships or corporations in which the Corporation has a direct or indirect
ownership interest;
(ii) all other assets and liabilities of the Corporation and its Subsidiaries that the
Board of Directors has, at any time, attributed to the Non-Bay Area Business in accordance
with policies established by the Board of Directors from time to time (including, but not
limited to, notional intercompany indebtedness, proceeds of issuances or stock or incurrence
of indebtedness, income tax liabilities, working capital and corporate overhead);
(iii) any earnings and expenditures attributable to any of the foregoing; and
(iv) the proceeds of any Disposition of any of the foregoing;
provided, however, that if (x) one of the Applicable Businesses is unable to satisfy a liability
when due out of its liquid assets, it may satisfy such liability out of liquid assets of the other
Applicable Business, or (y) required under agreements or indentures governing indebtedness for
borrowed money of the Corporation or its Subsidiaries, funds of one of the Applicable Businesses
may be used to satisfy indebtedness for borrowed money allocated to the other Applicable Business,
and in each such case at the election of the Board of Directors, either (a) such payments shall be
treated as a notional loan from the Applicable Business providing the funds to the other Applicable
Business, bearing interest at a rate equal to the cost of funds from time to time under the
Corporation’s senior debt facility (or in the case of clause (y), the indebtedness repaid) or (b)
the Class C Allocation Percentage shall be adjusted accordingly in accordance with the Fair Value
Policies.
“Person” or “person” shall mean any individual, corporation, partnership,
limited liability company, joint venture, association, joint stock company, trust, unincorporated
organization, government or agency or political subdivision thereof, or other entity, whether
acting in an individual, fiduciary or other capacity.
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“Subsidiary” shall mean, with respect to any Person, any corporation, limited
liability company or partnership 50% or more of whose outstanding voting securities or membership
or partnership interests, as the case may be, are, directly or indirectly, owned by such Person.
“Tax Event” shall mean receipt by the Corporation of an opinion of nationally
recognized tax counsel of the Corporation’s choice, to the effect that, as a result of any
amendment to, clarification of, or change (including a prospective change) in, the laws (or any
interpretation or application of the laws) of the United States or any political subdivision or
taxing authority thereof or therein (including enactment of any legislation and the publication of
any judicial or regulatory decision, determination or pronouncement), which amendment,
clarification or change is effective, announced, released, promulgated or issued on or after the
date of initial issuance of the Class C Common Stock, regardless of whether such amendment,
clarification or change is issued to or in connection with a proceeding involving the Corporation,
the Bay Area Business or the Non-Bay Area Business and whether or not subject to appeal, there is a
significant risk that:
(i) for tax purposes, the issuance of Class C Common Stock by the Corporation on or
following the date of this Fourth Amended and Restated Certificate of Incorporation would be
treated as a sale or other taxable disposition by the Corporation or any of its Subsidiaries
of any of the assets, operations or relevant Subsidiaries to which the Class C Common Stock
relates resulting in material adverse tax consequences to the Company or its Subsidiaries,
or
(ii) the existence of the Class C Common Stock would subject the Corporation, its
Subsidiaries or Affiliates, or any of their respective successors or stockholders, to the
imposition of material additional taxes or to other material adverse tax consequences.
“Third Party” shall mean any Person other than an Affiliate of the Corporation.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: For the management of the business and for the conduct of the affairs of the
Corporation, and in further definition, limitation and regulation of the powers of the Corporation
and its directors and of its stockholders or any class thereof, as the case may be, it is further
provided:
l. Board of Directors. The management of the business and the conduct of the affairs
of the Corporation shall be vested in its Board of Directors. The number of directors, which shall
constitute the whole Board of Directors, shall be such even number of directors as shall be fixed
from time to time by, or in the manner provided in, the By-Laws. The phrase “whole Board” and the
phrase “total number of directors” shall be deemed to have the same meaning, to wit, the total
number of directors, which the Corporation would have if there were no vacancies.
2. By-Laws. The power to adopt, amend, or repeal the By-Laws and to adopt new By-Laws
may be exercised by the unanimous vote of all directors then serving on the Board of Directors, or
by the affirmative vote of the holders of at least three-fourths of the outstanding shares of Class
A Common Stock.
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SEVENTH:
l. Personal Liability of Directors. A director of the Corporation shall not be liable
to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent such exemption from liability or limitation thereof is not permitted
under the General Corporation Law of the State of Delaware as the same exists or may hereafter be
amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely
affect any right or protection of a director of the Corporation hereunder in respect of any act or
omission occurring prior to the time of such amendment, modification or repeal.
2. Right to Indemnification. Each person (a “Covered Person”) who was or is
made a party or is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (hereinafter a
“proceeding”), by reason of the fact that he or she, or a person of whom he or she is the
legal representative, is or was a director or officer, of the Corporation or is or was serving at
the request of the Corporation as a director, officer, employee or agent of another Corporation or
of a partnership, joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action in an official
capacity as a director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the General Corporation Law of the State of Delaware, as the same
exists or may hereafter be amended, against all expense, liability and loss (including attorneys’
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such Covered Person in connection therewith, and
such indemnification shall continue as to a Covered Person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that except as provided in the following section hereof,
“Right of Claimant to Bring Suit,” the Corporation shall indemnify any such Covered Person
seeking indemnification in connection with a proceeding (or part thereof) initiated by such person
only if such proceeding (or part thereof) was authorized by the Board of Directors of the
Corporation. The right to indemnification conferred in this Article SEVENTH shall be a contract
right. A Covered Person shall be entitled to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition, which advancement of expenses
shall require an undertaking only to the extent required by law, by or on behalf of such Covered
Person, to repay all amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified. The Corporation may, by action of its Board of
Directors, provide indemnification to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
3. Right of Covered Person to Bring Suit. If a claim under the preceding section,
“Right to Indemnification,” is not paid in full by the Corporation within thirty days after
a written claim has been received by the Corporation, the Covered Person may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought to enforce a claim
for expenses incurred in defending any proceeding in advance of its final disposition where the
required undertaking, if any is required, has been tendered to the
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Corporation) that the claimant has not met the standards of conduct which make it permissible
under the General Corporation Law of the State of Delaware for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of Directors, independent
legal counsel, or its stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances because he or she has
met the applicable standard of conduct set forth in the General Corporation Law of the State of
Delaware, nor an actual determination by the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
4. Non-Exclusivity of Rights. The right of indemnification and the payment of
expenses incurred in defending a proceeding in advance of its final disposition conferred in this
Article shall not be exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of this Fourth Amended and Restated Certificate of Incorporation,
By-Law, agreement, vote of stockholders or disinterested directors or otherwise.
5. Insurance. The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any such expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person against such expense,
liability or loss under the General Corporation Law of the State of Delaware.
EIGHTH: At all elections of directors of the Corporation, each holder of Class A
Common Stock shall be entitled to as many votes as shall equal the number of votes which (except
for this provision as to cumulative voting) such holder would be entitled to cast for the election
of directors with respect to such holder’s shares of Class A Common Stock multiplied by the number
of directors to be elected by such holder, and such holder may cast all of such votes for a single
director or may distribute them among the number to be voted for, or for any two or more of them as
such holder may see fit. In all other matters, each holder of Class A Common Stock shall be
entitled to one vote for each share of Common Stock held by such holder.
NINTH: Whenever the stockholders are required or permitted to take any action at any
annual or special meeting, such action may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the
holders of outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted, provided that prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those stockholders who
have not consented in writing and who, if the action had been taken at a meeting, would have been
entitled to notice of the meeting if the record date for such meeting had been the date that
written consents signed by a sufficient number of holders to take the action were delivered to the
Corporation.
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TENTH: From time to time any of the provisions of this Fourth Amended and Restated
Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized
by the laws of the State of Delaware at the time in force may be added or inserted in the manner
and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders
of the Corporation by this Fourth Amended and Restated Certificate of Incorporation are granted
subject to the provisions of this Article TENTH.
ELEVENTH: Prior to an initial public offering of shares of Class A Common Stock, a
stockholder will not be permitted to transfer shares of any class of Common Stock, and the
Corporation and its Transfer Agent, if applicable, will not be required to register any transfer of
shares of any class of Common Stock if, in the opinion of counsel to the Corporation, as a result
of such transfer and the subsequent transfer of other shares of Common Stock to 100 persons not
then stockholders of the Corporation, the Corporation will be required to register any class of
Common Stock under the federal Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
* * *
3. The foregoing Fourth Amended and Restated Certification of Incorporation has been duly
adopted in accordance with Sections 228, 242 and 245 of the General Corporation Law of the State of
Delaware.
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IN WITNESS WHEREOF, the undersigned has executed this Fourth Amended and Restated Certificate
of Incorporation this 19th day of October, 2007.
