SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
FORM 8-K
CURRENT REPORT
__________________
Pursuant to Section 13 or 15(d)of the
Securities Exchange Act of 1934
Date of Report: June 12, 2000
Date of Earliest Event Reported: June 9, 2000
LIBERTY LIVEWIRE CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 0-1461 13-1679856
(State or Other (Commission File (I.R.S. Employer
Jurisdiction Number) Identification No.)
900 North Seward Street Hollywood, California 90038
(Address of principal executive offices, including zip code)
Registrant's telephone number, including area code: (323) 962-4000
THE TODD-AO CORPORATION
(Former name or former address, if changed from last report)
Exhibit index located on page 2.
<PAGE>
Item 1. Change in Control of Registrant
Reference is made to the Agreement and Plan of Merger, dated as of December
10, 1999, as amended on March 6, 2000 (the "Merger Agreement"), among AT&T Corp.
("AT&T"), B-Group Merger Corp., a wholly owned subsidiary of AT&T ("Merger
Sub"), Liberty Media Corporation ("Liberty") and the Registrant (which was
formerly known as The Todd-AO Corporation). Pursuant to the Merger Agreement,
the Registrant (i) reclassified (the "Reclassification") each share of its old
Class A Common Stock, which had one vote per share (the "Old Todd Class A Common
Stock"), and its old Class B Common Stock, which had ten votes per share (the
"Old Todd Class B Common Stock") into (a) 0.4 of a share of new Todd Class A
Common Stock, which has one vote per share ("New Todd Class A Common Stock"),
and (b) 0.6 of a share of new Todd Class B Common Stock, which has ten votes per
share ("New Todd Class B Common Stock") by restating its certificate of
incorporation (the "Reclassification Charter"), (ii) merged (the "Merger") with
Merger Sub, with the Registrant remaining as the surviving corporation in the
Merger, (iii) further restated its charter (the "Livewire Charter") and changed
its name (the "Name Change" and, collectively with the Reclassification and the
Merger, the "Transactions") to "Liberty Livewire Corporation" and (iv) adopted
new bylaws (the "Livewire Bylaws"). Pursuant to the terms of the Merger
Agreement, (i) each share of New Todd Class A Common Stock remains outstanding
as the Registrant's Class A Common Stock and (ii) each share of New Todd Class B
Common Stock was converted into shares of AT&T's Class A Liberty Media Group
Common Stock ("Class A Liberty Stock").
As a result of the Transactions and a 2-for-1 stock split (the "Stock
Split") on the Class A Liberty Stock consummated on June 9, 2000, each share of
Old Todd Class A Common Stock and each share of Old Todd Class B Common Stock
were converted into (i) 0.4 of a share of the Class A Common Stock of Liberty
Livewire Corporation and (ii) 0.5 of a share of Class A Liberty Stock. In
addition, as a result of the Transactions, AT&T acquired a majority of the
voting power (the "Majority Voting Power") in the Registrant by exchanging
approximately 3.6 million shares of Class A Liberty Stock (taking into account
the Stock Split) for all of the shares of New Todd Class B Common Stock issued
in the Reclassification. The Majority Voting Power was then transferred (the
"Majority Voting Power Transfer") to Liberty. As a result of the Majority Voting
Power Transfer, Liberty, as of immediately following the closing of the
Transactions, owned approximately 6.5 million shares of the Registrant's Class B
Common Stock, representing approximately 60% of the Registrant's equity and
approximately 94% of the Registrant=s voting power.
In addition, Liberty and the Registrant are party to an agreement, dated as
of February 11, 2000 (the "Post-Merger Business Combinations Agreement"),
pursuant to which, after the completion of the Transactions and the Majority
Voting Power Transfer, Liberty transferred all of its shares of Four Media
Company, a wholly owned subsidiary of Liberty, to the Registrant in exchange for
approximately 16.6 million additional shares of the Registrant's Class B Common
Stock (i.e., the New Todd Class B Common Stock after the Name Change) (the "Four
Media Contribution"). As a result of the Four Media Contribution, Liberty's
equity interest in the Registrant was increased to approximately 84% and
Liberty's voting power in the Registrant was increased to approximately 98.2%.
<PAGE>
Item 5. Other Events
The Post-Merger Business Combinations Agreement also provided for a
business combination (the "Soundelux Business Combination") between SounDelux
Entertainment Group, Inc. ("Soundelux"), a company in which Liberty was planning
to acquire a controlling interest, and the Registrant. On June 9, 2000, Liberty
and the Registrant announced that Liberty was in discussions with Soundelux
regarding a transaction that would supersede Liberty's previously announced
acquisition of a controlling interest in Soundelux. Under the new proposal,
which is subject to corporate approvals, definitive documentation and other
conditions, Liberty would acquire 100% of the post production, sound and related
businesses of Soundelux for cash. If Liberty acquires these assets of Soundelux
pursuant to a revised transaction, such assets will probably be combined with
those of the Registrant, on terms to be agreed, and any such transaction would
replace the Soundelux Business Combination contemplated by the Post-Merger
Business Combinations Agreement.
Exhibits.
Exhibit No. Description
99.1 Press Release, dated June 9, 2000.
99.2 Press Release, dated June 12, 2000.
99.3 Merger Agreement (incorporated by reference to AT&T's
Form S-4, Registration No. 333-36458, filed with the
Commission on May 5, 2000).
99.4 Post-Merger Business Combinations Agreement (incorporated
by reference to AT&T's Form S-4, Registration No. 333-36458,
filed with the Commission on May 5, 2000).
99.5 Reclassification Charter.
99.6 Livewire Charter.
99.7 Livewire Bylaws.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
Date: June 12, 2000
LIBERTY LIVEWIRE CORPORATION
By: /s/ Marcus O. Evans
Vice President, General Counsel and Secretary
<PAGE>
Exhibit 99.1
FOR IMMEDIATE RELEASE
M. David Cottrell Jeffrey Goldberger
Liberty Livewire Corporation Stern & Co.
(323) 962-5304 (212) 888-0044
TODD-AO AND LIBERTY MEDIA ANNOUNCE
CHANGES IN TRANSACTION WITH SOUNDELUX
LOS ANGELES, June 9, 2000 -- Liberty Media Group (NYSE: LMG.A; LMG.B) and
The Todd-AO Corporation (Nasdaq: TODDA) announced today that they are in
discussions with privately-held SounDelux Entertainment Group, regarding a
transaction that would supersede Liberty Media's previously announced
acquisition of a controlling interest in SounDelux. Under the proposal, which is
subject to corporate approvals, definitive documentation and other conditions,
Liberty Media would acquire 100% of the post production, sound and related
businesses of SounDelux for approximately $90 million in cash. SounDelux would
retain its location based entertainment and theatre design businesses.
Stockholders of Todd-AO meet today to consider a number of proposals,
including Liberty Media's pending acquisition of a controlling interest in
Todd-AO, and the subsequent acquisition by Todd-AO, in separate transactions, of
the assets of Four Media Company and SounDelux. That previously announced
transaction between Todd-AO and SounDelux has been deferred indefinitely,
pending the outcome of negotiations between Liberty Media and SounDelux.
Spokesmen for Liberty Media and Todd-AO confirmed that, if Liberty Media does
acquire assets of SounDelux pursuant to the revised transaction, such assets
would probably be combined with Todd-AO, on terms to be agreed. However, there
can be no assurances that any such transaction will be consummated.
The ongoing discussions among Liberty Media, Todd-AO and SounDelux are not
expected to have any effect on the proposed transactions between Liberty Media
and Todd-AO, and between Todd-AO and Four Media, respectively. Such transactions
are still expected to close shortly after today's stockholder vote, assuming
receipt of all necessary stockholder approvals.
About Todd-AO Corporation
The Todd-AO Corporation has been a pioneer in motion picture and television
post production since 1952. The company maintains production offices in Los
Angeles, New York, Atlanta, London and Barcelona. Todd-AO offers the industry's
most up-to-date, comprehensive, strategically located post production
facilities.
About Liberty Media Group
Liberty Media holds interests in a broad range of video programming,
communications, technology and Internet businesses in the United States, Europe,
South America and Asia.
About Liberty Livewire
Todd-AO has changed its corporate name to Liberty Livewire Corporation.
Effective June 12, 2000, the company's Class A Common Stock will begin trading
on the Nasdaq National Market System under the symbol LWIRA.
This press release contains forward-looking statements which are made
pursuant to the Safe-Harbor provisions of the Private Securities Litigation
Reform Act of 1995. Words such as "intends," "believes" and similar expressions
reflecting something other than historical fact are intended to identify
forward-looking statements, but are not the exclusive means of identifying such
statements. These forward-looking statements involve a number of risks and
uncertainties, including the timely development and market acceptance of
products and technologies, successful integration of acquisitions, the ability
to secure additional sources of financing, the ability to reduce operating
expenses and other factors described in the Company's filings with the
Securities and Exchange Commission. The actual results that the Company achieves
may differ materially from any forward-looking statement due to such risks and
uncertainties. The Company undertakes no obligations to revise or update any
forward-looking statements in order to reflect events or circumstances that may
arise after the date of this release.
<PAGE>
Exhibit 99.2
FOR IMMEDIATE RELEASE
M. David Cottrell Jeffrey Goldberger
Liberty Livewire Corporation Stern & Co.
(323) 962-5304 (212) 888-0044
TODD-AO CLOSES DEAL WITH LIBERTY MEDIA;
CHANGES NAME TO LIBERTY LIVEWIRE
LOS ANGELES, CA, June 12, 2000 -- The Todd-AO Corporation announced today
that it has changed its name to Liberty Livewire Corporation (Nasdaq:LWIRA). The
change became effective June 9, 2000, with the closing of the company's
previously announced transaction with Liberty Media Group (NYSE:LMG.A, LMG.B),
through which Liberty Media acquired a controlling interest in Todd-AO.
Immediately following that transaction, Liberty Media contributed to Liberty
Livewire 100% of the capital stock of Four Media Company, which Liberty Media
acquired in April.
As a result of the Liberty Media transaction and a related
reclassification, each issued and outstanding share of Todd-AO common stock was
converted into the right to receive 0.4 of a share of Liberty Livewire's class A
common stock and 0.5 of a share of Class A Liberty Media Group Common Stock,
after giving effect to Liberty Media's 2-for-1 stock split on June 9, 2000.
Letters of Transmittal for use in exchanging Todd-AO shares for shares of
Class A Liberty Media Group Stock and class A Liberty Livewire stock are
expected to be mailed to Todd-AO stockholders during the week of June 12, 2000.
Commenting on the announcement, Salah M. Hassanein, President and CEO of
Todd-AO, stated, "The management considers this transaction to be in the best
interest of the stockholders, both in the short and long term, and we believe
that the future management of the Company is in very strong hands." David
Beddow, Chief Executive Officer of Liberty Livewire, added, "Friday's closings
mark our initial steps in building a dynamic company to service the
post-production and distribution needs of a wide array of media clients,
including motion pictures, long form television and commercial advertising.
While we continue to strengthen the traditional film, video and sound services
areas, we are adding the capability to offer large scale Internet hosting, IP
distribution and caching through our venture with HyperTv and the extraordinary
network capabilities of AT&T. Liberty Livewire will take a leadership roll in
defining the on-screen convergence of traditional sound and picture with the
interactivity of the Internet."
About Todd-AO Corporation
The Todd-AO Corporation has been a pioneer in motion picture and television
post production since 1952. The company maintains production offices in Los
Angeles, New York, Atlanta, London and Barcelona. Todd-AO offers the industry's
most up-to-date, comprehensive, strategically located post production
facilities.
About Liberty Media Group
Liberty Media holds interests in a broad range of video programming,
communications, technology and Internet businesses in the United States, Europe,
South America and Asia.
About Liberty Livewire
Todd-AO has changed its corporate name to Liberty Livewire Corporation.
Effective June 12, 2000, the company's Class A Common Stock will begin trading
on the Nasdaq National Market System under the symbol LWIRA.
This press release contains forward-looking statements which are made
pursuant to the Safe-Harbor provisions of the Private Securities Litigation
Reform Act of 1995. Words such as "intends," "believes" and similar expressions
reflecting something other than historical fact are intended to identify
forward-looking statements, but are not the exclusive means of identifying such
statements. These forward-looking statements involve a number of risks and
uncertainties, including the timely development and market acceptance of
products and technologies, successful integration of acquisitions, the ability
to secure additional sources of financing, the ability to reduce operating
expenses and other factors described in the Company's filings with the
Securities and Exchange Commission. The actual results that the Company achieves
may differ materially from any forward-looking statement due to such risks and
uncertainties. The Company undertakes no obligations to revise or update any
forward-looking statements in order to reflect events or circumstances that may
arise after the date of this release.
<PAGE>
Exhibit 99.3
Merger Agreement
(incorporated by reference to AT&T's Form S-4, Registration No. 333-36458,
filed with the Commission on May 5, 2000).
<PAGE>
Exhibit 99.4
Post-Merger Business Combinations Agreement
(incorporated by reference to AT&T's Form S-4, Registration No. 333-36458,
filed with the Commission on May 5, 2000).
<PAGE>
Exhibit 99.5
RESTATED CERTIFICATE OF INCORPORATION
OF
THE TODD - AO CORPORATION
THE TODD - AO CORPORATION, a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
(1) The name of the Corporation is The Todd - AO Corporation. The original
Certificate of Incorporation of the Corporation was filed on November 28, 1952.
The name under which the Corporation was originally incorporated is MAOT
Corporation.
(2) This Restated Certificate of Incorporation amends and restates in its
entirety the Certificate of Incorporation of the Corporation. Pursuant to
Section 242(b) of the Delaware General Corporation Law (the "DGCL"), the Board
of Directors of the Corporation has duly adopted by unanimous written consent in
accordance with Section 141(f) of the DGCL , and a majority of the outstanding
stock entitled to vote thereon and a majority of each class of the outstanding
stock entitled to vote as a class has approved at a special meeting, held in
accordance with Section 222 of the DGCL, this Restated Certificate of
Incorporation. This Restated Certificate of Incorporation of the Corporation was
duly adopted in accordance with Section 245 of the DGCL.
(3) Pursuant to Sections 242 and 245 of the DGCL, the text of the
Certificate of Incorporation is hereby restated to read in its entirety as
follows:
ARTICLE I.
NAME
The name of the corporation is The Todd - AO Corporation (the
"Corporation").
ARTICLE II.
REGISTERED OFFICE
The address of the registered office of the Corporation in the State of
Delaware is 1013 Centre Road, in the City of Wilmington, County of New Castle,
19805. The name of its registered agent at such address is Corporation Service
Company.
ARTICLE III.
PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the DGCL.
ARTICLE IV.
AUTHORIZED STOCK
The total number of shares of capital stock that the Corporation shall have
authority to issue is 405,000,000 shares, of which 400,000,000 shares shall be
common stock ("Common Stock") and 5,000,000 shares shall be preferred stock
("Preferred Stock"). Said shares of Common Stock shall be divided into the
following classes: (a) 300,000,000 shares shall be designated as Class A Common
Stock with a par value of $.01 per share ("Class A Common Stock"); and (b)
100,000,000 shares shall be designated as Class B Common Stock with a par value
of $.01 per share ("Class B Common Stock"). Said shares of Preferred Stock shall
be all of one class with a par value of $.01 per share, and shall be issued in
one or more series as set forth in Section B below.
Upon the filing of this Restated Certificate of Incorporation, (i) each
outstanding share of Class A Common Stock of the Corporation (the "Old Class A
Common Stock") is converted into or reconstituted as four-tenths (0.40) of a
share of Class A Common Stock and six-tenths (0.60) of a share of Class B Common
Stock and (ii) each outstanding share of Class B Common Stock of the Corporation
(the "Old Class B Common Stock") is converted into or reconstituted as
four-tenths (0.40) of a share of Class A Common Stock and six-tenths (0.60) of a
share of Class B Common Stock. The Corporation shall issue fractional shares of
Class B Common Stock, but shall not issue fractional shares of Class A Common
Stock.
SECTION A
CLASS A COMMON STOCK AND CLASS B COMMON STOCK
Each share of the Class A Common Stock and each share of the Class B Common
Stock of the Corporation shall, except as otherwise provided in this Article IV,
Section A, be identical in all respects and shall have equal rights and
privileges.
1. Voting Rights.
Holders of Class A Common Stock shall be entitled to ONE vote for each
share of such stock held, and holders of Class B Common Stock shall be entitled
to TEN votes for each share of such stock held, on all matters presented to such
stockholders, whether at any special or annual meeting of stockholders, by
written consent in lieu of meeting, or otherwise. Except as may otherwise be
required by the laws of the State of Delaware and, with respect to any series of
Preferred Stock, except as may be provided in any resolution or resolutions
providing for the establishment of such series pursuant to authority vested in
the Board of Directors by Article IV, Section B, of this Certificate, the
holders of outstanding shares of Class A Common Stock, the holders of
outstanding shares of Class B Common Stock and the holders of outstanding shares
of each series of Preferred Stock shall vote together as one class with respect
to the election of directors and with respect to all other matters to be voted
on by stockholders of the Corporation (including, without limitation, any
proposed amendment to this Certificate that would increase the number of
authorized shares of any class of Common Stock or any series of Preferred Stock
or decrease the number of authorized shares of any such class or series of stock
(but not below the number of shares thereof then outstanding)), and no separate
vote or consent of the holders of shares of Class A Common Stock, Class B Common
Stock or any series of Preferred Stock shall be required for the approval of any
such matter.
2. Conversion Rights.
Each share of Class B Common Stock shall be convertible, at the option of
the holder thereof, into one share of Class A Common Stock. Any such conversion
may be effected by any holder of Class B Common Stock by surrendering such
holder's certificate or certificates for the Class B Common Stock to be
converted, duly endorsed, at the office of the Corporation or any transfer agent
for the Class B Common Stock, together with a written notice to the Corporation
at such office that such holder elects to convert all or a specified number of
shares of Class B Common Stock represented by such certificate and stating the
name or names in which such holder desires the certificate or certificates for
Class A Common Stock to be issued. If so required by the Corporation, any
certificate for shares surrendered for conversion shall be accompanied by
instruments of transfer, in form satisfactory to the Corporation, duly executed
by the holder of such shares or the duly authorized representative of such
holder. Promptly thereafter, the Corporation shall issue and deliver to such
holder or such holder's nominee or nominees, a certificate or certificates for
the number of shares of Class A Common Stock to which such holder shall be
entitled as herein provided. Such conversion shall be deemed to have been made
at the close of business on the date of receipt by the Corporation or any such
transfer agent of the certificate or certificates, notice and, if required,
instruments of transfer referred to above, and the person or persons entitled to
receive the Class A Common Stock issuable on such conversion shall be treated
for all purposes as the record holder or holders of such Class A Common Stock on
that date. A number of shares of Class A Common Stock equal to the number of
shares of Class B Common Stock outstanding from time to time shall be set aside
and reserved for issuance upon conversion of shares of Class B Common Stock.
Shares of Class B Common Stock that have been converted hereunder shall become
treasury shares that may be issued or retired by resolution of the Board of
Directors. Shares of Class A Common Stock shall not be convertible into shares
of Class B Common Stock.
3. Dividends.
Subject to subsection 4 of this Section A, whenever a dividend is paid to
the holders of shares of any class of Common Stock, the Corporation also shall
pay an equal per share dividend to the holders of the other class of Common
Stock of the Corporation. Dividends shall be payable only as and when declared
by the Board of Directors out of funds legally available therefor.
4. Share Distributions.
If at any time a distribution paid in Class A Common Stock, Class B Common
Stock or any other securities of the Corporation or any other entity
(hereinafter sometimes called a "share distribution") is to be made with respect
to the Class A Common Stock or Class B Common Stock, such share distribution may
be declared and paid only as follows:
a. a share distribution consisting of shares of Class A Common Stock (or
securities convertible into or exercisable or exchangeable for shares of Class A
Common Stock) to holders of Class A Common Stock and Class B Common Stock, on an
equal per share basis; or consisting of shares of Class B Common Stock (or
securities convertible into or exercisable or exchangeable for shares of Class B
Common Stock) to holders of Class A Common Stock and Class B Common Stock, on an
equal per share basis; or consisting of shares of Class A Common Stock (or
securities convertible into or exercisable or exchangeable for shares of Class A
Common Stock) to holders of Class A Common Stock and, on an equal per share
basis, shares of Class B Common Stock (or like securities convertible into or
exercisable or exchangeable for shares of Class B Common Stock) to holders of
Class B Common Stock; and
b. a share distribution consisting of any class or series of securities of
the Corporation or any other entity other than Class A Common Stock or Class B
Common Stock (or securities convertible into or exercisable or exchangeable for
shares of Class A Common Stock or Class B Common Stock), either on the basis of
a distribution of identical securities, on an equal per share basis, to holders
of Class A Common Stock and Class B Common Stock or on the basis of a
distribution of one class or series of securities to holders of Class A Common
Stock and another class or series of securities to holders of Class B Common
Stock, provided that the securities so distributed (and, if applicable, the
securities into which the distributed securities are convertible, or for which
they are exercisable or exchangeable) do not differ in any respect other than
their relative voting rights and related differences in designation, conversion
and share distribution provisions, with holders of shares of Class B Common
Stock receiving the class or series having the higher relative voting rights
(without regard to whether such rights differ to a greater or lesser extent than
the corresponding differences in voting rights between the Class A Common Stock
and the Class B Common Stock) and related differences in designation, conversion
and share distribution provisions, provided that if the securities so
distributed constitute capital stock of a Subsidiary (as defined below) of the
Corporation, such voting rights (and related designation, conversion and share
distribution provisions) shall not differ to a greater extent than the
corresponding differences in voting rights between the Class A Common Stock and
the Class B Common Stock, and provided in each case that such distribution is
otherwise made on an equal per share basis. As used herein, the term
"Subsidiary" means, when used with respect to any entity, (i) a corporation in
which such entity and/or one or more Subsidiaries of such entity, directly or
indirectly, owns capital stock having a majority of the voting power of such
corporation's capital stock to elect directors under ordinary circumstances, and
(ii) any other entity (other than a corporation) in which such entity and/or one
or more Subsidiaries of such entity, directly or indirectly, has (x) a majority
ownership interest or (y) the power to elect or direct the election of a
majority of the members of the governing body of such first-named entity.
The Corporation shall not reclassify, subdivide or combine the Class A
Common Stock without reclassifying, subdividing or combining the Class B Common
Stock, on an equal per share basis, and the Corporation shall not reclassify,
subdivide or combine the Class B Common Stock without reclassifying, subdividing
or combining the Class A Common Stock, on an equal per share basis.
5. Liquidation and Mergers.
Subject to the prior payment in full of the preferential amounts to which
any Preferred Stock is entitled, the holders of Class A Common Stock and the
holders of Class B Common Stock shall share equally, on an equal per share
basis, in any distribution of the Corporation's assets upon any liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
after payment or provision for payment of the debts and other liabilities of the
Corporation. Neither the consolidation or merger of the Corporation with or into
any other corporation or corporations nor the sale, transfer or lease of all or
substantially all of the assets of the Corporation shall in itself be deemed to
be a liquidation, dissolution or winding up of the Corporation within the
meaning of this Section A.5.
SECTION B
PREFERRED STOCK
The Preferred Stock may be issued, from time to time, in one or more
series, with such powers, designations, preferences and relative, participating,
optional or other rights, and qualifications, limitations or restrictions
thereof, as shall be stated and expressed in a resolution or resolutions
providing for the issue of each such series adopted by the Board of Directors.
The Board of Directors, in such resolution or resolutions (a copy of which shall
be filed and recorded as required by law), is also expressly authorized to fix
with respect to each series:
a. the distinctive serial designations and the division of such shares into
series and the number of shares of a particular series, which may be increased
or decreased, but not below the number of shares thereof then outstanding, by a
certificate made, signed, filed and recorded as required by law;
b. the dividend rate or amounts, if any, for the particular series, the
date or dates from which dividends on all shares of such series shall be
cumulative, if dividends on stock of the particular series shall be cumulative
and the relative rights of priority, if any, or participation, if any, with
respect to payment of dividends on shares of that series;
c. the rights of the shares of each series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, and the
relative rights of priority, if any, of payment of shares of each series;
d. the right, if any, of the holders of a particular series to convert or
exchange such stock into or for other classes or series of a class of stock or
indebtedness of the Corporation or of another entity, and the terms and
conditions of such conversion or exchange, including provision for the
adjustment of the conversion or exchange rate in such events as the Board of
Directors may determine;
e. the voting rights, if any, of the holders of a particular series; and
f. the terms and conditions, if any, for the Corporation to purchase or
redeem shares of a particular series.
All shares of any one series of the Preferred Stock shall be alike in every
particular. Except to the extent otherwise provided in the resolution or
resolutions providing for the issue of any series of Preferred Stock, the
holders of shares of such series shall have no voting rights, except as may be
required by the laws of the State of Delaware.
ARTICLE V.
DIRECTORS
SECTION A
NUMBER OF DIRECTORS
The governing body of the Corporation shall be the Board of Directors. The
number of directors shall not be less than three (3) and the exact number of
directors shall be fixed by the Board of Directors by resolution. Election of
directors need not be by written ballot.
SECTION B
CLASSIFICATION OF THE BOARD
Except as otherwise fixed by or pursuant to the provisions of Article IV
hereof relating to the rights of the holders of any series of Preferred Stock to
separately elect additional directors, which additional directors are not
required to be classified pursuant to the terms of such series of Preferred
Stock, the Board of Directors of the Corporation shall be divided into three
classes of directors: Class I, Class II and Class III. Each class of directors
shall consist, as nearly as possible, of a number of directors equal to
one-third (33a%) of the then authorized number of members of the Board of
Directors. The initial term of office of the Class I directors shall expire at
the annual meeting of stockholders in 2000; the initial term of office of the
Class II directors shall expire at the annual meeting of stockholders in 2001;
and the initial term of office of the Class III directors shall expire at the
annual meeting of stockholders in 2002. At each annual meeting of stockholders
of the Corporation the successors of that class of directors whose term expires
at that meeting shall be elected to hold office for a term expiring at the
annual meeting of stockholders held in the third year following the year of
their election. The directors of each class will hold office until their
respective death, resignation or removal and until their respective successors
are elected and qualified.
SECTION C
REMOVAL OF DIRECTORS
Subject to the rights of the holders of any series of Preferred Stock,
directors may be removed from office only for cause (as defined below) upon the
affirmative vote of the holders of at least 66b% of the total voting power of
the then outstanding shares of Class A Common Stock, Class B Common Stock and
any series of Preferred Stock entitled to vote at an election of directors,
voting together as a single class. Except as may otherwise be provided by law,
"cause" for removal, for purposes of this Section C, shall exist only if: (i)
the director whose removal is proposed has been convicted of a felony, or has
been granted immunity to testify in an action where another has been convicted
of a felony, by a court of competent jurisdiction and such conviction is no
longer subject to direct appeal; (ii) such director has become mentally
incompetent, whether or not so adjudicated, which mental incompetence directly
affects his ability as a director of the Corporation, as determined by at least
66b% of the members of the Board of Directors then in office (other than such
director); or (iii) such director's actions or failure to act have been
determined by at least 66b% of the members of the Board of Directors then in
office (other than such director) to be in derogation of the director's duties.
SECTION D
NEWLY CREATED DIRECTORSHIPS AND VACANCIES
Subject to the rights of holders of any series of Preferred Stock,
vacancies on the Board of Directors resulting from death, resignation, removal,
disqualification or other cause, and newly created directorships resulting from
any increase in the number of directors on the Board of Directors, shall be
filled by the affirmative vote of a majority of the remaining directors then in
office (even though less than a quorum) or by the sole remaining director. Any
director elected in accordance with the preceding sentence shall hold office for
the remainder of the full term of the class of directors in which the vacancy
occurred or to which the new directorship is apportioned, and until such
director's successor shall have been elected and qualified. No decrease in the
number of directors constituting the Board of Directors shall shorten the term
of any incumbent director, except as may be provided in the resolution or
resolutions providing for the issue of any series of Preferred Stock with
respect to any additional director elected by the holders of the applicable
series of Preferred Stock.
SECTION E
LIMITATION ON LIABILITY AND INDEMNIFICATION
1. Limitation On Liability.
To the fullest extent permitted by the DGCL as the same exists or may
hereafter be amended, a director of the Corporation shall not be liable to the
Corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director. Any repeal or modification of this section E.1
shall be prospective only and shall not adversely affect any limitation, right
or protection of a director of the Corporation existing at the time of such
repeal or modification.
2. Indemnification.
a. Right to Indemnification. The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of the fact that he, or a person for whom he is the
legal representative, is or was a director or officer of the Corporation or is
or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, limited liability
company, joint venture, trust, enterprise or nonprofit entity, including service
with respect to employee benefit plans, against all liability and loss suffered
and expenses (including attorneys' fees) reasonably incurred by such person.
Such right of indemnification shall inure whether or not the claim asserted is
based on matters which antedate the adoption of this Section E. The Corporation
shall be required to indemnify a person in connection with a proceeding (or part
thereof) initiated by such person only if the proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation.
b. Advance Payment of Expenses. The Corporation shall pay the expenses
(including attorneys fees) incurred by a director or officer in defending any
proceeding, as incurred, in advance of its final disposition, provided, however,
that the payment of expenses incurred by a director or officer in advance of the
final disposition of the proceeding shall be made only upon receipt of an
undertaking by the director or officer to repay all amounts advanced if it
should be ultimately determined that the director or officer is not entitled to
be indemnified under this section E.2 or otherwise.
c. Claims. If a claim for indemnification or payment of expenses under this
section E.2 is not paid in full within 60 days after a written claim therefor
has been received by the Corporation, the claimant may file suit to recover the
unpaid amount of such claim and, if successful in whole or in part, shall be
entitled to be paid the expense of prosecuting such claim. In any such action
the Corporation shall have the burden of proving that the claimant was not
entitled to the requested indemnification or payment of expenses under
applicable law.
d. Non-Exclusivity of Rights. The rights conferred on any person by this
section E.2 shall not be exclusive of any other rights which such person may
have or hereafter acquire under any statute, provision of this Certificate, the
Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
e. Other Indemnification. The Corporation's obligation, if any, to
indemnify any person who was or is serving at its request as a director,
officer, employee or agent of another corporation, partnership, limited
liability company, joint venture, trust, enterprise or nonprofit entity shall be
reduced by any amount such person may collect as indemnification from such other
corporation, partnership, limited liability company, joint venture, trust,
enterprise or nonprofit entity.
3. Amendment or Repeal. Any repeal or modification of the foregoing
provisions of this Section E shall not adversely affect any right or protection
hereunder of any person in respect of any act or omission occurring prior to the
time of such repeal or modification.
SECTION F
AMENDMENT OF BYLAWS
The Board of Directors of the Corporation is hereby expressly authorized
and empowered to adopt, alter, amend or repeal any provision of the bylaws of
the Corporation.
ARTICLE VI.
TERM
The term of existence of this Corporation shall be perpetual.
ARTICLE VII.
STOCK NOT ASSESSABLE
The capital stock of this Corporation shall not be assessable if fully
paid. It shall be issued as fully paid, and the private property of the
stockholders shall not be liable for the debts, obligations or liabilities of
this Corporation.
ARTICLE VIII.
MEETINGS OF STOCKHOLDERS
SECTION A
ANNUAL AND SPECIAL MEETINGS
Except as otherwise prescribed by law or by another provision of this
Certificate, special meetings of the stockholders of the Corporation, for any
purpose or purposes, shall be called by the Secretary of the Corporation (i)
upon the written request of the holders of not less than 66b% of the total
voting power of the outstanding Voting Securities (as defined below) or (ii) at
the request of at least 75% of the members of the Board of Directors then in
office. The term "Voting Securities" shall include the Class A Common Stock, the
Class B Common Stock and any series of Preferred Stock entitled to vote with the
holders of Common Stock generally upon all matters that may be submitted to a
vote of stockholders at any annual meeting or special meeting thereof.
SECTION B
STOCKHOLDER ACTION WITHOUT A MEETING
Except as otherwise prescribed by law or by another provision of this
Certificate, any action required or permitted to be taken at any annual or
special meeting of the stockholders may be taken without a meeting, without
prior notice and without a vote if a consent or consents in writing, setting
forth the action so taken, shall be signed by the holder or holders of
outstanding stock of the Corporation having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which all shares of stock of the Corporation entitled to vote thereon were
present and voted. Notice shall be given in accordance with the applicable
provisions of the DGCL of the taking of corporate action without a meeting by
less than unanimous written consent to those stockholders on the record date
whose shares were not represented on the written consent.
(4) This Restated Certificate of Incorporation has been duly adopted in
accordance with Sections 242 and 245 of the General Corporation Law of the State
of Delaware.
(5) This Amended and Restated Certificate of Incorporation shall become
effective at 2:30 p.m., Eastern Time, on June 9, 2000.
IN WITNESS WHEREOF, THE TODD - AO CORPORATION has caused this certificate
to be signed by Salah M. Hassanein, its President, this 9th day of June, 2000.
/s/ Salah M. Hassanein
Salah M. Hassanein, President
Exhibit 99.6
RESTATED CERTIFICATE OF INCORPORATION
ARTICLE I.
NAME
The name of the corporation is Liberty Livewire Corporation (the
"Corporation").
ARTICLE II.
REGISTERED OFFICE
The address of the registered office of the Corporation in the State of
Delaware is 1013 Centre Road, in the City of Wilmington, County of New Castle,
19805. The name of its registered agent at such address is The Prentice-Hall
Corporation System, Inc.
ARTICLE III.
PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the DGCL.
ARTICLE IV.
AUTHORIZED STOCK
The total number of shares of capital stock that the Corporation shall have
authority to issue is 405,000,000 shares, of which 400,000,000 shares shall be
common stock ("Common Stock") and 5,000,000 shares shall be preferred stock
("Preferred Stock"). Said shares of Common Stock shall be divided into the
following classes: (a) 300,000,000 shares shall be designated as Class A Common
Stock with a par value of $.01 per share ("Class A Common Stock"); and (b)
100,000,000 shares shall be designated as Class B Common Stock with a par value
of $.01 per share ("Class B Common Stock"). Said shares of Preferred Stock shall
be all of one class with a par value of $.01 per share, and shall be issued in
one or more series as set forth in Section B below.
SECTION A
CLASS A COMMON STOCK AND CLASS B COMMON STOCK
Each share of the Class A Common Stock and each share of the Class B Common
Stock of the Corporation shall, except as otherwise provided in this Article IV,
Section A, be identical in all respects and shall have equal rights and
privileges.
1. Voting Rights.
Holders of Class A Common Stock shall be entitled to ONE vote for each
share of such stock held, and holders of Class B Common Stock shall be entitled
to TEN votes for each share of such stock held, on all matters presented to such
stockholders, whether at any special or annual meeting of stockholders, by
written consent in lieu of meeting, or otherwise. Except as may otherwise be
required by the laws of the State of Delaware and, with respect to any series of
Preferred Stock, except as may be provided in any resolution or resolutions
providing for the establishment of such series pursuant to authority vested in
the Board of Directors by Article IV, Section B, of this Certificate, the
holders of outstanding shares of Class A Common Stock, the holders of
outstanding shares of Class B Common Stock and the holders of outstanding shares
of each series of Preferred Stock shall vote together as one class with respect
to the election of directors and with respect to all other matters to be voted
on by stockholders of the Corporation (including, without limitation, any
proposed amendment to this Certificate that would increase the number of
authorized shares of any class of Common Stock or any series of Preferred Stock
or decrease the number of authorized shares of any such class or series of stock
(but not below the number of shares thereof then outstanding)), and no separate
vote or consent of the holders of shares of Class A Common Stock, Class B Common
Stock or any series of Preferred Stock shall be required for the approval of any
such matter.
2. Conversion Rights.
Each share of Class B Common Stock shall be convertible, at the option of
the holder thereof, into one share of Class A Common Stock. Any such conversion
may be effected by any holder of Class B Common Stock by surrendering such
holder's certificate or certificates for the Class B Common Stock to be
converted, duly endorsed, at the office of the Corporation or any transfer agent
for the Class B Common Stock, together with a written notice to the Corporation
at such office that such holder elects to convert all or a specified number of
shares of Class B Common Stock represented by such certificate and stating the
name or names in which such holder desires the certificate or certificates for
Class A Common Stock to be issued. If so required by the Corporation, any
certificate for shares surrendered for conversion shall be accompanied by
instruments of transfer, in form satisfactory to the Corporation, duly executed
by the holder of such shares or the duly authorized representative of such
holder. Promptly thereafter, the Corporation shall issue and deliver to such
holder or such holder's nominee or nominees, a certificate or certificates for
the number of shares of Class A Common Stock to which such holder shall be
entitled as herein provided. Such conversion shall be deemed to have been made
at the close of business on the date of receipt by the Corporation or any such
transfer agent of the certificate or certificates, notice and, if required,
instruments of transfer referred to above, and the person or persons entitled to
receive the Class A Common Stock issuable on such conversion shall be treated
for all purposes as the record holder or holders of such Class A Common Stock on
that date. A number of shares of Class A Common Stock equal to the number of
shares of Class B Common Stock outstanding from time to time shall be set aside
and reserved for issuance upon conversion of shares of Class B Common Stock.
Shares of Class B Common Stock that have been converted hereunder shall become
treasury shares that may be issued or retired by resolution of the Board of
Directors. Shares of Class A Common Stock shall not be convertible into shares
of Class B Common Stock.
3. Dividends.
Subject to subsection 4 of this Section A, whenever a dividend is paid to
the holders of shares of any class of Common Stock, the Corporation also shall
pay an equal per share dividend to the holders of the other class of Common
Stock of the Corporation. Dividends shall be payable only as and when declared
by the Board of Directors out of funds legally available therefor.
4. Share Distributions.
If at any time a distribution paid in Class A Common Stock, Class B Common
Stock or any other securities of the Corporation or any other entity
(hereinafter sometimes called a "share distribution") is to be made with respect
to the Class A Common Stock or Class B Common Stock, such share distribution may
be declared and paid only as follows:
a. a share distribution consisting of shares of Class A Common Stock (or
securities convertible into or exercisable or exchangeable for shares of Class A
Common Stock) to holders of Class A Common Stock and Class B Common Stock, on an
equal per share basis; or consisting of shares of Class B Common Stock (or
securities convertible into or exercisable or exchangeable for shares of Class B
Common Stock) to holders of Class A Common Stock and Class B Common Stock, on an
equal per share basis; or consisting of shares of Class A Common Stock (or
securities convertible into or exercisable or exchangeable for shares of Class A
Common Stock) to holders of Class A Common Stock and, on an equal per share
basis, shares of Class B Common Stock (or like securities convertible into or
exercisable or exchangeable for shares of Class B Common Stock) to holders of
Class B Common Stock; and
b. a share distribution consisting of any class or series of securities of
the Corporation or any other entity other than Class A Common Stock or Class B
Common Stock (or securities convertible into or exercisable or exchangeable for
shares of Class A Common Stock or Class B Common Stock), either on the basis of
a distribution of identical securities, on an equal per share basis, to holders
of Class A Common Stock and Class B Common Stock or on the basis of a
distribution of one class or series of securities to holders of Class A Common
Stock and another class or series of securities to holders of Class B Common
Stock, provided that the securities so distributed (and, if applicable, the
securities into which the distributed securities are convertible, or for which
they are exercisable or exchangeable) do not differ in any respect other than
their relative voting rights and related differences in designation, conversion
and share distribution provisions, with holders of shares of Class B Common
Stock receiving the class or series having the higher relative voting rights
(without regard to whether such rights differ to a greater or lesser extent than
the corresponding differences in voting rights between the Class A Common Stock
and the Class B Common Stock) and related differences in designation, conversion
and share distribution provisions, provided that if the securities so
distributed constitute capital stock of a Subsidiary (as defined below) of the
Corporation, such voting rights (and related designation, conversion and share
distribution provisions) shall not differ to a greater extent than the
corresponding differences in voting rights between the Class A Common Stock and
the Class B Common Stock, and provided in each case that such distribution is
otherwise made on an equal per share basis. As used herein, the term
"Subsidiary" means, when used with respect to any entity, (i) a corporation in
which such entity and/or one or more Subsidiaries of such entity, directly or
indirectly, owns capital stock having a majority of the voting power of such
corporation's capital stock to elect directors under ordinary circumstances, and
(ii) any other entity (other than a corporation) in which such entity and/or one
or more Subsidiaries of such entity, directly or indirectly, has (x) a majority
ownership interest or (y) the power to elect or direct the election of a
majority of the members of the governing body of such first-named entity.
The Corporation shall not reclassify, subdivide or combine the Class A
Common Stock without reclassifying, subdividing or combining the Class B Common
Stock, on an equal per share basis, and the Corporation shall not reclassify,
subdivide or combine the Class B Common Stock without reclassifying, subdividing
or combining the Class A Common Stock, on an equal per share basis.
5. Liquidation and Mergers.
Subject to the prior payment in full of the preferential amounts to which
any Preferred Stock is entitled, the holders of Class A Common Stock and the
holders of Class B Common Stock shall share equally, on an equal per share
basis, in any distribution of the Corporation's assets upon any liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
after payment or provision for payment of the debts and other liabilities of the
Corporation. Neither the consolidation or merger of the Corporation with or into
any other corporation or corporations nor the sale, transfer or lease of all or
substantially all of the assets of the Corporation shall in itself be deemed to
be a liquidation, dissolution or winding up of the Corporation within the
meaning of this Section A.5.
SECTION B
PREFERRED STOCK
The Preferred Stock may be issued, from time to time, in one or more
series, with such powers, designations, preferences and relative, participating,
optional or other rights, and qualifications, limitations or restrictions
thereof, as shall be stated and expressed in a resolution or resolutions
providing for the issue of each such series adopted by the Board of Directors.
The Board of Directors, in such resolution or resolutions (a copy of which shall
be filed and recorded as required by law), is also expressly authorized to fix
with respect to each series:
a. the distinctive serial designations and the division of such shares into
series and the number of shares of a particular series, which may be increased
or decreased, but not below the number of shares thereof then outstanding, by a
certificate made, signed, filed and recorded as required by law;
b. the dividend rate or amounts, if any, for the particular series, the
date or dates from which dividends on all shares of such series shall be
cumulative, if dividends on stock of the particular series shall be cumulative
and the relative rights of priority, if any, or participation, if any, with
respect to payment of dividends on shares of that series;
c. the rights of the shares of each series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, and the
relative rights of priority, if any, of payment of shares of each series;
d. the right, if any, of the holders of a particular series to convert or
exchange such stock into or for other classes or series of a class of stock or
indebtedness of the Corporation or of another entity, and the terms and
conditions of such conversion or exchange, including provision for the
adjustment of the conversion or exchange rate in such events as the Board of
Directors may determine;
e. the voting rights, if any, of the holders of a particular series; and
f. the terms and conditions, if any, for the Corporation to purchase or
redeem shares of a particular series.
All shares of any one series of the Preferred Stock shall be alike in every
particular. Except to the extent otherwise provided in the resolution or
resolutions providing for the issue of any series of Preferred Stock, the
holders of shares of such series shall have no voting rights, except as may be
required by the laws of the State of Delaware.
ARTICLE V.
DIRECTORS
SECTION A
NUMBER OF DIRECTORS
The governing body of the Corporation shall be the Board of Directors. The
number of directors shall not be less than three (3) and the exact number of
directors shall be fixed by the Board of Directors by resolution. Election of
directors need not be by written ballot.
SECTION B
CLASSIFICATION OF THE BOARD
Except as otherwise fixed by or pursuant to the provisions of Article IV
hereof relating to the rights of the holders of any series of Preferred Stock to
separately elect additional directors, which additional directors are not
required to be classified pursuant to the terms of such series of Preferred
Stock, the Board of Directors of the Corporation shall be divided into three
classes of directors: Class I, Class II and Class III. Each class of directors
shall consist, as nearly as possible, of a number of directors equal to
one-third (33a%) of the then authorized number of members of the Board of
Directors. The initial term of office of the Class I directors shall expire at
the annual meeting of stockholders in 2000; the initial term of office of the
Class II directors shall expire at the annual meeting of stockholders in 2001;
and the initial term of office of the Class III directors shall expire at the
annual meeting of stockholders in 2002. At each annual meeting of stockholders
of the Corporation the successors of that class of directors whose term expires
at that meeting shall be elected to hold office for a term expiring at the
annual meeting of stockholders held in the third year following the year of
their election. The directors of each class will hold office until their
respective death, resignation or removal and until their respective successors
are elected and qualified.
SECTION C
REMOVAL OF DIRECTORS
Subject to the rights of the holders of any series of Preferred Stock,
directors may be removed from office only for cause (as defined below) upon the
affirmative vote of the holders of at least 66b% of the total voting power of
the then outstanding shares of Class A Common Stock, Class B Common Stock and
any series of Preferred Stock entitled to vote at an election of directors,
voting together as a single class. Except as may otherwise be provided by law,
"cause" for removal, for purposes of this Section C, shall exist only if: (i)
the director whose removal is proposed has been convicted of a felony, or has
been granted immunity to testify in an action where another has been convicted
of a felony, by a court of competent jurisdiction and such conviction is no
longer subject to direct appeal; (ii) such director has become mentally
incompetent, whether or not so adjudicated, which mental incompetence directly
affects his ability as a director of the Corporation, as determined by at least
66b% of the members of the Board of Directors then in office (other than such
director); or (iii) such director's actions or failure to act have been
determined by at least 66b% of the members of the Board of Directors then in
office (other than such director) to be in derogation of the director's duties.
SECTION D
NEWLY CREATED DIRECTORSHIPS AND VACANCIES
Subject to the rights of holders of any series of Preferred Stock,
vacancies on the Board of Directors resulting from death, resignation, removal,
disqualification or other cause, and newly created directorships resulting from
any increase in the number of directors on the Board of Directors, shall be
filled by the affirmative vote of a majority of the remaining directors then in
office (even though less than a quorum) or by the sole remaining director. Any
director elected in accordance with the preceding sentence shall hold office for
the remainder of the full term of the class of directors in which the vacancy
occurred or to which the new directorship is apportioned, and until such
director's successor shall have been elected and qualified. No decrease in the
number of directors constituting the Board of Directors shall shorten the term
of any incumbent director, except as may be provided in the resolution or
resolutions providing for the issue of any series of Preferred Stock with
respect to any additional director elected by the holders of the applicable
series of Preferred Stock.
SECTION E
LIMITATION ON LIABILITY AND INDEMNIFICATION
1. Limitation On Liability.
To the fullest extent permitted by the DGCL as the same exists or may
hereafter be amended, a director of the Corporation shall not be liable to the
Corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director. Any repeal or modification of this section E.1
shall be prospective only and shall not adversely affect any limitation, right
or protection of a director of the Corporation existing at the time of such
repeal or modification.
2. Indemnification.
a. Right to Indemnification. The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of the fact that he, or a person for whom he is the
legal representative, is or was a director or officer of the Corporation or is
or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, limited liability
company, joint venture, trust, enterprise or nonprofit entity, including service
with respect to employee benefit plans, against all liability and loss suffered
and expenses (including attorneys' fees) reasonably incurred by such person.
Such right of indemnification shall inure whether or not the claim asserted is
based on matters which antedate the adoption of this Section E. The Corporation
shall be required to indemnify a person in connection with a proceeding (or part
thereof) initiated by such person only if the proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation.
b. Advance Payment of Expenses. The Corporation shall pay the expenses
(including attorneys' fees) incurred by a director or officer in defending any
proceeding, as incurred, in advance of its final disposition, provided, however,
that the payment of expenses incurred by a director or officer in advance of the
final disposition of the proceeding shall be made only upon receipt of an
undertaking by the director or officer to repay all amounts advanced if it
should be ultimately determined that the director or officer is not entitled to
be indemnified under this section E.2 or otherwise.
c. Claims. If a claim for indemnification or payment of expenses under this
section E.2 is not paid in full within 60 days after a written claim therefor
has been received by the Corporation, the claimant may file suit to recover the
unpaid amount of such claim and, if successful in whole or in part, shall be
entitled to be paid the expense of prosecuting such claim. In any such action
the Corporation shall have the burden of proving that the claimant was not
entitled to the requested indemnification or payment of expenses under
applicable law.
d. Non-Exclusivity of Rights. The rights conferred on any person by this
section E.2 shall not be exclusive of any other rights which such person may
have or hereafter acquire under any statute, provision of this Certificate, the
Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
e. Other Indemnification. The Corporation's obligation, if any, to
indemnify any person who was or is serving at its request as a director,
officer, employee or agent of another corporation, partnership, limited
liability company, joint venture, trust, enterprise or nonprofit entity shall be
reduced by any amount such person may collect as indemnification from such other
corporation, partnership, limited liability company, joint venture, trust,
enterprise or nonprofit entity.
3. Amendment or Repeal.
Any repeal or modification of the foregoing provisions of this Section E
shall not adversely affect any right or protection hereunder of any person in
respect of any act or omission occurring prior to the time of such repeal or
modification.
SECTION F
AMENDMENT OF BYLAWS
The Board of Directors of the Corporation (or any committee authorized by
the Board of Directors) is hereby expressly authorized and empowered to adopt,
alter, amend or repeal any provision of the bylaws of the Corporation.
ARTICLE VI.
TERM
The term of existence of this Corporation shall be perpetual.
ARTICLE VII.
STOCK NOT ASSESSABLE
The capital stock of this Corporation shall not be assessable if fully
paid. It shall be issued as fully paid, and the private property of the
stockholders shall not be liable for the debts, obligations or liabilities of
this Corporation.
ARTICLE VIII.
MEETINGS OF STOCKHOLDERS
SECTION A
ANNUAL AND SPECIAL MEETINGS
Except as otherwise prescribed by law or by another provision of this
Certificate, special meetings of the stockholders of the Corporation, for any
purpose or purposes, shall be called by the Secretary of the Corporation (i)
upon the written request of the holders of not less than 66b% of the total
voting power of the outstanding Voting Securities (as defined below) or (ii) at
the request of at least 75% of the members of the Board of Directors then in
office. The term "Voting Securities" shall include the Class A Common Stock, the
Class B Common Stock and any series of Preferred Stock entitled to vote with the
holders of Common Stock generally upon all matters that may be submitted to a
vote of stockholders at any annual meeting or special meeting thereof.
SECTION B
STOCKHOLDER ACTION WITHOUT A MEETING
Except as otherwise prescribed by law or by another provision of this
Certificate, any action required or permitted to be taken at any annual or
special meeting of the stockholders may be taken without a meeting, without
prior notice and without a vote if a consent or consents in writing, setting
forth the action so taken, shall be signed by the holder or holders of
outstanding stock of the Corporation having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which all shares of stock of the Corporation entitled to vote thereon were
present and voted. Notice shall be given in accordance with the applicable
provisions of the DGCL of the taking of corporate action without a meeting by
less than unanimous written consent to those stockholders on the record date
whose shares were not represented on the written consent.
(4) This Restated Certificate of Incorporation has been duly adopted in
accordance with Sections 242 and 245 of the General Corporation Law of the State
of Delaware.
Exhibit 99.7
LIBERTY LIVEWIRE CORPORATION
A Delaware Corporation
----------------------------
BYLAWS
ARTICLE I
STOCKHOLDERS
Section 1.1 Annual Meeting. An annual meeting of stockholders for the
purpose of electing those directors whose terms of office expires at such
meeting and of transacting such other business as may properly come before it
shall be held each year at such date, time and place, either within or without
the State of Delaware, as may be specified by the Board of Directors.
Section 1.2 Special Meetings. Special meetings of stockholders shall be
called by the Secretary as and when provided for by the Certificate of
Incorporation, as amended from time to time, of the Corporation (the
"Certificate"). Special meetings of stockholders for any purpose or purposes may
be held at such time and place either within or without the State of Delaware as
may be stated in the notice.
Section 1.3 Notice of Meetings. Written notice of stockholders meetings,
stating the place, date, and hour thereof, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, shall be given
by the Chairman of the Board, the President, any Vice President, the Secretary
or any other officer, to each stockholder entitled to vote thereat at least 10
days but not more than 60 days before the date of the meeting, unless a
different period is prescribed by law or the Certificate.
Section 1.4 Quorum. Except as otherwise provided by law or in the
Certificate or elsewhere in these Bylaws, the holders of a majority in total
voting power of the outstanding shares of capital stock of the Corporation
entitled to vote at a meeting of the stockholders, present in person or
represented by proxy, shall constitute a quorum for the transaction of business
at any annual or special meeting of the stockholders. In the absence of a
quorum, the chairman of the meeting or the holders of a majority in total voting
power of the shares of capital stock entitled to vote thereat that are present
in person or represented by proxy shall have the power to adjourn the meeting
from time to time in the manner provided in Section 1.5 of these Bylaws until a
quorum shall attend.
Section 1.5 Adjournment. Any meeting of stockholders, annual or special,
may adjourn from time to time to reconvene at the same or some other place, and
notice need not be given of any such adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken. At the
adjourned meeting, the Corporation may transact any business which might have
been transacted at the original meeting. If the adjournment is for more than 30
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
Section 1.6 Voting. Except as otherwise provided by law, the Certificate or
elsewhere in these Bylaws and except for the election of directors, at any
meeting duly called and held at which a quorum is present, the affirmative vote
of a majority of the combined voting power of the shares present in person or
represented by proxy at the meeting and entitled to vote upon a given question
shall decide such question. At any meeting duly called and held for the election
of directors of a particular class at which a quorum is present, directors of
such class shall be elected by a plurality of the combined voting power of the
shares present in person or represented by proxy at the meeting and entitled to
vote on the election of directors.
Section 1.7 Organization. The Chairman of the Board, or in his absence the
President, or in their absence any Vice President, shall call to order meetings
of stockholders and shall act as chairman of such meetings. The Board of
Directors or, if the Board of Directors fails to act, the stockholders may
appoint any stockholder, director, or officer of the Corporation to act as
chairman of any meeting in the absence of the Chairman of the Board, the
President and all Vice Presidents. The Secretary of the Corporation shall act as
secretary of all meetings of stockholders, but, in the absence of the Secretary,
the chairman of the meeting may appoint any other person to act as secretary of
the meeting.
Section 1.8 Order of Business.
(a) Nominations of persons for election as directors of a particular class
of the Board of Directors of the Corporation and the proposal of business to be
considered by the stockholders may be made at any annual meeting of
stockholders, only (i) pursuant to the Corporation's notice of meeting, (ii) by
or at the direction of the Chairman of the Board or the Board of Directors of
the Corporation or (iii) by any stockholder who is a holder of record at the
time of the giving of the notice provided for in this Section 1.8, who is
entitled to vote at the meeting and who complies with the procedures set forth
in this Section 1.8.
(b) For nominations or business properly to be brought before an annual
meeting by a stockholder, the stockholder must have given timely notice thereof
in proper written form to the Secretary of the Corporation. To be timely, a
stockholder's notice must be delivered to the Secretary at the principal
executive offices of the Corporation not less than 70 days nor more than 120
days prior to the anniversary 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 not earlier than the
120th day prior to such annual meeting and not later than the close of business
on the later of the 70th 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. To be in proper written form, a stockholder's notice to the
Secretary of the Corporation shall set forth in writing as to each matter the
stockholder proposes to bring before the annual meeting: (i) as to each person
whom the stockholder proposes to nominate for election or re-election as a
director or a particular class, 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 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 of such class
if elected); (ii) as to any other business that the stockholder proposes to
bring before the meeting, a brief description of the business desired to be
brought before the annual meeting, the reasons for conducting such business at
the annual meeting, any material interest in such business of such stockholder
and the beneficial owner, if any, on whose behalf the proposal is made, and in
the event that such business includes a proposal to amend the bylaws of the
Corporation, the language of the proposed amendment; and (iii) as to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made (a) the name and address of such stockholder,
as they appear on the Corporation's books, and of such beneficial owner; (b) the
class or series and number of shares of the Corporation which are owned
beneficially and of record by such stockholder and such beneficial owner and (c)
a representation that such stockholder is entitled to vote at such annual
meeting and intends to appear in person or by proxy at such meeting to nominate
the person or propose the business specified in the notice. The foregoing notice
requirements shall be deemed satisfied by a stockholder if the stockholder has
notified the Corporation of his or her intention to make a nomination or present
a proposal at an annual meeting and such stockholder's nominee or proposal has
been included in a proxy statement that has been prepared by management of the
Corporation to solicit proxies for such annual meeting.
(c) Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. Nominations of persons for election as
directors of a particular class of the Board of Directors of the Corporation may
be made at a special meeting of stockholders at which directors of such class
are to be elected pursuant to the Corporation's notice of meeting (i) by or at
the direction of the Board of Directors or (ii) provided that the Board of
Directors has determined that directors of such class shall be elected at such
meeting, by any stockholder who is a holder of record at the time of the giving
of notice provided for in this Section 1.8, who is entitled to vote at the
meeting and who complies with the procedures set forth in Section 1.8. In the
event the Corporation calls a special meeting of stockholders for the purpose of
electing one or more directors as a director or directors, as applicable, of a
particular class of the Board of Directors of the Corporation, any such
stockholder may nominate a person or persons (as the case may be) for election
to such position(s) as specified in the Corporation's notice of meeting, if the
stockholder has given timely notice thereof in proper written form to the
Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the 120th day prior to such special meeting and not later than
the close of business on the later of the 70th day prior to such special meeting
or the 10th day following the day on which public announcement of the date of
such meeting is first made. To be in proper written form, such notice must meet
the requirements of either of the last two sentences of paragraph (b) above.
(d) Only such persons who are nominated in accordance with the procedures
set forth in this Section 1.8 shall be eligible to serve as directors of the
Corporation and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Section 1.8. Except as otherwise provided by
law, the Certificate or these Bylaws, 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 in accordance with the procedures set forth
in this Section 1.8 and, if any proposed nomination or business proposal is not
in compliance with this Section 1.8, to declare that such defective nomination
or business proposal shall be disregarded.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1 Number and Term of Office. The business, property, and affairs
of the Corporation shall be managed by or under the direction of a Board of
Directors of at least three directors. The number and term of office of the
members of the Board of Directors shall be determined as set forth in the
Certificate.
Section 2.2 Resignations. Any director of the Corporation, or any member of
any committee, may resign at any time, by giving written notice to the Board of
Directors, the Chairman of the Board, the President or the Secretary of the
Corporation. Any such resignation shall take effect after receipt of the
applicable written notice of resignation by the Board of Directors, the Chairman
of the Board, the President or the Secretary of the Corporation at the time
specified in such written notice or, if no time is specified, immediately upon
receipt of such written notice by the Board of Directors, the Chairman of the
Board, the President or the Secretary of the Corporation. Unless otherwise
specified in such notice, the acceptance of such resignation shall not be
necessary to make it effective.
Section 2.3 Removal of Directors. Directors may only be removed as provided
in Section C of Article V of the Certificate.
Section 2.4 Newly Created Directorships and Vacancies. Newly created
directorships resulting from an increase in the number of directors and any
vacancy on the Board of Directors occurring for any other reason shall be filled
in accordance with Section D of Article V of the Certificate.
Section 2.5 Chairman of the Board. The directors shall elect one of their
members to be Chairman of the Board of Directors. The Chairman shall perform
such duties as may from time to time be assigned to him by the Board of
Directors. The Chairman shall be subject to the control of and may be removed
from such office by the Board of Directors.
Section 2.6 Annual Meetings. The annual meeting of the Board of Directors,
for the election of officers and the transaction of such other business as may
come before the meeting, shall be held without notice at the same place as, and
immediately following, the annual meeting of the stockholders.
Section 2.7 Regular Meetings. Regular meetings of the Board of Directors
may be held without notice at such time and place as shall from time to time be
determined by the Board of Directors.
Section 2.8 Special Meetings. Special meetings of the Board of Directors
shall be held at such time and place as shall be designated in the notice of the
meeting whenever called by the Chairman of the Board, the President or by a
majority of the directors then in office. The Secretary, or in his absence any
other officer of the Corporation, shall give each director notice of the time
and place of holding of special meetings of the Board of Directors by mail at
least five days before the meeting, or by telegram, cable, facsimile
transmission or personal service at least 24 hours before the meeting. Unless
otherwise stated in the notice thereof, any and all business may be transacted
at any meeting without specification of such business in the notice.
Section 2.9 Quorum. A majority of the total number of members of the Board
of Directors as constituted from time to time shall constitute a quorum for the
transaction of business. If at any meeting of the Board of Directors (whether or
not adjourned from a previous meeting) there shall be less than a quorum
present, a majority of those present may adjourn the meeting to another time and
place, and the meeting may be held as adjourned without further notice or
waiver.
Section 2.10. Manner of Acting. Except as otherwise provided by law, the
Certificate or these Bylaws, a majority of the directors present at any meeting
at which a quorum is present may decide any question brought before such
meeting.
Section 2.11 Organization. Meetings shall be presided over by the Chairman
of the Board, or in his absence by such other person as the directors may
select. The Secretary of the Corporation shall act as secretary of the meeting,
but in his absence the chairman of the meeting may appoint any person to act as
secretary of the meeting.
Section 2.12 Committees. The Board of Directors may, by resolution passed
by not less than 75% of the members of the Board of Directors then in office,
designate one or more committees, each committee to consist of one or more of
the directors of the Corporation. The Board of Directors may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in place of any such absent or disqualified
member. Any such committee, to the extent provided in the resolution of the
Board of Directors, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall have power or authority
in reference to the following matters: (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by the
General Corporation Law of the State of Delaware, as amended from time to time
(the "DGCL"), to be submitted to stockholders for approval or (ii) adopting,
amending or repealing any Bylaw of the Corporation. Each committee which may be
established by the Board of Directors pursuant to these Bylaws may fix its own
rules and procedures. Notice of meetings of committees, other than of regular
meetings provided for by such rules, shall be given to committee members. All
action taken by committees shall be recorded in minutes of the meetings.
Section 2.13 Action Without Meeting. Nothing contained in these Bylaws
shall be deemed to restrict the power of members of the Board of Directors, or
any committee designated by the Board of Directors, to take any action required
or permitted to be taken by them without a meeting.
Section 2.14 Telephone Meetings. Nothing contained in these Bylaws shall be
deemed to restrict the power of members of the Board of Directors, or any
committee designated by the Board of Directors, to participate in a meeting of
the Board of Directors, or committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other. Participation in a meeting by any such means
shall constitute presence in person at such meeting.
ARTICLE III
OFFICERS
Section 3.1 Executive Officers. The executive officers of the Corporation
shall be a Chairman of the Board, a President, one or more Vice Presidents and a
Secretary, each of whom shall be elected by the Board of Directors. The Board of
Directors may elect or appoint such other officers (including a Treasurer and
one or more Assistant Secretaries) as it may deem necessary or desirable. Each
officer shall hold office for such term as may be prescribed by the Board of
Directors from time to time. Any person may hold at one time two or more
offices.
Section 3.2 Powers and Duties. The Chairman of the Board shall preside at
all meetings of the stockholders and of the Board of Directors at which he is
present. The Chairman of the Board shall also have such additional powers and
duties as may be prescribed for such offices from time to time by the Board of
Directors. The President shall be the chief executive officer of the
Corporation. In the absence of the President, an officer appointed by the
President, or if the President fails to make such appointment, by the Board of
Directors, shall perform all the duties of the President. The officers and
agents of the Corporation shall each have such powers and authority and shall
perform such duties in the management of the business, property, and affairs of
the Corporation as generally pertain to their respective offices, as well as
such powers and authorities and such duties as from time to time may be
prescribed by the Board of Directors.
ARTICLE IV
RESIGNATIONS, REMOVALS AND VACANCIES
Section 4.1 Resignations. Any director or officer of the Corporation, or
any member of any committee, may resign at any time by giving written notice to
the Board of Directors, the Chairman of the Board, the President or the
Secretary of the Corporation. Any such resignation shall take effect at the time
specified therein or, if no time is specified therein, then immediately upon
receipt thereof. Unless otherwise specified in such notice, the acceptance of
such resignation shall not be necessary to make it effective.
Section 4.2 Removals. The Board of Directors, at any meeting thereof, or by
unanimous written consent, at any time, may, to the extent permitted by
otherwise applicable Delaware law, remove with or without cause from office or
terminate the employment of any officer or member of any committee and may, with
or without cause, disband any committee.
Section 4.3 Vacancies. Any vacancy in the office of any officer through
death, resignation, removal, disqualification or other cause may be filled at
any time by the Board of Directors and, subject to the provisions of this
Article IV, the person so chosen shall hold office until his successor shall
have been elected and qualified.
ARTICLE V
CAPITAL STOCK
Section 5.1 Stock Certificates. The certificates for shares of the capital
stock of the Corporation shall be in such form as shall be prescribed by law and
approved, from time to time, by the Board of Directors.
Section 5.2 Transfer of Shares. Shares of the capital stock of the
Corporation may be transferred on the books of the Corporation only by the
holder of such shares or by his duly authorized attorney, upon the surrender to
the Corporation or its transfer agent of the certificate representing such stock
properly endorsed.
Section 5.3 Fixing Record Date. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or entitled to express consent to corporate action
in writing without a meeting, 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 of Directors may fix, in advance,
a record date, which, unless otherwise provided by law, shall not be more than
sixty nor less than ten days before the date of such meeting, nor more than
sixty days prior to any other action. If no record date is fixed: (i) the record
date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day next preceding the
day on which notice is given, or, if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held; (ii) the record
date for determining stockholders entitled to express consent to corporate
action in writing without a meeting, when no prior action by the Board of
Directors is required under the DGCL, shall be the first day on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office in the State
of Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded; and when prior action by the Board of Directors is
required under the DGCL, the record date for determining stockholders entitled
to consent to corporate action in writing without a meeting shall be at the
close of business on the date on which the Board of Directors adopts the
resolution taking such prior action; and (iii) the record date for determining
stockholders for any other purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 5.4 Lost Certificates. The Board of Directors or any transfer agent
of the Corporation may direct a new certificate or certificates representing
stock of the Corporation to be issued in place of any certificate or
certificates theretofore issued by the Corporation, alleged to have been lost,
stolen, or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate to be lost, stolen, or destroyed. When authorizing such
issue of a new certificate or certificates, the Board of Directors (or any
transfer agent of the Corporation authorized to do so by a resolution of the
Board of Directors) may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen, or destroyed
certificate or certificates, or his legal representative, to give the
Corporation a bond in such sum as the Board of Directors (or any transfer agent
so authorized) shall direct to indemnify the Corporation against any claim that
may be made against the Corporation with respect to the certificate alleged to
have been lost, stolen, or destroyed or the issuance of such new certificates,
and such requirement may be general or confined to specific instances.
Section 5.5 Beneficial Owners. The person in whose name shares of stock
stand on the books of the Corporation shall be deemed by the Corporation to be
the owner thereof for all purposes, and the Corporation shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of the State of
Delaware.
Section 5.6 Regulations. The Board of Directors shall have power and
authority to make all such rules and regulations as it may deem expedient
concerning the issue, transfer, registration, cancellation, and replacement of
certificates representing stock of the Corporation.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Offices. The Corporation shall maintain a registered office in
the State of Delaware as required by law. The Corporation may also have offices
in such other places, either within or without the State of Delaware, as the
Board of Directors may from time to time designate or as the business of the
Corporation may require.
Section 6.2 Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization, and the words
"Corporate Seal" and "Delaware".
Section 6.3 Fiscal Year. The fiscal year of the Corporation shall be
determined and may be changed by resolution of the Board of Directors.
Section 6.4 Notices and Waivers Thereof. Whenever any notice whatsoever is
required by law, the Certificate or these Bylaws to be given to any stockholder,
director or officer, such notice, except as otherwise provided by law, may be
given personally, or by mail, or, in the case of directors or officers, by
telegram, cable or facsimile transmission, addressed to such person at his or
her address as it appears on the books of the Corporation. Any notice given by
telegram, cable or facsimile transmission shall be deemed to have been given
when it shall have been delivered for transmission and any notice given by mail
shall be deemed to have been given when it shall have been deposited in the
United States mail with postage thereon prepaid. Whenever any notice is required
to be given by law, the Certificate or these Bylaws, a written waiver thereof,
signed by the person entitled to such notice, whether before or after the
meeting or the time stated therein, shall be deemed equivalent in all respects
to such notice to the full extent permitted by law.
Section 6.5 Amendments. The holders of shares of capital stock entitled at
the time to vote in any general election of directors shall have power to adopt,
amend, or repeal the Bylaws of the Corporation by vote of the holders of not
less than a majority of the total voting power of the outstanding shares of
capital stock of the Corporation entitled to vote thereon, and except as
otherwise provided by law, the Board of Directors shall have power equal in all
respects to that of the stockholders to adopt, amend, or repeal the Bylaws by
vote of not less than a majority of the members of the Board of Directors then
in office.
Section 6.6 Stock of Other Corporations or Other Interests. Unless
otherwise directed by the Board of Directors, the Chairman of the Board, the
President, the Secretary, and such attorneys or agents of the Corporation as may
be from time to time authorized by the Board of Directors or the President,
shall have full power and authority on behalf of this Corporation to attend and
to act and vote in person or by proxy at any meeting of the holders of
securities of any corporation or other entity in which this Corporation may own
or hold shares or other securities, and at such meetings shall possess and may
exercise all the rights and powers incident to the ownership of such shares or
other securities which this Corporation, as the owner or holder thereof, might
have possessed and exercised if present. The President, the Secretary, or such
attorneys or agents, may also execute and deliver on behalf of this Corporation
powers of attorney, proxies, consents, waivers, and other instruments relating
to the shares or securities owned or held by this Corporation.
Section 6.7 Savings Clause. These Bylaws are subject to the provisions of
the Certificate and applicable law. If any provision of these Bylaws is
inconsistent with the Certificate or the DGCL, such provision shall be invalid
only to the extent of such conflict, and such conflict shall not affect the
validity of any other provision of these Bylaws.
