Exhibit 3.1
BY-LAWS
AS AMENDED BY
BOARD OF DIRECTORS, OCTOBER 23, 2000
ARTICLE I
MEETING OF SHAREHOLDERS
Section 1. The annual meeting of the shareholders of the company shall be held
on such date, at such time and at such place as may be fixed by resolution of
the Board of Directors.
A notice of the annual meeting as approved by the Board of Directors shall be
mailed not less than ten nor more than sixty days before the meeting, directed
to each shareholder entitled to vote at said meeting at his address as it
appears on the record of shareholders unless he shall have filed with the
Secretary a written request that notices intended for him be mailed to some
other address, in which case it shall be directed to him at such other address.
Section 2. The Board of Directors may fix, in advance, a date not more than
sixty nor less than ten days before the date of any meeting of the shareholders
as the record date for determination of shareholders entitled to notice of or to
vote at such meeting, and only shareholders of record on such date shall be
entitled to notice of or to vote at such meeting.
Section 3. Subject to the rights of the holders of any series of stock having
a preference over the common stock and except as may otherwise be required by
law, special meetings of the shareholders may be called at any time only by the
Chairman of the Board or the Board of Directors. The meeting shall be held at
such place within or without the State of New York as may be designated in the
notice of the meeting.
A notice of not less than ten nor more than sixty days shall be given by mail
for each special meeting, in the manner provided for notice of the annual
meeting. Such notice shall state the purpose or purposes for which the meeting
is called and the time when and the place where it is to be held and shall
indicate that the notice is being issued by or at the direction of the person or
persons calling the meeting.
Section 4. Failure to receive notice of any meeting shall not invalidate the
meeting.
Section 5. (A) Nominations of persons for election to the Board of Directors
of the company and notice of shareholders business at meetings of shareholders
shall be governed by the provisions of this By-Law.
(1) Nominations of persons for election to the Board of Directors
of the company, and the proposal of business to be considered by the
shareholders, may be made at an annual meeting of shareholders only
(a) pursuant to the company's
<PAGE>
- 2 -
notice of meeting pursuant to Article I of these By-Laws, (b) by or at
the direction of the Board of Directors or (c) by any shareholder of
the company who was a shareholder of record at the time of giving
notice provided for in this By-Law, who is entitled to vote at the
meeting and who complies with the notice procedures set forth in this
By-Law.
(2) For nominations or other business to be properly brought before
an annual meeting by a shareholder pursuant to clause (c) of paragraph
(A)(1) of this By-Law, the shareholder must have given timely notice
thereof in writing to the Secretary of the company and such other
business must otherwise be a proper matter for shareholder action. To
be timely, a shareholder's notice shall be delivered to the Secretary
at the principal executive offices of the company not later than the
close of business on the 90th calendar day nor earlier than the close
of business on the 120th calendar day prior to the first anniversary
of the preceding year's annual meeting; provided, however, that in the
event that the date of the annual meeting is more than 30 calendar
days before or more than 60 calendar days after such anniversary date,
notice by the shareholder to be timely must be so delivered not
earlier than the close of business on the 120th calendar day prior to
such annual meeting but not later than the close of business on the
later of the 90th calendar day prior to such annual meeting or the
10th calendar day following the calendar day on which public
announcement of the date of such meeting is first made by the company.
In no event shall the public announcement of an adjournment of an
annual meeting commence a new time period for the giving of a
shareholder's notice as described above. Such shareholder's notice
shall set forth (a) as to each person whom the shareholder proposes to
nominate for election or reelection as a director all information
relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election
contest, or is otherwise required, in each case pursuant to Regulation
14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and Rule 14a-11 thereunder (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 any description of any
other business desired to be brought before the meeting, the reasons
for conducting such other business at the meeting and any material
interest in such other business of such shareholder and beneficial
owner, if any, on whose behalf the proposal is made; and (c) as to the
shareholder giving the notice and the beneficial owner, if any, on
whose behalf the nomination or proposal is made (i) the name and
address of such shareholder, as they appear on the company's books,
and of such beneficial owner and (ii) the class and number of shares
of the company which are owned beneficially and of record by such
shareholder and such beneficial owner.
<PAGE>
- 3 -
(3) Notwithstanding anything in the second sentence of paragraph
(A)(2) of this By-Law to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the company is
increased and there is no public announcement by the company naming
all of the nominees for director or specifying the size of the
increased Board of Directors at least 100 days prior to the first
anniversary of the preceding year's annual meeting, a shareholder's
notice required by this By-Law 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 the Secretary at the principal
executive offices of the company not later than the close of business
on the 10th day following the day on which such public announcement is
first made by the company.
(B) Special Meetings of Stockholders. Nominations of persons for
election to the Board of Directors may be made at a special meeting of
shareholders at which directors are to be elected pursuant to the
company's notice of meeting (a) by or at the direction of the Board of
Directors or (b) provided that the Board of Directors has determined
that directors shall be elected at such meeting, by any shareholder of
the company who is a shareholder of record at the time of giving of
notice provided for in this By-Law, who shall be entitled to vote at
the meeting and who complies with the notice procedures set forth in
this By-Law. In the event the company calls a special meeting of
shareholders for the purpose of electing one or more directors to the
Board of Directors, any such shareholder may nominate a person or
persons (as the case may be), for election to such position(s) as
specified in the company's notice of meeting, if the shareholder's
notice required by paragraph (A)(2) of this By-Law shall be delivered
to the Secretary at the principal executive offices of the company not
earlier than the close of business on the 120th day prior to such
special meeting and not later than the close of business on the later
of the 90th 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 proposed by the Board
of Directors to be elected at such meeting. In no event shall the
public announcement of an adjournment of a special meeting commence a
new time period for the giving of a shareholder's notice as described
above.
(C) General. (1) Only such persons who are nominated in accordance
with the procedures set forth in this By-Law shall be eligible to
serve as directors and only such business shall be conducted at a
meeting of shareholders as shall have been brought before the meeting
in accordance with the procedures set forth in this By-Law. Except as
otherwise provided by law, the Chairman of the meeting shall have the
power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made or
<PAGE>
- 4 -
proposed, as the case may be, in accordance with the procedures set
forth in this By-Law and, if any proposed nomination or business is
not in compliance with this By-Law, to declare that such defective
proposal or nomination shall be disregarded.
(2) For purposes of this By-Law, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document
publicly filed by the company with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this By-Law, a
shareholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to
the matters set forth in this By-Law. Nothing in this By-Law shall be
deemed to affect any rights (i) of shareholders to request inclusion
of proposals in the company's proxy statement pursuant to Rule 14a-8
under the Exchange Act or (ii) of the holders of any series of
Preferred Stock to elect directors under specified circumstances.
Section 6. The Chairman of the Board of Directors may postpone or adjourn any
meeting of the shareholders from time to time, whether or not a quorum is
present. The chair of the meeting shall determine all matters relating to the
efficient conduct of the meeting, including but not limited to the maintenance
of order and decorum.
ARTICLE II.
THE CONDUCT OF SHAREHOLDERS' MEETINGS
At all meetings of the shareholders, the holders of forty per centum of the
shares entitled to vote thereat shall constitute a quorum, except as otherwise
required by law; but the shareholders present may adjourn the meeting to another
time or place despite the absence of a quorum. Every shareholder entitled to
vote shall be entitled to one vote for each share standing in his name on the
record of shareholders; and every shareholder entitled to vote may vote in
person or by proxy.
At all meetings of shareholders, a shareholder, or such person's duly
authorized attorney in fact, may vote by proxy, executed in writing or granted
or authorized in such other manner as is prescribed by the Business Corporation
Law of the State of New York.
Except as otherwise required by law or as specified in the company's
certificate of incorporation, every shareholder entitled to vote shall be
entitled to one vote for each share standing in his name on the record of
shareholders; and every shareholder entitled to vote may vote in person or by
proxy.
<PAGE>
- 5 -
ARTICLE III.
INSPECTORS
The Board of Directors, in advance of any shareholders' meeting, shall appoint
three Inspectors to act at the meeting or any adjournment thereof. In case any
person appointed fails to appear or act, the vacancy may be filled by
appointment made by the Board in advance of the meeting or at the meeting by the
person presiding thereat.
ARTICLE IV.
THE BOARD OF DIRECTORS
Section 1. The business of the company shall be managed under the direction of
its Board of Directors, who shall be elected by the shareholders at the annual
meeting.
Section 2. The number of Directors shall be not less than ten nor more
than twenty-five, the exact number of Directors within such minimum and maximum
limits to be fixed and determined by the vote of a majority of the entire Board.
In case of any increase in the number of Directors, the additional Directors may
be elected by a majority of the Directors then in office.
Section 3. Any vacancy in the Board may be filled by a majority vote of the
remaining Directors, though less than a quorum.
ARTICLE V.
MEETINGS OF DIRECTORS
Section 1. Regular meetings shall be held at such times and places as the
Board may determine.
Section 2. Special meetings of the Directors may be called at any time by the
Chairman of the Board, or by two members of the Executive Committee, and shall
be called by the Chairman of the Board, or by the Secretary, forthwith upon
request in writing signed by two Directors and specifying the object of the
meeting. At least three days' notice of a special meeting shall be given in the
manner provided for herein.
Section 3. Any notice of a meeting of Directors required to be given may be
given to each Director by mail or telegraph, addressed to him at his residence
or usual place of business, or in person or by telephone, stating the time and
place of the proposed meeting.
Section 4. One-third of the entire Board shall constitute a quorum.
<PAGE>
- 6 -
Section 5. Meetings of the Directors may be held within or without the State
of New York.
Section 6. Any one or more members of the Board may participate in a meeting
of the Board by means of a conference telephone or similar communications
equipment allowing all persons participating in the meeting to hear each other
at the same time. Participation by such means shall constitute presence in
person at a meeting.
Any action required or permitted to be taken by the Board may be taken without
a meeting if all members of the Board consent in writing to the adoption of a
resolution authorizing the action. The resolution and the written consents
thereto by the members of the Board shall be filed with the minutes of the
proceedings of the Board.
ARTICLE VI.
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
The Board of Directors, by resolution adopted by a majority of the entire
Board, may designate from their number an Executive Committee and other
committees, and may determine the quorum thereof. Any such committee shall
consist of three or more members and shall serve at the pleasure of the Board.
The Chairman of the Board, one or more Vice Chairmen of the Board and the
President, if any, shall be members of the Executive Committee. The Executive
Committee shall, except as otherwise provided by law or by resolution of the
Board, have all the authority of the Board of Directors during the intervals
between the meetings of the Board. The Executive Committee shall keep a record
of its proceedings, which shall from time to time be reported to the Board of
Directors. The Chairman of the Board shall preside at the meetings of the
Executive Committee.
Committees other than the Executive Committee shall, except as otherwise
provided by law, have such authority as shall be provided by resolution of the
Board.
The Board may designate from time to time one or more Directors as alternate
members of the Executive Committee or of any other committee, who may replace
any absent member or members at any meeting of the committee.
Any one or more members of the Executive Committee or any other committee
established by the Board pursuant to this Article VI may participate in a
meeting of such committee by means of a conference telephone or similar
communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation by such means shall constitute
presence in person at the meeting.
<PAGE>
- 7 -
Any action required or permitted to be taken by the Executive Committee or
any other committee established by the Board pursuant to this Article VI may be
taken without a meeting if all members of the committee consent in writing to
the adoption of a resolution authorizing the action. The resolution and written
consents thereto shall be filed with the minutes of the proceedings of the
committee.
The Board of Directors, by resolution adopted by a majority of the entire
Board, may form a Liberty Media Group Capital Stock Committee, which committee
shall consist of one director elected pursuant to Section 7.15 of the Agreement
and Plan of Restructuring and Merger, dated June 23, 1998, among the company,
Italy Merger Corp. and Tele-Communications, Inc. and up to two directors who are
not current or former officers, directors or employees of the company or any of
its affiliates, or otherwise affiliated with the company (other than as members
of the Board of Directors or any committee thereof). The Liberty Media Group
Capital Stock Committee shall have the authority of the Board of Directors to
(i) interpret, make determinations under, and oversee the implementation of the
policies set forth in the policy statement regarding Liberty Media Group
tracking stock matters adopted by resolution of a majority of the entire Board,
and (ii) to the extent permitted by law, to take all actions required to be
taken by the Board of Directors of the company in connection with authorization
of the issuance of shares of Liberty Media Group tracking stock.
The Board of Directors may form an AT&T Wireless Group Capital Stock
Committee, the members of which shall be selected by the board of directors. The
Board may delegate to the AT&T Wireless Group Capital Stock Committee the
authority to, and the AT&T Wireless Group Capital Stock Committee will thereby
have the authority to, (i) interpret, make determinations under, and oversee the
implementation of the policies set forth in the Policy Statement Regarding AT&T
Wireless Group Tracking Stock Matters; (ii) review the policies, programs and
practices of the company relating to (a) the business and financial
relationships between the company or any of its units (other than the Liberty
Media Group) and the AT&T Wireless Group, (b) dividends in respect of,
disclosures to shareholders and the public concerning, and transactions by the
company or any of its subsidiaries (other than subsidiaries included in the
Liberty Media Group) in, shares of AT&T Wireless Group Tracking Stock, and (c)
any matters arising in connection therewith, all to the extent the AT&T Wireless
Group Capital Stock Committee may deem appropriate; and (iii) recommend such
changes in such policies, programs and practices as the AT&T Wireless Group
Capital Stock Committee may deem appropriate. In performing this function, the
AT&T Wireless Group Capital Stock Committee's role shall not be to make
decisions concerning matters referred to its attention, but, rather, to oversee
the process by which decisions concerning such matters are made. The AT&T
Wireless Group Capital Stock Committee shall have and may exercise such other
powers, authority and responsibilities as may be determined from time to time by
the Board of Directors.
<PAGE>
- 8 -
ARTICLE VII.
OFFICERS OF THE COMPANY
Section l. The officers of the company shall be elected by the Board of
Directors, and may consist of a Chairman of the Board, one or more Vice Chairmen
of the Board, a President, such number of Executive Vice Presidents and Senior
Vice Presidents as the Board of Directors shall from time to time determine, a
Secretary, a Treasurer and a Controller. The officers shall hold office until
their successors have been elected.
Section 2. The Board of Directors may appoint one or more Assistant
Secretaries, one or more Assistant Treasurers, one or more Assistant
Controllers, and such other officers and agents as the Board may consider
necessary.
ARTICLE VIII.
DUTIES OF THE CHAIRMAN OF THE BOARD,
PRESIDENT, VICE CHAIRMEN OF THE BOARD,
EXECUTIVE VICE PRESIDENTS AND SENIOR VICE PRESIDENTS
Section 1. The Chairman of the Board shall be the chief executive officer of
the company and shall have such authority and perform such duties as usually
appertain to the chief executive office in business corporations. He shall
preside at the meetings of the Board of Directors and he, or such officer as he
may designate from time to time, shall preside at meetings of the shareholders.
Section 2. The President, Vice Chairmen of the Board, Executive Vice
Presidents and Senior Vice Presidents shall perform such duties as the Board of
Directors or Chairman of the Board may from time to time determine.
Section 3. In case of absence or inability of the Chairman of the Board, the
President shall possess all the authority of the Chairman of the Board.
ARTICLE IX.
DUTIES OF THE TREASURER AND ASSISTANT TREASURERS
Section 1. The Treasurer shall receive all the funds of the company, and shall
disburse them under the direction of the Board of Directors. All disbursement
instruments shall be signed by such person or persons and in such manner as the
Board may from time to time provide.
Section 2. The Treasurer shall keep full and regular books, showing all his
receipts and disbursements, which books shall be open at all times to the
inspection of the Chairman of the Board or of any member of the Board of
Directors; and he shall make such reports and perform such
<PAGE>
- 9 -
other duties as the Chairman of the Board or Board of Directors may require.
Section 3. The Treasurer shall deposit all moneys received by him, in the
corporate name of the company, with such depositories as shall be approved from
time to time by the Board of Directors or by the Chairman of the Board, the
President, a Vice Chairman of the Board or the Treasurer.
Section 4. Assistant Treasurers shall have such of the authority and perform
such of the duties of the Treasurer as may be provided in these By-Laws or
assigned to them by the Board of Directors or the Chairman of the Board or by
the Treasurer upon the approval of the Chairman of the Board, the President or a
Vice Chairman of the Board. During the Treasurer's absence or inability, his
authority and duties shall be possessed by such Assistant Treasurer or Assistant
Treasurers as the Board of Directors, the Chairman of the Board, the President
or a Vice Chairman of the Board may designate.
Section 5. The Board of Directors may require the Treasurer and Assistant
Treasurers to give such security for the faithful performance of their duties as
the Board shall from time to time determine.
ARTICLE X.
DUTIES OF THE SECRETARY AND ASSISTANT SECRETARIES
Section 1. The Secretary shall send notice to the shareholders of all annual
and special meetings, and to the Directors of meetings of the Board where notice
is required to be given; and he shall perform such other duties as may be
required of him by the Chairman of the Board or Board of Directors, and such as
usually appertain to the office of Secretary.
Section 2. The Secretary or in his absence an Assistant Secretary shall keep
an accurate record of the proceedings of the Board of Directors and of the
Executive Committee, and of all meetings of shareholders, and shall have the
custody of the seal of the company and affix it to all instruments requiring the
seal.
Section 3. Assistant Secretaries shall have such of the authority and perform
such of the duties of the Secretary as may be provided in these By-Laws or
assigned to them by the Board of Directors or the Chairman of the Board or by
the Secretary upon the approval of the Chairman of the Board, the President or a
Vice Chairman of the Board. During the Secretary's absence or inability, his
authority and duties shall be possessed by such Assistant Secretary or Assistant
Secretaries as the Board of Directors, the Chairman of the Board, the President
or a Vice Chairman of the Board may designate.
<PAGE>
- 10 -
ARTICLE XI.
DUTIES OF THE CONTROLLER
The Controller shall be the principal accounting officer of the company and
shall perform such duties as may be required of him by the Chairman of the Board
or Board of Directors.
ARTICLE XII.
TRANSFER OF SHARES
Section 1. Certificates for shares shall be issued by the Treasurer. Shares
shall be transferable only on the record of shareholders of the company by the
holder thereof in person or by attorney, upon surrender of the outstanding
certificate therefor. This requirement shall be embodied in each certificate.
Section 2. In case of the loss of a certificate, a new certificate may be
issued upon such terms as the Board of Directors may prescribe.
ARTICLE XIII.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The company is authorized, by (i) a resolution of shareholders, (ii) a
resolution of Directors, or (iii) an agreement providing for such
indemnification, to the fullest extent permitted by applicable law, to provide
indemnification and to advance expenses to its Directors and officers in respect
of claims, actions, suits or proceedings based upon, arising from, relating to
or by reason of the fact that any such Director or officer serves or served in
such capacity with the company or at the request of the company in any capacity
with any other enterprise.
ARTICLE XIV.
SEAL
The common seal of the company shall be in the following form.
<PAGE>
- 11 -
ARTICLE XV.
AMENDMENTS
These By-Laws may be amended by the shareholders at any meeting; or by the
Board of Directors at any meeting by a majority vote of the full Board, or at
two successive meetings of the Board by a majority vote of a quorum present,
provided that the third paragraph of Article II shall not be rescinded, amended
or waived except at a shareholders meeting in accordance with applicable state
law. The notice of a special meeting of the Board at which such action is to be
taken shall set forth the substance of the proposed amendment.
