<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 29, 1999
REGISTRATION NO. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
NBC INTERNET, INC.
(Exact name of Registrant as Specified in Its Charter)
DELAWARE 94-3333463
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
300 MONTGOMERY STREET, SUITE 300
SAN FRANCISCO, CALIFORNIA 94104
(Address of Principal Executive Offices)
NBC INTERNET, INC. 1999 STOCK INCENTIVE PLAN
(Full Title of the Plan)
------------------------
CHRIS KITZE
PRESIDENT
NBC INTERNET, INC.
300 MONTGOMERY STREET, SUITE 300
SAN FRANCISCO, CALIFORNIA 94104
(Name and Address of Agent for Service)
(415) 288-2500
(Telephone Number, Including Area Code, of Agent For Service)
Copies to:
BRUCE ALAN MANN, ESQ. RAJ AJI
MORRISON & FOERSTER LLP NBC INTERNET, INC.
425 MARKET STREET 300 MONTGOMERY STREET, SUITE 300
SAN FRANCISCO, CALIFORNIA 94105 SAN FRANCISCO, CALIFORNIA 94104
(415) 268-7000 (415) 288-2500
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share Price Fee
---------- --------- ----- ---
<S> <C> <C> <C> <C>
Class A Common Stock, $.0001 6,469,057(1) $23.65(3) $152,993,198(3) $42,532.11
par value per share
Class A Common Stock, $.0001 7,030,943(2) $67.50(4) $474,588,652(4) $131,935.65
par value per share
</TABLE>
(1) Represents the shares originally issued under stock option plans or
stock option agreements of Xoom.com, Inc. or its subsidiaries and
SNAP! LLC, which will be converted on November 29, 1999 into options
to purchase shares of Class A Common Stock in connection with the
Registrant's acquisition of Xoom.com, Inc. and SNAP! LLC, pursuant to
the terms and provisions of the Agreement and Plan of Contribution and
Merger dated May 9, 1999, as amended on October 20, 1999, by and among
Registrant, CNET, Inc., XOOM.com, Inc., Xenon 3, Inc. and SNAP! LLC
(the "Merger Agreement").
(2) Represents shares available for grant under the 1999 Stock Incentive
Plan.
(3) Estimated in accordance with Rule 457(h) under the Securities Act of
1933, as amended. Computation based upon the weighted average exercise
price of the options, all of which were previously granted and as
converted pursuant to the terms of the Merger Agreement.
(4) Estimated in accordance with Rule 457(h) under the Securities Act
of 1933, as amended, solely for the purpose of calculating the
registration fee. Computation based upon the Registrant's good faith
estimate of the value of the Class A Common Stock based upon the average
high and low prices of XOOM.com, Inc.'s Common Stock as reported on the
Nasdaq National Market on November 19, 1999.
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10 (A) PROSPECTUS
The documents containing the information specified in Part 1 of Form
S-8 (plan information and registrant information and employee plan annual
information) will be sent or given to employees as specified by Securities and
Exchange Commission (the "Commission") Rule 428(b)(1). Such documents need not
be filed with the Securities and Exchange Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933 (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by NBC Internet, Inc. (the "Registrant")
with the Commission are incorporated by reference herein:
(a) The Registrant's Proxy Statement/Prospectus dated November 2, 1999,
which forms a part of the Registration Statement on Form S-4 as declared
effective on November 2, 1999 (No. 333-82639), which includes audited
financial statements for XOOM.com, Inc., SNAP! LLC and the NBC Multimedia
Division and pro forma financial information of the Registrant.
(b) The description of the Registrant's Class A common stock which is
contained in its Registration Statement on Form 8-A filed under the
Securities Exchange Act of 1934 (the "Exchange Act") on November 2, 1999,
including any amendment or report filed for the purpose of updating such
description.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date
of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is deemed to
be incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the General Corporation Law of the State of
Delaware, the Registrant has broad powers to indemnify its directors and
officers against liabilities they may incur in such capacities, including
liabilities under the Securities Act. Article IX of the Registrant's Amended and
Restated Bylaws also provides for mandatory indemnification of its directors and
executive officers, and permissive indemnification of its employees and agents,
to the fullest extent permissible under Delaware law.
Article Ninth of the Registrant's Restated Certificate of Incorporation
provides that the liability of its directors for monetary damages shall be
eliminated to the fullest extent permissible under Delaware law. Pursuant to
Delaware law, this includes elimination of liability for monetary damages for
breach of the directors' fiduciary duty of care to the Registrant and its
stockholders. These provisions do not eliminate the directors' duty of care and,
in appropriate circumstances, equitable remedies such as injunctive or other
forms of non-monetary relief will remain available under Delaware law. In
addition, each director will continue to be subject to liability for breach of
the director's duty of loyalty to the Registrant, for acts or omissions not in
good faith or involving intentional misconduct, for knowing violations of law,
for any transaction from which the director derived an improper personal
benefit, and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law. The provision also does not
affect a director's responsibilities under any other laws, such as the federal
securities laws or state or federal environmental laws.
The Registrant has entered into agreements with its directors and
certain of its executive officers that require the Registrant to indemnify such
persons against expenses, judgments, fines, settlements and other amounts
actually and reasonably incurred (including expenses of a derivative action) in
connection with any proceeding, whether actual or threatened, to which any such
person may be made a party by reason of the fact that such person is or was a
director or officer of the Registrant or any of its affiliated enterprises,
provided such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Registrant and,
with respect to any criminal proceeding,
<PAGE>
had no reasonable cause to believe his or her conduct was unlawful. The
indemnification agreements also set forth certain procedures that will apply
in the event of a claim for indemnification thereunder.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The Registrant has obtained a policy of directors' and officers'
liability insurance that insures the Registrant's directors and officers
against the cost of defense, settlement or payment of a judgment under
certain circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Restated Certificate of Incorporation of the Registrant.
4.2 Amended and Restated Bylaws of the Registrant.
5.1 Opinion of Morrison & Foerster LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of KPMG LLP, Independent Auditors.
23.3 Consent of KPMG LLP, Independent Auditors.
23.4 Consent of PricewaterhouseCoopers LLP, Independent Auditors.
23.5 Consent of Morrison & Foerster LLP (contained in Exhibit 5.1).
24.1 Power of Attorney (see signature page of this Registration
Statement).
99.1 NBC Internet, Inc. 1999 Stock Incentive Plan (incorporated by
reference to Exhibit 10.18 to the Registrant's Registration
Statement on Form S-4 (Commission file No. 333-82639)).
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in this Registration Statement.
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
upon the termination of the NBC Internet, Inc. 1999 Stock Incentive
Plan.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the indemnity provisions summarized
in Item 6 above or otherwise, the Registrant has been advised that in the
opinion of the Commission such indemnification is against public policy
as expressed in the Securities Act, and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by
a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Francisco, State of California, on November 29,
1999.
NBC INTERNET, INC.
BY: /s/ Chris Kitze
--------------------
Chris Kitze
President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints, severally and not jointly, Chris Kitze and
John Harbottle, with full power to act alone, as his or her true and lawful
attorney-in-fact, with the power of substitution, for and in such person's
name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto each said attorney-in-fact full power and authority
to do and perform each and every act and thing requisite and necessary to be
done as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that each said attorney-in-fact
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on
the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Chris Kitze
- -------------------------------------------- President and Director November 29, 1999
Chris Kitze (Principal Executive Officer)
/s/ John Harbottle Chief Financial Officer, Executive November 29, 1999
- -------------------------------------------- Vice President, Finance, Secretary and Treasurer
John Harbottle (Principal Financial and Accounting Officer)
/s/ Marc Sznajderman Director November 29, 1999
- --------------------------------------------
Marc Sznajderman
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
-----------
<S> <C>
4.1 Restated Certificate of Incorporation of the Registrant.
4.2 Amended and Restated Bylaws of the Registrant.
5.1 Opinion of Morrison & Foerster LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of KPMG LLP, Independent Auditors.
23.3 Consent of KPMG LLP, Independent Auditors.
23.4 Consent of PricewaterhouseCoopers LLP, Independent Auditors.
23.5 Consent of Morrison & Foerster LLP (contained in Exhibit 5.1).
24.1 Power of Attorney (see signature page of this Registration
Statement).
99.1 NBC Internet, Inc. 1999 Stock Incentive Plan (incorporated by
reference to Exhibit 10.18 to the Registrant's Registration
Statement on Form S-4 (Commission file No. 333-82639)).
</TABLE>
<PAGE>
RESTATED CERTIFICATE OF INCORPORATION
OF
NBC INTERNET, INC.
NBC Internet, Inc., (the "Corporation") a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware (the "General Corporation Law"),
DOES HEREBY CERTIFY THAT:
1. The name of the Corporation is NBC Internet, Inc. and the original
Certificate of Incorporation of the Corporation was filed with the Secretary of
State of the State of Delaware on May 7, 1999.
2. Pursuant to a unanimous written consent of the Board of Directors
of the Corporation dated November 24, 1999, resolutions were duly adopted
setting forth the proposed amendment and restatement of the Certificate of
Incorporation of the Corporation and declaring said amendment and restatement to
be advisable.
3. Thereafter, the sole stockholder of the Corporation took action at
a special meeting held on November 24, 1999, whereat the amendment and
restatement of the Certificate of Incorporation of the Corporation was approved.
4. Said amendment and restatement was duly adopted in accordance with
the provisions of Sections 242 and 245 of the General Corporation Law.
5. Accordingly, the Certificate of Incorporation is restated to read
in its entirety as set forth in Exhibit A hereto.
IN WITNESS WHEREOF, the Corporation has caused this Restated Certificate
of Incorporation to be signed by its duly authorized officer, this 29th day of
November, 1999.
NBC INTERNET, INC.
By: /s/ Chris Kitze
-------------------------------
Name: Chris Kitze
Office: President
1
<PAGE>
EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
OF
NBC INTERNET, INC.
FIRST: The name of the corporation is NBC Internet, Inc.
SECOND: The registered office of the Corporation is to be located at
1209 Orange Street, City of Wilmington, County of New Castle, State of Delaware
19801. The name of its registered agent is The Corporation Trust Company, whose
address is Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware
19801.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law.
FOURTH: The total number of shares of stock the Corporation shall have
authority to issue is 210,000,000 shares, which shall be divided into three
classes: (i) 100,000,000 shares shall be Class A Common Stock, $.0001 par value
per share (the "Class A Common Stock"), (ii) 100,000,000 shares shall be Class B
Common Stock, $.0001 par value per share (the "Class B Common Stock"), and (iii)
10,000,000 shares shall be Preferred Stock, $.0001 par value per share
("Preferred Stock"). The Class A Common Stock and Class B Common Stock are
sometimes referred to herein as the "Common Stock."
The following is a statement of the designations and the
powers, preferences and rights, and the qualifications, limitations or
restrictions in respect thereof, in respect of each class of capital
stock of the Corporation.
A. 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 one or more series and, by filing a
certificate pursuant to the applicable law of the State of Delaware (hereinafter
referred to as "Preferred Stock Designation"), to establish from time to time
the number of shares to be included in each such series, and to fix the
designation, 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 series shall include, but not be
limited to, determination of the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title.
(b) The number of shares of the series, which number the
Board of Directors may thereafter (except where otherwise provided in the
Preferred Stock
<PAGE>
Designation) increase or decrease (but not below the number of shares
thereof then outstanding).
(c) The amounts payable on, and the preferences, if any,
of shares of the series in respect of dividends, and whether such
dividends, if any, shall be cumulative or noncumulative.
(d) Dates at which dividends, if any, shall be payable.
(e) The redemption rights and price or prices, if any,
for shares of the series.
(f) The terms and amount of any sinking fund provided
for the purchase or redemption of shares of the series.
(g) The amounts payable on, and the preferences, if any,
of shares of the series in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation.
(h) Whether the shares of the series shall be
convertible into or exchangeable for shares of any other class or series,
or any other security, of the Corporation or any other corporation, and,
if so, the specification of such other class or series 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.
(i) Restrictions on the issuance of shares of the same
series or of any other class or series.
(j) The voting rights, if any, of the holders of shares
of the series.
The Common Stock shall be subject to the express terms of
the Preferred Stock and any series thereof. Except as may otherwise be provided
in this Restated Certificate of Incorporation, in a Preferred Stock Designation
or by applicable law, the holders of shares of Common Stock shall have the
exclusive right to vote for the election of directors and for all other
purposes, and holders of Preferred Stock shall not be entitled to vote at or
receive notice of any meeting of stockholders.
B. COMMON STOCK.
The following is a statement of the relative powers,
preferences and participating, optional or other special rights, and the
qualifications, limitations and restrictions thereof, of the Class A
Common Stock and Class B Common Stock.
1. GENERAL. Except as otherwise set forth below in this
Article FOURTH, the relative powers, preferences and participating, optional or
other special rights, and the
2
<PAGE>
qualifications, limitations or restrictions thereof, of the Class A Common
Stock and Class B Common Stock shall be identical in all respects.
2. VOTING RIGHTS. Except as otherwise required by this
Restated Certificate of Incorporation or by applicable law, at every meeting of
the stockholders of the Corporation every holder of Common Stock shall be
entitled to one vote in person or by proxy for each share of Common Stock
standing in his or her name on the transfer books of the Corporation in
connection with the election of directors and all other matters submitted to a
vote of stockholders. Except as otherwise required by this Restated Certificate
of Incorporation or by applicable law, the holders of Class A Common Stock and
Class B Common Stock shall vote together as a single class on all matters
submitted to a vote of stockholders of the Corporation subject to any voting
rights which may be granted to holders of Preferred Stock.
3. DIVIDENDS. Subject to the rights of the holders of
Preferred Stock, and subject to any other provisions of this Restated
Certificate of Incorporation, holders of Class A Common Stock and Class B Common
Stock shall be entitled to receive such dividends and other distributions in
cash, stock of any corporation (other than Common Stock) or property of the
Corporation as may be declared thereon by the Board of Directors from time to
time out of assets or funds of the Corporation legally available therefor and
shall share equally on a per share basis in all such dividends and other
distributions. In the case of dividends or other distributions payable in
Common Stock, including distributions pursuant to stock splits or divisions of
Common Stock of the Corporation, only shares of Class A Common Stock shall be
paid or distributed with respect to Class A Common Stock and only shares of
Class B Common Stock shall be paid or distributed with respect to Class B Common
Stock; PROVIDED, HOWEVER, in the event a dividend or distribution shall be paid
or distributed with respect to one class of Common Stock a simultaneous dividend
or distribution shall be paid or distributed on the other class and in the same
proportion.
4. CONSENTS. During such time as the holders of Class B
Common Stock Beneficially Own less than a majority of the outstanding shares of
Common Stock, any action required or permitted to be taken by the stockholders
of the Corporation at a stockholders meeting (other than an action pursuant to
paragraph B.9(a) of this Article FOURTH or pursuant to paragraph 2 of Article
FIFTH) must be taken at a stockholders' meeting and may not be taken by written
consent or consents in lieu of a meeting.
5. CHANGES IN CAPITALIZATION. In the event there is an
increase or decrease in the number of issued shares of Common Stock resulting
from any stock split, stock dividend, reverse stock split, combination or
reclassification of the Common Stock, or any other similar event resulting in an
increase or decrease in the number of outstanding shares of Common Stock, the
outstanding shares of Class A Common Stock and the outstanding shares of Class B
Common Stock shall be adjusted in the same manner in all respects.
6. DISSOLUTION. In the event of any dissolution, liquidation
or winding up of the affairs of the Corporation, whether voluntary or
involuntary, after payment in full of the amounts required to be paid to the
holders of Preferred Stock, the remaining assets and funds of the Corporation
shall be distributed PRO RATA to the holders of Common Stock, and the holders of
3
<PAGE>
Class A Common Stock and the holders of Class B Common Stock will be entitled to
receive the same amount per share in respect thereof.
7. MERGER. Unless otherwise approved by a majority of the
votes entitled to be cast by the holders of the outstanding shares of Class A
Common Stock and the outstanding shares of Class B Common Stock, each voting
separately as a class, in case of any reorganization or any consolidation of the
Corporation with one or more other corporations or a merger of the Corporation
with another corporation in which shares of Class A Common Stock or Class B
Common Stock are converted into (or entitled to receive with respect thereto)
shares of stock and/or other securities or property (including cash), each
holder of a share of Class A Common Stock shall be entitled to receive with
respect to such share the same kind and amount of shares of stock and other
securities and property (including cash) receivable upon such reorganization,
consolidation or merger by a holder of a share of Class B Common Stock, and each
holder of a share of Class B Common Stock shall be entitled to receive with
respect to such share the same kind and amount of shares of stock and other
securities and property (including cash) receivable upon such reorganization,
consolidation or merger by a holder of a share of Class A Common Stock. In the
event that the holders of Class A Common Stock or of Class B Common Stock are
granted rights to elect to receive one of two or more alternative forms of
consideration, the foregoing provision shall be deemed satisfied if holders of
Class A Common Stock and holders of Class B Common Stock are granted
substantially identical election rights; PROVIDED that notwithstanding anything
contained in this paragraph 7 to the contrary, the Corporation may effect any
reorganization, consolidation or merger, pursuant to which shares of Class A
Common Stock and Class B Common Stock are converted into shares of two classes
of capital stock having substantially the same relative rights as the Class A
Common Stock and the Class B Common Stock, as set forth in this Restated
Certificate of Incorporation, if it is approved by the holders of a majority of
the outstanding shares of the Class A Common Stock and the Class B Common Stock
voting together as a single class without any separate class vote.
8. NO ADVERSE EFFECT. With respect to any proposed amendment
of this Restated Certificate of Incorporation which would alter or change the
powers, preferences or special rights of the shares of Class A Common Stock or
Class B Common Stock, so as to affect them adversely, the approval of a majority
of the votes entitled to be cast by the holders of the outstanding shares of the
class affected by the proposed amendment, voting separately as a class, shall be
obtained in addition to the approval of a majority of the votes entitled to be
cast by the holders of the outstanding shares of Class A Common Stock and the
Class B Common Stock voting together as a single class as provided herein. The
affirmative vote of shares representing a majority of the votes entitled to be
cast by the holders of outstanding shares of each class of Common Stock, voting
separately by class, shall be required to adopt any provision inconsistent with
or repeal any provision of, or alter or amend this paragraph 8. Subject to the
rights of the holders of any series of Preferred Stock pursuant to the terms of
this Restated Certificate of Incorporation or any resolutions providing for the
issuance of such series of stock adopted by the Board of Directors, the number
of authorized shares of Class A Common Stock, Class B Common Stock or Preferred
Stock may be increased or decreased (but not below the number of shares thereof
then outstanding) by the affirmative vote of the holders of a majority in voting
power of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors irrespective of the provisions of
Section 242(b)(2) of the General Corporation Law.
4
<PAGE>
9. CONVERSION OF CLASS B COMMON STOCK.
(a) VOLUNTARY CONVERSION. Upon the affirmative vote or
written request of the holders of a majority of the outstanding shares of
Class B Common Stock for the conversion of the Class B Common Stock into
Class A Common Stock, all, but not less than all, of the outstanding
shares of Class B Common Stock shall automatically convert on a share for
share basis into the same number of shares of Class A Common Stock. In
addition, the Corporation shall permit NBC Parent and its Affiliates, at
such time as any such Person shall become a holder of Common Stock while
shares of Class B Common Stock are outstanding, to convert shares of
Class A Common Stock into shares of Class B Common Stock upon written
request subject to the terms and conditions of the Governance and
Investor Rights Agreement, to be dated as of November 30, 1999 between
the Corporation and NBC, as amended from time to time (the "Governance
Agreement"), a copy of which is maintained at the Corporation's principal
office.
(b) MANDATORY CONVERSION. Shares of Class B Common
Stock shall be converted into shares of Class A Common Stock at the times
and in the amounts set forth in subparagraphs (i) and (ii) of this
subparagraph (b) (each an "Event of Conversion").
(i) Upon any sale, pledge, conveyance,
assignment, transfer or other disposition of shares of Class B
Common Stock, whether or not for value, by NBC or any of its
Affiliates, other than any transfer by such holder to an Affiliate
of such holder, the shares of Class B Common Stock disposed of as
above by NBC or such Affiliate shall automatically be converted
into shares of Class A Common Stock on a share for share basis
without further action by the holders of Common Stock; PROVIDED
that a pledge of shares of Class B Common Stock, prior to default
thereunder, which does not grant to the pledgee the power to vote
or direct the vote of the pledged securities or the power to vote
or direct the disposition of the pledged securities prior to a
default, without any foreclosure or transfer of ownership shall
not trigger the conversion of such Class B Common Stock.
(ii) Subject to Article ELEVENTH, all of the
outstanding shares of Class B Common Stock shall automatically be
converted into shares of Class A Common Stock on a share for share
basis without further action by the holders of the Common Stock at
such time when the holders of the Class B Common Stock
Beneficially Own less than 20% of the outstanding shares of Common
Stock immediately prior to the time of conversion.
(c) CLASS B OR NBC PARENT AND ITS AFFILIATES' CONVERSION
PROCEDURE. Any conversion pursuant to this paragraph 9 shall be deemed
to have been effected at the time (i) the holders of Class B Common Stock
or NBC Parent and its Affiliates vote for or request such conversion in
accordance with subsection (a) of this paragraph 9 or (ii) the Event of
Conversion referred to in subsection (b) of this paragraph 9 occurred, as
the case may be (the "Class B/NBC Parent Conversion Time"). At the Class
B/NBC Parent Conversion Time, the certificate or certificates that
represented immediately prior thereto the shares of Class B Common Stock
(or Class A Common Stock, as the case may be)
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which were so converted (the "Converted Common Stock") shall,
automatically and without further action, represent on a share for
share basis the same number of shares of Class A Common Stock (or
Class B Common Stock, as the case may be). Holders of Converted Common
Stock shall deliver their certificates, duly endorsed in blank or
accompanied by proper instruments of transfer, to the principal office
of the Corporation or the office of any transfer agent for shares of
Class A Common Stock (or Class B Common Stock, as the case may be),
together with a written notice setting out the name or names (with
addresses) and denominations in which the certificate or certificates
representing such shares of Class A Common Stock (or Class B Common
Stock, as the case may be) are to be issued and including instructions
for delivery thereof. Upon such delivery, the Corporation or its
transfer agent shall promptly issue and deliver at such stated address
to such holder of shares of Class A Common Stock (or Class B Common
Stock, as the case may be) a certificate or certificates representing
the number of shares of Class A Common Stock (or Class B Common Stock,
as the case may be) into which the Converted Common Stock was so
converted and shall cause such shares of Class A Common Stock (or
Class B Common Stock, as the case may be) to be registered in the name
of such holder. The Corporation will issue certificates for the
balance of the shares of Class B Common Stock (or Class A Common
Stock, as the case may be) in any case in which fewer than all of the
shares of Class B Common Stock (or Class A Common Stock, as the case
may be) represented by a certificate are converted. The Person entiled
to receive the shares of Class A Common Stock (or Class B Common
Stock, as the case may be) issuable upon such conversion shall be
treated for all purposes as the record holder of such shares of Class
A Common Stock (or Class B Common Stock, as the case may be) and will
have all the rights of record holders of shares of Class A Common
Stock (or Class B Common Stock, as the case may be) at and as of the
Class B/NBC Parent Conversion Time, and the rights of such Person as a
holder of shares of Class B Common Stock (or Class A Common Stock, as
the case may be) that have been converted shall cease and terminate at
and as of the Class B/NBC Parent Conversion Time, in each case without
regard to any failure by such holder to deliver the certificates or
the notice required by this paragraph 9; PROVIDED, HOWEVER, that such
Person shall be entitled to receive, when paid, any dividends declared
on the Class B Common Stock (or Class A Common Stock, as the case may
be) as of a record date preceding the Class B/NBC Parent Conversion
Time and unpaid as of the Class B/NBC Parent Conversion Time so long
as such Person was the record holder when such dividends were
declared. For purposes of this Restated Certificate of Incorporation,
"Person" shall mean an individual or a corporation, association,
partnership, limited liability company, joint venture, organization,
business, trust or any other entity or organization, including a
government or any subdivision or agency thereof.
(d) PAYMENT OF TRANSFER TAXES. The Corporation will pay
any and all documentary stamp or similar issue or transfer taxes payable
in respect of the issue or delivery of shares of Class A Common Stock (or
Class B Common Stock, as the case may be) on conversion of Class B Common
Stock (or Class A Common Stock, as the case may be) pursuant hereto;
PROVIDED, HOWEVER, that the Corporation shall not be required to pay any
tax which may be payable in respect of any transfer involved in the issue
or delivery of shares of Class A Common Stock (or Class B Common Stock,
as the case may be) in a name other than that of the registered holder of
the Class B Common
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Stock (or Class A Common Stock, as the case may be) to be converted
and no such issue or delivery shall be made unless and until the
Person requesting such issue or delivery has paid to the Corporation
the amount of any such tax or has established, to the satisfaction of
the Corporation, that such tax has been paid or is not applicable.
(e) RESERVATION OF CLASS A COMMON STOCK. The
Corporation shall at all times reserve and keep available, out of its
authorized and unissued shares of Class A Common Stock, for the purposes
of effecting conversions, such number of duly authorized 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. All the
shares of Class A Common Stock so issuable shall, when so issued, be duly
and validly issued, fully paid and non-assessable, and free from liens
and charges with respect to such issuance.
10. PURCHASE OF CLASS A COMMON STOCK BY CLASS B HOLDERS.
(a) AUTOMATIC CONVERSION OF CLASS A STOCK. So long as
shares of Class B Common Stock are outstanding, in the event a holder of
Class B Common Stock or its Subsidiary purchases or otherwise acquires or
holds any shares of Class A Common Stock (other than as a result of a
conversion pursuant to paragraph B.9 of this Article FOURTH hereof), then
such shares of Class A Common Stock shall automatically convert on a
share for share basis into the same number of shares of Class B Common
Stock.
(b) CLASS A CONVERSION PROCEDURE. So long as shares of
Class B Common Stock are outstanding, any conversion pursuant to this
paragraph 10 shall be deemed to have been effected at the time any holder
of Class B Common Stock purchases or otherwise acquires any shares of
Class A Common Stock (other than as a result of a conversion pursuant to
paragraph B.9 of this Article FOURTH) (the "Class A Conversion Time").
At the Class A Conversion Time, the certificate or certificates that
represented immediately prior thereto the shares of Class A Common Stock
which were so converted (the "Converted Class A Common Stock") shall,
automatically and without further action, represent on a share for share
basis the same number of shares of Class B Common Stock. Holders of
Converted Class A Common Stock shall deliver their certificates, duly
endorsed in blank or accompanied by proper instruments of transfer, to
the principal office of the Corporation or the office of any transfer
agent for shares of Class B Common Stock, together with a written notice
setting out the name or names (with addresses) and denominations in which
the certificate or certificates representing such shares of Class B
Common Stock are to be issued and including instructions for delivery
thereof. Upon such delivery, the Corporation or its transfer agent shall
promptly issue and deliver at such stated address to such holder of
shares of Class B Common Stock a certificate or certificates representing
the number of shares of Class B Common Stock into which the Converted
Class A Common Stock was so converted and shall cause such shares of
Class B Common Stock to be registered in the name of such holder. The
Person entitled to receive the shares of Class B Common Stock issuable
upon such conversion shall be treated for all purposes as the record
holder of such shares of Class B Common Stock at and will have all the
rights of record holders of shares of Class B
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Common Stock at and as of the Class A Conversion Time, and the rights
of such Person as a holder of shares of Class A Common Stock tat have
been converted shall cease and terminate at and as of the Class A
Conversion Time, in each case without regard to any failure by such
holder to deliver the certificates or the notice required by this
paragraph 10; PROVIDED, HOWEVER, that such Person shall be entitled to
receive when paid any dividends declared on the Class A Common Stock
as of a record date preceding the Class A Conversion Time and unpaid
as of the Class A Conversion Time, so long as such Person was the
record holder when such dividends were declared.
(c) RESERVATION OF CLASS B COMMON STOCK. So long as
shares of Class B Common Stock are outstanding, the Corporation shall at
all times reserve and keep available, out of its authorized and unissued
shares of Class B Common Stock, for the purposes of effecting
conversions, such number of duly authorized shares of Class B Common
Stock as shall from time to time be sufficient to effect all possible
conversions of Class A Common Stock to Class B Common Stock.
11. STOCKHOLDER VETO RIGHTS.
(a) In addition to any other vote of stockholders
required under this Restated Certificate of Incorporation, the
Corporation's Bylaws or otherwise, and subject to the rights of the
holders of Preferred Stock, none of the following actions may be taken by
the Corporation without the approval of the holders of a majority of the
outstanding shares of the Class A Common Stock:
(i) any amendment to this Restated Certificate of
Incorporation or Bylaws other than an amendment consisting solely
of an increase in the authorized capital stock of the Corporation
(except for amendments to the Bylaws duly approved by the Board of
Directors);
(ii) the issuance of Class B Common Stock to any
Person except to NBC or its affiliates.
(b) In addition to any other vote of stockholders
required under this Restated Certificate of Incorporation, the
Corporation's Bylaws or otherwise during such time, the approval of the
holders of a majority of the outstanding shares of the Class B Common
Stock shall be required to take any of the actions set forth in
subparagraphs (i) or (ii) of subsection (a) of this paragraph 11 or to
adopt a stockholder rights plan or take other action which could
adversely affect in any material respect the rights of any holder of
Class B Common Stock by virtue of the amount of shares held by such
holder.
FIFTH: Except as otherwise required by law or by this Restated
Certificate of Incorporation, the business of the Corporation shall be managed
by or under the direction of its Board of Directors, which shall have and may
exercise all the powers of the Corporation.
1. COMPOSITION OF THE BOARD OF DIRECTORS. For so long as
there are shares of Class B Common Stock outstanding, the Board of Directors
shall consist of thirteen directors (subject to paragraph (a) below) designated
as follows and subject thereto:
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(a) DIRECTORS:
(i) During such time as the holders of Class B
Common Stock Beneficially Own at least 35% of the outstanding
shares of Common Stock, then the Board of Directors will be
comprised as follows:
(A) If the Company Convertible Notes have
not been converted in full into shares of Class B Common
Stock, then the Board of Directors will consist of 13 members
and (1) the holders of the Class B Common Stock voting
separately as a class shall have the right to elect six
members of the Board of Directors, (2) the holders of the
Class A Common Stock voting separately as a class shall have
the right to elect six members of the Board of Directors and
(3) the holders of the Class A Common Stock voting separately
as a class shall have the right to elect one Independent
Director to the Board of Directors.
(B) If the Company Convertible Notes have
been converted in full into shares of Class B Common Stock,
then the Board of Directors shall consist of 13 members and
(1) the holders of the Class B Common Stock voting separately
as a class shall have the right to elect seven members of the
Board of Directors and (2) the holders of the Class A Common
Stock voting separately as a class shall have the right to
elect six members of the Board of Directors; PROVIDED that if
the holders of the Class B Common Stock have elected to reduce
the number of directors they are entitled to elect from seven
to six as provided in paragraph 2 of this Article FIFTH, the
Board of Directors will consist of the members provided in
clause (A) above.
(ii) During such time as the holders of Class B
Common Stock Beneficially Own at least 20% and less than 35% of
the outstanding shares of Common Stock, then the holders of the
Class B Common Stock shall have the right to elect six members to
the Board of Directors and the holders of the Class A Common Stock
shall have the right to elect seven members to the Board of
Directors.
(iii) For so long as the holders of Class B Common
Stock have the right to elect directors to the Board of Directors
pursuant to this paragraph 1, the holders of the Class B Common
Stock shall not be entitled to vote in the election of any Class A
Directors.
(iv) At such time as the holders of Class B Common
Stock become entitled to elect seven members to the Board of
Directors under clause (i) of this paragraph (a) the Class B
Nominating Committee (as defined in the Bylaws) shall be entitled
to appoint a seventh Class B Director to the Board of Directors.
(v) Subject to Article ELEVENTH, in the event the
holders of Class B Common Stock Beneficially Own less than 35%
(but at least 20%) of the
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total outstanding shares of Common Stock, the Class A Nominating
Committee shall be entitled to appoint a seventh Class A Director to the
Board of Directors. Subject to Article ELEVENTH, if at such time there
are seven Class B Directors serving on the Board of Directors, then the
holders of Class B Common Stock shall cause one Class B Director to
resign within 30 days after the date the Class B Common Stock constitutes
less than 35% of the total outstanding shares of Common Stock (the "35%
Resignation Date") and one Class A Director shall be appointed to the
Board of Directors on the earlier of the date the Class B Director
resigns or the 35% Resignation Date. If a Class B Director does not
resign by the 35% Resignation Date, on such date the number of members
comprising the Board of Directors shall automatically be increased to
fifteen (provided that it shall automatically decrease to thirteen at the
time of the election of directors at the next annual or special meeting
of stockholders at which directors are elected) and the Class A
Nominating Committee shall have full power and authority to appoint two
additional Class A Directors to the Board of Directors. Immediately
after the next annual or special meeting of the stockholders at which
directors are elected, the number of directors constituting the whole
Board of Directors shall be reduced to thirteen, with six directors
elected by the holders of Class B Common Stock and seven directors
elected by the holders of Class A Common Stock.
(vi) From and after such time as there are no shares of
Class B Common Stock outstanding, the number of directors of the
Corporation shall not be less than seven nor more than sixteen as
determined from time to time by the Board of Directors within such
limitation.
(b) INDEPENDENT DIRECTOR. During such time as the
holders of the Class A Common Stock and the holders of the Class B Common
Stock have the right to elect an equal number of members to the Board of
Directors, there shall be appointed to the Board of Directors an
additional member (the "Independent Director"). The approval of at least
seven of the members of the Board of Directors will be required for the
Corporation to nominate the Independent Director for election or to
appoint an Independent Director to the Board of Directors. The
nomination of the Independent Director by the Corporation shall be
performed by the Board of Directors and not by the Class A Nominating
Committee and/or the Class B Nominating Committee. The Independent
Director's term of office shall automatically expire at such time as (i)
the Class B Nominating Committee has appointed a seventh Class B Director
to the Board of Directors in accordance with the provisions set forth in
paragraph 1(a) of this Article Fifth (unless the Class B Nominating
Committee appoints the Independent Director as the seventh Class B
Director) or (ii) other than pursuant to the second sentence of paragraph
1(a)(v) of this Article FIFTH, the Class A Nominating Committee has
appointed a seventh Class A Director to the Board of Directors in
accordance with the provisions set forth in paragraph 1(a) of this
Article Fifth and after giving effect to such appointment there are not
seven Class B Directors (unless the Class A Nominating Committee appoints
the Independent Director as the seventh Class A Director).
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(c) VACANCIES. Except as otherwise provided in
paragraphs 1(a) or 1(b) of this Article FIFTH, if a vacancy is created on
the Board of Directors by reason of the death, removal or resignation of
any of the Class A Directors or the Class B Directors, such vacancy may
only be filled by a majority of the Class A Directors or the Class B
Directors then in office, as the case may be, or by the vote of the
holders of the Class A Common Stock or Class B Common Stock, as the case
may be, and each such director so elected shall hold office for the
unexpired portion of the term of the director whose place shall be vacant
and until his successor has been duly elected and qualified. If a
vacancy is created on the Board of Directors by reason of the death,
removal or resignation of the Independent Director, such vacancy shall be
filled in accordance with paragraph 1(b) of this Article FIFTH.
(d) REMOVAL OF CLASS A AND CLASS B DIRECTORS. (i) Any
of the Class A Directors may be removed, without cause only by the
affirmative vote of the holders of a majority of the outstanding shares
of Class A Common Stock, voting separately as a class, (ii) any of the
Class B Directors may be removed, without cause, only by the affirmative
vote of the holders of a majority of the outstanding share of Class B
Common Stock, voting separately as a class and (iii) the Independent
Director may be removed, without cause, only by the affirmative vote of
the holders owning at least 70% of the outstanding shares of Common
Stock.
(e) RIGHTS FOLLOWING CONVERSION. Concurrently with the
conversion of all of the outstanding shares of the Class B Common Stock
into Class A Common Stock in accordance with paragraph B.9 of Article
FOURTH, the former holders of the Class B Common Stock shall cease to
have the absolute right to designate or cause the nomination or election
or maintenance of any directors of the Corporation. From and after such
time, the directors of the Corporation shall be elected by a plurality
vote of the holders of Class A Common Stock. Each Class B Director
serving on the Board of Directors at such time shall be automatically
deemed a Class A Director and shall continue to hold office for the
unexpired portion of such director's term.
(f) EMPOWERMENT OF DIRECTORS. In addition to the powers
and authority hereinbefore or by statute expressly conferred upon them,
the directors are hereby empowered to exercise all such powers and do all
such acts and things as may be exercised or done by the Corporation,
subject, nevertheless, to the provisions of the General Corporation Law,
this Restated Certificate of Incorporation, and the Bylaws; PROVIDED,
HOWEVER, that no Bylaws hereafter adopted shall invalidate any prior act
of the directors which would have been valid if such Bylaws had not been
adopted.
2. WAIVER OF CLASS B DIRECTOR. Notwithstanding anything in
this Restated Certificate of Incorporation to the contrary, so long as the
holders of the Class B Common Stock Beneficially Own a majority of the
outstanding shares of Common Stock, upon the affirmative vote of the holders of
a majority of the outstanding shares of Class B Common Stock, voting separately
as a class, the holders of the Class B Common Stock may elect to reduce the
number of directors they are entitled to elect from seven to six as provided in
subsection (a) of paragraph 1 of this Article FIFTH, which election shall be
permanent. The holders of Class B Common Stock shall promptly give notice to
the Corporation of such election, and upon receipt of such
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notice by the Corporation the provisions of paragraph 4 of this Article FIFTH
shall become effective.
3. CLASS A DIRECTORS VETO AND OTHER RIGHTS. Except as set
forth in paragraph 4 of this Article FIFTH, in addition to any other vote of
directors required under this Restated Certificate of Incorporation, the
Corporation's Bylaws or otherwise, for so long as the holders of the Class B
Common Stock have the right to elect seven directors to the Board of Directors,
none of the following actions may be taken by the Board of Directors of the
Corporation without the approval of a majority of the Class A Directors:
(i) any amendment to this Restated Certificate of
Incorporation or the Corporation's Bylaws;
(ii) entering into, altering or amending any agreement or
engaging in any transaction or series of transactions with NBC or its
affiliates that (A) is not on an arm's-length basis or entered into in
the ordinary course of business or (B) involves an amount, individually
or in the aggregate, in excess of $50,000,000;
(iii) the voluntary filing of a petition for bankruptcy or
receivership by the Corporation or the failure to oppose any other
Person's petition for bankruptcy or any other Person's action to appoint
a receiver of the Corporation;
(iv) the appointment of a new Chief Executive Officer of
the Corporation;
(v) the adoption of the Corporation's annual or other
operating budgets and strategic plans, it being understood that
acquisitions shall not be part of the operating budget;
(vi) the adoption of a stockholder rights plan or other
action which could adversely affect in any material respect the rights of
any holder of Class A Common Stock by virtue of the amount of shares held
by such holder; and
(vii) the issuance of any equity securities other than
Class A Common Stock or Class B Common Stock.
4. CLASS B DIRECTORS VOTING RIGHTS. During such time as the
Class B Common Stock remains outstanding and the Class B Directors do not
constitute a majority of the Board of Directors, the rights of the Class A
Directors set forth in paragraph 3 of this Article FIFTH shall not exist and
otherwise not be operative, and notwithstanding anything in this Restated
Certificate of Incorporation or the Corporation's Bylaws to the contrary, in
addition to any other vote of directors required under this Restated Certificate
of Incorporation, the Corporation's Bylaws or otherwise, the approval of a
majority of the Class B Directors shall be required to take any of the actions
set forth in subparagraphs (i), (iii), (v) and (vii) of paragraph 3 of this
Article FIFTH or to take any of the following actions:
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(i) the approval of any action or transaction which
would result in a Change in Control of the Corporation or a Change in
Control of any of its Subsidiaries whose total assets or gross revenues
are in excess of $50,000,000;
(ii) the sale or other disposition of assets of the
Corporation or any of its Subsidiaries in an amount in excess of
$50,000,000 in any one transaction or series of related transactions;
(iii) the sale or issuance of equity securities of the
Corporation or any of its Subsidiaries (including any issuance pursuant
to any merger or consolidation) for cash or other consideration in an
amount that exceeds $50,000,000 in any one transaction or series of
related transactions;
(iv) engaging in any merger, consolidation or other
business combination transaction involving the Corporation in which the
Corporation is not the surviving entity; and
(v) engaging in any transaction or series of related
transactions that requires the payment in cash by the Corporation or any
of its Subsidiaries or the incurrence of indebtedness by the Corporation
or any of its Subsidiaries in an amount that exceeds $50,000,000.
For purposes of this Restated Certificate of Incorporation,
the terms set forth below shall have the following meanings:
"Change in Control" shall mean, with respect to any
corporation, any of the following: (i) a merger, consolidation or other business
combination or transaction to which the corporation is a party if the
stockholders of the corporation immediately prior to the effective date of such
merger, consolidation or other business combination or transaction, as a result
of such transaction, have Beneficial Ownership of Voting Stock representing less
than 50% of the Total Current Voting Power of (x) the surviving corporation
following such merger, consolidation or other business combination or
transaction or (y) the surviving corporation's parent corporation following any
such transaction; (ii) an acquisition by any Person, entity or 13D Group of
direct or indirect Beneficial Ownership of 20% or more of the outstanding shares
of Class A Common Stock; (iii) a sale of all or substantially all of the assets
of the corporation; or (iv) a liquidation or dissolution of the corporation.
"Total Current Voting Power" shall mean, with respect to any
corporation, the total number of votes which may be cast by holders of
outstanding shares of common stock of the corporation if all holders of such
securities are present and voted.
"Voting Stock" shall mean, with respect to any corporation,
shares of the corporation's common stock and any other securities of the
corporation having the ordinary power to vote.
"13D Group" means, with respect to any corporation, any group of
Persons formed for the purpose of acquiring, holding, voting or disposing of
Voting Stock of the
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corporation which would be required under Section 13(d) of the Exchange Act,
and the rules and regulations promulgated thereunder, to file a statement on
Schedule 13D pursuant to Rule 13d-1(a) or Schedule 13G pursuant to Rule
13d-1(c) with the Securities and Exchange Commission as a "person" within the
meaning of Section 13(d)(3) of the Exchange Act if such group Beneficially
Owned Voting Stock representing more than 5% of any class of Voting Stock
then outstanding.
5. APPOINTMENT OF CHIEF FINANCIAL OFFICER AND GENERAL COUNSEL;
REMOVAL OF CHIEF EXECUTIVE OFFICER. For as long as there are any Class B
Directors, the Class B Directors shall have the exclusive power and authority to
(A) appoint the Chief Financial Officer and General Counsel of the Corporation,
and (B) remove the Chief Executive Officer.
SIXTH: The election of directors need not be by written ballot unless
the Bylaws so provide.
SEVENTH: Subject to Article FIFTEENTH, the Board of Directors of the
Corporation is authorized and empowered from time to time in its discretion to
make, alter, amend or repeal Bylaws of the Corporation, except as such power may
be restricted or limited by this Restated Certificate of Incorporation or the
General Corporation Law.
EIGHTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for the Corporation under the
provision of Section 291 of the General Corporation Law, or on the application
of trustees in dissolution or of any receiver or receivers appointed for the
Corporation under Section 279 of the General Corporation Law, order a meeting
of the creditors or class of creditors, and/or of the stockholders or class of
stockholders of the Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of the
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders of the Corporation, as the case may be, and also on the
Corporation.
NINTH: No director shall be personally liable to the Corporation or its
stockholders for monetary damages for any breach of fiduciary duty by such
director as a director. Notwithstanding the foregoing sentence, a director
shall be liable to the extent provided by applicable law (i) for any breach of
the director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit. If the General Corporation Law is amended after the date of
incorporation of the Corporation to authorize corporate action further
eliminating or limiting the personal liability of directors, then the
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liability of a director of the Corporation shall be deemed to be eliminated
or limited to the fullest extent permitted by the General Corporation Law, as
so amended.
Any repeal or modification of the foregoing paragraph shall not adversely
affect any right or protection of a director of the Corporation existing at the
time of such repeal or modification.
TENTH: Subject to the limitations set forth herein, the Corporation
reserves the right to amend, alter, change or repeal any provision contained in
this Restated Certificate of Incorporation, in the manner now or hereafter
prescribed by law, and all rights and powers conferred herein on stockholders,
directors and officers are subject to this reserved power.
ELEVENTH: All calculations of Beneficial Ownership affecting the
determination of any rights under this Restated Certificate of Incorporation or
the conversion of Class B Common Stock into Class A Common Stock shall not be
finally determined and any change in rights or the conversion of Class B Common
Stock into Class A Common Stock dependent thereon shall not take effect until
the holders of Class B Common Stock shall have been afforded the opportunity to
exercise any stock purchase rights such holders may have pursuant to and in
accordance with the terms of Section 3.3 of the Governance Agreement and the
relevant period for exercising such rights shall have terminated in accordance
with the terms of Section 3.3 of the Governance Agreement. In the event that
any of such stock purchase rights are exercised and complied with by the person
exercising the rights, for purposes of calculating Beneficial Ownership
affecting the determination of any rights under this Restated Certificate of
Incorporation or conversion of Class B Common Stock into Class A Common Stock
the securities so purchased shall be deemed to have been issued and Beneficially
Owned by the holder thereof from the time of the securities issuance or sale by
the Corporation that gave rise to such stock purchase rights.
TWELFTH: Wherever a term shall be used in the singular in this Restated
Certificate of Incorporation, it shall be deemed in all appropriate
circumstances to include also the plural, and wherever a term shall be so used
in the plural, it shall similarly be deemed to include also the singular.
THIRTEENTH: In anticipation that the Corporation and NBC may engage in
the same or similar activities or lines of business and have an interest in the
same or similar areas of corporate opportunities, there will be benefits to be
derived by the Corporation through its contractual, corporate and business
relations with NBC (including possible service of officers and directors of NBC
as officers and directors of the Corporation) and there will be benefits in
providing guidelines for directors and officers of NBC and its affiliates and of
the Corporation with respect to the allocation of corporate opportunities and
other matters; the provisions of this Article THIRTEENTH, are set forth to
regulate, define and guide the conduct of certain affairs of the Corporation as
they may involve NBC and its officers and directors, and the powers, rights,
duties and liabilities of the Corporation and its officers, directors and
stockholders in connection therewith; PROVIDED, HOWEVER, that nothing in this
Article THIRTEENTH will impede the Corporation's ability to enter into
contractual arrangements with a stockholder of the Corporation, which
arrangements restrict the stockholder from engaging in activities otherwise
allowed by this Article THIRTEENTH, and the following provisions shall be
subject to any such contractual obligation of the Corporation.
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1. NBC shall have the right to, and shall have no duty
hereunder to refrain from, engaging in the same or similar activities or lines
of business as the Corporation, doing business with any potential or actual
customer or supplier of the Corporation, or employing or otherwise engaging any
officer or employee of the Corporation. To the fullest extent permitted by law,
neither NBC nor any officer or director thereof shall be liable to the
Corporation or its stockholders for breach of any fiduciary duty by reason of
any such activities of NBC, or the participation therein of such person. In the
event that NBC acquires knowledge of a potential transaction or matter which may
be a corporate opportunity for both NBC and the Corporation, NBC shall have no
duty to communicate or present such corporate opportunity to the Corporation,
and shall not be liable to the Corporation or its stockholders for breach of any
fiduciary duty as a stockholder of the Corporation by reason of the fact that
NBC pursues or acquires such corporate opportunity for itself, directs such
corporate opportunity to another person, or does not communicate information
regarding such corporate opportunity to the Corporation.
2. In the event that a director or officer of the Corporation
who is also a director or officer of NBC acquires knowledge of a potential
transaction or matter which may be a corporate opportunity for both the
Corporation and NBC, to the fullest extent permitted by law (i) such director or
officer of the Corporation shall have fully satisfied and fulfilled the
fiduciary duty of such director or officer to the Corporation and its
stockholders with respect to such corporate opportunity, (ii) shall not be
liable to the Corporation or its stockholders for breach of any fiduciary duty
by reason of the fact that NBC or any of its affiliates pursues or acquires such
corporate opportunity for itself or directs such corporate opportunity to
another Person (including, without limitation, NBC or any of its affiliates) or
does not communicate information regarding such corporate opportunity to the
Corporation, (iii) shall be deemed to have acted in good faith and in a manner
such Person reasonably believes to be in or not opposed to the best interests of
the Corporation, and (iv) shall be deemed not to have breached his or her duty
of loyalty to the Corporation or its stockholders and not to have derived an
improper benefit therefrom, if such director or officer acts in a manner
consistent with the following policy:
(i) A corporate opportunity offered to any person who is
an officer of the Corporation, and who is also a director but not an
officer of NBC, shall belong to the Corporation; (ii) a corporate
opportunity offered to any person who is a director but not an officer of
the Corporation, and who is also a director or officer of NBC shall
belong to the Corporation if such opportunity is expressly offered to
such person in writing solely in his or her capacity as a director of the
Corporation, and otherwise shall belong to NBC; and (iii) a corporate
opportunity offered to any person who is an officer of both the
Corporation and NBC shall belong to the Corporation if such opportunity
is expressly offered to such person in writing solely in his or her
capacity as an officer of the Corporation, and otherwise shall belong to
NBC.
3. Any corporate opportunity that belongs to NBC or any of its
affiliates or to the Corporation pursuant to the foregoing policy shall not be
pursued by the other, unless and until the party to whom the opportunity belongs
determines not to pursue the opportunity and so informs the other party.
Notwithstanding the preceding sentence, if the party to whom the corporate
opportunity belongs does not within 30 calendar days begin to pursue, or
thereafter
16
<PAGE>
continue to pursue, such opportunity diligently and in good faith, the other
party may then pursue such opportunity.
4. To avoid any appearance that the Board of Directors is not
acting independently and in the best interest of the stockholders, the approval
of a majority of the Class A Directors, voting separately as a group, shall be
required to commence any action, suit or proceeding against any Restricted Party
(as defined in the Governance Agreement) or take or approve or enter into any
transaction, action or other arrangement including any Restricted Party
(including resolving any dispute) that would otherwise require the action of the
full Board of Directors.
5. Any person purchasing or otherwise acquiring any interest
in shares of the capital stock of the Corporation shall be deemed to have notice
of and to have consented to the provisions of this Article THIRTEENTH.
6. For purposes of this Article THIRTEENTH only:
(a) A director of the Corporation who is Chairman of the
Board of Directors of the Corporation or of a committee thereof shall not
be deemed to be an officer of the Corporation by reason of holding such
position (without regard to whether such position is deemed an office of
the Corporation under the Bylaws of the Corporation), unless such person
is a full-time employee of the Corporation; and
(b) (A) The term "Corporation" shall mean the
Corporation and all corporations, partnerships, joint ventures,
associations and other entities in which the Corporation Beneficially
Owns (directly or indirectly) 50% or more of the outstanding voting
stock, voting power, partnership interests or similar voting interests,
and (B) the term "NBC" shall mean NBC and all corporations, partnerships,
joint ventures, associations and other entities (other than the
Corporation, defined in accordance with clause (A) of this paragraph
6(b)) in which NBC Beneficially Owns (directly or indirectly) 50% or more
of the outstanding voting stock, voting power, partnership interests or
similar voting interests.
For purposes of this Article THIRTEENTH, "corporate
opportunities" shall consist of business opportunities which (i) the
Corporation is financially able to undertake, (ii) are, from their
nature, in the line or lines of the Corporation's business and are of
practical advantage to it, and (iii) are ones in which the Corporation
has an interest or reasonable expectancy.
7. Notwithstanding anything in this Restated Certificate of
Incorporation to the contrary, (i) the foregoing provisions of this Article
THIRTEENTH shall expire on the date that NBC ceases to Beneficially Own Common
Stock representing at least 20% of the voting power of the outstanding shares of
Common Stock and no person who is a director or officer of the Corporation is
also a director or officer of NBC; and (ii) in addition to any vote of the
stockholders required by this Restated Certificate of Incorporation, until the
time that NBC ceases to own beneficially Common Stock representing at least 20%
of the voting power of the outstanding shares of Common Stock, the affirmative
vote of the holders of at least 80% of the
17
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voting power of the outstanding shares of Common Stock shall be required to
alter, amend or repeal (by merger or otherwise) in a manner adverse to the
interests of NBC, or adopt any provision adverse to the interests of NBC and
inconsistent with, any provision of this Article THIRTEENTH. Neither the
alteration, amendment or repeal of this Article THIRTEENTH nor the adoption
of any provision of this Restated Certificate of Incorporation inconsistent
with this Article THIRTEENTH shall eliminate or reduce the effect of this
Article THIRTEENTH in respect of any matter occurring, or any cause of
action, suit or claim that, but for this Article THIRTEENTH, would accrue or
arise, prior to such alteration, amendment, repeal or adoption.
FOURTEENTH: CHANGE IN NAME: Notwithstanding anything contained in this
Restated Certificate of Incorporation to the contrary, as long as there are any
Class B Directors, no change may be made in the name of the Corporation without
the approval of a majority of the Class A Directors and a majority of the Class
B Directors; PROVIDED such vote shall not be required for any change in the name
required to be made in accordance with the terms of the License Agreement.
FIFTEENTH: AMENDMENT TO BYLAWS: Notwithstanding anything contained in
this Restated Certificate of Incorporation to the contrary: (i) any amendment,
change or repeal of Sections 2.3 or 2.5(a) or Article IX of the Bylaws, or any
other amendment to the Bylaws that will have the effect of permitting
circumvention of or modifying Sections 2.3 or 2.5(a) or Article IX or the Bylaws
shall require the affirmative vote of the holders of a majority of the
outstanding shares of Class A Common Stock and Class B Common Stock entitled to
vote, each voting as a separate class; and (ii) any amendment, change or repeal
of Sections 3.6(a) or 3.9 of the Bylaws or any other amendment to the Bylaws
that will have the effect of permitting circumvention of or modifying Sections
3.6(a) or 3.9 of the Bylaws shall require the affirmative vote of a majority of
the Class A Directors and Class B Directors each voting as a separate group.
SIXTEENTH: DEFINITIONS: As used in this Restated Certificate of
Incorporation, the terms set forth below shall have the following meanings:
1. "Affiliate" shall mean (i) with respect to the Corporation,
the Corporation's Subsidiaries, (ii) with respect to NBC, except as provided in
Section 2.2 of the Governance Agreement, NBC's Subsidiaries and the holders of
the Company Convertible Notes and (iii) with respect to NBC Parent, NBC Parent's
Subsidiaries other than NBC and its Affiliates; PROVIDED, HOWEVER, that for
purposes of this Restated Certificate of Incorporation, the Corporation and its
Affiliates on the one hand, and either NBC and its Affiliates or NBC Parent and
its Affiliates on the other hand, shall not be deemed to be "Affiliates" of one
another.
2. "Beneficially Own" or "Beneficial Ownership" shall have the
meaning set forth in Rule 13d-3 of the rules and regulations promulgated under
the Exchange Act. Without limiting the foregoing, the holders of the Company
Convertible Notes will be deemed to Beneficially Own the shares of Common Stock
issuable upon conversion thereof.
3. "Class A Directors" shall mean those directors elected to
the Board of Directors by the holders of the Class A Common Stock and any
directors appointed to the Board of Directors by the Class A Nominating
Committee of the Board of Directors.
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4. "Class B Directors" shall mean those directors elected to
the Board of Directors by the holders of the Class B Common Stock and any
directors appointed to the Board of Directors by the Class B Nominating
Committee of the Board of Directors.
5. "Company Convertible Notes" shall mean the $447,416,805
Subordinated Zero-Coupon Convertible Debenture due 2006 to be issued by the
Corporation to GE Investments Subsidiary, Inc., a Delaware corporation, and the
$39,477,953 Subordinated Zero-Coupon Convertible Debenture due 2006 to be issued
to NBC Multimedia, Inc., a Delaware corporation.
6. "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
7. "License Agreement" means that certain Brand Integration
and License Agreement dated May 8, 1999 between NBC Multimedia, Inc., a Delaware
corporation, and NBC.
8. "NBC" shall mean National Broadcasting Company, Inc., a
Delaware corporation.
9. "NBC Parent" shall mean the ultimate parent corporation of
NBC (if any), which as of today is General Electric Company, a New York
corporation.
10. "Subsidiary" shall mean, as to any person, another person
of which outstanding securities having the power to elect a majority of the
members of the board of directors (or comparable body or authority performing
similar functions) of such other person are at the time owned, directly or
indirectly through one or more intermediaries, or both, by such first person.
19
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EXHIBIT 4.2
AMENDED AND RESTATED BYLAWS
OF
NBC INTERNET, INC.
A DELAWARE CORPORATION
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 1.1 Registered Office . . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 1.2 Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE II STOCKHOLDERS' MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 2.1 Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 2.2 Annual Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 2.3 Special Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . .2
Section 2.4 Notice of Meetings. . . . . . . . . . . . . . . . . . . . . . . . . .2
Section 2.5 Quorum and Voting . . . . . . . . . . . . . . . . . . . . . . . . . .2
Section 2.6 Voting Rights; Proxies. . . . . . . . . . . . . . . . . . . . . . . .3
Section 2.7 Voting Procedures and Inspectors of Elections . . . . . . . . . . . .4
Section 2.8 List of Stockholders. . . . . . . . . . . . . . . . . . . . . . . . .5
Section 2.9 Notice of Stockholder Business and Nominations. . . . . . . . . . . .5
ARTICLE III DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Section 3.1 Number and Term of Office . . . . . . . . . . . . . . . . . . . . . .8
Section 3.2 Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Section 3.3 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
Section 3.4 Resignations and Removals . . . . . . . . . . . . . . . . . . . . . .9
Section 3.5 Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
Section 3.6 Quorum and Voting . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 3.7 Action Without Meeting. . . . . . . . . . . . . . . . . . . . . . . 10
Section 3.8 Fees and Compensation . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.9 Committees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE IV OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 4.1 Enumeration, Election and Term. . . . . . . . . . . . . . . . . . . 13
Section 4.2 General Duties. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 4.3 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.4 Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.5 Resignation and Removal . . . . . . . . . . . . . . . . . . . . . . 14
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Section 4.6 Chairman of the Board . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.7 Chief Executive Officer . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.8 President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.9 Chief Financial Officer . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.10 Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.11 Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 4.12 Delegation of Duties. . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE V EXECUTION OF CORPORATE INSTRUMENTS, AND VOTING OF SECURITIES OWNED BY
THE CORPORATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 5.1 Execution of Corporate Instruments. . . . . . . . . . . . . . . . . 16
Section 5.2 Voting of Securities Owned by Corporation . . . . . . . . . . . . . 17
ARTICLE VI SHARES OF STOCK. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.1 Form and Execution of Certificates. . . . . . . . . . . . . . . . . 17
Section 6.2 Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.3 Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.4 Fixing Record Dates . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.5 Registered Stockholders . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VII OTHER SECURITIES OF THE CORPORATION . . . . . . . . . . . . . . . . . 19
ARTICLE VIII CORPORATE SEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE IX INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS . . . . . 20
Section 9.1 Right to Indemnification. . . . . . . . . . . . . . . . . . . . . . 20
Section 9.2 Authority to Advance Expenses . . . . . . . . . . . . . . . . . . . 21
Section 9.3 Right of Claimant to Bring Suit . . . . . . . . . . . . . . . . . . 21
Section 9.4 Provisions Nonexclusive . . . . . . . . . . . . . . . . . . . . . . 22
Section 9.5 Authority to Insure . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 9.6 Survival of Rights. . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 9.7 Effect of Amendment . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 9.8 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 9.9 No Duplication of Payments. . . . . . . . . . . . . . . . . . . . . 22
ii
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ARTICLE X NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE XI AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE XII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 12.1 Gender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 12.2 Invalid Provision . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 12.3 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
</TABLE>
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<PAGE>
AMENDED AND RESTATED BYLAWS
OF
NBC INTERNET, INC.
ARTICLE I
OFFICES
SECTION 1.1 REGISTERED OFFICE.
The Corporation shall have and maintain at all times (a) a registered
office in the State of Delaware, which office shall be located at 1209 Orange
Street, Wilmington, County of New Castle, Delaware 19801, and (b) a
registered agent located at such address whose name is The Corporation Trust
Company, until changed from time to time as provided by the General
Corporation Law of the State of Delaware (the "Delaware Corporation Law").
SECTION 1.2 OTHER OFFICES.
The principal office of the Corporation may be located within or
without the State of Delaware, as designated by the Board of Directors. The
Corporation may have other offices and places of business at such places
within or without the State of Delaware as shall be determined by the
directors or as may be required by the business of the Corporation.
ARTICLE II
STOCKHOLDERS' MEETINGS
SECTION 2.1 PLACE OF MEETINGS.
Meetings of the stockholders of the Corporation shall be held at such
place, either within or without the State of Delaware, as may be designated
from time to time by the Board of Directors, or, if not so designated, then
at the registered office of the Corporation required to be maintained
pursuant to Section 1.1 of Article I hereof.
SECTION 2.2 ANNUAL MEETINGS.
The annual meetings of the stockholders of the Corporation for the
purpose of election of directors and for such other business as may lawfully
come before it, shall be held on such date and at such time as may be
designated from time to time by the Board of Directors.
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<PAGE>
SECTION 2.3 SPECIAL MEETINGS.
Special Meetings of the stockholders of the Corporation may be called,
for any purpose or purposes, by the Chairman of the Board, Chief Executive
Officer or President, the Board of Directors at any time or by the holders of
at least a majority of the outstanding shares of Class B Common Stock.
Special meetings of the stockholders of the Corporation may not be called by
any other person or persons. No business may be transacted at any special
meeting except that referred to in the notice thereof.
SECTION 2.4 NOTICE OF MEETINGS.
(a) Except as otherwise provided by law or the Restated Certificate
of Incorporation, written notice of each meeting of stockholders, specifying
the place, date and hour and purpose or purposes of the meeting, shall be
given not less than ten nor more than sixty days before the date of the
meeting to each stockholder entitled to vote thereat, directed to his address
as it appears upon the books of the Corporation; except that where the matter
to be acted on is a merger or consolidation of the Corporation or a sale,
lease or exchange of all or substantially all of its assets, such notice
shall be given not less than twenty (20) nor more than sixty (60) days prior
to such meeting.
(b) If at any meeting action is proposed to be taken which, if taken,
would entitle stockholders fulfilling the requirements of section 262(d) of
the Delaware Corporation Law to an appraisal of the fair value of their
shares, the notice of such meeting shall contain a statement of that purpose
and to that effect and shall be accompanied by a copy of that statutory
section.
(c) When a meeting is adjourned to another time or place, notice
need not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting the Corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
(d) Notice of the time, place and purpose of any meeting of
stockholders may be waived in writing, either before or after such meeting,
and to the extent permitted by law, will be waived by any stockholder by his
attendance thereat, in person or by proxy. Any stockholder so waiving notice
of such meeting shall be bound by the proceedings of any such meeting in all
respects as if due notice thereof had been given.
SECTION 2.5 QUORUM AND VOTING.
(a) At all meetings of stockholders, except where otherwise
provided by law, the Restated Certificate of Incorporation, or these Bylaws,
the presence in person or by proxy, duly authorized, of the holders of shares
entitled to cast a majority of all the votes which could be cast at such
meeting by the holders of all of the outstanding shares of capital stock of
the Corporation entitled to vote on every matter that is to be voted on at
such meeting shall constitute a quorum;
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<PAGE>
PROVIDED, FURTHER, that any action of the Corporation approved or recommended
by the stockholders of the Corporation will be subject to the appropriate
approval of the holders of the Class A Common Stock and Class B Common Stock
pursuant to paragraphs 11(a) and 11(b) of Article Fourth of the Restated
Certificate of Incorporation of the Corporation. In the absence of a quorum,
any meeting of stockholders may be adjourned, from time to time, by vote of
the holders of a majority of the shares represented thereat, but no other
business shall be transacted at such meeting. At such adjourned meeting at
which a quorum is present or represented any business may be transacted which
might have been transacted at the original meeting. The stockholders present
at a duly called or convened meeting, at which a quorum is present, may
continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
(b) Except as otherwise provided by law, the Restated Certificate
of Incorporation or these Bylaws, all action taken by the holders of a
majority of the shares voting "for" or "against" at any meeting at which a
quorum is present shall be valid and binding upon the Corporation.
(c) Except as otherwise provided by law, the Restated Certificate
of Incorporation or these Bylaws, where a separate vote by a class or classes
is required, a majority of the outstanding shares of such class or classes,
present in person or represented by proxy, shall constitute a quorum entitled
to take action with respect to that vote on that matter and the affirmative
vote of the majority of shares of such class or classes present in person or
represented by proxy at the meeting shall be the act of such class.
SECTION 2.6 VOTING RIGHTS; PROXIES.
(a) Except as otherwise provided by law or in the Restated
Certificate of Incorporation, only persons in whose names shares entitled to
vote stand on the stock records of the Corporation on the record date for
determining the stockholders entitled to vote at said meeting shall be
entitled to vote at such meeting. Shares standing in the names of two or
more persons shall be voted or represented in accordance with the
determination of the majority of such persons, or, if only one of such
persons is present in person or represented by proxy, such person shall have
the right to vote such shares and such shares shall be deemed to be
represented for the purpose of determining a quorum.
(b) Every person entitled to vote or execute consents shall have
the right to do so either in person or by an agent or agents authorized by a
proxy, which proxy shall be filed with the Secretary of the Corporation at or
before the meeting at which it is to be used. Said proxy so appointed need
not be a stockholder. No proxy shall be voted on after three years from its
date unless the proxy provides for a longer period. Unless and until voted,
every proxy shall be revocable at the pleasure of the person who executed it
or of his legal representatives or assigns, except in those cases where an
irrevocable proxy permitted by statute has been given.
(c) Without limiting the manner in which a stockholder may
authorize another person or persons to act for him as proxy pursuant to
subsection (b) of this section, the following shall constitute a valid means
by which a stockholder may grant such authority:
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<PAGE>
(1) A stockholder may execute a writing authorizing
another person or persons to act for him as proxy. Execution may be
accomplished by the stockholder or his authorized officer, director, employee
or agent signing such writing or causing his or her signature to be affixed
to such writing by any reasonable means including, but not limited to, by
facsimile signature.
(2) A stockholder may authorize another person or
persons to act for him as proxy by transmitting or authorizing the
transmission of a telegram, cablegram, or other means of electronic
transmission to the person who will be the holder of the proxy or to a proxy
solicitation firm, proxy support service organization or like agent duly
authorized by the person who will be the holder of the proxy to receive such
transmission; PROVIDED, that any such telegram, cablegram or other means of
electronic transmission must either set forth or be submitted with
information from which it can be determined that the telegram, cablegram or
other electronic transmission was authorized by the stockholder. Such
authorization can be established by the signature of the stockholder on the
proxy, either in writing or by a signature stamp or facsimile signature, or
by a number or symbol from which the identity of the stockholder can be
determined, or by any other procedure deemed appropriate by the inspectors or
other persons making the determination as to due authorization. If it is
determined that such telegrams, cablegrams or other electronic transmissions
are valid, the inspectors or, if there are no inspectors, such other persons
making that determination shall specify the information upon which they
relied.
(d) Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to subsection
(c) of this section may be substituted or used in lieu of the original
writing or transmission for any and all purposes for which the original
writing or transmission could be used; PROVIDED that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of
the entire original writing or transmission.
SECTION 2.7 VOTING PROCEDURES AND INSPECTORS OF ELECTIONS.
(a) The Corporation shall, in advance of any meeting of
stockholders, appoint one or more inspectors to act at the meeting and make a
written report thereof. The Corporation may designate one or more persons as
alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of stockholders, the
person presiding at the meeting shall appoint one or more inspectors to act
at the meeting. Each inspector, before entering upon the discharge of his
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his ability.
(b) The inspectors shall (i) ascertain the number of shares
outstanding and the voting power of each, (ii) determine the shares
represented at a meeting and the validity of proxies and ballots, (iii) count
all votes and ballots, (iv) determine and retain for a reasonable period a
record of the disposition of any challenges made to any determination by the
inspectors, and (v) certify their determination of the number of shares
represented at the meeting, and their count of all votes and ballots. The
inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of the duties of the inspectors.
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(c) The date and time of the opening and the closing of the polls
for each matter upon which the stockholders will vote at a meeting shall be
announced at the meeting. No ballot, proxies or votes, nor any revocations
thereof or changes thereto, shall be accepted by the Inspectors after the
closing of the polls unless the Court of Chancery upon application by a
stockholder shall determine otherwise.
(d) In determining the validity and counting of proxies and
ballots, the inspectors shall be limited to an examination of the proxies,
any envelopes submitted with those proxies, any information provided in
accordance with Section 212(c)(2) of the Delaware Corporation Law, ballots
and the regular books and records of the Corporation, except that the
inspectors may consider other reliable information for the limited purpose of
reconciling proxies and ballots submitted by or on behalf of banks, brokers,
their nominees or similar persons which represent more votes than the holder
of a proxy is authorized by the record owner to cast or more votes than the
stockholder holds of record. If the inspectors consider other reliable
information for the limited purpose permitted herein, the inspectors at the
time they make their certification pursuant to subsection (b)(v) of this
section shall specify the precise information considered by them including
the person or persons from whom they obtained the information, when the
information was obtained, the means by which the information was obtained and
the basis for the inspectors' belief that such information is accurate and
reliable.
SECTION 2.8 LIST OF STOCKHOLDERS.
The officer who has charge of the stock ledger of the Corporation
shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at said
meeting, arranged in alphabetical order, showing the address of and the
number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days
prior to the meeting, either at a place within the city where the meeting is
to be held and which place shall be specified in the notice of the meeting,
or, if not specified, at the place where said meeting is to be held, and the
list shall be produced and kept at the time and place of meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
SECTION 2.9 NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS.
(a) ANNUAL MEETING OF STOCKHOLDERS. (i) Nominations of persons for
election to the Board of Directors of the Corporation and the proposal of
business to be considered by the stockholders may be made at an annual
meeting of stockholders only (A) pursuant to the Corporation's notice of
meeting (or any supplement thereto), (B) by or at the direction of the Board
of Directors, (C) by the holders of a majority of the outstanding shares of
Class B Common Stock, which holders shall not be required to comply with the
notice provisions set forth in this Section 2.9; PROVIDED that this clause
(C) will not permit such holders to nominate Class A Directors or (D) by any
stockholder of the Corporation who was a stockholder of record of the
Corporation at the time the notice provided for in this Section 2.9 is
delivered to the
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Secretary of the Corporation, who is entitled to vote at the meeting and who
complies with the notice procedures set forth in this Section 2.9.
(ii) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (D) of
paragraph (a)(i) of this Section 2.9, the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation and any such
proposed business other than the nominations of persons for election to the
Board of Directors must constitute a proper matter for stockholder action.
To be timely, such a stockholder's notice shall be delivered to the Secretary
at the principal executive offices of the Corporation not later than the
close of business on the ninetieth day nor earlier than the close of business
on the one hundred twentieth day prior to the first anniversary of the
preceding year's annual meeting; PROVIDED, HOWEVER, that in the event that
the date of the annual meeting is more than thirty days before or more than
seventy days after such anniversary date, notice by the stockholder must be
so delivered not earlier than the close of business on the one hundred
twentieth day prior to such annual meeting and not later than the close of
business on the later of the ninetieth day prior to such annual meeting or
the tenth day following the day on which public announcement of the date of
such meeting is first made by the Corporation. In no event shall the public
announcement of an adjournment or postponement of an annual meeting commence
a new time period (or extend any time period) for the giving of a
stockholder's notice as described above. Such stockholder's notice shall set
forth: (A) as to each person whom the stockholder proposes to nominate for
election as a director all information relating to such person that is
required to be disclosed in solicitations of proxies for election of
directors in an election contest, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and Rule 41a-11 thereunder (and such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected); (B) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the text of the proposal
or business (including the text of any resolutions proposed for consideration
and in the event that such business includes a proposal to amend the Bylaws
of the Corporation, the language of the proposed amendment), the reasons for
conducting such business at the meeting and any material interest in such
business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (C) as to the stockholder giving the notice
and the beneficial owner, if any, on whose behalf the nomination or proposal
is made (1) the name and address of such stockholder, as they appear in the
Corporation's books, and of such beneficial owner, (2) the class and number
of shares of capital stock of the corporation which are owned beneficially
and of record by such stockholder and such beneficial owner, (3) a
representation that the stockholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to propose such business or nomination, and (4) a
representation whether the stockholder or the beneficial owner, if any,
intends or is part of a group which intends (a) to deliver a proxy statement
or form of proxy to holders of at least the percentage of the Corporation's
outstanding capital stock required to approve or adopt the proposal or elect
the nominee or (b) otherwise to solicit proxies from stockholders in support
of such proposal or information as it may reasonably require to determine the
eligibility of such proposed nominee to serve as a director of the
Corporation.
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(iii) Notwithstanding anything in the second sentence of
paragraph (a)(ii) of this Section 2.9 to the contrary, in the event that the
number of directors to be elected to the Board of Directors of the
Corporation at an annual meeting is increased and there is no public
announcement by the Corporation naming the nominees for the additional
directorships at least one hundred days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice required by this
Section 2.9 shall also be considered timely, but only with respect to
nominees for the additional directorships, if it shall be delivered to the
Secretary at the principal executive offices of the Corporation not later
than the close of business on the tenth day following the day on which such
public announcement is first made by the Corporation.
(b) SPECIAL MEETING OF STOCKHOLDERS. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation's notice of meeting.
Nominations of persons for election to the Board of Directors may be made at
a special meeting of stockholders at which directors are to be elected
pursuant to the Corporation's notice of meeting (i) by or at the direction of
the Board of Directors, or (ii) provided that the Board of Directors has
determined that directors shall be elected at such meeting, by any
stockholder of the Corporation who is a stockholder of record at the time the
notice provided for in this Section 2.9 is delivered to the Secretary of the
Corporation, who is entitled to vote at the meeting and upon such election
and who complies with the notice procedures set forth in this Section 2.9.
In the event the Corporation calls a special meeting of stockholders for the
purpose of electing one or more directors to the Board of Directors, any such
stockholder entitled to vote in such election of directors may nominate a
person or persons (as the case may be) for election to such position(s) as
specified in the Corporation's notice of meeting, if the stockholder's notice
required by paragraph (a)(ii) of this Section 2.9 shall be delivered to the
Secretary at the principal executive offices of the Corporation not earlier
than the close of business on the one hundred twentieth day prior to such
special meeting and not later than the close of business on the later of the
ninetieth day prior to such special meeting or the tenth day following the
day on which public announcement is first made of the date of the special
meeting and of the nominees proposed by the Board of Directors to be elected
at such meeting. In no event shall the public announcement of an adjournment
or postponement of a special meeting commence a new time period (or extend
any time period) for the giving of a stockholder's notice as described above.
(c) GENERAL. (i) Only such persons who are nominated in accordance
with the procedures set forth in this Section 2.9 shall be eligible to be
elected at an annual or special meeting of stockholders of the Corporation to
serve as directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Section 2.9. Except as otherwise provided
by law, the chairman of the meeting shall have the power and duty (A) to
determine whether a nomination or any business proposed to be brought before
the meeting was made or proposed, as the case may be, in accordance with the
procedures set forth in this Section 2.9 (including whether the stockholder
or beneficial owner, if any, on whose behalf the nomination or proposal is
made solicited (or is part of a group which solicited) or did not so solicit,
as the case may be, proxies in support of such stockholder's nominee or
proposal in compliance with such stockholder's representation as required by
clause (a)(ii)(C)(4) of this Section 2.9) and (B) if any
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proposed nomination or business was not made or proposed in compliance with
this Section 2.9, to declare that such nomination shall be disregarded or
that such proposed business shall not be transacted.
(ii) For purposes of this Section 2.9, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this Section 2.9, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Section 2.9. Nothing in this Section 2.9 shall be deemed to
affect any rights (a) of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(b) of the holders of any series of Preferred Stock to elect directors pursuant
to any applicable provisions of the Restated Certificate of Incorporation.
ARTICLE III
DIRECTORS
SECTION 3.1 NUMBER AND TERM OF OFFICE.
So long as there remain shares of Class B Common Stock outstanding,
the directors elected by the holders of the Class A Common Stock shall be
designated the "Class A Directors" and the directors elected by the holders
of the Class B Common Stock shall be designated the "Class B Directors," as
provided in the Restated Certificate of Incorporation.
With the exception of the first Board of Directors, which shall be
elected by the incorporator, and except as provided in Section 3.3 of this
Article III or as otherwise provided in the Restated Certificate of
Incorporation, directors shall be elected by a plurality vote of the shares
represented in person or by proxy, at the stockholders annual meeting in each
year and entitled to vote on the election of such directors. Elected
directors shall hold office until the next annual meeting and until their
successors shall be duly elected and qualified. Directors need not be
stockholders. If, for any cause, the Board of Directors shall not have been
elected at an annual meeting, they may be elected as soon thereafter as
convenient at a special meeting of the stockholders called for that purpose
in the manner provided in these Bylaws or the Restated Certificate of
Incorporation.
SECTION 3.2 POWERS.
Unless otherwise provided in the Restated Certificate of
Incorporation, the powers of the Corporation shall be exercised, its business
conducted and its property controlled by or under the direction of the Board
of Directors.
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SECTION 3.3 VACANCIES.
Unless otherwise provided in the Restated Certificate of Incorporation
or these Bylaws, vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, although less than a quorum, or by a sole
remaining director, and each director so elected shall hold office for the
unexpired portion of the term of the director whose place shall be vacant,
and until his successor shall have been duly elected and qualified.
SECTION 3.4 RESIGNATIONS AND REMOVALS.
(a) Any director may resign at any time by delivering his written
resignation to the Secretary, such resignation to specify whether it will be
effective at a particular time or upon receipt by the Secretary. If no such
specification is made it shall be deemed effective upon receipt by the
Secretary. Unless otherwise provided in the Restated Certificate of
Incorporation, when one or more directors shall resign from the Board,
effective at a future date, a majority of the directors then in office of the
same class as the director who resigned, including those who have so
resigned, shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office for the unexpired
portion of the term of the director whose place shall be vacated and until
his successor shall have been duly elected and qualified.
(b) At a special meeting of stockholders called for the purpose in
the manner hereinabove provided, subject to any limitations imposed by law,
the Restated Certificate of Incorporation, the Board of Directors, or any
individual director, may be removed from office, with or without cause, and a
new director or directors elected by a vote of stockholders holding a
majority of the outstanding shares entitled to vote for the election of such
director.
SECTION 3.5 MEETINGS.
(a) The annual meeting of the Board of Directors shall be held
immediately after the annual stockholders' meeting and at the place where
such meeting is held or at the place announced by the Chairman at such
meeting. No notice of an annual meeting of the Board of Directors shall be
necessary and such meeting shall be held for the purpose of electing officers
and transacting such other business as may lawfully come before it.
(b) Regular meetings of the Board of Directors may be held at any
place within or without the State of Delaware which has been designated by
resolutions of the Board of Directors or the written consent of all directors.
(c) Special meetings of the Board of Directors may be held at any
time and place within or without the State of Delaware whenever called by the
Chairman of the Board or, if there is no Chairman of the Board, by the
President, or by any of the directors.
(d) Written notice of the time and place of all regular and special
meetings of the Board of Directors shall be delivered personally to each
director or sent by telegram or facsimile
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transmission (or other lawfully permitted means) at least 48 hours before the
start of the meeting, or sent by first class mail at least 120 hours before
the start of the meeting. Notice of any meeting may be waived in writing at
any time before or after the meeting and will be waived by any director by
attendance thereat, except where a director attends for the express purpose
of objecting at the beginning of a meeting to the transaction of any
business because the meeting is not lawfully called or convened.
SECTION 3.6 QUORUM AND VOTING.
(a) At any meeting of the Board of Directors, the presence of a
majority of the total number of directors shall constitute a quorum for the
transaction of business; PROVIDED, that at any meeting whether a quorum be
present or otherwise, a majority of the directors present may adjourn from
time to time until the time fixed for the next regular meeting of the Board
of Directors, without notice other than by announcement at the meeting; and
PROVIDED, FURTHER, that any action of the Corporation approved or recommended
by the Board of Directors will be subject to appropriate consents and
approvals of the Class A Directors or the Class B Directors voting as a group
pursuant to paragraphs 3 and 4 of Article FIFTH of the Restated Certificate
of Incorporation of the Corporation.
(b) At each meeting of the Board at which a quorum is present all
questions and business shall be determined by a vote of a majority of the
directors present, unless a different vote be required by law, the Restated
Certificate of Incorporation, or these Bylaws.
(c) Any member of the Board of Directors, or of any committee
thereof, may participate in a meeting by means of conference telephone or
similar communication equipment by means of which all persons participating
in the meeting can hear each other, and participation in a meeting by such
means shall constitute presence in person at such meeting.
(d) The transactions of any meeting of the Board of Directors, or
any committee thereof, however called or noticed, or wherever held, shall be
as valid as though had at a meeting duly held after regular call and notice,
if a quorum be present and if, either before or after the meeting, each of
the directors not present shall sign a written waiver of notice, or a consent
to holding such meeting, or an approval of the minutes thereof. All such
waivers, consents or approvals shall be filed with the corporate records or
made a part of the minutes of the meeting.
SECTION 3.7 ACTION WITHOUT MEETING.
Unless otherwise restricted by the Restated Certificate of
Incorporation or these Bylaws, any action required or permitted to be taken
at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all members of the Board or of such committee, as
the case may be entitled to vote thereon, consent thereto in writing, and
such writing or writings are filed with the minutes of proceedings of the
Board or committee.
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SECTION 3.8 FEES AND COMPENSATION.
Directors and members of committees may receive such compensation, if
any, for their services, and such reimbursement for expenses, as may be fixed
or determined by resolution of the Board of Directors.
SECTION 3.9 COMMITTEES.
So long as there remain shares of Class B Common Stock outstanding,
any committee established pursuant to this Section 3.9 shall be comprised, at
all times, of at least one (1) Class A Director and one (1) Class B Director.
In addition, if there are more than two members of any committee, the
composition of the members serving on such committee shall reflect, to the
extent practicable, the relative representation of Class A Directors and
Class B Directors on the Board of Directors, unless a majority of the Class A
Directors and Class B Directors, voting separately, otherwise agree. The
provisions of this paragraph shall not apply to Sections 3.9(b), (c) and (d)
herein.
(a) EXECUTIVE COMMITTEE: The Board of Directors may appoint an
Executive Committee of not less than two (2) members, each of whom shall be a
director. The Executive Committee, to the extent permitted by law, shall
have and may exercise when the Board of Directors is not in session all
powers of the Board in the management of the business and affairs of the
Corporation, except such committee shall not have the power or authority to
amend these Bylaws or to approve or recommend to the stockholders any action
which must be submitted to stockholders for approval under the General
Corporation Law.
(b) NOMINATING COMMITTEE: Notwithstanding anything contained in
this Section 3.9 to the contrary, so long as there remain shares of Class B
Common Stock outstanding, there shall be a "Class A Nominating Committee"
comprised solely of Class A Directors, and a "Class B Nominating Committee"
comprised solely of Class B Directors. Subject to any rights of stockholders
under law to nominate persons to serve as directors, (i) the Class A
Nominating Committee shall nominate persons to serve as Class A Directors and
shall appoint persons to fill vacancies on, or newly created directorships
of, the Board designated for Class A Directors (as set forth in the Restated
Certificate of Incorporation) and (ii) the Class B Nominating Committee shall
nominate persons to serve as Class B Directors and shall appoint persons to
fill vacancies on, or newly created directorships of, the Board designated
for Class B Directors (as set forth in the Restated Certificate of
Incorporation).
(c) CLASS B COMMITTEE: Notwithstanding anything contained in this
Section 3.9 to the contrary, so long as there remain shares of Class B Common
Stock outstanding, there shall be a "Class B Committee" comprised solely of
one Class B Director, and one alternate Class B Director to serve in the
absence of the Class B Committee member (both as determined by the Class B
Directors). The Class B Committee shall have the power and authority to
consent to or approve any action required to be approved by the Class B
Directors pursuant to paragraph 4 of Article FIFTH of the Restated
Certificate of Incorporation of the Corporation. If the Class B Committee is
presented with any matter for its approval, within five business days of the
request for approval it will either (i) grant such approval, (ii) deny such
approval or (iii) require that such
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request for approval be considered by all of the Class B Directors (in which
event such matter shall be submitted to all of the Class B Directors for
their approval or disapproval). If the Class B Committee does not take any
action within such five business day period its approval shall be deemed
automatically to have been granted at the end of such period.
(d) CLASS A COMMITTEE: Notwithstanding anything contained in this
Section 3.9 to the contrary, so long as there remain shares of Class B Common
Stock outstanding, there shall be a "Class A Committee" comprised of one or
more Class A Directors (as determined by the Class A Directors). The Class A
Committee shall have the power and authority to (A) consent to or approve any
action described in clauses (i), (ii), (iii), (iv) or (v) of paragraph 3 of
Article FIFTH of the Restated Certificate of Incorporation of the Corporation
and (B) exercise any other right afforded to the Class A Directors by the
Restated Certificate of Incorporation or by any contract or other agreement
to which the Corporation is a party.
(e) OTHER COMMITTEES: The Board of Directors may, from time to
time appoint such other committees as may be permitted by law. Such other
committees appointed by the Board of Directors shall have such powers and
perform such duties as may be prescribed by the resolution or resolutions
creating such committee, but in no event shall any such committee have the
powers denied to the Executive Committee in these Bylaws.
(f) TERM: The members of all committees of the Board of Directors
shall serve a term coexistent with that of the Board of Directors which shall
have appointed such committee. The Board, subject to the requirements
specifically set forth in this Section 3.9, may at any time increase or
decrease the number of members of a committee or terminate the existence of a
committee; PROVIDED, that no committee shall consist of less than two (2)
members. The membership of a committee member shall terminate on the date of
his death or voluntary resignation, but the Board may at any time for any
reason remove any individual committee member and the Board may, subject to
the requirements specifically set forth in this Section 3.9, fill any
committee vacancy created by death, resignation, removal or increase in the
number of members of the committee. The Board of Directors may, subject to
the requirements specifically set forth in this Section 3.9, designate one or
more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee, and, in
addition, in the absence or disqualification of any member of a committee,
the member or members thereof present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may, subject to
the requirements specifically set forth in this Section 3.9, unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member.
(g) MEETINGS: Unless the Board of Directors shall otherwise
provide, regular meetings of the Executive Committee or any other committee
appointed pursuant to this Section 3.9 shall be held at such times and places
as are determined by the Board of Directors, or by any such committee, and
when notice thereof has been given to each member of such committee, no
further notice of such regular meetings need be given thereafter; special
meetings of any such committee may be held at the principal office of the
Corporation required to be maintained pursuant to Section 1.2 of Article I
hereof, or at any place which has been designated
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from time to time by resolution of such committee or by written consent of
all members thereof, and may be called by any director who is a member of
such committee, upon written notice to the members of such committee of the
time and place of such special meeting given in the manner provided for the
giving of written notice to members of the Board of Directors of the time and
place of special meetings of the Board of Directors. Notice of any special
meeting of any committee may be waived in writing at any time after the
meeting and will be waived by any director by attendance thereat, except
where a director attends for the express purpose of objecting at the
beginning of a meeting to the transaction of any business because the meeting
is not lawfully called or convened. A majority of the authorized number of
members of any such committee shall constitute a quorum for the transaction
of business; PROVIDED that any action of the Corporation approved or
recommended by any committee of the Board of Directors will be subject to
appropriate consents and approvals of the Class A Directors or the Class B
Directors voting as a group pursuant to paragraphs 3 and 4 of Article FIFTH
of the Restated Certificate of Incorporation of the Corporation. The act of
a majority of those present at any meeting at which a quorum is present shall
be the act of such committee.
ARTICLE IV
OFFICERS
SECTION 4.1 ENUMERATION, ELECTION AND TERM.
The officers of the Corporation shall consist of a President, a
Secretary, a Treasurer and such other officers with such other titles as may
be deemed necessary or desirable by the Board of Directors, including a Chief
Executive Officer, Chief Financial Officer, one or more Vice Presidents, a
Controller, Assistant Treasurers and Assistant Secretaries and a Chairman of
the Board. Any number of offices may be held by the same person, and no
officer need be a stockholder or a resident of the State of Delaware. Except
as otherwise provided by law, the Restated Certificate of Incorporation or
these Bylaws, each officer shall hold office until his successor is elected
and qualified or until his earlier death, resignation or removal. The
officers of the Corporation shall be elected annually by the Board of
Directors at the first meeting of the Board held after each annual meeting of
the stockholders.
SECTION 4.2 GENERAL DUTIES.
All officers and agents of the Corporation, as between themselves and
the Corporation, shall have such authority and shall perform such duties in
the management of the Corporation as may be provided in these Bylaws or as
may be determined by resolution of the Board of Directors not inconsistent
with these Bylaws. In all cases where the duties of any officer, agent or
employee are not prescribed by these Bylaws or by the Board of Directors,
such officer, agent or employee shall follow the orders and instructions of
the President.
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SECTION 4.3 VACANCIES.
The Board of Directors may fill any vacancy occurring in any office
for any reason and may, in its discretion, leave any vacancy unfilled for
such period as it may determine, other than a vacancy in the office of
President or Secretary. The officer so selected shall hold office until his
successor is elected and qualified or until his earlier death, resignation or
removal.
SECTION 4.4 COMPENSATION.
The Board of Directors from time to time shall fix the compensation of
the officers of the Corporation. The compensation of other agents and
employees of the Corporation may be fixed by the Board of Directors, by any
committee designated by the Board or by an officer to whom that function has
been delegated by the Board.
SECTION 4.5 RESIGNATION AND REMOVAL.
Any officer may resign by delivering his written resignation to the
Corporation at its principal office, addressed to the President or Secretary.
Such resignation shall be effective upon receipt, unless it is specified to
be effective at some other time or upon the happening of some other event.
Any officer or agent of the Corporation may be removed, with or without
cause, by a vote of the majority of the members of the Board of Directors
whenever in its judgment the best interests of the Corporation may be served
thereby, but such removal shall be without prejudice to the contract rights,
if any, of the person so removed. Election or appointment of an officer or
an agent shall not of itself create contract rights.
SECTION 4.6 CHAIRMAN OF THE BOARD.
The Chairman of the Board, if any, shall preside as Chairman at
meetings of the stockholders and the Board of Directors. He shall, in
addition, have such other duties as the Board may prescribe that he perform.
At the request of the President, the Chairman of the Board may, in the case
of the President's absence or inability to act, temporarily act in his place.
In the case of death of the President or in the case of his absence or
inability to act without having designated the Chairman of the Board to act
temporarily in his place, the Chairman of the Board shall perform the duties
of the President, unless the Board of Directors, by resolution, provides
otherwise. If the Chairman of the Board shall be unable to act in place of
the President, the Vice Presidents may exercise such powers and perform such
duties as provided below.
SECTION 4.7 CHIEF EXECUTIVE OFFICER.
The Chief Executive Officer, if any, shall see that all orders and
resolutions of the Board of Directors are carried into effect and shall
oversee the strategic planning and policy development of the Corporation.
The Chief Executive Officer shall perform other duties commonly incident to
this office and shall perform such other duties and have such other powers as
the Board of Directors may from time to time prescribe.
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SECTION 4.8 PRESIDENT.
The President shall have general supervision of the business of the
Corporation. In the event the position of Chairman of the Board shall not be
occupied or the Chairman shall be absent or otherwise unable to act, the
President shall preside at meetings of the stockholders and directors and
shall discharge the duties of the presiding officer. At each annual meeting
of the stockholders, the President shall give a report of the business of the
Corporation for the preceding fiscal year and shall perform whatever other
duties the Board of Directors may from time to time prescribe.
SECTION 4.9 CHIEF FINANCIAL OFFICER.
The Chief Financial Officer, or if none the Treasurer, shall have
custody of corporate funds and securities and shall keep full and accurate
accounts of receipts and disbursements and shall deposit all corporate monies
and other valuable effects in the name and to the credit of the Corporation
in the depository or depositories of the Corporation, and shall render an
account of his or her transactions as Chief Financial Officer and of the
financial condition of the Corporation to the President and/or the Board of
Directors upon request. Such power given to the Treasurer to deposit and
disburse funds shall not, however, preclude any other officer or employee of
the Corporation from also depositing and disbursing funds when authorized to
do so by the Board of Directors. The Chief Financial Officer shall, if
required by the Board of Directors, give the Corporation a bond in such
amount and with such surety or sureties as may be ordered by the Board of
Directors for the faithful performance of the duties of his office. The
Chief Financial Officer shall have such other powers and perform such other
duties as may be from time to time prescribed by the Board of Directors or
the President. In the absence of the Chief Financial Officer or his
inability to act, the Treasurer (or, in his absence, the Assistant Treasurers
or Controller, if any) shall act with the same authority and shall be subject
to the same restrictions as are applicable to the Chief Financial Officer.
SECTION 4.10 VICE PRESIDENTS.
Each Vice President shall have such powers and perform such duties as
the Board of Directors may from time to time prescribe or as the President
may from time to time delegate to him. At the request of the President, in
the case of the President's absence or inability to act, any Vice President
may temporarily act in his place. In the case of the death of the President,
or in the case of his absence or inability to act without having designated a
Vice President or Vice Presidents to act temporarily in his place, the Board
of Directors, by resolution, may designate a Vice President or Vice
Presidents to perform the duties of the President. If no such designation
shall be made, the Chief Executive Officer, if any, shall exercise such
powers and perform such duties, as provided above, but, if the Corporation
has no Chief Executive Officer, or if the Chief Executive Officer is unable
to act in place of the President, all of the Vice Presidents may exercise
such powers and perform such duties.
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SECTION 4.11 SECRETARY.
The Secretary shall keep or cause to be kept in books provided for
that purpose, the minutes of the meetings of the stockholders, executive
committee, if any, and any other committees, and of the Board of Directors;
shall see that all notices are duly given in accordance with the provisions
of these Bylaws and as required by law; shall be custodian of the records and
of the seal of the Corporation and see that the seal is affixed to all
documents, the execution of which on behalf of the Corporation under its seal
is duly authorized and in accordance with the provisions of these Bylaws;
and, in general, shall perform all duties incident to the office of Secretary
and such other duties as may, from time to time, be assigned to him by the
Board of Directors or by the President. In the absence of the Secretary or
his inability to act, the Assistant Secretaries, if any, shall act with the
same powers and shall be subject to the same restrictions as are applicable
to the Secretary.
SECTION 4.12 DELEGATION OF DUTIES.
Whenever an officer is absent, or whenever, for any reason, the Board
of Directors may deem it desirable, the Board may delegate the powers and
duties of an officer to any other officer or officers or to any director or
directors.
ARTICLE V
EXECUTION OF CORPORATE INSTRUMENTS, AND
VOTING OF SECURITIES OWNED BY THE CORPORATION
SECTION 5.1 EXECUTION OF CORPORATE INSTRUMENTS.
(a) The Board of Directors may, in its discretion, determine the
method and designate the signatory officer or officers, or other person or
persons, to execute any corporate instrument or document, or to sign the
corporate name without limitation, except where otherwise provided by law,
and such execution or signature shall be binding upon the Corporation.
(b) Unless otherwise specifically determined by the Board of
Directors or otherwise required by law, formal contracts of the Corporation,
promissory notes, deeds of trust, mortgages and other evidences of
indebtedness of the Corporation, and other corporate instruments or documents
requiring the corporate seal, and certificates of shares of stock owned by
the Corporation, shall be executed, signed or endorsed by the Chairman of the
Board (if there be such an officer appointed) or by the President; such
documents may also be executed by any Vice-President and by the Secretary or
Treasurer or any Assistant Secretary or Assistant Treasurer. All other
instruments and documents requiring the corporate signature, but not
requiring the corporate seal, may be executed as aforesaid or in such other
manner as may be directed by the Board of Directors.
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(c) All checks and drafts drawn on banks or other depositaries on
funds to the credit of the Corporation, or in special accounts of the
Corporation, shall be signed by such person or persons as the Board of Directors
shall authorize so to do.
SECTION 5.2 VOTING OF SECURITIES OWNED BY CORPORATION.
All stock and other securities of other corporations owned or held by the
Corporation for itself, or for other parties in any capacity, shall be voted,
and all proxies with respect thereto shall be executed, by the person authorized
so to do by resolution of the Board of Directors or, in the absence of such
authorization, by the Chairman of the Board (if there be such an officer
appointed), or by the Chief Executive Officer (if there be such an officer), the
President, or by any Vice-President.
ARTICLE VI
SHARES OF STOCK
SECTION 6.1 FORM AND EXECUTION OF CERTIFICATES.
Certificates for the shares of stock of the Corporation shall be in such
form as is consistent with the Restated Certificate of Incorporation and
applicable law. Every holder of stock in the Corporation shall be entitled to
have a certificate signed by, or in the name of the Corporation by, the Chairman
of the Board (if there be such an officer appointed), or by the President or any
Vice-President and by the Treasurer or Assistant Treasurer or the Secretary or
Assistant Secretary, certifying the number of shares owned by him in the
Corporation. Any or all of the signatures on the certificate may be a
facsimile. In case any officer, transfer agent, or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent, or registrar before such certificate is
issued, it may be issued with the same effect as if he were such officer,
transfer agent, or registrar at the date of issue. If the Corporation shall be
authorized to issue more than one class of stock or more than one series of any
class, the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights shall be set forth in full or summarized on the face or back of the
certificate which the Corporation shall issue to represent such class or series
of stock; PROVIDED that, except as otherwise provided in Section 202 of the
Delaware Corporation Law, in lieu of the foregoing requirements, there may be
set forth on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, a statement that the
Corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
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SECTION 6.2 LOST CERTIFICATES.
The Board of Directors may direct a new certificate or certificates to be
issued in place of any certificate or certificates theretofore issued by the
Corporation alleged to have been lost or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate of stock to be
lost or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his legal representative, to indemnify the
Corporation in such manner as it shall require and/or to give the Corporation a
surety bond in such form and amount as it may direct as indemnity against any
claim that may be made against the Corporation with respect to the certificate
alleged to have been lost or destroyed.
SECTION 6.3 TRANSFERS.
Transfers of record of shares of stock of the Corporation shall be made
only upon its books by the holders thereof, in person or by attorney duly
authorized, and upon the surrender of a certificate or certificates for a like
number of shares, properly endorsed. So long as the Governance Agreement
remains in effect, any transfer of shares of Common Stock by a Restricted Party
(as defined in the Governance Agreement) shall be made in accordance therewith.
A copy of the Governance Agreement is maintained at the Corporation's principal
office.
SECTION 6.4 FIXING RECORD DATES.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which record date shall not be more
than sixty nor less than ten days before the date of such meeting. If no record
date is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the date on which the meeting is held. A determination of
stockholders of record entitled notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; PROVIDED, HOWEVER,
that the Board of Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten days after the date upon
which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors is
required by the Delaware Corporation Law, shall be the first
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date on which asigned written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation by delivery to its
registered office in Delaware, its principal place of business, or an officer
or agent of the Corporation having custody of the book in which proceedings
of meetings of stockholders are recorded. Delivery made to a corporation's
registered office shall be by hand or by certified or registered mail, return
receipt requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by law, the
record date for determining stockholders entitled to consent to corporate
action in writing without a meeting shall be at the close of business on the
day on which the Board of Directors adopts the resolution taking such prior
action.
(c) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
SECTION 6.5 REGISTERED STOCKHOLDERS.
The Corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends, and
to vote as such owner, and shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
ARTICLE VII
OTHER SECURITIES OF THE CORPORATION
All bonds, debentures and other corporate securities of the Corporation,
other than stock certificates, may be signed by the Chairman of the Board (if
there be such an officer appointed), or the President or any Vice-President or
such other person as may be authorized by the Board of Directors and the
corporate seal impressed thereon or a facsimile of such seal imprinted thereon
and attested by the signature of the Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer; PROVIDED, HOWEVER, that where any such
bond, debenture or other corporate security shall be authenticated by the manual
signature of a trustee under an indenture pursuant to which such bond, debenture
or other corporate security shall be issued, the signature of the persons
signing and attesting the corporate seal on such bond, debenture or other
corporate security may be the imprinted facsimile of the signatures of such
persons. Interest coupons appertaining to any such bond, debenture or other
corporate security, authenticated by a trustee as aforesaid, shall be signed by
the Treasurer or an Assistant Treasurer of the Corporation, or such other person
as may be authorized by the Board of Directors, or bear imprinted thereon the
facsimile signature of such person. In case any officer who shall have signed
or attested any
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bond, debenture or other corporate security, or whose facsimile signature
shall appear thereon or before the bond, debenture or other corporate
security so signed or attested shall have been delivered, such bond,
debenture or other corporate security nevertheless may be adopted by the
Corporation and issued and delivered as though the person who signed the same
or whose facsimile signature shall have been used thereon had not ceased to
be such officer of the Corporation.
ARTICLE VIII
CORPORATE SEAL
The corporate seal shall consist of a die bearing the name of the
Corporation and the state and date of its incorporation. Said seal may be used
by causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
ARTICLE IX
INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS
SECTION 9.1 RIGHT TO INDEMNIFICATION.
(a) Each person who was or is a party or is threatened to be made a
party to or is involved (as a party, witness or otherwise), in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "Proceeding"), by reason of the
fact that he, or a person of whom he 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
or officer 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 the Proceeding is alleged action in an official capacity as
a director or officer or in any other capacity while serving as a director or
officer, shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the Delaware Corporation Law, as the same exists or
may hereafter be amended or interpreted, against all expenses, liability and
loss (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties, and amounts paid or to be paid in settlement, and any interest,
assessments or other charges imposed thereon, and any federal, state, local or
foreign taxes imposed on any person indemnified hereby as a result of the actual
or deemed receipt of any payments under this Article IX) reasonably incurred or
suffered by such person in connection with investigating, defending, being a
witness in, or participating in (including on appeal), or preparing for any of
the foregoing in, any Proceeding (hereinafter "Losses"); PROVIDED, HOWEVER, that
except as to actions to enforce indemnification rights pursuant to Section 9.3
of Article IX, the Corporation shall indemnify any officer or director seeking
indemnification in connection with a Proceeding (or part thereof) initiated by
such person only if the Proceeding (or part thereof) was authorized by the Board
of Directors of the Corporation. The right to indemnification conferred in this
Article IX shall be a contract right.
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(b) Each person who was or is a party or is threatened to be made a
party to or is involved (as a party, witness or otherwise), in any threatened,
pending or completed Proceeding, by reason of the fact that he, or a person of
whom he is the legal representative, is or was an employee or agent (other than
an officer or director) of the Corporation or is or was serving at the request
of the Corporation as an employee or agent (other than an officer or director)
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 the Proceeding is alleged action in an official capacity as an
employee or agent or in any other capacity while serving as an employee or
agent, may be indemnified and held harmless by the Corporation to the fullest
extent authorized by the Delaware Corporation Law, as the same exists or may
hereafter be amended or interpreted against all Losses.
SECTION 9.2 AUTHORITY TO ADVANCE EXPENSES.
Expenses incurred by an officer or director (acting in his capacity as
such) in defending a Proceeding shall be paid by the Corporation in advance of
the final disposition of such Proceeding; PROVIDED, HOWEVER, that if required by
the Delaware Corporation Law, as amended, such Expenses shall be advanced only
upon delivery to the Corporation of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation as authorized in
this Article or otherwise. Expenses incurred by employees or other agents of
the Corporation (or by the directors or officers not acting in their capacity as
such, including service with respect to employee benefit plans) may be advanced
upon such terms and conditions as the Board of Directors deems appropriate. Any
obligation to reimburse the Corporation for Expense advances shall be unsecured
and no interest shall be charged thereon.
SECTION 9.3 RIGHT OF CLAIMANT TO BRING SUIT.
If a claim under Section 9.1 or 9.2 of this Article is not paid in full
by the Corporation within 30 days after a written claim has been received by the
Corporation, the claimant 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
(including attorneys' fees) 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 a Proceeding in advance of its final disposition where the
required undertaking has been tendered to the Corporation) that the claimant has
not met the standards of conduct that make it permissible under the Delaware
Corporation Law for the Corporation to indemnify the claimant for the amount
claimed. The burden of proving such a 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 under the circumstances because he has met the applicable standard of
conduct set forth in the Delaware Corporation Law, nor an actual determination
by the Corporation (including its Board of Directors, independent legal counsel,
or its stockholders) that the claimant had not met such applicable standard of
conduct, shall be a
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defense to the action or create a presumption that claimant has not met the
applicable standard of conduct.
SECTION 9.4 PROVISIONS NONEXCLUSIVE.
The rights conferred on any person by this Article shall not be exclusive
of any other rights that such person may have or hereafter acquire under any
statute, provision of the Restated Certificate of Incorporation, agreement, vote
of stockholders or disinterested directors, or otherwise, both as to action in
an official capacity and as to action in another capacity while holding such
office. To the extent that any provision of the Restated Certificate of
Incorporation, agreement, or vote of the stockholders or disinterested directors
is inconsistent with these Bylaws, the provision, agreement, or vote shall take
precedence.
SECTION 9.5 AUTHORITY TO INSURE.
The Corporation may purchase and maintain insurance to protect itself and
any director, officer, employee or other agent (collectively, an "Agent")
against any Expense, whether or not the Corporation would have the power to
indemnify the Agent against such Expense under applicable law or the provisions
of this Article.
SECTION 9.6 SURVIVAL OF RIGHTS.
The rights provided by this Article shall continue as to a person who has
ceased to be an Agent and shall inure to the benefit of the heirs, executors,
and administrators of such a person.
SECTION 9.7 EFFECT OF AMENDMENT.
Any amendment, repeal, or modification of this Article shall not
adversely affect any right or protection of any Agent existing at the time of
such amendment, repeal, or modification.
SECTION 9.8 SUBROGATION.
In the event of payment under this Article, the Corporation shall be
subrogated to the extent of such payment to all of the rights of recovery of the
Agent, who shall execute all papers required and shall do everything that may be
necessary to secure such rights, including the execution of such documents
necessary to enable the Corporation effectively to bring suit to enforce such
rights.
SECTION 9.9 NO DUPLICATION OF PAYMENTS.
The Corporation shall not be liable under this Article to make any
payment in connection with any claim made against the Agent to the extent the
Agent has otherwise actually received payment (under any insurance policy,
agreement, vote, or otherwise) of the amounts otherwise indemnifiable hereunder.
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ARTICLE X
NOTICES
Whenever, under any provisions of these Bylaws, notice is required to be
given to any stockholder, the same shall be given in writing, timely and duly
deposited in the United States Mail, postage prepaid, and addressed to his last
known post office address as shown by the stock record of the Corporation or its
transfer agent. Any notice required to be given to any director may be given by
the method hereinabove stated, or by telegram or other means of electronic
transmission, except that such notice other than one which is delivered
personally, shall be sent to such address or (in the case of facsimile
telecommunication or other means of electronic transmission) facsimile telephone
number or other relevant transmission instructions as such director shall have
filed in writing with the Secretary of the Corporation, or, in the absence of
such filing, to the last known post office address of such director. If no
address of a stockholder or director be known, such notice may be sent to the
office of the Corporation required to be maintained pursuant to Section 1.1 of
Article I hereof. An affidavit of mailing, executed by a duly authorized and
competent employee of the Corporation or its transfer agent appointed with
respect to the class of stock affected, specifying the name and address or the
names and addresses of the stockholder or stockholders, director or directors,
to whom any such notice or notices was or were given, and the time and method of
giving the same, shall be conclusive evidence of the statements therein
contained. All notices given by mail, as above provided, shall be deemed to
have been given as at the time of mailing and all notices given by telegram or
other means of electronic transmission shall be deemed to have been given as at
the sending time recorded by the telegraph company or other electronic
transmission equipment operator transmitting the same. It shall not be
necessary that the same method of giving be employed in respect of all
directors, but one permissible method may be employed in respect of any one or
more, and any other permissible method or methods may be employed in respect of
any other or others. The period or limitation of time within which any
stockholder may exercise any option or right, or enjoy any privilege or benefit,
or be required to act, or within which any director may exercise any power or
right, or enjoy any privilege, pursuant to any notice sent him in the manner
above provided, shall not be affected or extended in any manner by the failure
of such a stockholder or such director to receive such notice. Whenever any
notice is required to be given under the provisions of the statutes or of the
Restated Certificate of Incorporation, or of these Bylaws, a waiver thereof in
writing signed by the person or persons entitled to said notice, whether before
or after the time stated therein, shall be deemed equivalent thereto. Whenever
notice is required to be given, under any provision of law or of the Restated
Certificate of Incorporation or Bylaws of the Corporation, to any person with
whom communication is unlawful, the giving of uch notice to such person shall
not be required and there shall be no duty to apply to any governmental
authority or agency for a license or permit to give such notice to such person.
Any action or meeting which shall be taken or held without notice to any such
person with whom communication is unlawful shall have the same force and effect
as if such notice had been duly given.
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ARTICLE XI
AMENDMENTS
Unless otherwise provided in the Restated Certificate of Incorporation,
these Bylaws may be repealed, altered or amended or new Bylaws adopted by
written consent of stockholders in the manner authorized by Section 2.11 of
Article II, or at any meeting of the stockholders, either annual or special, by
the affirmative vote of a majority of the stock entitled to vote at such
meeting, unless a larger vote is required by these Bylaws or the Restated
Certificate of Incorporation. Unless otherwise provided in the Restated
Certificate of Incorporation, the Board of Directors shall also have the
authority to repeal, alter or amend these Bylaws or adopt new Bylaws (including,
without limitation, the amendment of any Bylaws setting forth the number of
directors who shall constitute the whole Board of Directors) by unanimous
written consent or at any annual, regular, or special meeting by the affirmative
vote of a majority of the whole number of directors, subject to the power of the
stockholders to change or repeal such Bylaws. Notwithstanding anything
contained in these Bylaws to the contrary: (i) any amendment, change or repeal
of Sections 2.3 or 2.5(a) or Article IX herein, or any other amendment to these
Bylaws that will have the effect of permitting circumvention of or modifying
Sections 2.3 or 2.5(a) or Article IX shall require the affirmative vote, of the
holders of a majority of the then-outstanding shares of Class A Common Stock and
Class B Common Stock entitled to vote, each voting as a separate class; and (ii)
any amendment, change or repeal of Sections 3.6(a) or 3.9 herein, or any other
amendment to these Bylaws that will have the effect of permitting circumvention
of or modifying Sections 3.6(a) or 3.9 shall require the affirmative vote of a
majority of the Class A Directors and Class B Directors, each voting as a
separate group.
ARTICLE XII
MISCELLANEOUS
SECTION 12.1 GENDER.
Whenever required by the context, the singular shall include the plural,
the plural the singular, and one gender shall include all genders.
SECTION 12.2 INVALID PROVISION.
The invalidity or unenforceability of any particular provision of these
Bylaws shall not affect the other provisions herein, and these Bylaws shall be
construed in all respects as if such invalid or unenforceable provision were
omitted.
SECTION 12.3 DEFINITIONS.
For purposes of these Bylaws, the terms "Class A Common Stock," "Class B
Common Stock," "Common Stock," "Class A Directors" and "Class B Directors" shall
have the meanings ascribed to such terms in the Restated Certificate of
Incorporation. The term "Governance
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Agreement" shall mean that certain Governance and Investor Rights Agreement
to be dated Nobember 30, 1999 between National Broadcasting Company, Inc. and
the Corporation, as the same may be amended from time to time in accordance
with its terms.
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CERTIFICATE OF SECRETARY
The undersigned, Secretary of NBC Internet, Inc., a Delaware corporation,
hereby certifies that the foregoing is a full, true and correct copy of the
Bylaws of said corporation, with all amendments to date of this Certificate.
WITNESS the signature of the undersigned this 29th day of November, 1999.
/s/ John Harbottle
-------------------------------
John Harbottle, Secretary
<PAGE>
MORRISON & FOERSTER LLP
San Francisco, California
November 29, 1999
NBC Internet, Inc.
300 Montgomery Street, Suite 300
San Francisco, California 94104
Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
executed by you on November 29, 1999, and to be filed with the Securities and
Exchange Commission (the "SEC") in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 13,500,000 shares of your
Class A common stock, $.0001 par value (the "Common Stock") which will be
issuable under your 1999 Stock Incentive Plan (the "Plan").
As your counsel in connection with the Registration Statement, we have examined
the proceedings taken by you in connection with the adoption of the Plan and
authorization of the issuance of 13,500,000 shares of Common Stock under the
Plan (the "Plan Shares"), and such documents as we have deemed necessary to
render this opinion.
Based upon the foregoing, it is our opinion that the Plan Shares, when issued
and outstanding pursuant to the terms of the Plan, will be validly issued,
fully paid and non-assessable shares of Common Stock.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/S/ MORRISON & FOERSTER LLP
<PAGE>
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the registration of 13,500,000 shares of Class A Common Stock
of NBC Internet, Inc. of our reports pertaining to Xoom.com, Inc. dated January
25, 1999, pertaining to Paralogic Corporation dated July 20, 1998, pertaining
to Global Bridges Technologies, Inc. dated July 10, 1998, pertaining to
Pagecount, Inc. dated July 7, 1998 (except for Note 6, as to which the date is,
July 24, 1998), pertaining to MightyMail Networks, Inc. dated June 4, 1999,
and pertaining to Paralogic Software Corporation dated June 22, 1999, included
in the Proxy Statement of Xoom.com, Inc. that is made a part of Amendment No. 5
to the Registration Statement (Form S-4 No. 333-82639) and Prospectus of NBC
Internet, Inc. for the registration of 20,120,409 shares of its common stock,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young, LLP
Palo Alto, California
November 29, 1999
<PAGE>
Exhibit 23.2
The Board of Directors
National Broadcasting Company, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of NBC Internet, Inc. of our report dated June 24, 1999, relating to the
combined balance sheets of the NBC Multimedia Division as of December 31, 1998
and 1997 and the related combined statements of operations and changes in parent
company's investment and net advances and cash flows for the years then ended,
which report appears in the registration statement on Form S-4 of NBC Internet,
Inc., as declared effective on November 2, 1999 (No. 333-82639).
/s/ KPMG LLP
New York, New York
November 29, 1999
<PAGE>
Exhibit 23.3
Consent of KPMG LLP, Independent Auditors
The Board of Directors
SNAP! LLC
We consent to incorporation by reference in the registration statement on
Form S-8 of NBC Internet, Inc. of our reports dated June 18, 1999, relating
to the balance sheets of SNAP! LLC as of December 31, 1997 and 1998, and the
related statements of operations, members' deficit, and cash flows for each
of the years in the two-year period ended December 31, 1998, and the related
financial statement schedule, which reports appear in the registration
statement on Form S-4 of NBC Internet, Inc., as declared effective on
November 2, 1999 (No. 333-82639).
/s/ KPMG LLP
San Francisco, California
November 29, 1999
<PAGE>
EXHIBIT 24.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of NBC Internet, Inc. of our report dated April 16, 1999,
except for Note 8 as to which the date is July 15, 1999 relating to the
financial statements of LiquidMarket, Inc., which is included in the
Registration Statement on Form S-4 of NBC Internet, Inc. (No. 333-82639).
/s/ PRICEWATERHOUSECOOPERS LLP
Woodland Hills, California
November 29, 1999
