BYLAWS*
OF
CITIZENS COMMUNICATIONS COMPANY
As amended March 9, 1937; May 12, 1942; June 15, 1946; October 1, 1946; May 23,
1947; January 7, 1948, April 1, 1948; March 31, 1949; January 26, 1951; April
11, 1952; July 28, 1954; February 24, 1960; November 18, 1963; May 10, 1966;
February 3, 1967; April 10, 1968; April 17, 1970; June 11, 1970; June 7, 1974;
August 8, 1975; November 7, 1980; January 16, 1981; March 3, 1981; February 20,
1986; June 5, 1987; August 8, 1988; May 5, 1989; May 31, 1989; June 23, 1989;
September 11, 1989 (clerical correction); May 1, 1990; April 14, 1992; and
February 17, 1993, February 8, 1994 (clerical correction); October 24, 1995,
August 8, 1996 (clerical correction), December 17, 1996; January 20, 1998; May
20, 1999, July 18, 2000
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BYLAWS
OF
CITIZENS COMMUNICATIONS COMPANY
TITLE
1. The title of this corporation is CITIZENS COMMUNICATIONS COMPANY.
LOCATION OF OFFICES
2. The principal office of the corporation in Delaware shall be in
Wilmington and the resident agent in charge thereof shall be PRENTICE HALL
CORPORATION SYSTEM, INC., 1013 Centre Road.
The corporation may also have an office or offices at such other places within
or without the State of Delaware as the Board of Directors may from time to time
designate.
CORPORATE SEAL
3. The corporate seal shall be circular in form and have inscribed thereon the
name of the corporation, the year of its incorporation (1935) and the words
"Incorporated Delaware".
MEETINGS OF STOCKHOLDERS
4. All meetings of stockholders shall be held at the offices of the corporation
or such other place as shall be designated by the Board of Directors of the
corporation.
Annual Meetings of stockholders shall be held on a date and at a time
designated by the Board of Directors of the corporation. At each annual meeting
the stockholders shall elect a Board of Directors, such election to be by
majority of the stock present or represented by proxy, and entitled to vote at
the meeting.
Each stockholder shall, at every meeting of the stockholders, be
entitled to one vote in person or by written proxy signed by him, for each share
of stock held by him, but no proxy shall be voted on after one year from its
date. Such right to vote shall be subject to the right of the Board of Directors
to close the transfer books or to fix a record date for voting stockholders as
hereinafter provided.
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Special meetings of the stockholders may be called by the Chief
Executive Officer and shall be called on the request in writing or by vote of a
majority of the Board of Directors or on demand in writing of stockholders of
record owning thirty-three percent (33%) in amount of the capital stock
outstanding and entitled to vote.
Notice of each meeting of stockholders, whether annual or special, shall
be mailed by the secretary to each stockholder of record, at his or her post
office address as shown by the stock books of the Company, at least ten days and
not more than sixty days prior to the date of the meeting. If the transfer books
are closed or a record date is fixed in connection with an annual meeting, as
permitted by By-Law 17, the notice of the meeting shall be given to the
stockholders of record as of the time said books are closed or record date is
fixed, but if the transfer books are not closed or a record date is not fixed,
said notice shall be given to the stockholders of record at the time the notice
is mailed.
The holders of a majority of the stock outstanding and entitled to vote
shall constitute a quorum, but the holders of a smaller amount may adjourn any
meeting from time to time without further notice until a quorum is secured.
At the annual meeting of stockholders, only such business shall be
conducted as shall have been brought before the meeting (a) pursuant to the
corporation's notice of meeting, (b) by or at the direction of the Board of
Directors or (c) by any stockholder of the corporation who is a stockholder of
record at the time of giving of the notice provided for below, who shall be
entitled to vote at such meeting and who complies with the procedures set forth
below; provided that any such business proposed by a stockholder is otherwise
proper for consideration under applicable law, the corporation's certificate of
incorporation and these Bylaws.
For business to be brought before an annual meeting by a stockholder,
the stockholder must have given notice thereof in writing to the Secretary of
the corporation, delivered to or mailed and received at the principal office of
the corporation no [earlier than the January 1 and no] later than the February
15 preceding the annual meeting. A stockholder's notice to the Secretary shall
set forth as to each matter the stockholder proposes to bring before the meeting
(a) a brief description of the business desired to be brought before the meeting
and the reasons for conducting such business at the meeting, (b) the name and
address, as they appear on the corporation's books, of the stockholder proposing
such business, and the name and address of the beneficial owner, if any, on
whose behalf the proposal is made, (c) the class and number of shares of the
corporation which are owned beneficially and of record by such stockholder of
record and by the beneficial owner, if any, on whose behalf the proposal is
made, together with documentary support for any claim of beneficial ownership,
(d) any material interest of such stockholder of record and the beneficial
owner, if any, on whose behalf the proposal is made in such business and (e) any
information, in addition to that required above, which may be required from time
to time by Regulation 14A of the Securities Exchange Act of 1934 with respect to
security holder proposals.
The Chairman of the meeting, in addition to making any other
determinations that may be appropriate to the conduct of the meeting, shall
determine whether such notice has been duly given and whether such business is
otherwise proper for consideration (using as a non-exclusive guideline the
provisions of Rule 14a-8(c) under the Securities Exchange Act of 1934), and
shall direct that any business not properly brought before the meeting shall not
be transacted.
DIRECTORS
5. The property and business of the corporation shall be managed and controlled
by its Board of Directors, which shall consist of not less than seven nor more
than thirteen members. The number of Directors shall be fixed from time to time,
within the limits prescribed, by resolution of the Board of Directors. As of
July 18, 2000, 1999, the Board of Directors shall consist of thirteen members,
unless a different number shall thereafter be fixed by resolution of the Board
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of Directors. Vacancies in the Board of Directors (except vacancies resulting
from the removal of directors by stockholders), including vacancies in the Board
of Directors resulting from any increase in the number of Directors, may be
filled by a majority of the Directors then in office, though less than a quorum.
Directors shall otherwise be elected by the stockholders at the annual
meeting and shall hold office until the next annual election and until their
successors are elected and qualified. At all elections of Directors of this
corporation each stockholder shall be entitled to one vote in person or by
written proxy signed by him, for each share of stock owned by him, and election
shall be by majority vote of the stock present or represented by proxy and
entitled to vote at the meeting. The stockholders of this corporation shall have
no preemptive right to subscribe to any issue of shares of stock of this
corporation now or hereafter made.
A Director may be designated a "Director Emeritus" of the Company by the
vote of the Board of Directors. A Director Emeritus shall be invited to attend
all meetings of the Board of Directors but shall not have the right to vote. A
Director Emeritus shall receive such compensation as the Board shall determine.
A Director Emeritus shall be designated by the Board of Directors for a
one-year term (and may be reappointed) at the Annual Meeting of the Board of
Directors following the Company's Annual Meeting of Shareholders.
The Board of Directors shall have an Executive Committee. The Executive
Committee of the Board shall consist of four (4) members, to be appointed by and
to serve at the pleasure of the Board. The Chairman of the Board shall be the
Chairman of the Executive Committee. During intervals between meetings of the
Board, the Committee shall have the power and authority of the Board of
Directors of the management of the business affairs and property of the Company.
A majority of the Directors in office shall be independent directors as
hereinafter defined. At the time that the nominees for the Board of Directors
are selected for proposal for election at the Annual Meeting of Shareholders,
the Board of Directors will review the circumstances of each nominee and
determine whether he or she is an independent director. If it should be
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determined that a majority of the nominees are not independent directors, the
Nominating Committee shall take steps to select and recommend the nomination of
a sufficient number of individuals who are independent directors so that a
majority of members of the Board of Directors shall be independent directors.
The Board of Directors shall have a Nominating Committee. The Nominating
Committee shall consist of not less than two directors and not more than four
directors, to be appointed by and to serve at the pleasure of the Board. Each
member of the Nominating Committee shall be an independent director as
hereinafter defined. The Nominating Committee shall consider recommendations of
individuals who may be expected to make contributions to the Company or members
of the Board of Directors. The Nominating Committee shall establish procedures
for the nominating process and make recommendations to the Board of Directors
annually for the slate of nominees for the Board of Directors to be proposed at
the Annual Meeting of Shareholders.
The Board of Directors shall have a Compensation Committee. The
Compensation Committee shall consist of not less than two directors and not more
than five directors, to be appointed by and to serve at the pleasure of the
Board. Each member of the Compensation Committee shall be an independent
director as hereafter defined. The Compensation Committee shall consider matters
related to compensation of officers, directors and employees of the Company and
to make recommendations with respect thereto to the Board of Directors. The
Compensation Committee shall have the authority to retain inde- pendent legal
counsel and compensation advisors.
For purposes of this Article 5 of the Bylaws, "independent director"
shall mean a director who is:
(a) an individual who is not and has not been employed as an
executive officer by the Company (or any corporation, the majority of
the voting stock of which is owned, directly or indirectly through one
or more other subsidiaries, by the Company) within three (3) fiscal
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years immediately prior to his or her most recent election or
appointment as a member of the Board of Directors; or
(b) an individual who is not a regular paid advisor or
consultant to the Company and who is not an affiliate (within the
meaning of Exchange Act Rule 12b-2 of the Securities and Exchange
Commission) of any entity that is a regular paid advisor or consultant
to the Company; or
(c) an individual who is not an employee or owner of five
percent (5%) or more of the voting stock of any business or
professional entity that has made, during the Company' s last full
fiscal year, payments to the Company or its subsidiaries for property,
goods or services in excess of five percent (5%) of the lesser of (i)
the Company's consolidated gross revenues for its last full fiscal
year, or (ii) such other entity's consolidated gross revenues for its
last full fiscal year; or
(d) an individual who is not an employee or owner of five
percent (5%) or more of the voting stock of any business or
professional entity to which the Company or its subsidiaries have made,
during the Company's last full fiscal year, payments for property,
goods or services in excess of five percent (5%) of the lesser of (i)
the Company's consolidated gross revenues for its last full fiscal
year, or (ii) such other entity's consolidated gross revenues for its
last full fiscal year; or
(e) an individual who is not a party to a personal service
contract with the Company pursuant to which fees or other compensation
received by the individual from the Company during his or her last full
fiscal year (other than fees received as a member of the Company's
Board of Directors or a committee thereof so as to require description
of such contract under Item 404(a) of Regulation S-K promulgated by the
Securities and Exchange Commission, as in effect on January 1, 1994; or
(f) an individual who is not employed by a tax-exempt
organization that received, during its last full fiscal year,
contributions from the Company in excess of five percent (5%) of the
lesser of (i) the consolidated gross revenues of the Company during its
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last full fiscal year, or (ii) the contributions received by the
tax-exempt organization during its last full fiscal year; or
(g) an individual who has not carried out a transaction or did
not have a relationship, during the Company's last full fiscal year,
such that the specifics of a transaction would be required to be
described under Item 404 of Regulation S-K promulgated by the
Securities and Exchange Commission, as in effect on January 1, 1994; or
(h) an individual who is not employed by a public company at
which an executive officer of the Company serves as a member of the
board of directors; or
(i) an individual who has not had any relationship described
in paragraphs (a) - (h) with any corporation, the majority of the
voting stock of which is owned directly or indirectly, through one or
more subsidiaries, by the Company; or
(j) an individual who is not a member of the immediate family
of any person described in paragraphs (a) - (i). For these purposes, an
individual's immediate family shall include such individual's spouse,
parents, children, siblings, mothers- and fathers-in-law, sons- and
daughters-in-laws, and brothers and sisters-in-law.
The term "independent director" shall have no legal significance under
applicable corporate or securities law or in any respect other than for the
purposes of this Bylaw. No inference shall be drawn that a director is "not
independent," "interested," or "a party to a contract or transaction" or has a
"financial interest" in any contract or transaction within the meaning of any
applicable corporate or securities law, and no director shall be disqualified
from taking action or refraining from acting on any matter coming before the
Board of Directors by reason of his or her status as an independent director
under this Bylaw.
Nominations of persons for election to the Board of Directors of the
corporation may be made by any stockholder of the corporation who is a
stockholder of record at the time of giving of the notice provided for below,
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who shall be entitled to vote for the election of Directors at the meeting and
who complies with the notice procedures set forth below.
Nominations by stockholders shall be made pursuant to notice in writing to the
Nominating Committee of the corporation, delivered to or mailed and received at
the principal office of the corporation no [earlier than the January 1 and no]
later than the February 15 preceding the annual meeting. 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, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934 (including 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,the stockholder giving the notice (i) the name
and address, as they appear on the corporation's books, of such stockholder and
(ii) the class and number of shares of the corporation which are beneficially
owned by such stockholder and also which are owned of record by such stockholder
and (iii) documentary support for such claim of beneficial ownership; (c) as to
the beneficial owner, if any, on whose behalf the nomination is made, (i) the
name and address of such person, (ii) the class and number of shares of the
corporation which are beneficially owned by such person and (iii) documentary
support for such claim of beneficial ownership and (d), a description of all
arrangements or understandings between the stockholder giving notice, the
beneficial owner and each nominee and any other person or persons (naming such
person or persons) relating to the nomination to be made or resulting
directorship.
The Nominating Committee shall determine whether a stockholder
nomination was made in accordance with the procedures prescribed herein and
whether the stockholder's nominee should be recommended as a member of the slate
of nominees to be proposed at the annual meeting, and the Nominating Committee
may disregard any nomination not made in accordance with these Bylaws. The
Chairman of the meeting shall not nominate for election to the Board of
Directors any stockholder nominee who has been disregarded by the Nominating
Committee.
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POWERS OF DIRECTORS
6. The Board of Directors shall have all such powers as may be exercised by the
Corporation, subject to the provisions of the statutes, the Certificate of
Incorporation, and the Bylaws.
MEETINGS OF DIRECTORS
7. Meetings of the Board of Directors shall be held at such place within or
without the State of Delaware as may from time to time be fixed by resolution of
the Board of Directors, or as may be specified by the Chief Executive Officer in
the call of any meeting. Regular meetings of the Board of Directors shall be
held at such times as may from time to time be fixed by resolution of the Board
of Directors and special meetings may be held at any time upon the call of two
(2) Directors or of the Chief Executive Officer, by oral, telegraphic or written
notice duly served or sent or mailed to each Director not less than five (5)
days before such meeting. A meeting of the Board may be held without notice
immediately after the annual meeting of stockholders at the same place at which
such meeting is held. Notice need not be given of regular meetings of the Board
held at times fixed by resolution of the Board. Meetings may be held at any time
without notice if all the Directors are present or if those not present waive
notice of the meeting in writing.
(Telephone Participation in Meetings)
Members of the Board of Directors (or any committees thereof) may
participate in a meeting of the Board of Directors (or of such committees) by
means of conference telephone or other communications equipment via which all
persons participating can hear each other. Such participation in the substantive
discussion and determinations of a meeting shall constitute presence in person
at such meeting.
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A majority of the Directors shall constitute a quorum, but a smaller
number may adjourn any meeting from time to time without further notice until a
quorum is secured.
OFFICERS OF THE COMPANY
8. The officers of the Company shall be a Chairman of the Board of
Directors, a President, one or more vice presidents (with such duties and titles
as may be assigned to them), a secretary, a treasurer, one or more assistant
vice presidents (with such duties and titles as may be assigned to them), and
such other officers as may from time to time be chosen by the Board of
Directors.
The officers of the Company shall hold office until their successors are
elected and qualified. If the office of any officer or officers becomes vacant
for any reason, the vacancy shall be filled by the affirmative vote of a
majority of the whole Board of Directors.
DUTIES OF THE CHAIRMAN
9. The Chairman presides at all meetings of the Board of Directors and at all
meetings of the shareholders. It shall be his prerogative to see that all
orders, resolutions, and policy determinations of the Board of Directors are
carried into effect. He acts in a general oversight and advisory capacity with
respect to the affairs of the Company. He provides leadership to the Board in
reviewing and deciding upon matters which constitute major policies of the
Company, what the Company does and the manner in which the Company business is
conducted.
DUTIES OF THE CHIEF EXECUTIVE OFFICER
9A. It shall be the duty of the Chief Executive Officer to carry into
effect all orders, resolutions, and policy determinations of the Board of
Directors; to execute all contracts and agreements; to keep the seal of the
Company; and to sign and to affix the seal of the Company to any instrument
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requiring the same, which seal shall be attested by the signature of the
Secretary or Treasurer or Assistant Secretary or Assistant Treasurer. He shall
have the general supervision and direction of the other officers of the Company.
He shall submit a report of the operations of the Company for the year
to the Directors at their meeting next preceding the annual meeting of the
stockholders and to the stockholders at their annual meeting.
He shall have the general duties and powers of supervision and
management usually vested in the chief executive officer of a corporation.
The Chief Executive may also hold another office with the Company.
Accordingly, the duties and responsibilities of the position may be assigned by
the Board of Directors to any Company officer.
DUTIES OF THE PRESIDENT
9B. Unless otherwise decided by the Board of Directors, the President shall be
the chief executive and administrative officer of the Company. It shall be his
duty to see that all orders and policy determination conveyed by the Chairman
are carried into effect. He shall have the general supervision and direction of
the operations and administration of the affairs of the Company and general
supervision and direction of the other officers and employees of the Company and
shall see that their duties are properly performed.
VICE PRESIDENT
10. The vice president or vice presidents, in the order of their
seniority, shall be vested with all the powers and required to perform all the
duties of the President in his absence or disability and shall perform such
other duties as may be prescribed by the Board of Directors.
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CHIEF EXECUTIVE PRO TEM
11. In the absence or disability of both the Chairman and President,
the Board may appoint a chief executive pro tem.
SECRETARY
12. The secretary shall attend all meetings of the corporation and the
Board of Directors. He shall act as clerk thereof and shall record all of the
proceedings of such meetings in a book kept for that purpose. He shall give
proper notice of meetings of stockholders and Directors and shall perform such
other duties as shall be assigned to him by the Chairman, President or the Board
of Directors.
TREASURER
13. The treasurer shall have custody of the funds and securities of the
corporation and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the Board of Directors. He shall
disburse the funds of the corporation as may be ordered by the Board, or
Chairman or President, taking proper vouchers for such disbursements and shall
render to the Chairman, President and Directors, whenever they may require it,
an account of all his transactions as treasurer and of the financial condition
of the corporation.
He shall keep an account of stock and income notes registered and
transferred in such manner and subject to such regulations as the Board of
Directors may prescribe.
He shall give the corporation a bond, if required by the Board of
Directors, in such sum and in form and with security satisfactory to the Board
of Directors for the faithful performance of the duties of his office and the
restoration to the corporation, in case of his death, resignation, or removal
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from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession, belonging to the corporation. He shall perform
such other duties as the Board of Directors may from time to time prescribe or
require.
DUTIES OF OFFICERS MAY BE DELEGATED
14. In case of the absence or disability of any officer of the
corporation or for any other reason deemed sufficient by a majority of the
Board, the Board of Directors may delegate his powers or duties to any other
officer or to any Director for the time being. The duties relating to the
execution of contracts and agreements and the signing of instruments and
affixing the seal of the Company and other matters may be delegated to any
officer, from time to time, as the Board shall see fit.
CERTIFICATES OF STOCK
15. Certificates of stock shall be signed by the Chairman, President or
a vice president and either the treasurer, assistant treasurer, secretary or
assistant secretary. If a certificate of stock be lost or destroyed, another may
be issued in its stead upon proof of such loss or destruction and the giving of
a satisfactory bond of indemnity, in an amount sufficient to indemnify the
corporation against any claim.
TRANSFER OF STOCK
16. All transfer of stock of the corporation shall be made upon its
books upon presentation of the certificate or certificates therefor, properly
endorsed by the holder of the shares in person or by his lawfully constituted
representative, and upon surrender of such certificate or certificates of stock
for cancellation.
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CLOSING OF TRANSFER BOOKS
17. The Board of Directors shall have the power to close the stock
transfer books of the corporation for a period not exceeding sixty, days
preceding the date for any meeting of stockholders or for payment of any
dividend or for the allotment of rights or when any change or conversion or
exchange of capital stock shall go into effect, or for a period of not exceeding
sixty days in connection with obtaining the consent of stockholders for any
purpose. In lieu of so closing the books, the Board of Directors may fix in
advance a date, not exceeding sixty days preceding the said above mentioned
dates, as a record date for the determination of the stockholders entitled to
notice of or to vote at any such meeting, and any adjournment thereof, or
entitled to dividends or other rights hereinbefore mentioned, or to give such
consent.
STOCKHOLDERS OF RECORD
18. The corporation shall be entitled to treat the holder of record of
any share or shares of stock as the holder in fact thereof and accordingly shall
not be bound to recognize any equitable or other claim to or interest in such
share on the part of any other person whether or not it shall have express or
other notice thereof, save as expressly provided by the laws of Delaware.
FISCAL YEAR
19. The fiscal year of the corporation shall begin on the first day in
January in each year.
DIVIDENDS
20. Dividends, to the extent not restricted by provisions of the
corporation's Certificate of Incorporation or by subsisting agreements of the
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corporation, may be declared by the Board of Directors and paid in cash, in
property, or in shares of the capital stock of the corporation to the extent
permitted by law, out of net assets in excess of its capital or out of its net
profits, provided there shall be no impairment of the capital of the corporation
represented by its issued and outstanding stock of all classes having a
preference upon the distribution of assets.
BOOKS AND RECORDS
21. The books, accounts, and records of the corporation may be kept
within or without the State of Delaware, at such place or places as may from
time to time be designated by the Bylaws or by resolution of the Directors.
NOTICES
22. Notice required to be given under the provisions of these Bylaws to
any Director, officer or stockholder shall not be construed to mean personal
notice, but may be given in writing by depositing the same in a post office or
letter box, in a postpaid sealed or unsealed wrapper, addressed to such
stockholder, officer or Director at such address as appears on the books of the
corporation, and such notice shall be deemed to be given at the time when the
same shall be thus mailed. In computing the number of days notice required for
any meeting, the day on which the notice shall be deposited in the mail or sent
by telegraph shall be excluded.
WAIVER OF NOTICE
23. Any stockholder, officer, or Director may waive in writing, or by
telegraph, any notice required to be given under these Bylaws, whether before or
after the time stated therein.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
24. Paragraph (a). Right of Indemnification. The Corporation shall, to the
fullest extent permitted by applicable law as then in effect, indemnify any
person (the "indemnitee") who was or is involved in any manner (including,
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without limitation, as a party or a witness) or was 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 or proceeding by or in
the right of the Corporation to procure a judgement in its favor) (a
"Proceeding") by reason of the fact that he is or was a director or officer of
the Corporation, or 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, without limitation, service with respect
to any employee benefit plan), whether the basis of any such Proceeding is
alleged action in an official capacity as director or officer or in any other
capacity while serving as a director or officer, against all expenses, liability
and loss (including, without limitation, attorneys' fees, judgments, fines,
ERISA excise taxes or penalties, and amounts paid or to be paid in settlement)
actually and reasonably incurred by him in connection with such Proceeding. Such
indemnification shall continue as to a person who has ceased to be a director or
officer and shall inure to the benefit of his heirs, executors, administrators
and legal representatives. The right to indemnification conferred in this By-law
shall include the right to receive payment of any expenses incurred by the
indemnitee in connection with such Proceeding in advance of the final
disposition of the Proceeding, consistent with applicable law as then in effect.
All rights to indemnification conferred in this By-law, including rights to the
advancement of expenses and the evidentiary, procedural and other provisions of
this By-law, shall be contract rights. The Corporation may, by action of its
Board of Directors, provide indemnification for employees, agents, attorneys and
representatives of the Corporation with the same, or with more or less, scope
and extent as herein provided for officers and directors. No amendment to the
Restated Certificate of Incorporation or amendment or repeal of the By-laws
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purporting to have the effect of modifying or repealing any of the provisions of
this By-law in a manner adverse to the indemnitee shall abridge or adversely
affect any right to indemnification or other similar rights and benefits with
respect to any acts or omissions occurring prior to such amendment or repeal.
This By-law shall be applicable to all Proceedings, whether arising from acts or
omissions occurring before or after the adoption of this Bylaw. The phrases
"this By-law" and "By-law" shall refer to "By-laws 24 and 24A," and for all
purposes, except the corporate procedure required for amendment of the By-law,
this By-law shall be considered as one By-law.
Paragraph (b). By-Law Not Exclusive. The right of indemnification,
including the right to receive payment in advance of expenses, conferred in this
By-law shall not be exclusive of any other rights to which any person seeking
indemnification may otherwise be entitled under any provision of the Restated
Certificate of Incorporation, By-law, agreement, applicable corporate law and
statute, vote of disinterested directors or stockholders or otherwise. The
indemnitee is free to proceed under any of the rights or procedures available to
him.
Paragraph (c). Burden of Proof. In any determination, review of a determination,
action, arbitration, or other proceeding relating to the right to
indemnification conferred in this By-law, the Corporation shall have the burden
of proof that the indemnitee has not met any standard of conduct or belief which
may be required by applicable law to be applied in connection with a
determination that the indemnitee is not entitled to indemnity and also the
burden of proof on any of the issues which may be material to a determination
that the indemnitee is not entitled to indemnification. Neither a failure to
make such a determination of entitlement nor an adverse determination of
entitlement to indemnity shall be a defense of the Corporation in an action or
proceeding brought by the indemnitee or by or on behalf of the Corporation
relating to indemnification or create any presumption that the indemnitee has
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not met any such standard of conduct or belief or is otherwise not entitled to
indemnity. If successful in whole or in part in such an action or proceeding,
the indemnitee shall be entitled to be further indemnified by the Corporation
for the expenses actually and reasonably incurred by him in connection with such
action or proceeding.
Paragraph (d). Advancement of Expenses. All reasonable expenses
incurred by or on behalf of indemnitee in connection with any Proceeding shall
be advanced from time to time to the indemnitee by the Corporation promptly
after the receipt by the Corporation of a statement from the indemnitee
requesting such advance, whether prior to or after final disposition of such
Proceeding.
Paragraph (e). Insurance, Contracts and Funding. The Corporation may
purchase and maintain insurance to protect itself and any person who is, or may
become an officer, director, employee, agent, attorney, trustee or
representative (any of the foregoing being herein referred to as a
"Representative") of the Corporation or, at the request of the Corporation, a
Representative of another corporation or entity, against any expenses, liability
or loss asserted against him or incurred by him in connection with any
Proceeding in any such capacity, or arising out of his status as such, whether
or not the Corporation would have the power to indemnify him against such
expense, liability or loss under the provisions of this By-law or otherwise. The
Corporation may enter into contracts with any Representative of the Corporation,
or any person serving as such at the request of the Corporation for another
corporation or entity, in furtherance of the provisions of this By-law. Such
contracts shall be deemed specifically approved and authorized by the
stockholders of the Corporation and not subject to invalidity by reason of any
interested directors. The Corporation may create a trust fund, grant a security
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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 of any person entitled thereto.
Paragraph (f) Severability; Statutory Alternative. If any provision or
provisions of this By-law shall be held to be invalid, illegal or unenforceable
for any reason whatsoever (i) the validity, legality and enforceability of all
of the remaining provisions of this By-law shall not in any way be affected or
impaired thereby; and (ii) to the fullest extent possible, the remaining
provisions of this By-law shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable. In the event
that the indemnitee elects, as an alternative to the procedures specified in
this By-law, to follow one of the procedures authorized by applicable corporate
law or statute to enforce his right to indemnification and notifies the
Corporation of his election, the Corporation agrees to follow the procedure so
elected by the indemnitee. If in accordance with the preceding sentence, the
procedure therefor contemplated herein or the procedure elected by the
indemnitee in any specific circumstances (or such election by the indemnitee)
shall be invalid or ineffective in bringing about a valid and binding
determination of the entitlement of the indemnitee to indemnification, the most
nearly comparable procedure authorized by applicable corporate law or statute
shall be followed by the Corporation and the indemnitee.
24A. Procedures; Presumptions and Effect of Certain Proceedings;
Remedies. In furtherance, but not in limitation, of the foregoing provisions of
this By-law, the following procedures, presumptions and remedies shall apply
with respect to advancement of expenses and the right to indemnification under
this By-law:
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Section 1. Advancement of Expenses. The advancement or reimbursement of expenses
to an indemnitee shall be made within 20 days after the receipt by the
Corporation of a request therefor from the indemnitee. Such request shall
reasonably evidence the expenses incurred or about to be 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 it should ultimately be determined that the indemnitee is
not entitled to be indemnified against such expenses.
Section 2. Procedure for Determination of Entitlement to Indemnifica-
tion.
Section 2.l. To obtain indemnification (except with respect to the
advancement of expenses), an indemnitee shall submit to the Chief Executive
Officer or Secretary of the Corporation a written request, including such
documentation and information as is reasonably available to the indemnitee and
reasonably necessary to determine whether and to what extent the indemnitee is
entitled to indemnification (the "Supporting Documentation"). The Secretary of
the Corporation shall promptly advise the Board of Directors in writing that the
indemnitee has requested indemnification. 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 and Supporting Documentation.
Section 2.2. The indemnitee's entitlement to indemnification shall be
determined in one of the following ways: (a) by a majority vote of the
Disinterested Directors (as hereinafter defined) (which term shall mean the
Disinterested Director, if there is only one); (b) by a written opinion of the
Independent Counsel (as hereinafter defined) if (i) a majority of the
Disinterested Directors so directs; (ii) there is no Disinterested Director, or
(iii) a Change of Control (as hereinafter defined) shall have occurred and the
indemnitee so requests in which case the Disinterested Directors shall be deemed
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to have so directed; (c) by the stockholders of the Corporation (but only if a
majority of the Disinterested Directors determines that the issue of entitlement
to indemnification should be submitted to the stockholders for their
determination); or (d) as provided in Section 3 of this By-law.
Section 2.3. In the event the determination of entitlement to indemnification is
to be made by Independent Counsel pursuant to Section 2.2 of this By-law, 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 of Control shall have occurred, the
indemnitee shall select such Independent Counsel, but only an Independent
Counsel to which the Board of Directors does not reasonably object.
Section 3. Presumptions and Effect of Certain Proceedings. Except as otherwise
expressly provided in this By-law, the indemnitee shall be presumed to be
entitled to indemnification upon submission of a request for indemnification
together with the Supporting Documentation, and thereafter in any determination
or review of any determination, and in any arbitration, proceeding or
adjudication the Corporation shall 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 2.2 of this By-law 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 entitled to indemnification. In either case, the indemnitee shall
be entitled to such 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, in either case as finally determined by adjudication or, at the
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indemnitee's sole option, arbitration (as provided in Section 4 of this By-law).
The termination of any Proceeding, or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo contenders or
its equivalent, shall not, of itself, adversely affect the right of the
indemnitee to indemnification or create any presumption with respect to any
standard of conduct or belief or any other matter which might form a basis for a
determination that the indemnitee is not entitled to indemnification. With
regard to the right to indemnification for expenses, (a) if and to the extent
that the indemnitee has been successful on the merits or otherwise in any
Proceeding, or (b) if a Proceeding was terminated without a determination of
liability on the part of the indemnitee with respect to any claim, issue or
matter therein or without any payments in settlement or compromise being made by
the indemnitee with respect to a claim, issue or matter therein, or (c) if and
to the extent that the indemnitee was not a party to the Proceeding, the
indemnitee shall be deemed to be entitled to indemnification, which entitlement
shall not be defeated or diminished by any determination which may be made
pursuant to clauses (a), (b) or (c) of Section 2.2. The indemnitee shall be
presumptively entitled to indemnification in all respects for any act, omission
or conduct taken or occurring which (whether by condition or otherwise) is
required, authorized or approved by any order issued or other action by any
commission or governmental body pursuant to any federal statute or state statute
regulating the Corporation or any of its subsidiaries by reason of its status as
a public utility or public utility holding company or by reason of its
activities as such. To the extent permitted by law, the presumption shall be
conclusive on all parties with respect to acts, omissions or conduct of the
indemnitee if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation or its subsidiary.
No presumption adverse to an indemnitee shall be drawn with respect to any act,
omission or conduct of the indemnitee if he acted in good faith and in a manner
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he reasonably believed to be in or not opposed to the best interests of the
Corporation or its subsidiary taken or occurring in the absence of, or
inconsistent with, any order issued or action by any commission or governmental
body.
Section 4. Remedies of Indemnitee.
Section 4.1. In the event that a determination is made pursuant to Section 2 of
this By-law that the indemnitee is not entitled to indemnification under this
By-law, (a) the indemnitee shall be entitled to seek an adjudication of his
entitlement to such indemnification either, at the indemnitee's sole option, in
(i) an appropriate court of the State of Delaware or any other court of
competent jurisdiction or (ii) to the extent consistent with law, arbitration to
be conducted by three arbitrators (or, if the dispute involves less than
$100,000, 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) in any such judicial Proceeding or arbitration the
Corporation shall have the burden of proof that the indemnitee is not entitled
to indemnification under this By-law.
Section 4.2. If a determination shall have been made or deemed to have been
made, pursuant to Sections 2 or 3 of this By-law, that the indemnitee is
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 either case as finally determined by adjudication or,
at the indemnitee's sole option, arbitration (as provided in Section 4.1 of this
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By-law). In the event that (i) advancement of expenses is not timely made by the
Corporation pursuant to this By-law or (ii) 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 2 or 3 of this
By-law, the indemnitee shall be entitled to seek judicial enforcement of the
Corporation's obligations to pay to the indemnitee such advancement of expense
of 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 a circumstance described in
subclause (a) of this Section 4.2 or a prohibition of law (both of which are
herein referred to as a "Disqualifying Circumstance"). In either instance, if
the indemnitee shall elect, at his sole option, that such dispute shall be
determined by arbitration (as provided in Section 4.1 of this By-law), the
indemnitee and the Corporation shall submit the controversy to arbitration. In
any such enforcement action or other proceeding whether brought by the
indemnitee or the Corporation, indemnitee shall be entitled to indemnification
unless the Corporation can satisfy the burden or proof that indemnification is
prohibited by reason of a Disqualifying Circumstance.
Section 4.3. The Corporation shall be precluded from asserting in any
judicial Proceeding or arbitration commenced pursuant to this Section 4 that the
procedures and presumptions of this By-law are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
or arbitrators that the Corporation is bound by all the provisions of this
By-law.
Section 4.4. In the event that the indemnitee, pursuant to this By-law,
seeks a judicial adjudication of or an award in arbitration to enforce his
rights under, or to recover damages for breach of, this By-law, or is otherwise
involved in any adjudication or arbitration with respect to his right to
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indemnification, 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 him 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 by the indemnitee in connection with such judicial adjudication or
arbitration shall be prorated accordingly.
Section 5. Definitions. For purposes of indemnification under this
By-law or otherwise. Section 5.1. "Change in Control" means a change in control
of the Corporation of a nature that would be required to be reported in re-
sponse to Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934 (the "Act"), whether or not the Corporation is then subject
to such reporting requirement; provided that, without limitation, such a change
in control shall be deemed to have occurred if (a) any "person" (as such term is
used in Sections 13(d) and 14(d) of the Act) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Act), directly or indirectly, of
securities of the Corporation representing 20 percent or more of the combined
voting power of the Corporation's then outstanding securitie without the prior
approval of at least two-thirds of the members of the Board of Directors in
office immediately prior to such acquisition; (b) the Corporation is a party to
a merger, consolidation, sale of assets or other reorganization, or a proxy
contest, as a consequence of which, members of the Board of Directors in office
immediately prior to such transaction or event constitute less than a majority
of the Board of Directors thereafter; or (c) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors (including for this purpose any new Director whose
election or nomination for election by the Corporation's stockholders
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was approved by a vote of at least two-thirds of the Directors then still in
office who were Directors at the beginning of such period) cease for any reason
to constitute at least a majority of the Board of Directors.
Section 5.2. "Disinterested Director" means a Director of the
Corporation who is not or was not a material party to the Proceeding in respect
of which indemnification is sought by the indemnitee.
Section 5.3. "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 (a) the Corporation or the indemnitee in any manner or (b) any other
party to the Proceeding giving rise to a claim for indemnification under this
By-law. 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 By-law.
Section 6. Acts of Disinterested Directors. Disinterested Directors
considering or acting on any indemnification matter under this By-law or under
governing corporate law or otherwise may consider or take action as the Board of
Directors or may consider or take action as a committee or individually or
otherwise. In the event that Disinterested Directors consider or take action as
the Board of Directors, one-third of the total number of Directors in office
shall constitute a quorum.
AMENDMENTS OF BYLAWS
25. These By-laws may be amended or altered by the vote of a majority
of the whole Board of Directors at any meeting provided that notice of such
proposed amendment shall have been given in the notice given to the Directors of
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such meeting. Such authority in the Board of Directors is subject to the power
of the stockholders to change or repeal any By-laws by a majority vote of the
stockholders present and represented at any annual meeting or at any special
meeting called for such purpose, and the Board of Directors shall not repeal or
alter any By-laws, other than By-law 24A, adopted by the stockholders.
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