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AOL TIME WARNER INC.
BY-LAWS
ARTICLE I
Offices
SECTION 1. Registered Office. The registered office of AOL
TIME WARNER INC. (hereinafter called the "Corporation") in the State of Delaware
shall be at 1209 Orange Street, City of Wilmington, County of New Castle,
Delaware 19801, and the registered agent shall be The Corporation Trust Company,
or such other office or agent as the Board of Directors of the Corporation (the
"Board") shall from time to time select.
SECTION 2. Other Offices. The Corporation may also have an
office or offices, and keep the books and records of the Corporation, except as
may otherwise be required by law, at such other place or places, either within
or without the State of Delaware, as the Board may from time to time determine
or the business of the Corporation may require.
ARTICLE II
Meetings of Stockholders
SECTION 1. Place of Meeting. All meetings of the stockholders
of the Corporation (the "stockholders") shall be held seriatim (sequentially) in
New York City, New York, Los Angeles, California, Atlanta, Georgia and Dulles,
Virginia.
SECTION 2. Annual Meetings. The annual meeting of the
stockholders for the election of directors and for the transaction of such other
business as may properly come before the meeting shall be held on such date and
at such hour as shall from time to time be fixed by the Board. Any previously
scheduled annual meeting of the stockholders may be postponed by action of the
Board taken prior to the time previously scheduled for such annual meeting of
the stockholders.
SECTION 3. Special Meetings. Except as otherwise required by
law or the Restated Certificate of Incorporation of the Corporation (the
"Certificate") and subject to the rights of the holders of any series of
Preferred Stock or
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Series Common Stock or any class or series of stock having a preference over the
Common Stock as to dividends or upon dissolution, liquidation or winding up,
special meetings of the stockholders for any purpose or purposes may be called
by the Chief Executive Officer or a majority of the entire Board. Only such
business as is specified in the notice of any special meeting of the
stockholders shall come before such meeting.
SECTION 4. Notice of Meetings. Except as otherwise provided by
law, notice of each meeting of the stockholders, whether annual or special,
shall be given not less than 10 days nor more than 60 days before the date of
the meeting to each stockholder of record entitled to notice of the meeting. If
mailed, such notice shall be deemed given when deposited in the United States
mail, postage prepaid, directed to the stockholder at such stockholder's address
as it appears on the records of the Corporation. Each such notice shall state
the place, date and hour of the meeting, and, in the case of a special meeting,
the purpose or purposes for which the meeting is called. Notice of any meeting
of the stockholders shall not be required to be given to any stockholder who
shall attend such meeting in person or by proxy without protesting, prior to or
at the commencement of the meeting, the lack of proper notice to such
stockholder, or who shall waive notice thereof as provided in Article X of these
By-laws. Notice of adjournment of a meeting of the stockholders need not be
given if the time and place to which it is adjourned are announced at such
meeting, unless the adjournment is for more than 30 days or, after adjournment,
a new record date is fixed for the adjourned meeting.
SECTION 5. Quorum. Except as otherwise provided by law or by
the Certificate, the holders of a majority of the votes entitled to be cast by
the stockholders entitled to vote generally, present in person or by proxy,
shall constitute a quorum at any meeting of the stockholders; provided, however,
that in the case of any vote to be taken by classes or series, the holders of a
majority of the votes entitled to be cast by the stockholders of a particular
class or series, present in person or by proxy, shall constitute a quorum of
such class or series.
SECTION 6. Adjournments. The chairman of the meeting or the
holders of a majority of the votes entitled to be cast by the stockholders who
are present in person or by proxy may adjourn the meeting from time to time
whether or not a quorum is present. In the event that a quorum does not exist
with respect to any vote to be taken by a particular class or series, the
chairman of the meeting or
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the holders of a majority of the votes entitled to be cast by the stockholders
of such class or series who are present in person or by proxy may adjourn the
meeting with respect to the vote(s) to be taken by such class or series. At any
such adjourned meeting at which a quorum may be present, any business may be
transacted which might have been transacted at the meeting as originally called.
SECTION 7. Order of Business. At each meeting of the
stockholders, the Chairman of the Board or, in the absence of the Chairman of
the Board, the Chief Executive Officer or, in the absence of the Chairman of the
Board and the Chief Executive Officer, such person as shall be selected by the
Board shall act as chairman of the meeting. The order of business at each such
meeting shall be as determined by the chairman of the meeting. The chairman of
the meeting shall have the right and authority to prescribe such rules,
regulations and procedures and to do all such acts and things as are necessary
or desirable for the proper conduct of the meeting, including, without
limitation, the establishment of procedures for the maintenance of order and
safety, limitations on the time allotted to questions or comments on the affairs
of the Corporation, restrictions on entry to such meeting after the time
prescribed for the commencement thereof and the opening and closing of the
voting polls.
At any annual meeting of the stockholders, only such business
shall be conducted as shall have been brought before the annual meeting (i) by
or at the direction of the chairman of the meeting or (ii) by any stockholder
who is a holder of record at the time of the giving of the notice provided for
in this Section 7, who is entitled to vote at the meeting and who complies with
the procedures set forth in this Section 7.
For business properly to be brought before an annual meeting
of stockholders by a stockholder, the stockholder must have given timely notice
thereof in proper written form to the Secretary of the Corporation (the
"Secretary"). To be timely, a stockholder's notice must be delivered to or
mailed and received at the principal executive offices of the Corporation not
less than 90 days nor more than 120 days prior to the first anniversary of the
date of the immediately preceding annual meeting; provided, however, that in the
event that the date of the annual meeting is more than 30 days earlier or more
than 60 days later than such anniversary date, notice by the stockholder to be
timely must be so delivered or received not earlier than the 120th day prior to
such annual meeting and not later than the close of business on the later of the
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90th day prior to such annual meeting or the 10th day following the day on which
public announcement of the date of such meeting is first made; provided,
further, that for the purpose of calculating the timeliness of stockholder
notices for the 2001 annual meeting of stockholders, the date of the immediately
preceding annual meeting shall be deemed to be May 18, 2000. To be in proper
written form, a stockholder's notice to the Secretary shall set forth in writing
as to each matter the stockholder proposes to bring before the annual meeting:
(i) a brief description of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual meeting; (ii)
the name and address, as they appear on the Corporation's books, of the
stockholder proposing such business; (iii) the class or series and number of
shares of the Corporation which are beneficially owned by the stockholder; (iv)
any material interest of the stockholder in such business; and (v) if the
stockholder intends to solicit proxies in support of such stockholder's
proposal, a representation to that effect. The foregoing notice requirements
shall be deemed satisfied by a stockholder if the stockholder has notified the
Corporation of his or her intention to present a proposal at an annual meeting
and such stockholder's proposal has been included in a proxy statement that has
been prepared by management of the Corporation to solicit proxies for such
annual meeting; provided, however, that if such stockholder does not appear or
send a qualified representative to present such proposal at such annual meeting,
the Corporation need not present such proposal for a vote at such meeting,
notwithstanding that proxies in respect of such vote may have been received by
the Corporation. Notwithstanding anything in these By- laws to the contrary, no
business shall be conducted at any annual meeting except in accordance with the
procedures set forth in this Section 7. The chairman of an annual meeting may
refuse to permit any business to be brought before an annual meeting which fails
to comply with the foregoing procedures or, in the case of a stockholder
proposal, if the stockholder solicits proxies in support of such stockholder's
proposal without having made the representation required by clause (v) of the
third preceding sentence.
SECTION 8. List of Stockholders. It shall be the duty of the
Secretary or other officer who has charge of the stock ledger to prepare and
make, at least 10 days before each meeting of the stockholders, a complete list
of the stockholders entitled to vote thereat, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in such
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stockholder's name. Such list shall be produced and kept available at the times
and places required by law.
SECTION 9. Voting. Except as otherwise provided by law or by
the Certificate, each stockholder of record of any series of Preferred Stock or
Series Common Stock shall be entitled at each meeting of the stockholders to
such number of votes, if any, for each share of such stock as may be fixed in
the Certificate or in the resolution or resolutions adopted by the Board
providing for the issuance of such stock, and each stockholder of record of
Common Stock shall be entitled at each meeting of the stockholders to one vote
for each share of such stock, in each case, registered in such stockholder's
name on the books of the Corporation:
(1) on the date fixed pursuant to Section 6 of Article VII of
these By-laws as the record date for the determination of stockholders
entitled to notice of and to vote at such meeting; or
(2) if no such record date shall have been so fixed, then at
the close of business on the day next preceding the day on which notice
of such meeting is given, or, if notice is waived, at the close of
business on the day next preceding the day on which the meeting is
held.
Each stockholder entitled to vote at any meeting of the
stockholders may authorize not in excess of three persons to act for such
stockholder by proxy. Any such proxy shall be delivered to the secretary of such
meeting at or prior to the time designated for holding such meeting, but in any
event not later than the time designated in the order of business for so
delivering such proxies. No such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period.
At each meeting of the stockholders, all corporate actions to
be taken by vote of the stockholders (except as otherwise required by law and
except as otherwise provided in the Certificate or these By-laws) shall be
authorized by a majority of the votes cast by the stockholders entitled to vote
thereon who are present in person or represented by proxy, and where a separate
vote by class or series is required, a majority of the votes cast by the
stockholders of such class or series who are present in person or represented by
proxy shall be the act of such class or series.
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Unless required by law or determined by the chairman of the
meeting to be advisable, the vote on any matter, including the election of
directors, need not be by written ballot.
SECTION 10. Inspectors. The chairman of the meeting shall
appoint two or more inspectors to act at any meeting of the stockholders. Such
inspectors shall perform such duties as shall be required by law or specified by
the chairman of the meeting. Inspectors need not be stockholders. No director or
nominee for the office of director shall be appointed such inspector.
SECTION 11. Public Announcements. For the purpose of Section 7
of this Article II and Section 3 of Article III, "public announcement" shall
mean disclosure (i) in a press release reported by the Dow Jones News Service,
Reuters Information Service or any similar or successor news wire service or
(ii) in a communication distributed generally to stockholders and in a document
publicly filed by the Corporation with the Securities and Exchange Commission
pursuant to Sections 13, 14 or 15(d) of the Securities Exchange Act of 1934 or
any successor provisions thereto.
ARTICLE III
Board of Directors
SECTION 1. General Powers. The business and affairs of the
Corporation shall be managed by or under the direction of the Board, which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by law or by the Certificate directed or required to be
exercised or done by the stockholders.
SECTION 2. Number, Qualification and Election. Except as
otherwise fixed by or pursuant to the provisions of Article IV of the
Certificate relating to the rights of the holders of any series of Preferred
Stock or Series Common Stock or any class or series of stock having preference
over the Common Stock as to dividends or upon dissolution, liquidation or
winding up, subject to Section 15 of this Article III, the number of directors
constituting the Whole Board shall be determined from time to time by the Board
and shall, effective as of the effective time of the mergers contemplated by the
Second Amended and Restated Agreement and Plan of Merger dated as of January 10,
2000 to which the Corporation is a party, initially be 16. The term "Whole
Board" shall mean the
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total number of authorized directors, whether or not there exist any vacancies
or unfilled previously authorized directorships.
The directors, other than those who may be elected by the
holders of shares of any series of Preferred Stock or Series Common Stock or any
class or series of stock having a preference over the Common Stock of the
Corporation as to dividends or upon dissolution, liquidation or winding up
pursuant to the terms of Article IV of the Certificate or any resolution or
resolutions providing for the issuance of such stock adopted by the Board, shall
be elected by the stockholders entitled to vote thereon at each annual meeting
of the stockholders, and shall hold office until the next annual meeting of the
stockholders and until each of their successors shall have been duly elected and
qualified.
Each director shall be at least 21 years of age. Directors
need not be stockholders of the Corporation.
In any election of directors, the persons receiving a
plurality of the votes cast, up to the number of directors to be elected in such
election, shall be deemed elected.
A majority of the members of the Board shall be persons
determined by the Board to be eligible to be classified as independent
directors. In its determination of a director's eligibility to be classified as
an independent director pursuant to this Section 2, the Board shall consider,
among such other factors as it may in any case deem relevant, that the director:
(i) has not been employed by the Corporation as an executive officer within the
past three years; (ii) is not a paid adviser or consultant to the Corporation
and derives no financial benefit from any entity as a result of advice or
consultancy provided to the Corporation by such entity; (iii) is not an
executive officer, director or significant stockholder of a significant customer
or supplier of the Corporation; (iv) has no personal services contract with the
Corporation; (v) is not an executive officer or director of a tax-exempt entity
receiving a significant part of its annual contributions from the Corporation;
(vi) is not a member of the immediate family of any director who is not
considered an independent director; and (vii) is free of any other relationship
that would interfere with the exercise of independent judgment by such director.
SECTION 3. Notification of Nominations. Subject to the rights
of the holders of any series of Preferred Stock or Series Common Stock or any
class or series of stock
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having a preference over the Common Stock as to dividends or upon dissolution,
liquidation or winding up, nominations for the election of directors may be made
by the Board or by any stockholder who is a stockholder of record at the time of
giving of the notice of nomination provided for in this Section 3 and who is
entitled to vote for the election of directors. Any stockholder of record
entitled to vote for the election of directors at a meeting may nominate persons
for election as directors only if timely written notice of such stockholder's
intent to make such nomination is given, either by personal delivery or by
United States mail, postage prepaid, to the Secretary. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation (i) with respect to an election
to be held at an annual meeting of the stockholders, not less than 90 days nor
more than 120 days prior to the first anniversary of the date of the immediately
preceding annual meeting; provided, however, that in the event that the date of
the annual meeting is more than 30 days earlier or more than 60 days later than
such anniversary date, notice by the stockholder to be timely must be so
delivered or received not earlier than the 120th day prior to such annual
meeting and not later than the close of business on the later of the 90th day
prior to such annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made; provided, further, that
for the purpose of calculating the timeliness of stockholder notices for the
2001 annual meeting of stockholders, the date of the immediately preceding
annual meeting shall be deemed to be May 18, 2000 and (ii) with respect to
an election to be held at a special meeting of the stockholders for the election
of directors, not earlier than the 90th day prior to such special meeting and
not later than the close of business on the later of the 60th day prior to such
special meeting or the 10th day following the day on which public announcement
is first made of the date of the special meeting and of the nominees to be
elected at such meeting. Each such notice shall set forth: (a) the name and
address, as they appear on the Corporation's books, of the stockholder who
intends to make the nomination and the name and address of the person or persons
to be nominated; (b) the class or series and numbers of shares of the
Corporation which are beneficially owned by the stockholder; (c) a
representation that the stockholder is a holder of record of stock of the
Corporation entitled to vote in the election of directors and intends to appear
in person or by proxy at the meeting to nominate the person or persons specified
in the notice; (d) a description of all arrangements or understandings between
the stockholder and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination or nominations are to be
made by the stockholder; (e) such other information regarding each nominee
proposed by such stockholder as would have been required to be included in a
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proxy statement filed pursuant to the proxy rules of the Securities and Exchange
Commission had each nominee been nominated, or intended to be nominated, by the
Board; (f) the executed written consent of each nominee to serve as a director
of the Corporation if so elected; and (g) if the stockholder intends to solicit
proxies in support of such stockholder's nominee(s), a representation to that
effect. The chairman of the meeting may refuse to acknowledge the nomination of
any person not made in compliance with the foregoing procedure or if the
stockholder solicits proxies in favor of such stockholder's nominee(s) without
having made the representations required by the immediately preceding sentence.
Only such persons who are nominated in accordance with the procedures set forth
in this Section 3 shall be eligible to serve as directors of the Corporation.
Notwithstanding anything in the immediately preceding
paragraph of this Section 3 to the contrary, in the event that the number of
directors to be elected to the Board at an annual meeting of the stockholders is
increased and there is no public announcement naming all of the nominees for
directors or specifying the size of the increased Board made by the Corporation
at least 90 days prior to the first anniversary of the date of the immediately
preceding annual meeting, a stockholder's notice required by this Section 3
shall also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to or mailed to and
received by the Secretary at the principal executive offices of the Corporation
not later than the close of business on the 10th day following the day on which
such public announcement is first made by the Corporation.
SECTION 4. Quorum and Manner of Acting. Except as otherwise
provided by law, the Certificate or these By- laws, a majority of the Whole
Board shall constitute a quorum for the transaction of business at any meeting
of the Board, and, except as so provided, the vote of a majority of the
directors present at any meeting at which a quorum is present shall be the act
of the Board. The chairman of the meeting or a majority of the directors present
may adjourn the meeting to another time and place whether or not a quorum is
present. At any adjourned meeting at which a quorum is present, any business may
be transacted which might have been transacted at the meeting as originally
called.
SECTION 5. Place of Meeting. Subject to Sections 6 and 7 of
this Article III, the Board may hold its meetings at such place or places within
or without the State of Delaware as the Board may from time to time determine or
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as shall be specified or fixed in the respective notices or waivers of notice
thereof.
SECTION 6. Regular Meetings. No fewer than six regular
meetings per year of the Board shall be held at such times as the Board shall
from time to time by resolution determine, such meetings to be held seriatim
(sequentially) in New York City and Northern Virginia. If any day fixed for a
regular meeting shall be a legal holiday under the laws of the place where the
meeting is to be held, the meeting which would otherwise be held on that day
shall be held at the same hour on the next succeeding business day.
SECTION 7. Special Meetings. Special meetings of the Board
shall be held whenever called by the Chairman of the Board, the Chief Executive
Officer or by a majority of the directors, and shall be held at such place, on
such date and at such time as he or they, as applicable, shall fix.
SECTION 8. Notice of Meetings. Notice of regular meetings of
the Board or of any adjourned meeting thereof need not be given. Notice of each
special meeting of the Board shall be given by overnight delivery service or
mailed to each director, in either case addressed to such director at such
director's residence or usual place of business, at least two days before the
day on which the meeting is to be held or shall be sent to such director at such
place by telecopy or by electronic transmission or shall be given personally or
by telephone, not later than the day before the meeting is to be held, but
notice need not be given to any director who shall, either before or after the
meeting, submit a waiver of such notice or who shall attend such meeting without
protesting, prior to or at its commencement, the lack of notice to such
director. Unless otherwise required by these By-laws, every such notice shall
state the time and place but need not state the purpose of the meeting.
SECTION 9. Rules and Regulations. The Board may adopt such
rules and regulations not inconsistent with the provisions of law, the
Certificate or these By-laws for the conduct of its meetings and management of
the affairs of the Corporation as the Board may deem proper.
SECTION 10. Participation in Meeting by Means of
Communications Equipment. Any one or more members of the Board or any committee
thereof may participate in any meeting of the Board or of any such committee by
means of conference telephone or other communications equipment by means of
which all persons participating in the meeting can hear each other or as
otherwise permitted by law, and such
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participation in a meeting shall constitute presence in person at such meeting.
SECTION 11. Action Without Meeting. Any action required or
permitted to be taken at any meeting of the Board or any committee thereof may
be taken without a meeting if all of the members of the Board or of any such
committee consent thereto in writing or as otherwise permitted by law and, if
required by law, the writing or writings are filed with the minutes or
proceedings of the Board or of such committee.
SECTION 12. Resignations. Any director of the Corporation may
at any time resign by giving written notice to the Board, the Chairman of the
Board, the Chief Executive Officer or the Secretary. Such resignation shall take
effect at the time specified therein or, if the time be not specified therein,
upon receipt thereof; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
SECTION 13. Vacancies. Subject to the rights of the holders of
any series of Preferred Stock or Series Common Stock or any class or series of
stock having a preference over the Common Stock of the Corporation as to
dividends or upon dissolution, liquidation or winding up, any vacancies on the
Board resulting from death, resignation, removal or other cause shall only be
filled by the Board, and not by the stockholders, by the affirmative vote of a
majority of the remaining directors then in office, even though less than a
quorum of the Board, or by a sole remaining director, and newly created
directorships resulting from any increase in the number of directors, which
increase shall be subject to Section 15 of this Article III, shall only be
filled by the Board, or if not so filled, by the stockholders at the next annual
meeting thereof or at a special meeting called for that purpose in accordance
with Section 3 of Article II of these By-laws. Any director elected in
accordance with the preceding sentence of this Section 13 shall hold office
until the next annual meeting of the stockholders and until such director's
successor shall have been elected and qualified.
SECTION 14. Compensation. Each director, in consideration of
such person serving as a director, shall be entitled to receive from the
Corporation such amount per annum and such fees (payable in cash or stock-based
compensation) for attendance at meetings of the Board or of committees of the
Board, or both, as the Board shall from time to time determine. In addition,
each director shall be entitled to receive from the Corporation reimbursement
for
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the reasonable expenses incurred by such person in connection with the
performance of such person's duties as a director. Nothing contained in this
Section 14 shall preclude any director from serving the Corporation or any of
its subsidiaries in any other capacity and receiving compensation therefor.
SECTION 15. Certain Modifications. Notwith standing anything
to the contrary contained in these By-laws, the following actions taken either
directly or indirectly by the Board shall require the affirmative vote of not
less than 75% of the Whole Board: (i) any change in the size of the Board; and
(ii) any proposal to amend these By-laws to be submitted to the stockholders of
the Corporation by the Board.
ARTICLE IV
Committees of the Board of Directors
SECTION 1. Establishment of Committees of the Board of
Directors; Election of Members of Committees of the Board of Directors;
Functions of Committees of the Board of Directors.
(a) The Corporation shall have such committees of the Board as
the Board shall determine from time to time in accordance with this Section 1 of
Article IV and initially the Corporation shall have the following committees of
the Board with the following powers and authority: the nominating and governance
committee, the audit and finance committee, the compensation committee and the
values and human development committee.
(b) The nominating and governance committee shall have the
following powers and authority: (i) evaluating and recommending director
candidates to the Board, (ii) assessing Board performance not less frequently
than every three years, (iii) recommending director compensation and benefits
policies for the Board, (iv) reviewing individual director performance as issues
arise, (v) evaluating and recommending to the Board candidates for Chief
Executive Officer, (vi) reviewing and recommending to the Board changes to the
size and composition of the Board, (vii) periodically reviewing the
Corporation's corporate governance profile and (viii) performing such other
functions as the Board shall determine in accordance with this Section 1 of
Article IV. None of the members of the nominating and governance committee shall
be an officer or
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full-time employee of the Corporation or of any subsidiary or affiliate of the
Corporation.
(c) The audit and finance committee shall have the following
powers and authority: (i) approving the appointment or removal of independent
public accountants to audit the books of account, accounting procedures and
financial statements of the Corporation and to perform such other duties from
time to time as the audit and finance committee may prescribe, (ii) receiving
the reports and comments of the Corporation's internal auditors and of the
independent public accountants selected by the committee and taking such action
with respect thereto as it deems appropriate, (iii) requesting the Corporation's
consolidated subsidiaries and affiliated companies to employ independent public
accountants to audit their respective books of account, accounting procedures
and financial statements, (iv) requesting the independent public accountants to
furnish to the compensation committee the certifications required under any
present or future stock option, incentive compensation or employee benefit plan
of the Corporation, (v) reviewing the adequacy of the Corporation's internal
financial controls, (vi) reviewing the accounting principles employed in the
Corporation's financial reporting, (vii) reviewing and making recommendations to
the Board concerning the financial structure and financial condition of the
Corporation and its subsidiaries, including annual budgets, long-term financial
plans, corporate borrowings, investments, capital expenditures, long-term
commitments and the issuance of stock, (viii) approving such matters that are
consistent with the general financial policies and direction from time to time
determined by the Board and (ix) performing such other functions as the Board
shall determine in accordance with this Section 1 of Article IV. The audit and
finance committee shall also have the powers and authority set forth in any
audit and finance committee charter adopted by the Board in accordance with this
Section 1 of Article IV as may from time to time be required by any rule or
regulation to which the Corporation is subject. None of the members of the audit
and finance committee shall be an officer or full-time employee of the
Corporation or of any subsidiary or affiliate of the Corporation.
(d) The compensation committee shall have the following powers
and authority: (i) determining and fixing the compensation for all senior
officers of the Corporation and its subsidiaries and divisions that the
compensation committee shall from time to time consider appropriate, as well as
all employees of the Corporation compensated at a rate in excess of such amount
per annum as may be fixed or determined from time to time by the Board, (ii)
performing
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the duties of the committees of the Board provided for in any present or future
stock option, restricted stock, incentive compensation or employee benefit plan
of the Corporation and administering the stock option, restricted stock and
stock incentive plans of the Corporation, (iii) delegating, to the extent
permitted by law and to the extent it deems appropriate, any of its powers in
connection with the administration of the stock option, stock incentive,
restricted stock plans and other employee benefit plans of the Corporation, (iv)
reviewing the operations of and policies pertaining to any present or future
stock option, incentive compensation or employee benefit plan of the Corporation
that the compensation committee shall from time to time consider appropriate and
(v) performing such other functions as the Board shall determine in accordance
with this Section 1 of Article IV. None of the members of the compensation
committee shall be an officer or full-time employee of the Corporation or of any
subsidiary or affiliate of the Corporation.
(e) The values and human development committee shall have the
following powers and authority: (i) developing and articulating the
Corporation's core values, commitments and social responsibilities, (ii)
developing strategies for ensuring the Corporation's involvement in the
communities in which it does business, (iii) establishing a strategy for
developing the Corporation's human resources and leadership for the future, (iv)
finding practical ways to increase workforce diversity at all levels and to
evaluate the Corporation's performance in advancing the goal of greater
workforce diversity and (v) performing such other functions as the Board shall
determine in accordance with this Section 1 of Article IV.
(f) Any modification to the powers and authority of any
committee of the Board shall require the affirmative vote of not less than 75%
of the Whole Board.
(g) In addition, the Board may, with the affirmative vote of
not less than 75% of the Whole Board and in accordance with and subject to the
General Corporation Law of the State of Delaware (the "DGCL"), from time to time
establish additional committees of the Board to exercise such powers and
authorities of the Board, and to perform such other functions, as the Board may
from time to time determine.
(h) The Board may remove a director from a committee, change
the size of any committee or terminate any committee or change the chairmanship
of a committee only
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15
with the affirmative vote of not less than 75% of the Whole Board.
(i) The Board may designate one or more directors as new
members of any committee to fill any vacancy on a committee and to fill a vacant
chairmanship of a committee occurring as a result of a member or chairman
leaving the committee, whether through death, resignation, removal or otherwise;
provided that any such designation or any designation by the Board of a director
as an alternate member of any committee in accordance with Section 141(c)(2) of
the DGCL may only be made with the affirmative vote of not less than 75% of the
Whole Board.
SECTION 2. Procedure; Meetings; Quorum. Regular meetings of
committees of the Board, of which no notice shall be necessary, may be held at
such times and places as shall be fixed by resolution adopted by a majority of
the total number of authorized committee members, whether or not there exist any
vacancies or unfilled previously authorized committee seats. Special meetings of
any committee of the Board shall be called at the request of any member thereof.
Notice of each special meeting of any committee of the Board shall be sent by
overnight delivery service, or mailed to each member thereof, in either case
addressed to such member at such member's residence or usual place of business,
at least two days before the day on which the meeting is to be held or shall be
sent to such member at such place by telecopy or by electronic transmission or
be given personally or by telephone, not later than the day before the meeting
is to be held, but notice need not be given to any member who shall, either
before or after the meeting, submit a waiver of such notice or who shall attend
such meeting without protesting, prior to or at its commencement, the lack of
such notice to such member. Unless otherwise required by these By-laws, every
such notice shall state the time and place but need not state the purpose of
such meeting. Any special meeting of any committee of the Board shall be a legal
meeting without any notice thereof having been given, if all the members thereof
shall be present thereat and no member shall protest the lack of notice to such
member. Notice of any adjourned meeting of any committee of the Board need not
be given. Any committee of the Board may adopt such rules and regulations not
inconsistent with the provisions of law, the Certificate or these By-laws for
the conduct of its meetings as such committee of the Board may deem proper. A
majority of the authorized members of any committee of the Board shall
constitute a quorum for the transaction of business at any meeting, and the vote
of a majority of the members thereof present at any meeting at which a quorum is
present shall be
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16
the act of such committee. Each committee of the Board shall keep written
minutes of its proceedings and shall report on such proceedings to the Board.
ARTICLE V
Officers
SECTION 1. Number; Term of Office. The officers of the
Corporation shall be elected by the Board and shall consist of: a Chairman of
the Board, a Chief Executive Officer, two Chief Operating Officers, a Chief
Financial Officer and one or more Vice Chairmen and Vice Presidents (including,
without limitation, Assistant, Executive, Senior and Group Vice Presidents) and
a Treasurer, Secretary and Controller and such other officers or agents with
such titles and such duties as the Board may from time to time determine, each
to have such authority, functions or duties as in these By-laws provided or as
the Board may from time to time determine, and each to hold office for such term
as may be prescribed by the Board and until such person's successor shall have
been chosen and shall qualify, or until such person's death or resignation, or
until such person's removal in the manner hereinafter provided. The Chairman of
the Board, the Chief Executive Officer and the Vice Chairmen shall be elected
from among the directors. One person may hold the offices and perform the duties
of any two or more of said officers; provided, however, that no officer shall
execute, acknowledge or verify any instrument in more than one capacity if such
instrument is required by law, the Certificate or these By-laws to be executed,
acknowledged or verified by two or more officers. The Board may require any
officer or agent to give security for the faithful performance of such person's
duties.
SECTION 2. Removal. Subject to Section 14 of this Article V,
any officer may be removed, either with or without cause, by the Board at any
meeting thereof called for the purpose or, except as provided in Section 4 of
this Article V, by any superior officer upon whom such power may be conferred
by the Board.
SECTION 3. Resignation. Any officer may resign at any time by
giving notice to the Board, the Chief Executive Officer or the Secretary. Any
such resignation shall take effect at the date of receipt of such notice or at
any later date specified therein; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
<PAGE>
17
SECTION 4. Chairman of the Board. The Chairman of the Board
shall be an officer of the Corporation, subject to the control of the Board, and
shall report directly to the Board. The Chairman of the Board shall have
supervisory responsibility over the functional areas of global public policy
(particularly with respect to the Internet), technology policy and future
innovation, venture-type investments and philanthropy, operating and discharging
those responsibilities with the assistance of the following officers reporting
directly to the Chairman of the Board: Kenneth J. Novack, George Vradenburg, III
and William J. Raduchel and their successors (such officers to be appointed and
removed only with the Chairman of the Board's approval or upon action of the
Board), shall play an active role in helping to build and lead the Corporation,
working closely with the Chief Executive Officer to set the Corporation's
strategy, and shall be the co-spokesman for the Corporation along with the Chief
Executive Officer.
SECTION 5. Chief Executive Officer. The Chief Executive
Officer shall have general supervision and direction of the business and affairs
of the Corporation, subject to the control of the Board and the provisions of
Section 4 of this Article V, and shall report directly to the Board. The Chief
Executive Officer shall, if present and in the absence of the Chairman of the
Board, preside at meetings of the stockholders and of the Board.
SECTION 6. Chief Operating Officers. Each Chief Operating
Officer shall perform such senior duties in connection with the operations of
the Corporation as the Board or the Chief Executive Officer shall from time to
time determine, and shall report directly to the Chief Executive Officer. Each
Chief Operating Officer, shall, when requested, counsel with and advise the
other officers of the Corporation and shall perform such other duties as may be
agreed with the Chief Executive Officer or as the Board may from time to time
determine.
SECTION 7. Vice Chairmen. Any Vice Chairman shall, when
requested, counsel with and advise the other officers of the Corporation and
shall perform such other duties as he may agree with the Chief Executive Officer
or as the Board may from time to time determine.
SECTION 8. Chief Financial Officer. The Chief Financial
Officer shall perform all the powers and duties of the office of the chief
financial officer and in general have overall supervision of the financial
operations of the Corporation. The Chief Financial Officer shall, when
requested, counsel with and advise the other officers of the
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18
Corporation and shall perform such other duties as he may agree with the Chief
Executive Officer or as the Board may from time to time determine. The Chief
Financial Officer shall report directly to the Chief Executive Officer.
SECTION 9. Vice Presidents. Any Vice President shall have such
powers and duties as shall be prescribed by his superior officer or the Board. A
Vice President shall, when requested, counsel with and advise the other officers
of the Corporation and shall perform such other duties as he may agree with the
Chief Executive Officer or as the Board may from time to time determine. A Vice
President need not be an officer of the Corporation and shall not be deemed an
officer of the Corporation unless elected by the Board.
SECTION 10. Treasurer. The Treasurer, if one shall have been
elected, shall supervise and be responsible for all the funds and securities of
the Corporation; the deposit of all moneys and other valuables to the credit of
the Corporation in depositories of the Corporation; borrowings and compliance
with the provisions of all indentures, agreements and instruments governing such
borrowings to which the Corporation is a party; the disbursement of funds of the
Corporation and the investment of its funds; and in general shall perform all of
the duties incident to the office of the Treasurer. The Treasurer shall, when
requested, counsel with and advise the other officers of the Corporation and
shall perform such other duties as he may agree with the Chief Executive Officer
or as the Board may from time to time determine.
SECTION 11. Controller. The Controller shall be the chief
accounting officer of the Corporation. The Controller shall, when requested,
counsel with and advise the other officers of the Corporation and shall perform
such other duties as he may agree with the Chief Executive Officer, the Chief
Financial Officer or as the Board may from time to time determine.
SECTION 12. Secretary. It shall be the duty of the Secretary
to act as secretary at all meetings of the Board, of the committees of the Board
and of the stockholders and to record the proceedings of such meetings in a book
or books to be kept for that purpose; the Secretary shall see that all notices
required to be given by the Corporation are duly given and served; the Secretary
shall be custodian of the seal of the Corporation and shall affix the seal or
cause it to be affixed to all certificates of stock of the Corporation (unless
the seal of the Corporation on such certificates shall be a facsimile, as
hereinafter provided) and to all documents, the execution of which on behalf of
the Corporation under its seal is duly
<PAGE>
19
authorized in accordance with the provisions of these By- laws; the Secretary
shall have charge of the books, records and papers of the Corporation and shall
see that the reports, statements and other documents required by law to be kept
and filed are properly kept and filed; and in general shall perform all of the
duties incident to the office of Secretary. The Secretary shall, when requested,
counsel with and advise the other officers of the Corporation and shall perform
such other duties as he may agree with the Chief Executive Officer or as the
Board may from time to time determine.
SECTION 13. Assistant Treasurers, Assistant Controllers and
Assistant Secretaries. Any Assistant Treasurers, Assistant Controllers and
Assistant Secretaries shall perform such duties as shall be assigned to them by
the Board or by the Treasurer, Controller or Secretary, respectively, or by the
Chief Executive Officer. An Assistant Treasurer, Assistant Controller or
Assistant Secretary need not be an officer of the Corporation and shall not be
deemed an officer of the Corporation unless elected by the Board.
SECTION 14. Certain Actions. Notwithstanding anything to the
contrary contained in these By-laws, until December 31, 2003: (i) the removal of
Gerald M. Levin from the office of Chief Executive Officer, any modification to
the provisions of his employment contract which provide for his term of office
or any modification to the role, duties, authority or reporting line of the
Chief Executive Officer and (ii) the removal of Stephen M. Case from the office
of Chairman of the Board, any modification to the role, duties, authority or
reporting line of the Chairman of the Board, each shall require the affirmative
vote of 75% of the Whole Board. From and after the end of the period set forth
in the preceding sentence, any of the actions set forth in the immediately
preceding sentence may be taken upon the affirmative vote of the number of
directors which shall constitute, under the terms of these By-laws, the action
of the Board.
SECTION 15. Additional Matters. The Chairman of the Board, the
Chief Executive Officer, each of the Co-Chief Operating Officers and the Chief
Financial Officer of the Corporation shall have the authority to designate
employees of the corporation to have the title of Vice President, Assistant Vice
President, Assistant Treasurer, Assistant Controller or Assistant Secretary.
Any employee so designated shall have the powers and duties determined by the
officer making such designation. The persons upon whom such titles are conferred
shall not be deemed officers of the Corporation unless elected by the Board.
ARTICLE VI
Indemnification
SECTION 1. Right to Indemnification. The Corporation, to the
fullest extent permitted or required by the DGCL or other applicable law, as the
same exists or may hereafter be amended (but, in the case of any such amendment
and unless applicable law otherwise requires, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than
such law
<PAGE>
20
permitted the Corporation to provide prior to such amendment), shall indemnify
and hold harmless any person who is or was a director or officer of the
Corporation and who is or was involved in any manner (including, without
limitation, as a party or a witness) or is threatened to be made so involved in
any threatened, pending or completed investigation, claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative (including,
without limitation, any action, suit or proceedings by or in the right of the
Corporation to procure a judgment in its favor) (a "Proceeding") by reason of
the fact that such person is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise (including, without limitation, any employee
benefit plan) (a "Covered Entity") against all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such Proceeding; provided, however,
that the foregoing shall not apply to a director or officer of the Corporation
with respect to a Proceeding that was commenced by such director or officer
unless the proceeding was commenced after a Change in Control (as hereinafter
defined in Section 4(e) of this Article VI). Any director or officer of the
Corporation entitled to indemnification as provided in this Section 1 is
hereinafter called an "Indemnitee". Any right of an Indemnitee to
indemnification shall be a contract right and shall include the right to
receive, prior to the conclusion of any Proceeding, payment of any expenses
incurred by the Indemnitee in connection with such Proceeding, consistent with
the provisions of the DGCL or other applicable law, as the same exists or may
hereafter be amended (but, in the case of any such amendment and unless
applicable law otherwise requires, only to the extent that such amendment
permits the Corporation to provide broader rights to payment of expenses than
such law permitted the Corporation to provide prior to such amendment), and the
other provisions of this Article VI.
SECTION 2. Insurance, Contracts and Funding. The Corporation
may purchase and maintain insurance to protect itself and any director, officer,
employee or agent of the Corporation or of any Covered Entity against any
expenses, judgments, fines and amounts paid in settlement as specified in
Section 1 of this Article VI or incurred by any such director, officer, employee
or agent in connection with any Proceeding referred to in Section 1 of this
Article VI, whether or not the Corporation would have the power to indemnify
such person against such expense, liability or
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21
loss under the DGCL. The Corporation may enter into contracts with any director,
officer, employee or agent of the Corporation or of any Covered Entity in
furtherance of the provisions of this Article VI and may create a trust fund,
grant a security interest or use other means (including, without limitation, a
letter of credit) to ensure the payment of such amounts as may be necessary to
effect indemnification as provided or authorized in this Article VI.
SECTION 3. Indemnification Not Exclusive Right. The right of
indemnification provided in this Article VI shall not be exclusive of any other
rights to which an Indemnitee may otherwise be entitled, and the provisions of
this Article VI shall inure to the benefit of the heirs and legal
representatives of any Indemnitee under this Article VI and shall be applicable
to Proceedings commenced or continuing after the adoption of this Article VI,
whether arising from acts or omissions occurring before or after such adoption.
SECTION 4. Advancement of Expenses; Procedures; Presumptions
and Effect of Certain Proceedings; Remedies. In furtherance, but not in
limitation of the foregoing provisions, the following procedures, presumptions
and remedies shall apply with respect to advancement of expenses and the right
to indemnification under this Article VI:
(a) Advancement of Expenses. All reasonable expenses
(including attorneys' fees) incurred by or on behalf of the Indemnitee
in connection with any Proceeding shall be advanced to the Indemnitee
by the Corporation within 20 days after the receipt by the Corporation
of a statement or statements from the Indemnitee requesting such
advance or advances from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall
reasonably evidence the expenses incurred by the Indemnitee and, if
required by law at the time of such advance, shall include or be
accompanied by an undertaking by or on behalf of the Indemnitee to
repay the amounts advanced if ultimately it should be determined that
the Indemnitee is not entitled to be indemnified against such expenses
pursuant to this Article VI.
(b) Procedure for Determination of Entitlement to
Indemnification. (i) To obtain indemnification under this Article VI,
an Indemnitee shall submit to the Secretary a written request,
including such documentation and information as is reasonably
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22
available to the Indemnitee and reasonably necessary to determine
whether and to what extent the Indemnitee is entitled to
indemnification (the "Supporting Documentation"). The determination of
the Indemnitee's entitlement to indemnification shall be made not later
than 60 days after receipt by the Corporation of the written request
for indemnification together with the Supporting Documentation. The
Secretary shall, promptly upon receipt of such a request for
indemnification, advise the Board in writing that the Indemnitee has
requested indemnification.
(ii) The Indemnitee's entitlement to indemnification under
this Article VI shall be determined in one of the following ways: (A)
by a majority vote of the Disinterested Directors (as hereinafter
defined in Section 4(e) of this Article VI), whether or not they
constitute a quorum of the Board, or by a committee of Disinterested
Directors designated by a majority vote of the Disinterested Directors;
(B) by a written opinion of Independent Counsel (as hereinafter defined
in Section 4(e) of this Article VI) if (x) a Change in Control shall
have occurred and the Indemnitee so requests or (y) there are no
Disinterested Directors or a majority of such Disinterested Directors
so directs; (C) by the stockholders of the Corporation; or (D) as
provided in Section 4(c) of this Article VI.
(iii) In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to
Section 4(b)(ii) of this Article VI, a majority of the Disinterested
Directors shall select the Independent Counsel, but only an Independent
Counsel to which the Indemnitee does not reasonably object; provided,
however, that if a Change in Control shall have occurred, the
Indemnitee shall select such Independent Counsel, but only an
Independent Counsel to which a majority of the Disinterested Directors
does not reasonably object.
(c) Presumptions and Effect of Certain Proceedings. Except as
otherwise expressly provided in this Article VI, if a Change in Control
shall have occurred, the Indemnitee shall be presumed to be entitled to
indemnification under this Article VI (with respect to actions or
omissions occurring prior to such Change in Control) upon submission of
a request for indemnification together with the Supporting
Documentation in accordance with Section 4(b)(i) of this Article VI,
and thereafter the Corporation shall
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23
have the burden of proof to overcome that presumption in reaching a
contrary determination. In any event, if the person or persons
empowered under Section 4(b) of this Article VI to determine
entitlement to indemnification shall not have been appointed or shall
not have made a determination within 60 days after receipt by the
Corporation of the request therefor, together with the Supporting
Documentation, the Indemnitee shall be deemed to be, and shall be,
entitled to indemnification unless (A) the Indemnitee misrepresented or
failed to disclose a material fact in making the request for
indemnification or in the Supporting Documentation or (B) such
indemnification is prohibited by law. The termination of any Proceeding
described in Section 1 of this Article VI, or of any claim, issue or
matter therein, by judgment, order, settlement or conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
adversely affect the right of the Indemnitee to indemnification or
create a presumption that the Indemnitee did not act in good faith and
in a manner which the Indemnitee reasonably believed to be in or not
opposed to the best interests of the Corporation or, with respect to
any criminal proceeding, that the Indemnitee had reasonable cause to
believe that such conduct was unlawful.
(d) Remedies of Indemnitee. (i) In the event that a
determination is made pursuant to Section 4(b) of this Article VI that
the Indemnitee is not entitled to indemnification under this Article
VI, (A) the Indemnitee shall be entitled to seek an adjudication of
entitlement to such indemnification either, at the Indemnitee's sole
option, in (x) an appropriate court of the State of Delaware or any
other court of competent jurisdiction or (y) an arbitration to be
conducted by a single arbitrator pursuant to the rules of the American
Arbitration Association; (B) any such judicial proceeding or
arbitration shall be de novo and the Indemnitee shall not be prejudiced
by reason of such adverse determination; and (C) if a Change in Control
shall have occurred, in any such judicial proceeding or arbitration,
the Corporation shall have the burden of proving that the Indemnitee is
not entitled to indemnification under this Article VI (with respect to
actions or omissions occurring prior to such Change in Control).
(ii) If a determination shall have been made or deemed to
have been made, pursuant to Section 4(b) or (c) of this Article VI,
that the Indemnitee is
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24
entitled to indemnification, the Corporation shall be obligated to pay
the amounts constituting such indemnification within five days after
such determination has been made or deemed to have been made and shall
be conclusively bound by such determination unless (A) the Indemnitee
misrepresented or failed to disclose a material fact in making the
request for indemnification or in the Supporting Documentation or (B)
such indemnification is prohibited by law. In the event that (X)
advancement of expenses is not timely made pursuant to Section 4(a) of
this Article VI or (Y) payment of indemnification is not made within
five days after a determination of entitlement to indemnification has
been made or deemed to have been made pursuant to Section 4(b) or (c)
of this Article VI, the Indemnitee shall be entitled to seek judicial
enforcement of the Corporation's obligation to pay to the Indemnitee
such advancement of expenses or indemnification. Notwithstanding the
foregoing, the Corporation may bring an action, in an appropriate court
in the State of Delaware or any other court of competent jurisdiction,
contesting the right of the Indemnitee to receive indemnification
hereunder due to the occurrence of an event described in sub-clause (A)
or (B) of this clause (ii) (a "Disqualifying Event"); provided,
however, that in any such action the Corporation shall have the burden
of proving the occurrence of such Disqualifying Event.
(iii) The Corporation shall be precluded from asserting in
any judicial proceeding or arbitration commenced pursuant to this
Section 4(d) that the procedures and presumptions of this Article VI
are not valid, binding and enforceable and shall stipulate in any such
court or before any such arbitrator that the Corporation is bound by
all the provisions of this Article VI.
(iv) In the event that the Indemnitee, pursuant to this
Section 4(d), seeks a judicial adjudication of or an award in
arbitration to enforce rights under, or to recover damages for breach
of, this Article VI, the Indemnitee shall be entitled to recover from
the Corporation, and shall be indemnified by the Corporation against,
any expenses actually and reasonably incurred by the Indemnitee if the
Indemnitee prevails in such judicial adjudication or arbitration. If it
shall be determined in such judicial adjudication or arbitration that
the Indemnitee is entitled to receive part but not all of the
indemnification or advancement of expenses sought, the expenses
incurred
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25
by the Indemnitee in connection with such judicial adjudication or
arbitration shall be prorated accordingly.
(e) Definitions. For purposes of this Article VI:
(i) "Authorized Officer" means any one of the Chairman of
the Board, the Chief Executive Officer, any Chief Operating Officer,
the Chief Financial Officer, any Vice President or the Secretary of the
Corporation.
(ii) "Change in Control" means the occurrence of any of
the following: (w) any merger or consolidation of the Corporation in
which the Corporation is not the continuing or surviving corporation or
pursuant to which shares of the Corporation's Common Stock would be
converted into cash, securities or other property, other than a merger
of the Corporation in which the holders of the Corporation's Common
Stock immediately prior to the merger have the same proportionate
ownership of common stock of the surviving corporation immediately
after the merger, (x) any sale, lease, exchange or other transfer (in
one transaction or a series of related transactions) of all, or
substantially all, the assets of the Corporation, or the liquidation or
dissolution of the Corporation or (y) individuals who would constitute
a majority of the members of the Board elected at any meeting of
stockholders or by written consent (without regard to any members of
the Board elected pursuant to the terms of any series of Preferred
Stock) shall be elected to the Board and the election or the nomination
for election by the stockholders of such directors was not approved by
a vote of at least two-thirds of the directors in office immediately
prior to such election.
(iii) "Disinterested Director" means a director of the
Corporation who is not or was not a party to the Proceeding in respect
of which indemnification is sought by the Indemnitee.
(iv) "Independent Counsel" means a law firm or a member of
a law firm that neither presently is, nor in the past five years has
been, retained to represent: (x) the Corporation or the Indemnitee in
any matter material to either such party or (y) any other party to the
Proceeding giving rise to a claim for indemnification under this
Article VI.
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26
Notwithstanding the foregoing, the term "Independent Counsel" shall not
include any person who, under the applicable standards of professional
conduct then prevailing under the law of the State of Delaware, would
have a conflict of interest in representing either the Corporation or
the Indemnitee in an action to determine the Indemnitee's rights under
this Article VI.
SECTION 5. Severability. If any provision or provisions of
this Article VI shall be held to be invalid, illegal or unenforceable for any
reason whatsoever: (a) the validity, legality and enforceability of the
remaining provisions of this Article VI (including, without limitation, all
portions of any paragraph of this Article VI containing any such provision held
to be invalid, illegal or unenforceable, that are not themselves invalid,
illegal or unenforceable) shall not in any way be affected or impaired thereby;
and (b) to the fullest extent possible, the provisions of this Article VI
(including, without limitation, all portions of any paragraph of this Article VI
containing any such provision held to be invalid, illegal or unenforceable, that
are not themselves invalid, illegal or enforceable) shall be construed so as to
give effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
SECTION 6. Indemnification of Employees Serving as Directors.
The Corporation, to the fullest extent of the provisions of this Article VI with
respect to the indemnification of directors and officers of the Corporation,
shall indemnify any person who is or was an employee of the Corporation and who
is or was involved in any manner (including, without limitation, as a party or a
witness) or is threatened to be made so involved in any threatened, pending or
completed Proceeding by reason of the fact that such employee is or was serving
(a) as a director of a corporation in which the Corporation had at the time of
such service, directly or indirectly, a 50% or greater equity interest (a
"Subsidiary Director") or (b) at the written request of an Authorized Officer,
as a director of another corporation in which the Corporation had at the time of
such service, directly or indirectly, a less than 50% equity interest (or no
equity interest at all) or in a capacity equivalent to that of a director for
any partnership, joint venture, trust or other enterprise (including, without
limitation, any employee benefit plan) in which the Corporation has an interest
(a "Requested Employee"), against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such Subsidiary Director
<PAGE>
27
or Requested Employee in connection with such Proceeding. The Corporation may
also advance expenses incurred by any such Subsidiary Director or Requested
Employee in connection with any such Proceeding, consistent with the provisions
of this Article VI with respect to the advancement of expenses of directors and
officers of the Corporation.
SECTION 7. Indemnification of Employees and Agents.
Notwithstanding any other provision or provisions of this Article VI, the
Corporation, to the fullest extent of the provisions of this Article VI with
respect to the indemnification of directors and officers of the Corporation, may
indemnify any person other than a director or officer of the Corporation, a
Subsidiary Director or a Requested Employee, who is or was an employee or agent
of the Corporation and who is or was involved in any manner (including, without
limitation, as a party or a witness) or is threatened to be made so involved in
any threatened, pending or completed Proceeding by reason of the fact that such
person is or was a director, officer, employee or agent of the Corporation or of
a Covered Entity against all expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such Proceeding. The Corporation may also advance
expenses incurred by such employee or agent in connection with any such
Proceeding, consistent with the provisions of this Article VI with respect to
the advancement of expenses of directors and officers of the Corporation.
ARTICLE VII
Capital Stock
SECTION 1. Certificates for Shares. The shares of stock of the
Corporation shall be represented by certificates, or shall be uncertificated
shares that may be evidenced by a book-entry system maintained by the registrar
of such stock, or a combination of both. To the extent that shares are
represented by certificates, such certificates whenever authorized by the Board,
shall be in such form as shall be approved by the Board. The certificates
representing shares of stock of each class shall be signed by, or in the name
of, the Corporation by the Chairman of the Board and the Chief Executive
Officer, or by any Vice President, and by the Secretary or any Assistant
Secretary or the Treasurer or any Assistant Treasurer of the Corporation, and
sealed with the seal of the Corporation, which may be a facsimile thereof. Any
or all such signatures may be facsimiles if countersigned by a transfer
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28
agent or registrar. Although any officer, transfer agent or registrar whose
manual or facsimile signature is affixed to such a certificate ceases to be such
officer, transfer agent or registrar before such certificate has been issued, it
may nevertheless be issued by the Corporation with the same effect as if such
officer, transfer agent or registrar were still such at the date of its issue.
The stock ledger and blank share certificates shall be kept by
the Secretary or by a transfer agent or by a registrar or by any other officer
or agent designated by the Board.
SECTION 2. Transfer of Shares. Transfers of shares of stock of
each class of the Corporation shall be made only on the books of the Corporation
upon authorization by the registered holder thereof, or by such holder's
attorney thereunto authorized by a power of attorney duly executed and filed
with the Secretary or a transfer agent for such stock, if any, and if such
shares are represented by a certificate, upon surrender of the certificate or
certificates for such shares properly endorsed or accompanied by a duly executed
stock transfer power (or by proper evidence of succession, assignment or
authority to transfer) and the payment of any taxes thereon; provided, however,
that the Corporation shall be entitled to recognize and enforce any lawful
restriction on transfer. The person in whose name shares are registered on the
books of the Corporation shall be deemed the owner thereof for all purposes as
regards the Corporation; provided, however, that whenever any transfer of shares
shall be made for collateral security and not absolutely, and written notice
thereof shall be given to the Secretary or to such transfer agent, such fact
shall be stated in the entry of the transfer. No transfer of shares shall be
valid as against the Corporation, its stockholders and creditors for any
purpose, except to render the transferee liable for the debts of the Corporation
to the extent provided by law, until it shall have been entered in the stock
records of the Corporation by an entry showing from and to whom transferred.
SECTION 3. Registered Stockholders and Addresses of
Stockholders. The Corporation shall be entitled to recognize the exclusive right
of a person registered on its records as the owner of shares of stock to receive
dividends and to vote as such owner, shall be entitled to hold liable for calls
and assessments a person registered on its records as the owner of shares of
stock, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares of stock on the part of any other person,
whether or not it shall have express or other notice
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thereof, except as otherwise provided by the laws of Delaware.
Each stockholder shall designate to the Secretary or transfer
agent of the Corporation an address at which notices of meetings and all other
corporate notices may be given to such person, and, if any stockholder shall
fail to designate such address, corporate notices may be given to such person by
mail directed to such person at such person's post office address, if any, as
the same appears on the stock record books of the Corporation or at such
person's last known post office address.
SECTION 4. Lost, Destroyed and Mutilated Certificates. The
holder of any certificate representing any shares of stock of the Corporation
shall immediately notify the Corporation of any loss, theft, destruction or
mutilation of such certificate; the Corporation may issue to such holder a new
certificate or certificates for shares, upon the surrender of the mutilated
certificate or, in the case of loss, theft or destruction of the certificate,
upon satisfactory proof of such loss, theft or destruction; the Board, or a
committee designated thereby, or the transfer agents and registrars for the
stock, may, in their discretion, require the owner of the lost, stolen or
destroyed certificate, or such person's legal representative, to give the
Corporation a bond in such sum and with such surety or sureties as they may
direct to indemnify the Corporation and said transfer agents and registrars
against any claim that may be made on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such new certificate.
SECTION 5. Regulations. The Board may make such additional
rules and regulations as it may deem expedient concerning the issue, transfer
and registration of certificated or uncertificated shares of stock of each class
and series of the Corporation and may make such rules and take such action as it
may deem expedient concerning the issue of certificates in lieu of certificates
claimed to have been lost, destroyed, stolen or mutilated.
SECTION 6. Fixing Date for Determination of Stockholders of
Record. In order that the Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of the stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or 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 may fix, in advance, a record date, which
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shall not be more than 60 days nor less than 10 days before the date of such
meeting, nor more than 60 days prior to any other action. A determination of
stockholders entitled to notice of or to vote at a meeting of the stockholders
shall apply to any adjournment of the meeting; provided, however, that the Board
may fix a new record date for the adjourned meeting.
SECTION 7. Transfer Agents and Registrars. The Board may
appoint, or authorize any officer or officers to appoint, one or more transfer
agents and one or more registrars.
ARTICLE VIII
Seal
The Board shall approve a suitable corporate seal, which shall
be in the form of a circle and shall bear the full name of the Corporation and
shall be in the charge of the Secretary. The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or in any other manner reproduced.
ARTICLE IX
Fiscal Year
The fiscal year of the Corporation shall end on the 31st day
of December in each year.
ARTICLE X
Waiver of Notice
Whenever any notice whatsoever is required to be given by
these By-laws, by the Certificate or by law, the person entitled thereto may,
either before or after the meeting or other matter in respect of which such
notice is to be given, waive such notice in writing or as otherwise permitted by
law, which shall be filed with or entered upon the records of the meeting or the
records kept with respect to such other matter, as the case may be, and in such
event such notice need not be given to such person and such waiver shall be
deemed equivalent to such notice.
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ARTICLE XI
Amendments
These By-laws may be altered, amended or repealed, in whole or
in part, or new By-laws may be adopted by the stockholders or by the Board at
any meeting thereof; provided, however, that notice of such alteration,
amendment, repeal or adoption of new By-laws is contained in the notice of such
meeting of the stockholders or in the notice of such meeting of the Board and,
in the latter case, such notice is given not less than twenty-four hours prior
to the meeting. Unless a higher percentage is required by the Certificate, all
such amendments must be approved by either the holders of 80% or more of the
combined voting power of the outstanding shares of all classes and series of
capital stock of the Corporation entitled generally to vote in the election of
directors of the Corporation, voting as a single class, or by a majority of the
Board; provided, however, that, notwithstanding the foregoing, until December
31, 2003, the Board may not alter, amend or repeal, or adopt new By-laws in
conflict with, or recommend approval by the stockholders of any alteration,
amendment or repeal, or adoption of new By-laws in conflict with, in either
case, (i) any provision of these By-laws which requires a 75% vote of the Whole
Board for action to be taken thereunder or (ii) this Article XI, without the
affirmative vote of not less than 75% of the Whole Board.
ARTICLE XII
Miscellaneous
SECTION 1. Execution of Documents. The Board or any committee
thereof shall designate the officers, employees and agents of the Corporation
who shall have power to execute and deliver deeds, contracts, mortgages, bonds,
debentures, notes, checks, drafts and other orders for the payment of money and
other documents for and in the name of the Corporation and may authorize
(including authority to redelegate) by written instrument to other officers,
employees or agents of the Corporation. Such delegation may be by resolution or
otherwise and the authority granted shall be general or confined to specific
matters, all as the Board or any such committee may determine. In the absence of
such designation referred to in the first sentence of this Section, the officers
of the Corporation shall have such power so referred to, to the extent incident
to the normal performance of their duties.
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SECTION 2. Deposits. All funds of the Corporation not
otherwise employed shall be deposited from time to time to the credit of the
Corporation or otherwise as the Board or any committee thereof or any officer of
the Corporation to whom power in respect of financial operations shall have been
delegated by the Board or any such committee or in these By-laws shall select.
SECTION 3. Checks. All checks, drafts and other orders for the
payment of money out of the funds of the Corporation, and all notes or other
evidences of indebtedness of the Corporation, shall be signed on behalf of the
Corporation in such manner as shall from time to time be determined by
resolution of the Board or of any committee thereof or by any officer of the
Corporation to whom power in respect of financial operations shall have been
delegated by the Board or any such committee thereof or as set forth in these
By-laws.
SECTION 4. Proxies in Respect of Stock or Other Securities of
Other Corporations. The Board or any committee thereof shall designate the
officers of the Corporation who shall have authority from time to time to
appoint an agent or agents of the Corporation to exercise in the name and on
behalf of the Corporation the powers and rights which the Corporation may have
as the holder of stock or other securities in any other corporation or other
entity, and to vote or consent in respect of such stock or securities; such
designated officers may instruct the person or persons so appointed as to the
manner of exercising such powers and rights; and such designated officers may
execute or cause to be executed in the name and on behalf of the Corporation and
under its corporate seal, or otherwise, such written proxies, powers of attorney
or other instruments as they may deem necessary or proper in order that the
Corporation may exercise its said powers and rights.
SECTION 5. Subject to Law and Certificate of Incorporation.
All powers, duties and responsibilities provided for in these By-laws, whether
or not explicitly so qualified, are qualified by the provisions of the
Certificate and applicable laws.
