As Filed with the Securities and Exchange Commission on August 24, 1995
Registration No. 33-60222
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8 POS
AMENDMENT NO. 1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
GENERAL COMMUNICATION, INC.
(Exact name of issuer as specified in its Charter)
ALASKA 92-0072737
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2550 Denali Street, Suite 1000, Anchorage, Alaska 99503-2781
(Address of Principal Executive Offices) (zip code)
GENERAL COMMUNICATION, INC.
REVISED 1986 STOCK OPTION PLAN
(Full title of the plan)
John M. Lowber
General Communication, Inc.
2550 Denali Street, Suite 1000, Anchorage, Alaska 99503-2781
(Name and address of agent for service)
(907) 265-5600
(Telephone number, including area code, of agent for service)
Copy to: J. J. Brecht
Wohlforth, Argetsinger, Johnson & Brecht, A Professional Corporation
900 West 5th Avenue, Suite 600, Anchorage, Alaska 99501
(907) 276-6401
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
================================================================================================
Proposed Proposed Maximum Amount of
Title of Securities Amount to Maximum Aggregate Offering Registration
to be Registered be Registered Offering Price (1) Price Fee
------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
General
Communication,
Inc. Class
A Common Stock 850,000 $3,293,750 $3,293,750 $1135.78
================================================================================================
<FN>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee, based upon the closing price of $3.875 per share for the Class
A common stock, which will be the subject of the options under the Plan, as
quoted on the Nasdaq Stock Market on August 21, 1995.
</FN>
</TABLE>
- -----------------
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
The contents of the initial Registration Statement pertaining to the
General Communication, Inc. Revised 1986 Stock Option Plan filed with the
Securities and Exchange Commission on Form S-8 on April 5, 1993 (Registration
No. 33-60222) are incorporated by reference into this Amendment No. 1 to that
Registration Statement. Required opinions, consents, and signatures are included
in this amendment.
Item 2. Registrant Information and Employee Plan Annual Information
See Item 1.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
See Item 1.
Item 4. Description of Securities
See Item 1.
Item 5. Interests of Named Experts and Counsel
See Item 1.
Item 6. Indemnification of Directors and Officers
See Item 1.
Item 7. Exemption from Registration Claimed
See Item 1.
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 2
<PAGE>
Item 8. Exhibits
See Exhibit Index and Exhibits at the end of this Amendment No. 1 to
the Registration Statement.
Item 9. Undertakings
The Company hereby undertakes each and every one of the following:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement; provided, however, that paragraphs
(1)(i) and (1)(ii) above do not apply if the information
required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by
the Company pursuant to Section 13 or 15(d) of the Exchange
Act that are incorporated by reference in the Registration
Statement;
(2) To agree that, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof;
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering;
(4) To agree that, for purposes of determining any liability under the
Securities Act, each filing of the Company's annual report pursuant
to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of the Plan's annual report pursuant to
Section 15(d) of the Exchange Act) incorporated by reference in the
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 3
<PAGE>
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(5) To disclose, in so far as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in that act
and is, therefore, unenforceable; and in the event that a claim for
indemnification against such liabilities (other than the payment by
the Company of expenses incurred or paid by a director, officer, or
controlling person of the Company in the successful defense of any
action, suit or proceeding) is asserted by such director, officer,
or controlling person in connection with the securities being
registered, to submit, unless in the opinion of its counsel the
matter has been settled by controlling precedent, to a court of
appropriate jurisdiction the question whether such indemnification
by the Company is against public policy as expressed in that Act
and to be governed by the final adjudication of that issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Municipality of Anchorage, State of Alaska, on August 22,
1995.
GENERAL COMMUNICATION, INC.
(Registrant)
By: /s/ By: /s/
--------------------------- ------------------------------
Ronald A. Duncan John M. Lowber
President and Chief Chief Financial Officer
Executive Officer (Principal Financial Officer)
(Principal Executive Officer)
By: /s/
------------------------------
Alfred J. Walker
Vice President & Chief Accounting
Officer
(Principal Accounting Officer)
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 4
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
/s/ 8/8/95
- -------------------------------- ------------------------------
Ronald A. Duncan Date
President, Chief Executive Officer
and Director
(Principal Executive Officer)
/s/ 8/15/95
- -------------------------------- ------------------------------
Carter F. Page Date
Chairman of the Board
and Director
/s/ 8/15/95
- -------------------------------- ------------------------------
Robert M. Walp Date
Vice Chairman of the Board
and Director
/s/ 8/14/95
- -------------------------------- ------------------------------
Donne F. Fisher Date
Director
/s/
- -------------------------------- ------------------------------
John W. Gerdelman Date
Director
/s/
- -------------------------------- ------------------------------
Larry E. Romrell Date
Director
/s/ 8/11/95
- -------------------------------- -----------------------------
James M. Schneider Date
Director
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 5
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the Plan has duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the locations and on the dates
indicated, effective for the Plan as of August 22, 1995.
GENERAL COMMUNICATION, INC. REVISED 1986 STOCK OPTION PLAN
By: Board of Directors of General Communication, Inc.
/s/ 8/8/95, Anchorage, Alaska
- -------------------------------- ------------------------------
Ronald A. Duncan Date, Location
/s/ 8/15/95
- -------------------------------- ------------------------------
Carter F. Page Date, Location
/s/ 8/15/95, Pasadena, California
- -------------------------------- ------------------------------
Robert M. Walp Date, Location
/s/ 8/14/95
- -------------------------------- ------------------------------
Donne F. Fisher Date, Location
/s/
- -------------------------------- ------------------------------
John W. Gerdelman Date, Location
/s/
- -------------------------------- ------------------------------
Larry E. Romrell Date, Location
/s/ 8/11/95
- -------------------------------- ------------------------------
James M. Schneider Date, Location
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 6
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS TO
FORM S-8 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
FOR THE GENERAL COMMUNICATION, INC.
REVISED 1986 STOCK OPTION PLAN
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 7
<PAGE>
EXHIBIT INDEX
Exhibit No.
Description
4 Instruments defining rights of security holders, including
indentures
4.1 (1) Restated Articles of Incorporation of General Communication,
Inc.
4.2 (2) Bylaws of General Communication, Inc.
4.3.1 (3) Separate resolutions of Board of Directors of the Company and
of Shareholders of the Company December 17, 1986 from meetings
at which the board established and the shareholders approved
the establishment of the 1986 Stock Option Plan
4.3.2 Copy of the General Communication, Inc. Revised 1986 Stock
Option Plan revised as of June 20, 1995
4.3.3 (3) Resolution of Shareholders of the Company adopted at their
September 15, 1988 meeting approving an increase in the number
of shares allocated by the Plan to 250,000 shares of Class A
common stock
4.3.4 (3) Resolution of Shareholders of the Company adopted at their
November 12, 1991 meeting approving certain amendments to the
Plan including increasing the number of shares allocated to
the Plan by 1,500,000 shares of Class A common stock
4.3.5 (3) Resolution of Board of Directors of the Company adopted at its
meeting on December 5-6, 1991 approving certain amendments to
the Plan including changing the option price per share to less
than, equal to, or greater than the market value, extending
the option exercise period from five to ten years, and making
other changes to the Plan
4.3.6 (3) Resolution of Board of Directors of the Company at its June 4,
1992 meeting to make certain changes to cause the Plan to
comply with Rule 16b-3
4.3.7 Resolution of Board of Directors of the Company adopted at its
meeting on February 9, 1995 approving certain amendments to
the Plan including increasing the number of shares allocated
to the Plan by 850,000 shares of Class A common stock
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 8
<PAGE>
4.3.8 Resolution of Shareholders of the Company adopted at their
June 20, 1995 meeting approving certain amendments to the Plan
recommended by the Board of Directors including increasing the
number of shares allocated to the Plan by 850,000 shares of
Class A common stock
5 Opinion re legality
5.1 (3) Legal Opinion on Legality of Options and Shares dated March
30, 1993
5.2 Legal Opinion on Legality of Options and Shares dated August
23, 1995
15 None
24 Consents
24.1 Consent of Wohlforth, Argetsinger, Johnson & Brecht, A
Professional Corporation
24.2 Consent of Harris, Orr, Wakayama & Mason, A Professional
Limited Liability Company
24.3 Consent of KPMG Peat Marwick LLP
25 None
28 None
29 None
- ---------------------------------------------
1/ Incorporated by reference and previously filed with the SEC as an
exhibit to the Company's annual report on Form 10-K for the year ended
December 31, 1991.
2/ Incorporated by reference and previously filed with the SEC as an
exhibit to the Company's annual report on Form 10-K for the year ended
December 31, 1992.
3/ Incorporated by reference and previously filed with the SEC as an
exhibit to the Company's Registration for the 1986 Stock Option Plan
(Registration No. 33-60222) filed April 5, 1993.
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 9
<PAGE>
EXHIBIT 4.3.2
CERTIFICATE OF SECRETARY
I, JOHN M. LOWBER, the duly elected and acting Secretary of General
Communication, Inc., an Alaska corporation, do hereby certify and declare that
the document attached hereto as Exhibit 4.3.2A is a true and correct copy of the
General Communication, Inc. Revised 1986 Stock Option Plan dated June 20, 1995
revised in accordance with the amendments to the plan adopted by the
shareholders of General Communication, Inc. at their annual meeting held on June
20, 1995.
Executed this 21st day of August, 1995, at Anchorage, Alaska.
GENERAL COMMUNICATION, INC.
By: /s/
--------------------------
John M. Lowber, Secretary
SUBSCRIBED AND SWORN TO before me this 21st day of August, 1995.
/s/ Barbara Bearman
-------------------------------
Notary Public in and for Alaska
My Commission Expires: 1/17/97
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 10
<PAGE>
EXHIBIT 4.3.2A
REVISED 1986 STOCK OPTION PLAN
OF
GENERAL COMMUNICATION, INC.
Revised June 20, 1995
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 11
<PAGE>
TABLE OF CONTENTS
SECTION TITLE PAGE
- ------- ----- ----
1 Purpose 3
2 Administration 3
3 Shares Covered by the Plan 5
4 Eligibility 5
5 Limitations on Granting of Options 5
6 Terms and Conditions of Options 5
7 Early Termination of Option 6
8 Payment for Stock 7
9 Nontransferability of Options 8
10 Changes in Stock 8
11 Employment Rights 8
12 Miscellaneous 9
13 Duration and Amendment of the Plan 9
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 12
<PAGE>
Section 1. Purpose. The purpose of this Revised 1986 Stock Option Plan
of General Communication, Inc., as amended from time to time ("Plan"), is to
provide a special incentive to selected officers, non-employee directors and
other key employees of General Communication, Inc. ("GCI") and its present and
future subsidiaries (GCI and such subsidiaries collectively the "Company") in
order to promote the business of the Company and to encourage such persons to
accept or continue employment or directorships with the Company. Accordingly,
the Company will offer to sell shares of the Class A Common Stock of GCI
("Stock") as provided in this Plan to such employees or non-employee directors
of the Company as are designated in accordance with the provisions of this Plan.
Section 2. Administration. (a) Board of Directors or Committee. The
Plan will be administered either by the Board of Directors of GCI ("Board of
Directors") or by a committee composed of two or more members of the Board of
Directors and appointed by the Board of Directors ("Committee"). The term
"Committee" will mean any committee so appointed, or, if there is none, the
Board of Directors. A member of the Board of Directors who is either eligible
for options or to whom options have been granted may vote on any matters
affecting the administration of the Plan or the granting of options under the
Plan; provided that the grant or award of those options is made with the
selection of the individuals described in Section 1 of the Plan and decisions
concerning the timing, pricing and amount of a grant or award, to be made solely
by the Board of Directors, if each member of the Board of Directors is a
disinterested person, or by the Committee if each of the Committee members is a
disinterested person; except that participation in any of the following will not
disqualify a member of the Board of Directors from being a disinterested person:
(i) Participation in a formula plan meeting the conditions of
subparagraph (c)(2)(ii) of Rule 16b-3, adopted pursuant to
the Securities Exchange Act of 1934;
(ii) Participation in an ongoing securities acquisition plan
meeting the conditions of subparagraph (d)(2)(i) of Rule
16b-3, adopted pursuant to the Securities Exchange Act of
1934, e.g., the Revised Qualified Employee Stock Purchase
Plan of General Communication, Inc.;
(iii) Election to receive an annual retainer fee in either cash or
an equivalent amount of securities, or partly in cash and
partly in securities; and
(iv) Participation in the Plan will not disqualify a member of
the Board of Directors from being a disinterested person for
the purpose of administering another plan that does not
permit participation by a member of the Board of Directors.
(b) Disinterested Person. For purposes of this Section 2, a
"disinterested person" means a member of the Board of Directors who is
not, during the one year prior to service as an administrator of the
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 13
<PAGE>
Plan, or during such service, granted or awarded equity securities
pursuant to the Plan or any other plan of the Company or any of its
affiliates.
(c) Authority of the Committee. Subject to the provisions of the
Plan, the Committee is authorized and directed as follows:
(i) To direct the grant of stock options;
(ii) To determine which of the employees of the Company or
non-employee members of the Board of Directors will be
granted options to purchase Stock, when such grants will be
made, and the number of shares of Stock to be covered by
such options;
(iii) To determine the fair market value of the Stock covered by
such options;
(iv) To determine the nature and amount of consideration to flow
to the Company on such options;
(v) To determine the manner and, in its discretion either
generally or in any one or more particular instances, to
accelerate the time or times when such options will be
exercisable;
(vi) To determine other conditions and limitations, if any, on
each option granted under the Plan (which need not be
identical);
(vii) To prescribe the form or forms of the instruments evidencing
the options and any restrictions imposed on the Stock
purchased under the options and of any other instruments
required under the Plan and to change such forms from time
to time;
(viii)To adopt, amend and rescind rules and regulations for the
administration of the Plan and waive compliance either
generally or in any one or more particular instances by an
optionee with the requirements of any such rule or
regulation or any option, subject to the provisions of the
Plan and any other applicable requirements;
(ix) To waive any restrictions imposed with respect to the
transferability of Stock acquired on exercise of options
granted under the Plan;
(x) To decide all questions and settle all controversies and
disputes which may arise in connection with the Plan; and
(xi) To interpret the Plan and to make all other determinations
deemed necessary or advisable for the administration of the
Plan.
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 14
<PAGE>
(d) Quorum, Decision of Committee Binding, Notice. A majority of
the members of the Committee will constitute a quorum, and all
decisions, determinations and interpretations of the Committee will be
made by a majority of its members. All decisions, determinations and
interpretations of the Committee will be binding on all parties
concerned. Any decision, determination or interpretation of the
Committee under the Plan may be made without notice or meeting of the
Committee but must be in writing signed by all of the members of the
Committee.
3. Shares Covered by the Plan. The Stock to be offered under the Plan
may be unissued shares as the Committee may from time to time determine. Subject
to Section 10 of the Plan, the number of shares available and reserved for issue
under the Plan will not exceed 3,200,000 shares of Stock. Shares covered by an
option that remain unpurchased upon expiration or termination of the option may
be used for further options under the Plan.
4. Eligibility. Key employees of the Company (including officers and
directors who are employees) and non-employee directors of the Company shall be
eligible for selection by the Committee as optionees under the Plan. In
selecting the individuals to whom options shall be granted, as well as in
determining the number of shares subject to each option, the Committee shall
take into consideration the recommendations of the members of the Committee who
are also employees of the Company and such factors as it shall deem relevant in
connection with accomplishing the purposes of the Plan. An individual who has
been granted an option may, if he or she is otherwise eligible, be granted an
additional option or options.
5. Limitations on Granting of Options. Options may be granted under the
Plan until the Plan is terminated or suspended by resolution adopted by the
Board of Directors.
6. Terms and Conditions of Options. All options granted under the Plan
shall be subject to the following terms and conditions and to such other terms
and conditions as the Committee shall determine to be appropriate to accomplish
the purposes of the Plan:
(i) Option Price. The option price per share of stock under each
option will be less than, equal to, or greater than the fair
market value (rounded down to the next lowest cent) per
share at the time the option is granted. For purposes of the
Plan, the fair market value and the option price per share
of the Stock on any date will be determined by the Committee
and may be computed by such method as the Committee will
consider as reflecting the fair market value of the Stock or
a price for the Stock which is less than or greater than
that fair market value on that date. The proceeds of sale of
Stock subject to option are to be added to the general funds
of the Company and used for such corporate purposes as the
Board of Directors may determine.
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 15
<PAGE>
(ii) Time of Granting Options. The date of grant of an option
under the Plan shall, for all purposes, be the date on which
the Committee makes the determination granting such option,
and no grant shall be deemed effective under the Plan prior
to such date. Notice of the determination shall be given to
each employee to whom an option is so granted within a
reasonable time after the date of such grant.
(iii) Period of Options. The period of an option will not exceed
ten years from the date of grant, and no option will be
exercisable after the expiration of such date. Except as
provided in Section 7 of the Plan, an optionee must, at the
time of exercise, be an employee of the Company or
non-employee member of the Board of Directors.
(iv) Exercise of Options. Except as hereinafter provided, each
option shall be made exercisable at such time or times,
whether or not in installments, as the Committee shall
prescribe at the time the option is granted. In the case of
an option not immediately exercisable in full, the Committee
may at any time accelerate the time at which all or any part
of the option may be exercised.
(v) Six-Month Holding Period. An option granted under this Plan
must be held by the optionee for at least six months from
the date of grant or acquisition to the date of disposition
of the option through exercise, conversion, or assignment as
may be allowed under the Plan.
7. Early Termination of Option. All options granted which have not as
yet become exercisable shall terminate immediately upon termination of
employment or termination of directorship for a non-employee director, death or
disability. All exercisable options that have not been exercised shall terminate
as follows:
(i) Termination of Employment or Directorship. All right to
exercise an option shall terminate not more than one month
after the optionee's employment or directorship terminates
for any reason other than his or her death or his or her
disability (within the meaning of Section 105(d)(4) of the
Internal Revenue Code). Transfer from one corporation within
the Company to another shall not be deemed termination of
employment. The Committee shall have the authority to
determine in each case whether an authorized leave of
absence or absence on military or governmental service shall
be deemed a termination of employment for purposes of this
subsection.
(ii) Death of Optionee. If any optionee dies while employed by or
serving as a director of the Company, or within three months
thereafter, his or her option shall terminate at the time
provided in the option certificate for termination in the
event of death or, if the option certificate contains no
such provision, the option shall terminate one year after
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 16
<PAGE>
the optionee's death (but in each instance not later than
the date the option would otherwise expire). In the
meantime, subject to the limitations in the option
certificate, the option may be exercised by the executors or
administrators of the optionee's estate or by the optionee's
legatees or heirs.
(iii) Disability. In the event of termination of an optionee's
employment or directorship as a result of disability within
the meaning of Section 105(d)(4) of the Internal Revenue
Code, an optionee's option shall terminate one year after
his or her employment terminates. In no event, however, may
an option be exercised after the expiration of the option
period.
8. Payment for Stock. Shares which are subject to an option shall be
issued only upon receipt by the Company of full payment of the consideration for
the shares as to which the option is exercised. The Company shall not be
obligated to deliver any shares unless and until, in the opinion of the
Company's counsel, all applicable federal and state laws and regulations have
been complied with, nor, in the event the outstanding Stock is at the time
listed upon any stock exchange, unless and until the shares to be delivered have
been listed or authorized to be added to the listing upon official notice of
issuance to such exchange, nor unless or until all other legal matters in
connection with the issuance and delivery of shares have been approved by the
Company's counsel. Without limiting the generality of the foregoing, the Company
may require from the optionee such investment representation or such agreement,
if any, as counsel for the Company may consider necessary in order to comply
with the Securities Act of 1933, as amended, and may require that the optionee
agree that any sale of the shares will be made only in such manner as is
permitted by the Committee and that the optionee will notify the Company when he
or she makes any disposition of the shares whether by sale, gift or otherwise.
The Company shall use its best efforts to effect any such compliance and
listing, and the optionee shall take any action reasonably requested by the
Company in such connection. An optionee shall have the rights of a shareholder
only as to shares actually acquired by him or her under the Plan.
9. Nontransferability of Options. No option may be transferred by the
optionee otherwise than by will or by the laws of descent and distribution, and
during the optionee's lifetime the option may be exercised only by the optionee.
More particularly, but without limiting the generality of the foregoing, an
option may not be assigned, transferred (except as provided in the next
preceding sentence), pledged, or hypothecated in any way (whether by operation
of law or otherwise), and will not be subject to execution, attachment or
similar process. Any attempted assignment, transfer, pledge, hypothecation or
other disposition of any option contrary to the provisions of the Plan, and any
levy of any attachment or similar process upon an option will be null and void
and without effect, and the Committee may, in its discretion, upon the happening
of any such event, terminate an option forthwith.
10. Changes in Stock. In the event of a stock dividend, stock split or
other change in corporate structure or capitalization affecting the Stock, the
number and kind of shares of stock on which options may be granted hereunder,
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 17
<PAGE>
the number and kind of shares of stock remaining subject to each option
outstanding at the time of such change and the option price shall be
appropriately adjusted by the Committee, whose determination shall be binding on
all parties concerned. Subject to any required action by the shareholders, if
GCI shall be the surviving corporation in any merger or consolidation (other
than a merger or consolidation in which GCI survives but its outstanding shares
are converted into securities of another corporation or exchanged for other
consideration), any option granted hereunder shall pertain and apply to the
securities which a holder of the number of shares of Stock then subject to the
option should have been entitled to receive. A dissolution or liquidation of GCI
or a merger or consolidation in which GCI is not the surviving corporation or
its outstanding shares are so converted or exchanged shall cause every option
hereunder to terminate, but at least 20 days prior to the effective date of any
such dissolution or liquidation (or if earlier any related sale of all or
substantially all assets) or of any such merger or consolidation, the Committee
shall either make all options outstanding hereunder immediately exercisable or
arrange that the successor or surviving corporation, if any, grant replacement
options.
11. Employment Rights. Neither the adoption of the Plan nor the grant
of any option under it shall confer upon any employee of the Company any right
to continued employment with the Company, nor shall either interfere in any way
with the right of the Company to terminate the employment of any of its
employees at any time, with or without cause. Neither the existence of the Plan
nor the grant of any option hereunder shall be taken into account in determining
any damages to which an employee may be entitled upon termination of his or her
employment.
12. Miscellaneous. (a) Other Awards and Compensation. The plan shall
not restrict the authority of the Board of Directors of the Company, acting
directly or by authorization to any committee, for proper corporate purposes, to
grant or assume stock options or replacements or substitutions therefor, other
than under the Plan, whether in connection with any acquisition or otherwise,
and with respect to any employee or other person, or to award bonuses or other
benefits to optionees under the Plan in connection with exercises under the Plan
or otherwise or to maintain or establish other compensation or benefit plans or
practices.
(b) Statutory References, etc. References to the provisions of statutes
and regulations in the Plan shall be deemed to refer to such provisions as from
time to time in effect, unless the context suggests otherwise.
13. Duration and Amendment of the Plan. (a) Termination, Suspension or
Discontinuance of Plan. The Plan shall continue until such time as the Board of
Directors' adoption of a resolution suspending or terminating the Plan or
discontinuing granting options under the Plan; provided, however, that any such
suspension, termination or discontinuance shall not affect any options then
outstanding under the Plan. No options under the Plan may be granted after
termination of the Plan.
(b) Amendment of Plan. The Plan may be amended only as follows:
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 18
<PAGE>
(i) The Board of Directors from time to time may make such
modifications or amendments of the Plan as it may deem
advisable but may not, without prior approval of the
shareholders of GCI, except as provided in Section 10 of the
Plan, do any of the following:
(A) Materially increase the benefits accruing to
participants under the Plan;
(B) Increase the number of shares which will be available
and reserved for issuance under the Plan; and
(C) Change the class of persons eligible to receive
options under the Plan.
(ii) Affirmative Vote Required. The affirmative vote on matters
set forth in (b)(i) of this Section 13 will be required by
the holders of at least a majority of the outstanding
securities of the Company present or represented and
entitled to vote at a meeting duly held in accordance with
the Alaska Corporations Code, the Articles of Incorporation
of the Company, and the Bylaws of the Company, and in
accordance with the rules and regulations in effect pursuant
to Section 14(a) of the Securities Exchange Act of 1934 at
the time of such vote including providing such information
concerning the Plan which would be required under those
rules and regulations where such written information must be
furnished by mail to the last known address of the
securities holders of record within 30 days prior to the
date of mailing, and four copies of such written information
will be filed with or mailed for filing to the Securities
and Exchange Commission not later than the date on which it
is first sent or given to securities holders of the Company.
(c) Amendment of Outstanding Options. The Committee may at any time or
times amend any outstanding option or options for the purpose of satisfying the
requirements of any changes in applicable laws or regulations. Further, it may,
with the consent of the holder of the option, make such modifications or
amendments as it shall deem advisable.
(d) Limitation. Except as provided in Section 10 of this Plan, neither
the termination nor any modifications or amendment of the Plan or any
outstanding option shall, without the consent of the holder of an option
theretofore granted under the Plan, adversely affect the rights of such holder
with respect to such option or alter or impair any option previously granted
under the Plan.
(e) Termination of Right of Action. Every right of action arising out
of or in connection with the Plan by or on behalf of the Company, or by any
shareholder of GCI against any past, present or future member of the Board of
Directors or against any employee, or by an employee (past, present or future)
against the Company shall, irrespective of the place where an action may be
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 19
<PAGE>
brought and irrespective of the place or residence of any such shareholder,
director or employee, cease and be barred by the expiration of three years from
the date of the act or omission with respect to which such right of action is
alleged to have arisen.
(f) Effectiveness of the Plan. The Plan shall become effective on
December 20, 1986, but shall be subject to approval by the shareholders of GCI
at a meeting of shareholders duly called and held, or by written consent duly
given, no later than twelve months after the date of adoption of the Plan by the
Board of Directors.
IN WITNESS hereof, General Communication, Inc. has executed this
Revised 1986 Stock Option Plan of General Communication, Inc. this 31st day of
July, 1995.
GENERAL COMMUNICATION, INC.
/s/
--------------------------
Ronald A. Duncan
President and Chief
Executive Officer
/s/
--------------------------
John M. Lowber
Secretary
[S E A L]
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 20
<PAGE>
EXHIBIT 4.3.7
CERTIFICATE OF SECRETARY
I, JOHN M. LOWBER, the duly elected and acting Secretary of General
Communication, Inc., an Alaska corporation, do hereby certify and declare that
the resolution of the Board of Directors attached hereto as Exhibit 4.3.7A is a
true and correct copy of a resolution duly adopted by the Board of Directors of
General Communication, Inc. at its meeting held on February 9, 1995.
Executed this 21st day of August, 1995, at Anchorage, Alaska.
GENERAL COMMUNICATION, INC.
By: /s/
--------------------------
John M. Lowber, Secretary
SUBSCRIBED AND SWORN TO before me this 21st day of August, 1995.
/s/ Barbara Bearman
------------------------------
Notary Public in and for Alaska
My Commission Expires: 1/17/97
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 21
<PAGE>
EXHIBIT 4.3.7A
BOARD RESOLUTION
RESOLVED, that the following amendments to the Revised 1986 Stock
Option Plan ("Stock Option Plan") of General Communication, Inc.
("Company"), are hereby approved and otherwise ratified by the Board of
Directors of the Company: (1) to increase the number of shares
authorized and allocated to the Stock Option Plan by 850,000 shares of
Class A common stock, i.e., to increase the number of such shares from
2,350,000 to 3,200,000 shares of Class A common stock; and (2) to
remove any provision of the plan for termination of granting of options
under it after December 20, 1996 or otherwise for its mandatory
termination after ten years.
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 22
<PAGE>
EXHIBIT 4.3.8
CERTIFICATE OF SECRETARY
I, JOHN M. LOWBER, the duly elected and acting Secretary of General
Communication, Inc., an Alaska corporation, do hereby certify and declare that
the shareholder resolution attached hereto as Exhibit 4.3.8A is a true and
correct copy of a resolution duly adopted by the shareholders of General
Communication, Inc. at their meeting held on June 20, 1995.
Executed this 21st day of August, 1995, at Anchorage, Alaska.
GENERAL COMMUNICATION, INC.
By: /s/
--------------------------
John M. Lowber, Secretary
SUBSCRIBED AND SWORN TO before me this 21st day of August, 1995.
/s/ Barbara Bearman
------------------------------
Notary Public in and for Alaska
My Commission Expires: 1/17/95
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 23
<PAGE>
EXHIBIT 4.3.8A
SHAREHOLDER RESOLUTION
"RESOLVED, that the following amendments to the Revised 1986 Stock
Option Plan ("Stock Option Plan") of General Communication, Inc.
("Company"), adopted by the board of directors of the Company at its
February 9, 1995 meeting, are hereby approved and otherwise ratified by
the shareholders of the Company: (1) to increase the number of shares
authorized and allocated to the Stock Option Plan by 850,000 shares of
Class A common stock, i.e., to increase the number of such shares from
2,350,000 to 3,200,000 shares of Class A common stock; and (2) to
remove any provision of the plan for termination of granting of options
under it after December 20, 1996 or otherwise for its mandatory
termination after ten years.
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 24
<PAGE>
EXHIBIT 5.1
August 23, 1995
Ronald A. Duncan, President
General Communication, Inc.
2550 Denali Street, Suite 1000
Anchorage, Alaska 99503
Re: Opinion As To Legality of Shares To Be Issued Pursuant To General
Communication, Inc. Revised 1986 Stock Option Plan as Revised on June 20,
1995; Our File No. 618.0725
Dear Mr. Duncan:
You have requested an opinion from this firm on behalf of General
Communication, Inc. ("Company"), in connection with 850,000 shares of Class A
common stock of the Company ("Shares") to be issued in conjunction with the
Company's Revised 1986 Stock Option Plan ("Plan"), the allocation of which
Shares was approved by the shareholders of the Company at its annual meeting
held on June 20, 1995.
It is this firm's understanding that the facts surrounding these
proposed transactions are represented by the Company as follows ("Facts"):
1. The Plan was adopted by the board of directors of the
Company ("Board") by resolution at its December 17, 1986
meeting called and conducted in accordance with the Restated
Articles of Incorporation and Bylaws of the Company
("Articles" and "Bylaws", respectively), and the Plan was
approved by the Company's then sole shareholder, Western
Tele-Communications, Inc. (which corporation's present name is
WestMarc Communications, Inc.), by resolution at the Company's
shareholder meeting held on December 17, 1986;
2. The Articles provide that the Company has the power to
issue and sell any stock and further expressly provides for
the issuance of Class A common stock;
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 25
<PAGE>
Ronald A. Duncan
August 23, 1995
Page 2
3. The Plan initially provided for the granting of options to
eligible employees to purchase up to 600,000 shares of Class A
common stock of the Company. Subsequently, the shareholders of
the Company at their September 15, 1988, November 12, 1991,
and June 20, 1995 annual meetings authorized amendments to the
Plan by approving allocations to the Plan of an additional
250,000 shares, 1,500,000 shares, and 850,000 shares of Class
A common stock of the Company, respectively. As of the date of
this letter, there were shares available for issuance by the
Company under the Plan and pursuant to the Articles. At the
November 12 meeting, the shareholders also approved an
extension of the period during which an option may be
exercised under the Plan from five years to ten years as
measured from the date of granting of the option; and at the
June 20 meeting, the shareholders also approved the removal of
any provision of the Plan for termination of granting of
options under it after December 20, 1996 or otherwise for its
mandatory termination after ten years;
4. The Articles and Bylaws in effect as of the date of this
letter were materially the same as those in effect as of
November 25, 1986 with respect to the power to grant options
in and issue Class A common stock;
5. The Company was incorporated as an Alaska corporation and
received a Certificate of Incorporation dated July 16, 1979
from the Alaska Department of Commerce and Economic
Development; and
6. The Company is in good standing with respect to the
reporting and corporation tax requirements of the Alaska
Corporations Code to which it is subject, and the Company is
otherwise validly existing as an Alaska corporation pursuant
to the laws of the State of Alaska with all requisite powers
to own property and to conduct its business in the manner
contemplated by the Articles and Bylaws.
Copies of the Articles and Bylaws, dated November 25, 1986 and as
amended, Certificate of Incorporation, the above referenced resolutions, and the
Plan as amended have been delivered to this firm. We have reviewed these
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 26
<PAGE>
Ronald A. Duncan
August 23, 1995
Page 3
documents. The Articles provide that the Company is organized for the
purposes of transacting any and all lawful business for which corporations may
be incorporated under the Alaska Corporations Code.
Based upon the foregoing Facts, we are of the opinion as follows.
Assuming due compliance with applicable federal and state securities laws, (1)
the Shares will, when issued through the respective options under the Plan,
represent newly created and legally issued, fully paid, and non-assessable
shares of Class A common stock in the Company, and (2) each holder of a Share
will be entitled to the benefits of a stockholder pro rata based upon ownership
of outstanding shares of Class A common stock of the Company.
This letter must not be quoted or referred to in the Company's
financial statements or provided to persons other than the officers and
directors of the Company without prior consultation with us or our prior written
consent. The firm is aware of the Company's intent to and consents to use of
this letter as an exhibit in a Form S-8 registration with the Securities and
Exchange Commission pertaining to the Shares to be allocated to the Plan.
Sincerely,
WOHLFORTH, ARGETSINGER,
JOHNSON & BRECHT
/s/
J. J. Brecht
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 27
<PAGE>
EXHIBIT 24.1
CONSENT OF LEGAL COUNSEL
We hereby consent to the use, in the Prospectus as outlined in
Securities and Exchange Commission Form S-8, of our name as special counsel to
General Communication, Inc. in the preparation of the Prospectus and the
rendering of certain opinions including an opinion as to the legality of the
shares..
WOHLFORTH, ARGETSINGER, JOHNSON
& BRECHT,
A Professional Corporation
/s/
Anchorage, Alaska
August 21, 1995
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 28
<PAGE>
EXHIBIT 24.2
CONSENT OF LEGAL COUNSEL
We hereby consent to the use, in the Prospectus as outlined in
Securities and Exchange Commission Form S-8, or our name as special tax counsel
to General Communication, Inc. in the preparation of the Prospectus.
/s/
HARRIS, ORR, WAKAYAMA & MASON
A Professional Limited Liability Company
Seattle, Washington
July 24, 1995
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 29
<PAGE>
EXHIBIT 24.3
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors and Stockholders
General Communication, Inc.:
We consent to the use of our report dated March 17, 1995 on
the consolidated financial statements of General Communication, Inc. and
subsidiaries as of December 31, 1994 and 1993 and for each of the years in the
three-year period ended December 31, 1994, incorporated herein by reference and
to the reference to our firm under the heading "Experts."
/s/
KPMG PEAT MARWICK LLP
Anchorage, Alaska
August 23, 1995
Registration Statement (S-8) Amendment No. 1
GCI Stock Option Plan
ASS007A0 Page 30
RESTATED ARTICLES OF INCORPORATION
OF
GENERAL COMMUNICATION, INC.
The following are the Restated Articles of Incorporation of
General Communication, Inc., adopted by the Board of Directors of that
corporation by a unanimous vote at a meeting held on March 24, 1993, and are
executed by that corporation through its president and its secretary and
verified by its secretary. These Restated Articles of Incorporation correctly
set forth, without change, all of the operative provisions of the Articles of
Incorporation as amended up to that time, and these Restated Articles of
Incorporation supersede the original Articles of Incorporation and all
amendments to them.
ARTICLE I
The name of the corporation is General Communication, Inc.
("Corporation").
ARTICLE II
The duration of this Corporation shall be perpetual.
ARTICLE III
The Corporation is organized for the purposes of transacting
any and all lawful business for which corporations may be incorporated under the
Alaska Corporations Code (AS 10.06).
ARTICLE IV
(a) The total number of shares of stock which the Corporation
shall have authority to issue is sixty-one million shares divided into the
following classes:
(i) Fifty million shares of Class A Common Stock;
RESTATED ARTICLES OF INCORPORATION PAGE 1
ASS007BC/1993
<PAGE>
(ii) Ten million shares of Class B Common Stock; and
(iii) One million shares of Preferred Stock.
(b) Each share of Class A Common Stock shall be identical in
all respects with the Class B Common Stock, except that each holder of Class A
Common Stock shall be entitled to one vote for each share of such stock held,
and each holder of Class B Common Stock shall be entitled to ten votes for each
share of such stock held.
(c) The Board of Directors is authorized, subject to
limitations prescribed by law and to the provisions of this Article IV, to
provide for the issuance of Preferred Stock from time to time in one or more
series with such distinctive serial designations, rights, preferences and
limitations of the shares of each such series as the Board of Directors shall
establish. The authority of the Board of Directors with respect to each series
shall, to the extent allowed by law, include the authority to establish and fix
the following:
(i) the number of shares initially constituting the
series and the distinctive designation of that series;
(ii) The extent, if any, to which the series shall have
voting rights, whether none, full, fractional or otherwise limited,
subject, however, to the limitation that at the time of creation of any
particular series of Preferred Stock, the voting rights, if any, of
that particular series of Preferred Stock, plus the total voting rights
then authorized for all other Preferred Stock, shall not exceed five
percent of the aggregate voting rights of all Class A Common Stock and
Class B Common Stock issued and outstanding at that time;
(iii) Whether entitled to receive dividends (which may be
cumulative or noncumulative) at such rate or rates, on such conditions,
and at such times and payable in preference to, or in such relation to,
the dividends payable on any other class or classes or any other series
of the same or any other class or classes of stock of the Corporation;
(iv) The rights of the shares of that series in the event
of voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, or upon any distribution of its assets;
(v) Whether the shares have conversion privileges and, if
so, the terms and conditions of such conversion privileges, including
provision, if any, for adjustment of the conversion rate and for
payment of additional amounts by holders of Preferred Stock of that
series upon exercise of such conversion privileges;
RESTATED ARTICLES OF INCORPORATION PAGE 2
ASS007BC/1993
<PAGE>
(vi) Whether or not the shares of that series shall be
redeemable, and, if so, the price at and the terms and conditions upon
which such shares shall be redeemable, and whether that series shall
have a sinking fund for the redemption or purchase of shares of that
series, and, if so, the terms and amount of such sinking fund;
(vii) That the Corporation, through a resolution adopted
by its Board of Directors, may agree that, upon the occurrence and
during the continuation of an event of noncompliance by the Corporation
as defined in the terms of an agreement under which Preferred Stock or
a series of Preferred Stock is issued and outstanding, the then holders
of the issued and outstanding shares of that stock will have the
exclusive right to elect additional directors to the Board of
Directors, and each director so elected will thereupon become an
additional director of the Corporation, and the authorized directors of
the Corporation will thereupon be automatically increased by the number
of added directors; provided that under no circumstances will the right
granted through this Article IV to so elect additional directors extend
beyond two additional directors at any one time;
(viii) That the Corporation, through a resolution adopted
by its Board of Directors, may agree with the holders of Preferred
Stock issued or to be issued and outstanding that, without the consent
of the holders of at least two-thirds of the number of shares of that
Preferred Stock, the Corporation will not: (A) effect any changes in
the rights, privileges or preferences of that Preferred Stock; (B)
create, designate or issue any class or series of senior securities
(any class or series of capital stock of the Corporation ranking senior
to that Preferred Stock) or parity securities (any class or series of
capital stock entitled to receive payment of dividends on a parity with
that Preferred Stock or entitled to receive assets upon liquidation,
dissolution or winding up of the affairs of the Corporation on a parity
with that Preferred Stock), in respect of the right to receive
dividends or in respect of the right to participate in any distribution
upon liquidation, dissolution, or winding up of the affairs of the
Corporation; or (C) approve any other action with respect to which,
under applicable law, the vote of the holders of that Preferred Stock
as a separate series or class is required; and such consents will
either be given in writing or by vote at a meeting called for that
purpose at which the holders of that Preferred Stock will vote as a
series or class; and
(ix) Such other preferences and relative participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof.
RESTATED ARTICLES OF INCORPORATION PAGE 3
ASS007BC/1993
<PAGE>
(d) Notwithstanding the fixing of the number of shares
constituting a particular series upon the issuance thereof, the Board of
Directors may, at any time thereafter, authorize the issuance of additional
shares of the same series or may reduce the number of shares constituting such
series, provided that such number shall not be reduced to less than the number
of shares of such series then issued and outstanding.
(e) The Board of Directors is expressly authorized to vary the
provisions relating to the foregoing matters between the various series of
Preferred Stock, but in all other respects the shares of each series shall be of
equal rank with each other, regardless of series. All Preferred Stock of any one
series shall be identical in all respects, except as to the dates from which
dividends shall be cumulative, if such dividends are provided.
(f) Except as may be determined by the Board of Directors of
the Corporation pursuant to paragraph (c) of this Article IV with respect to the
Preferred Stock, and except as otherwise expressly required by the laws of the
state of Alaska, as then in effect, the holders of the Class A Common Stock and
the holders of the Class B Common Stock shall vote with the holders of voting
shares of the Preferred Stock, if any, 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.
(g) Except as otherwise expressly required by law, any and all
rights, titles, interests and claims in or to any dividends declared by the
Corporation whether in cash, stock or otherwise, which are unclaimed by the
shareholder entitled thereto for a period of six years after the close of
business on the payment date, shall be and be deemed to be extinguished and
abandoned; and such unclaimed dividends in the possession of the Corporation,
its transfer agents or other agents or depositories, shall at such time become
the absolute property of the Corporation, free and clear of any and all claims
of any person whatsoever.
(h) 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. To
exercise the conversion option, a holder of Class B shares must deliver the
certificate or certificates representing the shares of Class B Common Stock to
be converted, duly endorsed in blank, to the Secretary of the Corporation, and
at the same time, notify the Secretary in writing of such holder's desire to so
convert and instruct the Secretary as to the number of shares he or she wishes
converted. Upon receipt by the Secretary of the foregoing certificates and
instructions, the Corporation shall cause to be issued to the holder of the
Class B Common Stock one share of Class A Common Stock for each share of Class B
Common Stock requested to be converted, issuing and delivering to such holder
RESTATED ARTICLES OF INCORPORATION PAGE 4
ASS007BC/1993
<PAGE>
certificates for shares of Class A Common Stock issued upon such conversion and
all shares of Class B Common Stock remaining unconverted, if any, represented by
such certificates. A number of shares of Class A Common Stock equal to the
number of shares of Class B Common Stock outstanding shall, from time to time,
be set aside and reserved for issuance upon conversion of Class B Common Stock.
Class A Common Stock shall not be convertible into Class B Common Stock.
(i) At each election for directors, every shareholder entitled
to vote at such election will have the right to vote in person or by proxy, the
number of shares owned by that shareholder for as many persons as there are
directors to be elected and for whose election that shareholder has a right to
vote, and such a shareholder will not be allowed to cumulate that shareholder's
votes.
(j) The Corporation will have the power to redeem and
otherwise buy back a portion or all of any or all classes or series of shares of
its stock as allowed by law, including AS 10.06.325, and as the Board of
Directors, in its sole discretion, will deem advisable.
ARTICLE V
(a) The governing body of this Corporation shall be a Board of
Directors. The number of directors shall be determined in the manner provided in
the Bylaws of the Corporation; provided, however, that the number of directors
shall not be less than three nor more than twelve.
(b) Upon the establishment of the Board of Directors of the
Corporation as having three or more members ("Class Date"), that board will be
divided into three classes: Class I, Class II and Class III. Each such class
will consist, as nearly as possible, of one-third of the whole number of the
Board of Directors. Directors in office on the Class Date will be divided among
such classes and in such manner, consistent with the provisions of this Article
V, as the Board of Directors may determine by resolution. The initial Class I
directors so determined shall serve until the next annual meeting of
stockholders of the Corporation following such date. The initial Class II
directors so determined shall serve until the second annual meeting of
stockholders of the Corporation following such date. The initial Class III
directors so determined shall serve until the third annual meeting of
stockholders of the Corporation following such date. In the case of each such
class, such directors shall serve, subject to their earlier death, resignation
or removal in accordance with these Articles of Incorporation, the Bylaws of the
Corporation and the laws of the State of Alaska, until their respective
successors shall be elected and shall qualify. At each annual meeting of
stockholders after the date of such filing, the directors chosen to succeed
those whose terms shall have expired shall be elected to hold office for a term
to expire at the third succeeding annual meeting of stockholders after their
RESTATED ARTICLES OF INCORPORATION PAGE 5
ASS007BC/1993
<PAGE>
election and, subject to their earlier death, resignation or removal in
accordance with these Articles of Incorporation, the Bylaws of the Corporation
and the laws of the State of Alaska, until their respective successors shall be
elected and shall qualify. If the number of directors is changed, any increase
or decrease shall be apportioned among such classes so as to maintain all
classes as equal in number as possible, and any additional director elected to
any class shall hold office for a term which shall coincide with the terms of
the other directors in such class. Any vacancy occurring on the Board of
Directors caused by death, resignation, removal or otherwise, and any newly
created directorship resulting from an increase in the number of directors on
that Board, may be filled by the directors then in office, although such
directors are less than a quorum, or by the sole remaining director. Each
director chosen to fill a vacancy or newly created directorship shall hold
office until the next election of the class for which such director shall have
been chosen and, subject to that director's earlier death, resignation or
removal in accordance with these Articles of Incorporation, the Bylaws of the
Corporation and the laws of the State of Alaska, until that director's successor
shall be duly elected and shall qualify.
(c) The Corporation shall have the power to issue and sell any
stock, in exchange for such consideration (whether cash, services, assets or
stock of or any interest in any business, or any other property, real or
personal, whatsoever) as the Board of Directors, in its sole discretion, shall
deem advisable. Any stock so issued or sold by the Corporation shall be deemed
fully paid and non-assessable.
ARTICLE VI
The capital stock of this Corporation shall not be assessable.
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 VII
No shareholder of the Corporation shall have any preemptive
right to subscribe for, purchase or receive, or to be offered the opportunity to
subscribe for, purchase or receive, any part of any shares of stock of the
Corporation of any class, whether now or hereafter authorized and whether
unissued shares or not, at any time issued or sold by the Corporation, or any
part of any options, warrants, rights, bonds, debentures or other evidences of
indebtedness or any other securities of the Corporation convertible into,
exchangeable or exercisable for, or otherwise entitling the holder thereof to
purchase or receive, any such shares. Any and all of such shares, options,
warrants, rights, bonds, debentures or other evidences of indebtedness or other
securities of the Corporation convertible into, exchangeable or exercisable for,
or otherwise entitling the holder thereof to purchase or receive, any such
RESTATED ARTICLES OF INCORPORATION PAGE 6
ASS007BC/1993
<PAGE>
shares may be issued and disposed of by the Board of Directors on such terms and
for such consideration, so far as may be permitted by applicable law, and to
such person or persons, as the Board of Directors in its absolute discretion may
deem advisable.
ARTICLE VIII
The Corporation shall indemnify, to the full extent permitted
by, and in the manner permissible under, the laws of the State of Alaska and any
other applicable laws, any person made or threatened to be made a party to an
action or proceeding, whether criminal, civil, administrative or investigative,
other than an action by or in the right of the Corporation, by reason of the
fact that the person is or was a director, officer, employee or agent of this
Corporation or is or was serving at the request of the Corporation as a director
or officer, employee or agent of another corporation, partnership, joint
venture, trust, or other enterprise. The foregoing provisions of this Article
VIII will be deemed to be a contract between this Corporation and each director
and officer who serves in such capacity at any time while this Article VIII is
in effect, and any repeal or modification of this Article VIII shall not affect
any rights or obligations then existing with respect to any statement of facts
then or theretofore existing or any action, suit or proceeding theretofore or
thereafter brought based in whole or in part upon any such statement of facts.
The foregoing rights of indemnification shall not be deemed exclusive of any
other rights to which any director or officer or his legal representative may be
entitled apart from the provisions of this Article VIII.
ARTICLE IX
As of the date of these Restated Articles of Incorporation,
the Corporation had no alien affiliates.
ARTICLE X
Only the Board of Directors is expressly authorized and
empowered to adopt, alter, amend or repeal any provision or all of the Bylaws of
this Corporation, to the exclusion of the outstanding shares of the Corporation.
ARTICLE XI
By the affirmative vote of at least 75% of the directors, the
Board of Directors may designate an Executive Committee, all of whose members
shall be directors, to manage and operate the affairs of the Corporation or
RESTATED ARTICLES OF INCORPORATION PAGE 7
ASS007BC/1993
<PAGE>
particular properties or enterprises of the Corporation. Subject to limitations
provided by the laws of the State of Alaska, said committee shall have the power
to perform or authorize any act that could be done or accomplished by the
majority action of all the directors of the Corporation. The Board of Directors
may by resolution establish other committees than an Executive Committee and
shall specify with particularity the powers and duties of any such committees.
ARTICLE XII
Notwithstanding the Corporation's incorporation prior to the
effective date of the Alaska Corporations Code, the Corporation elects to be
governed by the provisions of the Alaska Corporations Code not otherwise
applicable to it because the Corporation existed at the effective date of that
code and, in particular, the voting provisions of AS 10.06.504 - 10.06.506 of
that code pertaining to the procedure to amend articles of incorporation and
class voting on amendments to those articles.
IN WITNESS WHEREOF, the Corporation through its corporate
officers hereby executes these Restated Articles of Incorporation of General
Communication, Inc. on this 4th day of August, 1993.
GENERAL COMMUNICATION, INC.
By: /s/
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Ronald A. Duncan
President
By: /s/
------------------------------
John M. Lowber
Secretary
[ S E A L ]
RESTATED ARTICLES OF INCORPORATION PAGE 8
ASS007BC/1993
<PAGE>
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
BEFORE ME, the undersigned authority, personally appeared JOHN
M. LOWBER, who, first by me being duly sworn, deposes and states that he is the
secretary of General Communication, Inc., that he has read the above and
foregoing RESTATED ARTICLES OF INCORPORATION OF GENERAL COMMUNICATION, INC. and
knows the contents therein; and that each and all of said facts and matters are
true and correct to the best of his information and belief.
/s/
-------------------------
John M. Lowber
SUBSCRIBED AND SWORN to before me this 4th day of August, 1993.
/s/ Barbara Bearman
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Notary Public in and for Alaska
My Commission Expires: 1-17-97
RESTATED ARTICLES OF INCORPORATION PAGE 9
ASS007BC/1993
BYLAWS OF
GENERAL COMMUNICATION, INC. (1)
ARTICLE I
OFFICES
The Corporation shall maintain a principal office of the
Corporation in the State of Alaska as required by law. The Corporation may
also have offices in such other places, either within or without the State
of Alaska, as the Board of Directors of the Corporation ("Board") may from
time to time designate or as the business of the Corporation may require.
ARTICLE II
SEAL
The seal of the Corporation shall be in such form as may
be required by law and as shall be approved by the Board. Until changed by
the Board, the seal of the Corporation shall be in the form impressed
immediately following this Article II. The seal may be used by causing it,
or a facsimile thereof, to be impressed or affixed or reproduced or
otherwise.
[ S E A L ]
ARTICLE III
STOCKHOLDERS' MEETING
Section 1. Place of Meetings. Meetings of the stockholders
of the Corporation ("Stockholders") shall be held at such place either
within or without the State of Alaska as may from time to time be designated
by the Board and stated in the notice of the meeting.
Section 2. Annual Meeting of Stockholders. (a) The annual
meeting of the Stockholders ("Annual Meeting") shall be
--------------------
1 As amended and restated on November 25, 1986, July 6, 1988, April
3, 1990 and March 24, 1993.
<PAGE>
held on the l5th day of May of each year at the hour of 10:00 a.m., or at
such other time and date as shall be designated by the Board and stated in
the notice of meeting. The purpose of the meeting shall be the election of
directors and the transaction of such other business as properly may be
brought before the meeting.
(b) If the election of directors shall not be held on the
day designated in (a) of this Section 2 for any Annual Meeting, or at any
adjournment of such meeting, the Board shall call a special meeting of the
Stockholders as soon as conveniently possible thereafter. At such meeting,
the election of directors shall take place, and such election and any other
business transacted thereat shall have the same force and effect as at an
Annual Meeting duly called and held.
Section 3. Special Stockholders' Meetings. Special
meetings of the Stockholders may be called at any time by the President, the
Chairman of the Board of Directors, the Board of Directors, or the holders
of not less than one-tenth of all the shares entitled to vote at such
meeting. Such request shall state the purpose of the proposed meeting. For
such meetings, notices shall be given in the same manner as notices of the
Annual Meeting, except they shall be signed by the persons calling the
meeting. No special Stockholders' meetings shall consider any business
except that which is designated in general terms in the notice of the
meeting. Any meeting to amend the Articles of Incorporation of the
Corporation as the same may be amended or restated from time to time
("Articles of Incorporation") shall describe generally the proposed
amendment.
Section 4. Notices of Meetings. Written or printed notice
stating the place, day and hour of the meeting and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, will be
signed and delivered not less than 20 nor more than 60 days before the date
of the meeting, either personally or by mail, by or at the direction of the
President, the Secretary or the officer or persons calling the meeting, to
each Stockholder of record entitled to vote at such meeting. Only
Stockholders of record on the record date established by the Board of
Directors pursuant to Section 6 of this Article III will be entitled to
notice of such meeting. If mailed, such notice will be deemed to be
delivered when deposited with postage prepaid in the United States mail
addressed to the Stockholder at the address of the Stockholder as appears on
the stock transfer books of the Corporation, or, if the Stockholder has
filed with the Secretary a written request that the notice be mailed to a
different address, the Corporation will mail the notice to that other
address. Except where otherwise required by law or these
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Bylaws, notice need not be given of any adjourned meeting of the
Stockholders.
Section 5. Quorum. The holders of a majority of the stock
issued and outstanding and entitled to vote, present in person or
represented by proxy, will constitute a quorum at all meetings of the
Stockholders for the transaction of business except as otherwise provided by
applicable law or by the Articles of Incorporation; provided that in no
event may a quorum consist of less than one-third of the shares entitled to
vote at the meeting. The Stockholders present in person or represented by
proxy at a duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough Stockholders to leave
less than a quorum, if any action taken other than adjournment is approved
by at least a majority of shares required to constitute a quorum. If,
however, such quorum initially is not present or represented at any meeting
of the Stockholders, those Stockholders present in person or represented by
proxy and entitled to vote will have power to adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a
quorum is present or represented. At such reconvened meeting at which a
quorum is present or represented, any business may be transacted which might
have been transacted at the original meeting.
Section 6. Voting. (a) At each meeting of the
Stockholders, every Stockholder having the right to vote shall be entitled
to vote, either in person or by proxy, the number of votes as provided for
in or pursuant to the Articles of Incorporation for each share of voting
stock registered in that Stockholder's name on the books of the Corporation
on the date of the closing of the books against transfers of stock, the
record date fixed for the determination of Stockholders entitled to vote at
such meeting, or if the books are not so closed or no such date is fixed,
the date of such meeting. When a quorum is present at any meeting, the
affirmative vote of a majority of the votes represented by the issued and
outstanding shares entitled to vote, present in person or represented by
proxy, shall decide any matter brought before such meeting, unless the
question is one upon which, by express provision of the laws of the State of
Alaska or of the Articles of Incorporation, a different vote is required, in
which case such express provision shall govern and control the decision of
such question. Except as may be determined by the Board of Directors of the
Corporation with respect to the Preferred Stock and except as otherwise
expressly required by the laws of the State of Alaska or the Articles of
Incorporation, as then in effect, the holders of the Class A Common Stock of
the Corporation and the holders of the Class B Common Stock of the
Corporation shall vote with the holders of voting shares of the Preferred
Stock of the Corporation, if any, as one class for the election of directors
and for all other purposes.
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Section 7. Record Date. In order to determine the holders
of record of the Corporation's stock who are entitled to notice of meetings,
to vote at a meeting or adjournment thereof, and to receive payment of any
dividend, or to make a determination of the Stockholders of record for any
proper purpose, the Board (i) may prescribe a record date which in no event
will be more than 70 days nor less than 20 days, prior to the date of the
action which requires such determination during which no transfer of stock
on the books of the Corporation may be made or (ii) may, in lieu of closing
the stock transfer books of the Corporation, fix a record date which in no
event will be more than 60 days nor less than 20 days prior to the date of
the action which requires such determination as the record date for such
determination of Stockholders.
Section 8. Presiding Officer; Order of Business; Conduct
of Meeting. (a) Meetings of the Stockholders shall be presided over by the
Chairman of the Board, or if the Chairman is not present, by the President,
or if the President is not present, by a Vice President. The Secretary of
the Corporation, or, in the Secretary's absence, an Assistant Secretary,
shall act as secretary of every meeting. In the absence of the Secretary or
Assistant Secretary, the chairman of the meeting may choose any person
present to act as secretary of the meeting.
(b) Subject to the provisions of this Section 8, meetings
of Stockholders shall generally follow accepted rules of parliamentary
procedure, including but not limited to the following:
(1) Except when overruled by a majority of the
votes represented by the votes held by Stockholders present, the
chairman of the meeting shall have absolute authority over matters
of procedure and authority to state the rules under which the
voting shall be conducted.
(2) If disorder shall arise which prevents
continuation of the legitimate business of the meeting, the
chairman may quit the chair and announce the adjournment of the
meeting; and upon taking such action, the meeting shall be
automatically adjourned.
(3) The chairman may ask or require that anyone
not a bona fide Stockholder or proxy leave the meeting.
(4) A resolution or motion shall be considered for
a vote if proposed by a Stockholder or duly authorized proxy, and
seconded by an individual, who is a Stockholder or a duly
authorized proxy, other than the individual who proposed the
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resolution or motion.
(c) The following order of business shall be observed at
all Annual Meetings insofar as is practicable:
(1) Call the roll.
(2) Read, correct and approve minutes of a
previous meeting, unless the reading is
waived.
(3) Address special business stated in the notice
of meeting.
(4) Elect directors.
(5) New business.
(d) At any special meeting of Stockholders, the business
transacted shall be confined to the purpose described in the notice of the
meeting. When such objectives include the amendment of the Articles of
Incorporation, both notices of annual and special meetings wherein such
questions are considered shall describe with reasonable certainty the
proposed amendment.
Section 9. Proxies. A Stockholder may vote his shares
through a proxy or attorney-in-fact appointed by a written instrument signed
by the Stockholder and delivered to the secretary of the meeting. No proxy
shall be valid after six months from the date of its execution, unless a
longer period is expressly provided in the proxy, but in no case may the
proxy be valid for a period in excess of 11 months from the date of
execution. No proxy shall be valid and voted on after the meeting of the
Stockholders, or any adjournment of such meeting, to which it applies. Every
proxy shall be revocable at the pleasure of the Stockholders executing it,
except in those cases where an irrevocable proxy is duly executed and
permitted by law.
Section 10. Voting List. (a) At least 20 days before each
meeting of Stockholders, a complete list of the Stockholders entitled to
vote at that meeting, arranged in alphabetical order and showing the address
of and number and class of shares entitled to vote at such meeting owned by
each Stockholder, shall be prepared by the Secretary or an officer of the
transfer agent, transfer clerk or registrar of the Corporation having charge
of the stock transfer books and at the direction of the Secretary. That list
of Stockholders will, for a period of 30 days prior to such meeting, be kept
on file at the registered office of the Corporation and will be subject to
inspection by any Stockholder at any time during normal business hours. Such
list will also be produced and kept open at the time and place of the
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meeting and will be subject to the inspection of any Stockholder during the
entire time of the meeting.
(b) The original stock transfer books shall be prima facie
evidence as to who are the Stockholders entitled to examine such list or
transfer books, or to vote at any meeting of the Stockholders.
(c) Failure to comply with the requirements of this
Section 10 shall not affect the validity of any action taken at such meeting
of the Stockholders.
Section 11. Action Without a Meeting. Any action, except
the election of directors, which may be taken by the vote of Stockholders at
a meeting of Stockholders may be taken without a meeting if authorized by
the written consents of Stockholders, identical in content setting out the
action to be taken, signed by the holders of all outstanding shares entitled
to vote on the action.
Section 12. Non-Cumulative Voting. In the election of
directors, Stockholders will not cumulate their votes but must vote shares
held by them for as many persons as there are directors to be elected.
Section 13. Voting of Shares by Certain Stockholders. (a)
Shares of the Corporation standing in the name of another corporation may be
voted by such officer, agent or proxy as the bylaws of that corporation may
prescribe or, in the absence of such provision, as the board of directors of
that corporation may determine.
(b) Shares or the Corporation held by an administrator,
executor, guardian or conservator may be voted by that person, either in
person or by proxy, without a transfer of such shares into that person's
name. Shares standing in the name of a trustee may be voted by that person,
either in person or by proxy, but no trustee will be entitled to vote shares
held by that person without a transfer of such shares into that person's
name.
(c) Shares of the Corporation standing in the name of a
receiver or bankruptcy trustee may be voted by that person, and shares held
by or under the control of a receiver or bankruptcy trustee may be voted by
that person without the transfer thereof into that person's name if
authority to do so is contained in an appropriate order of the court by
which that person was appointed or otherwise provided or permitted under
applicable federal bankruptcy law.
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(d) A Stockholder whose shares are pledged will be
entitled to vote such shares until the shares have been transferred into the
name of the pledgee, and thereafter the pledgee will be entitled to vote the
shares so transferred.
(e) Shares of its own stock held by the Corporation in a
fiduciary capacity, will not be voted at any meeting or counted in
determining the total number of outstanding shares at any given time.
ARTICLE IV
BOARD OF DIRECTORS
Section 1. General Authority. The property, business and
affairs of the Corporation shall be managed and controlled by its Board,
which may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by applicable law or the Articles of
Incorporation or these Bylaws directed or required to be exercised or done
by the Stockholders.
Section 2. Number and Term of Office. (a) The governing
body of this Corporation shall be the Board. Directors on the Board need not
be Stockholders and need not be residents of the State of Alaska. The number
of directors shall be not less than three nor more than twelve. Each
director shall be of a legal age. The number of members of the Board shall
be fixed by the Board from time to time by a vote of at least a simple
majority of the whole Board at a regular or special meeting called by
written notice, which notice includes notice of the proposal to change the
number of directors; provided that no decrease in the number of directors
shall have the effect of shortening the term of any incumbent director.
Until changed as provided in this Section 2, the number of directors on the
Board shall be five.
(b) Upon the establishment of the Board as having three or
more members ("Class Date"), the Board will be divided into three classes:
Class I, Class II and Class III. Each such class will consist, as nearly as
possible, of one-third of the whole number of the Board. Directors in office
on the Class Date will be divided among such classes and in such manner,
consistent with the provisions of this Article IV, as the Board may
determine by resolution. The initial Class I directors so determined shall
serve until the next Annual Meeting following such date. The initial Class
II directors so determined shall serve until the second Annual Meeting
following such date. The initial Class III directors so determined shall
serve until the third Annual Meeting following such date. In the case of
each such class, such directors shall serve, subject to their earlier death,
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resignation or removal in accordance with the Articles of Incorporation,
these Bylaws and the laws of the State of Alaska, until their respective
successors shall be elected and shall qualify. At each Annual Meeting after
the date of such filing, the directors chosen to succeed those whose terms
shall have expired shall be elected to hold office for a term to expire at
the third succeeding Annual Meeting after their election and, subject to
their earlier death, resignation or removal in accordance with the Articles
of Incorporation, these Bylaws and the laws of the State of Alaska, until
their respective successors shall be elected and shall qualify. If the
number of directors is changed, any increase or decrease shall be
apportioned among such classes so as to maintain all classes as equal in
number as possible, and any additional director elected to any class shall
hold office for a term which shall coincide with the terms of the other
directors in such class.
(c) As used in these Bylaws, the terms "whole Board" or
"entire Board" shall mean the number of directors the Corporation would have
under these Bylaws at the time of determination if there were no vacancies.
Section 3. Elections. (a) Other than as provided in
Section 2 of this Article IV, the directors of the Corporation shall be
elected at the Annual Meeting or at a special meeting of Stockholders called
for that purpose, by at least a simple majority of the quorum for that
meeting.
(b) Any vacancy occurring in the Board cased by death,
resignation, removal and any newly created directorship resulting from an
increase in the number of directors on the Board, may be filled by the
directors then in office, although such directors are less than a quorum, or
by the sole remaining director. Each director chosen to fill a vacancy or a
newly created directorship shall hold office until the next election of the
Class for which such director shall have been chosen or, if no class is
established, then until the next election of directors and, subject to that
director's earlier death, resignation or removal in accordance with the
Articles of Incorporation, these Bylaws and the laws of the State of Alaska,
until that director's successor shall be duly elected and shall qualify.
(c) Any director may resign at any time by giving written
notice to the Board of Directors, the President, Chairman of the Board, or
the Secretary of the Corporation. Any such resignation will take effect upon
receipt of such notice or at any later time specified in the notice. Unless
otherwise specified in the notice, the acceptance of such resignation will
not be necessary to make any postdated resignation by notice in writing to
the resigning director. In the event the resignation of a director is
tendered to take effect at a future time, a successor may be elected to take
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office when the resignation becomes effective.
(d) The Stockholders may elect a director to fill any
vacancy not filled by the Board.
(e) The term of a director terminates upon the election
and qualification of a successor.
Section 4. Removal of Directors. (a) The entire Board or
any individual director may be removed from office, at an Annual Meeting or
a special meeting of Stockholders called for that purpose, by at least, a
majority vote of a quorum of Stockholders for that meeting.
(b) If, after the filling of a vacancy by the Board, the
directors who have been elected by the Stockholders constitute less than a
majority of the directors, a holder or holders of an aggregate of 10 percent
or more of the shares outstanding at the time may call a special meeting of
Stockholders to elect the entire Board.
(c) The Board may declare vacant the office of a director
who has been declared of unsound mind by a court order.
(d) The superior court may, at the suit of the Board or of
Stockholders holding at least 10 percent of the number of outstanding shares
of any class, remove from office a director for fraudulent or dishonest
acts, gross neglect of duty, or gross abuse of authority or discretion with
reference to the Corporation and may bar from reelection a director removed
in that manner for a period prescribed by the court. In this instance, the
Corporation will be made a party to the suit.
(e) Except as set forth in (a)-(d) of this Section 4, a
director may not be removed from office before the expiration of the term of
office of that director.
Section 5. Executive Committee. (a) By the affirmative
vote of at least 75 percent of the directors, the Board may designate an
Executive Committee, all of whose members shall be directors, to manage and
operate the affairs of the Corporation or particular properties or
enterprises of the Corporation, except to the extent Stockholder
authorization is required by law, the Articles of Incorporation or these
Bylaws. The Executive Committee will have the power, as set forth by
resolution of the Board or these Bylaws to perform or authorize any act that
could be done or accomplished by the majority action of all the directors of
the Corporation, except as provided in (b) of this Section 5. The Executive
Committee shall keep minutes of its meetings and report to the Board not
less often than quarterly on its activities and shall be responsible to the
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Board for the conduct of the enterprises and affairs entrusted to it.
(b) The following areas of responsibility are expressly
reserved to the Board and will not be delegated to any committees of the
Board:
(1) Declaring dividends or distributions;
(2) Approving or recommending to Stockholders
actions or proposals required by the Alaska Corporations Code to be
approved by Stockholders;
(3) Designating candidates for the office of
director, for purposes of proxy solicitation or otherwise, or fill
vacancies on the board or any committee of the board;
(4) Amending the Bylaws;
(5) Approving a plan or merger not requiring
Stockholder approval;
(6) Capitalizing retained earnings;
(7) Authorizing or approve the reacquisition of
shares unless under a general formula or method specified by the
board;
(8) Authorizing or approve the issuance or sale
of, or a contract to issue or sell, shares or designate the terms
of a series of a class of shares, unless the Board, having acted
regarding general authorization for the issuance or sale of shares,
a contract to issue or sell, or the designation of a series,
authorizes a committee, under a general formula or method specified
by the Board by resolution or by adoption of a stock option or
other plan, to fix the terms of a contract for the sale of the
shares and to fix the terms upon which the shares may be issued or
sold, including, without limitation, the price, the dividend rate,
provisions for redemption, sinking fund, conversion, voting or
preferential rights, and provisions for other features of a class
of shares, or a series of a class of shares, with full power in the
committee to adopt a final resolution setting out all the terms of
a series for filing with the commissioner of the Department of
Commerce & Economic Development under the Alaska Corporations Code;
or
(9) Authorizing, approving, or ratifying contracts
or other transactions between the Corporation and one or more of
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its directors, or between the Corporation and a corporation, firm,
or association in which one or more of its directors has a material
financial interest as defined under AS 10.06.478 of the Alaska
Corporations Code.
(c) The designation of a committee, the delegation to the
committee of authority, or action by the committee under that authority does
not alone constitute compliance by a member of the Board or that committee
with the responsibility to act in good faith, in a manner the member
reasonably believes to be in the best interests of the Corporation, and with
the care, including reasonable inquiry, as an ordinarily prudent person in a
like position would use under similar circumstances.
Section 6. Other Committees. The Board may, by resolution,
establish committees other than an Executive Committee and shall specify
with particularity the powers and duties of any such committee. All
committees of the Board including the Executive Committee shall serve at the
pleasure of the Board, keep minutes of their meetings; have such names as
the Board, by resolution, may determine; and be responsible to the Board for
the conduct of the enterprises and affairs entrusted to them. All such
committees will each have at least two or more members, all of whom will
serve at the pleasure of the Board.
Section 7. Place of Meetings. The directors may hold their
meetings in such place or places as the Board may from time to time by
resolution determine.
Section 8. Meetings. Regular or special meetings of the
Board or of a committee of the Board will be held at such place as may be
designated from time to time by the Board or any other person calling the
meeting, and such meetings may be called by the Chairman of the Board, the
President, a Vice President, the Secretary, or a director.
Section 9. Quorums. (a) The presence of a majority of the
number of directors fixed by the Articles of Incorporation at a meeting of
the Board duly assembled will constitute a quorum for the transaction of
business, and the act of a majority of the directors present at any meeting
at which a quorum is present will be the act of the Board, except as may be
otherwise specifically provided by the Articles of Incorporation or by these
Bylaws. If a quorum initially is not present at any meeting of directors,
the directors present at that meeting may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
is present.
(b) The presence of a majority of the number of directors
at a meeting of a committee of the Board duly assembled will constitute a
quorum for the transaction of business, and the act of majority of the
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directors present at any meeting at which a quorum is present will be the
act of that committee, except as may be otherwise specifically provided by
the Articles of Incorporation or these Bylaws. If a quorum initially is not
present at any meeting of a committee of the Board, the members present at
that meeting may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum is present.
Section 10. Action Without a Meeting. Any action that may
be taken at a meeting of the Board or a committee of the Board may be taken
without a meeting if identical consents in writing describing the action so
taken are signed by all of the directors or members of such committee
entitled to vote with respect to the subject matter thereof. Each such
consent in writing shall be filed with the minutes of the proceedings of the
Board.
Section 11. Order of Business. At meetings of the Board,
business shall be transacted in such order as the Board may by resolution
determine. At all meetings of the Board, the Chairman of the Board, or in
that person's absence, the President, or in that person's absence the
director designated as the chairman of the meeting by the majority of the
directors present, shall preside.
Section 12. Director's compensation. Directors shall
receive such compensation and reimbursement of any expenses incidental to
the performance of their duties as the Board shall determine by resolution.
Such compensation may be in addition to any compensation received by the
members of the Board in any other capacity.
Section 13. Minutes. The Board shall keep written minutes
of its meetings. In the event the Secretary of the Corporation is not a
member of the Board, the Board shall prescribe by a resolution the officer
or other person who shall be charged with the responsibility of keeping and
maintaining such minutes.
Section 14. Notice and Waiver of Notice. (a) The first
meeting of each newly elected Board will be held, without notice,
immediately following the adjournment of the corresponding Annual Meeting,
or as soon thereafter as is practicable.
(b) Regular meetings of the Board or a committee of the
Board may be held, without notice, at such time and place, as will from time
to time be fixed by the Board or these Bylaws.
(c) Special meetings of the Board or a committee of the
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Board will be held upon either notice in writing sent 10 days before the
meeting or notice by electronic means, personal messenger, or comparable
person-to-person communication given at least 72 hours before the meeting.
The notice must include disclosure of the business to be transacted and the
purpose of the meeting.
(d) Whenever under the provisions of statutes, of the
Articles of Incorporation, or of these Bylaws, notice is required to be
given to any director or Stockholder, it will be given in writing, by mail
or telegram, addressed to such director or Stockholder at such address as
appears on the records of the Corporation with postage thereon prepaid, and
such notice by mail will be deemed to be given at the time when deposited in
the United States mail.
(e) Attendance of a Stockholder, either in person or by
proxy, or of a director at a meeting will constitute a waiver or notice of
such meeting, except where an appearance is made for the express purpose of
objecting to the transaction of any business because the meeting is not
lawfully called or convened.
(f) Whenever any notice is required to be given under the
provisions of statutes, the Articles of Incorporation or these Bylaws, a
waiver of the notice in writing, signed by the person entitled to the notice
either before or after the time stated in the notice will be deemed
equivalent to the giving of that notice.
Section 15. Dividends. Subject always to the provisions of
the laws of the State of Alaska and the Articles of Incorporation, the Board
shall have full power to determine whether any, and if so what part, of the
funds legally available for the payment of dividends shall be declared in
dividends and paid to the Stockholders. The Board may fix a sum which may be
set aside or reserved over and above the paid-in capital of the Corporation
for working capital or as a reserve for any proper purpose, and from time to
time may increase, diminish and vary such funds in the Board's absolute
judgment and discretion. Dividends upon the shares of stock of the
Corporation, subject always to the mentioned provisions, may be declared by
the Board at any regular or special meeting of the Board, payable in cash,
property or shares of the Corporation's stock.
Section 16. Meetings Held Other Than in Person. Members of
the Board or any committee thereof may participate in a meeting of the Board
or such committee, as the case may be, by means of a conference telephone
network or similar communications method by which all persons participating
in the meeting can hear each other, and such participation shall constitute
presence in person at the meeting. Each person participating in any meeting
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in which any director participates by such means shall sign the minutes
thereof, and such minutes may be signed in counterpart.
ARTICLE V
OFFICERS
Section 1. Number and Tenure. The Board shall elect from
its members a Chairman of the Board and a President. The Board shall also
elect a Secretary, a Treasurer and a Registered Agent. The Board may also
elect, from time to time, such Vice Presidents and other or additional
officers as in its opinion are desirable or required for the conduct of the
business of the Corporation. Any of the officers of the Corporation may or
may not be directors, except that the Chairman of the Board and the
President shall be directors. The officers of the Corporation shall hold
office until the first meeting of the Board following the Annual Meeting
next following their respective election and, subject to their earlier
death, resignation or removal in accordance with the Articles of
Incorporation, these Bylaws and the laws of the State of Alaska, until their
successors are chosen and qualify.
Section 2. Discretion. In its discretion, the Board, by
the vote of a majority of the whole Board, may leave any office, except that
of President, Treasurer, Secretary or Registered Agent, unfilled for any
such period as it may fix by resolution. Subject to the laws of the State of
Alaska, any officer or agent of the corporation may be removed at any time
by the affirmative vote of at least 75 percent of the whole Board.
Section 3. Chairman of the Board. The Chairman of the
Board shall be a director and, when present, shall preside at all meetings
of the Board. The Chairman of the Board shall be a member of all standing
committees of the Board and Chairman of the Executive Committee. The
Chairman of the Board shall perform such other duties as may be prescribed
from time to time by the Board or by these Bylaws. The Chairman of the Board
shall have the powers of the President and power to delegate any of the
Chairman's powers, on a temporary or permanent basis, to the President.
Section 4. President. The President shall be the chief
executive officer of the Corporation. The President shall be a member of the
Board. The President shall exercise such duties as customarily pertain to
the office of President and shall have general and active supervision over
the property, business and affairs of the Corporation and over its several
officers. The President may appoint and terminate the appointment or
election of officers, agents, or employees other than those appointed or
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elected by the Board. The President may sign, execute and deliver, in the
name of the Corporation, powers of attorney, contracts, bonds and other
obligations which implement policies established by the Board, and shall
perform such other duties as may be prescribed from time to time by the
Board or by these Bylaws.
Section 5. Vice Presidents. Vice Presidents shall have
such distinguishing titles, powers and perform such duties as may be
assigned to them by the Chairman of the Board, the President, the Executive
Committee or the Board. In the absence or disability of the Chairman of the
Board and the President, any Vice President designated by the Board may
perform the duties and exercise the powers of the President. A Vice
President may sign and execute contracts and other obligations pertaining to
the regular course of duties of that office which implement policies
established by the Board and shall perform such other duties as may be
prescribed from time to time by the Board or these Bylaws.
Section 6. Treasurer. The Treasurer shall be the chief
financial officer and, unless the Board otherwise declares by resolution,
the chief accounting officer of the Corporation. Unless the Board otherwise
declares by resolution, the Treasurer shall have general custody of all the
funds and securities of the Corporation and have general supervision of the
collection and disbursement of funds of the Corporation. The Treasurer shall
endorse for collection on behalf of the Corporation checks, notes and other
obligations, and shall deposit the same to the credit of the Corporation in
such bank or banks or depository as the Board may designate. The Treasurer
may sign, with the Chairman of the Board, President, or such other person or
persons as may be designated for the purpose by the Board, all bills of
exchange or promissory notes of the Corporation. The Treasurer shall enter
or cause to be entered regularly in the books of the Corporation a full and
accurate account of all moneys received and paid by the Treasurer on account
of the Corporation; shall at all reasonable times exhibit books and accounts
of the Treasurer to any director of the Corporation upon application at the
office of the Corporation during business hours; and, whenever required by
the Board or the President, shall render a statement of accounts for the
Corporation. The Treasurer shall perform such other duties as may be
prescribed from time to time by the Board or by the Bylaws. The Treasurer
may be required to give bond for the faithful performance of duties of that
office in such sum and with such surety as shall be approved by the Board.
The Board may authorize one or more accounting firms to perform any act or
discharge any responsibility of the Treasurer. Any individual appointed by
the Board as Assistant Treasurer shall, in the absence or disability of the
Treasurer, perform the duties and exercise the powers of the Treasurer and
shall perform such other duties and have such other powers as the Board may
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from time to time prescribe.
Section 7. Secretary. Subject to Section 8 of Article III
and Section 13 of Article IV of these Bylaws, the Secretary shall keep the
minutes of all meetings of the Stockholders and of the Board, and to the
extent ordered by the Board, the Chairman of the Board or the President,
will keep the minutes of meetings of all committees. The Secretary shall
cause notice to be given of meetings of Stockholders, of the Board and of
any committee appointed by the Board. The Secretary shall have custody of
the corporate seal and minutes and records relating to the conduct and acts
of the Stockholders and the Board, which shall, at all reasonable times, be
open to the examination of any director. The Secretary or any Assistant
Secretary appointed by the Board may certify the record of proceedings of
the meetings of the Stockholders or of the Board and of resolutions adopted
at such meetings; may sign or attest certificates, statements or reports
required to be filed with governmental bodies or officials; may sign
acknowledgements of instruments; may give notices of meetings; and shall
perform such other duties and have such other powers as the Board may from
time to time prescribe.
Section 8. Registered Agent. The Registered Agent for the
Corporation may be an individual or corporation, resident or located in
Alaska. The Registered Agent shall have such duties and responsibilities as
are prescribed by the laws of the State of Alaska.
Section 9. Bank Accounts. In addition to such bank
accounts as may be authorized in the usual manner by resolution of the
Board, the Treasurer, with approval of the Chairman of the Board or the
President, may authorize such banks accounts to be opened or maintained in
the name and on behalf of the Corporation as may be deemed necessary or
appropriate by the Treasurer, provided payments from such bank accounts are
to be made upon and according to the check of the Corporation, which may be
signed jointly or singularly by either manual or facsimile signature or
signatures of such officers or bonded employees of the Corporation as shall
be specified in the written instructions of the Treasurer or Assistant
Treasurer with the approval of the Chairman of the Board or the President.
Section 10. Vacancies. In case any office shall become
vacant, the Board shall have power to fill such vacancy. In case of the
absence or disability of any officer, the Board may delegate the powers or
duties of such officer to another officer in the Corporation, or to a
director.
Section 11. Proxies. Unless otherwise directed by the
Board, the Chairman of the Board or the President, or the designees of
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either of these two officers shall have full power and authority on behalf
of the Corporation to attend and to vote upon all matters and resolutions at
any meeting of Stockholders of any corporation in which this Corporation may
hold stock, and may exercise on behalf of this Corporation any and all of
the rights and powers incident to the ownership of such stock at any such
meeting, whether regular or special, and at all adjournments thereof, and
shall have power and authority to execute and deliver proxies and consents
on behalf of this Corporation in connection with the exercise by this
Corporation of the rights and powers incident to the ownership of such
stock, with full power of substitution or revocation.
Section 12. Dual Offices. Any person may hold more than
one corporate office, except that the President shall not hold any other
office except that of Chairman of the Board.
Section 13. Salaries. The salaries of all executive
officers of the Corporation shall be fixed by the Board from time to time.
No officer shall be ineligible to receive such salary by reason of the fact
that that officer is also a director of the Corporation and receiving
compensation therefor or that that officer devotes less than full time
during normal business hours to the performance of that officer's duties as
an officer of the Corporation.
ARTICLE VI
INDEMNIFICATION
Section 1. Non-Derivative Actions. The Corporation will
indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an
action by or in the right of the Corporation) by reason of or arising from
the fact that that person is or was a director, officer, employee, or agent
of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. Amounts paid in
settlement actually and reasonably incurred by that person in connection
with such action, suit or proceeding may include reimbursement of expenses,
attorney fees, judgments, fines, and amounts paid in settlement actually and
reasonably incurred by that person in connection with the action or
proceedings if that person acted in good faith and in a manner that that
person reasonably believed to be in or not opposed to the best interests of
the Corporation and, with respect to any criminal action or proceeding, had
no reasonable cause to believe the conduct was unlawful. The termination of
any action, suit and proceeding by judgment, order, settlement, conviction,
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or upon a plea of nolo contendere or its equivalent, will not of itself
create a presumption that the person did not act in good faith and in a
manner which that person reasonably believed to be in or not opposed to the
best interests of the Corporation and, with respect to any criminal action
or proceeding, the person had reasonable cause to believe that the conduct
was unlawful.
Section 2. Derivative Actions. The Corporation will
indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the
right of the Corporation to procure a judgment in its favor by reason for
arising from the fact that he is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise. This
indemnification will cover reimbursement for expenses (including attorney
fees) actually and reasonably incurred by that person in connection with the
defense or settlement of such action if that person acted in good faith and
in a manner that person reasonably believed to be in or not opposed to the
best interests of the Corporation.
Section 3. Reimbursement Conditions. (a) Indemnification
will not be made in respect of any claim, issue, or matter as to which the
person has been adjudged to be liable for negligence or misconduct in the
performance of the person's duty to the Corporation, except to the extent
that the court in which the action was brought determines upon application
that, despite the adjudication of liability, in view of all the
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for expenses that the court considers proper.
(b) To the extent that a director, officer, employee, or
agent of the Corporation has been successful on the merits or otherwise in
defense of an action or proceeding as described in Sections 1 and 2 of this
Article VI or in defense of a claim, issue, or matter in the action or
proceeding, the director, officer, employee, or agent will be indemnified
against expenses and attorney fees actually and reasonably incurred in
connection with the defense.
(c) Unless otherwise ordered by a court, indemnification
under Sections 1 or 2 of this Article VI may only be made by the Corporation
upon a determination that indemnification of the director, officer,
employee, or agent is proper in the circumstances because the director,
officer, employee, or agent has met the applicable standard of conduct set
out in those sections. The determination will be made by:
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(1) The Board by at least a majority vote of a
quorum consisting of directors who were not parties to the action
or proceeding;
(2) Independent legal counsel in a written opinion
if a quorum under (c)(1) of this Section 3 is
(A) not obtainable; or
(B) obtainable but a majority of
disinterested directors so directs;
or
(3) Approval of the outstanding shares of the
Corporation.
(d) The Corporation may pay or reimburse the reasonable
expenses incurred in defending a civil or criminal action or proceeding in
advance of the final disposition in the manner provided in (c) of this
Section 3 if:
(1) In the case of a director or officer, the
director or officer furnishes the Corporation with a written
affirmation of a good faith belief that the standard of conduct
described in AS 10.06.450(b) or 10.06.483(e) of the Alaska
Corporations Code has been met;
(2) The director, officer, employee, or agent
furnishes the Corporation a written unlimited general undertaking,
executed personally or on behalf of the individual, to repay the
advance if it is ultimately determined that an applicable standard
of conduct was not met; and
(3) A determination is made that the facts then
known to those making the determination would not preclude
indemnification under the Alaska Corporations Code.
(e) The indemnification provided under Sections 1 and 2 of
this Article VI is not exclusive of any other rights to which a person
seeking indemnification may be entitled under a bylaw, agreement, vote of
Stockholders or disinterested directors, or otherwise, both as to action in
the official capacity of the person and as to action in another capacity
while holding the office. The right to indemnification continues as to a
person who has ceased to be a director, officer, employee, or agent, and
inures to the benefit of the heirs, executors, and administrators of the
person.
Section 4. Insurance. At the discretion of the Board, the
Corporation may purchase and maintain insurance on behalf of any person who
is or was a director, officer, employee or agent of the Corporation, or is
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or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise against any liability asserted against that person and
incurred by that person in any such capacity, or arising out of that status,
whether or not the Corporation would have the power to indemnify that person
against such liability under the provisions of this Article VI.
ARTICLE VII
CERTIFICATE OF STOCK
Section 1. Form. (a) The interest of each Stockholder
shall be evidenced by certificates for shares of stock, certifying the class
and number of shares represented thereby and in such form, not inconsistent
with the Articles of Incorporation, as the Board may from time to time
prescribe.
(b) The certificates of stock shall be signed by the
President or a Vice President and by the Secretary or an Assistant Secretary
and sealed with the seal of the Corporation. Such seal may be a facsimile,
engraved or printed. Where any certificate is countersigned or otherwise
authenticated by a transfer agent or by a transfer clerk, and by a
registrar, the signatures of any such officers upon such certificate may be
facsimile, engraved or printed. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon
any certificates shall have ceased to be such before the certificate is
issued, it may be issued by the Corporation with the same effect as if such
officer, transfer agent or registrar had not ceased to be such at the time
of its issue.
Section 2. Transfers. (a) Transfers of shares of the
capital stock of the Corporation shall be made only on the books of the
Corporation by the registered owner thereof, or by that owner's duly
authorized attorney, and on surrender of the certificate or certificates for
such shares properly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, and with all taxes thereon
paid.
(b) 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 Alaska.
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Section 3. Lost or Destroyed Certificates. The Board shall
have the power to direct new stock certificates to be issued to any
Stockholder in place of any certificates theretofore issued by the
Corporation when such Stockholder proves to the satisfaction of the Board
that a stock certificate is lost or destroyed, or upon the posting of an
indemnity bond by the owner of such lost or destroyed certificates, or that
Stockholder's legal representatives, in such amount as the Board shall deem
appropriate, to hold the Corporation harmless from any loss or claim arising
out of or in connection with the issuance of a duplicate certificate, unless
such requirement be dispensed with by the Board, in its discretion, in any
instance or instances.
Section 4. Transfer Agent and Registrar. The Board may
appoint one or more transfer agents or transfer clerks and one or more
registrars, and may require all certificates for shares to bear the manual
or facsimile signature or signatures of any of them. The Corporation's
transfer agent and registrar may be the identical if the person or entity
acting in such dual capacities countersigns certificates for shares required
to bear that person's signatures in both capacities.
Section 5. Restrictions on Transfer. No securities of the
Corporation or certificates representing such securities will be transferred
in violation of any law or of any restriction on such transfer set forth in
the Articles of Incorporation or amendments to them, these Bylaws or other
agreement restricting such transfer which has been filed with the
Corporation if reference to any such restrictions is made on the
certificates representing such securities. The Corporation will not be bound
by any restriction not so filed and noted. The Corporation may rely in good
faith upon the opinion of its counsel as to any legal or contractual
violation with respect to any such restrictions unless the issue has been
finally determined by a court of competent jurisdiction. The Corporation and
any party to such agreement will have the right to have a restrictive legend
imprinted upon any certificate covered by the agreement and any certificates
issued in replacement or exchange therefor or with respect to such
certificates.
Section 6. Closing Transfer Books and Filing Record Date.
The Board may prescribe a period not exceeding 70 days nor less than 20 days
prior to the record date appointed for the payment of dividends to
Stockholders during which no transfer of stock may be made on the books of
the Corporation, or the Board may fix a date not more than 60 days nor less
than 20 days prior to the date for the payment of any such dividends as the
record date as of which Stockholders entitled to receive payment of such
dividends will be determined. Only Stockholders of record on that record
date will be entitled to receive payment of such dividends.
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ARTICLE VIII
REPORTS TO SHAREHOLDERS
Section 1. Annual Report. (a) The Board will authorize the
preparation of and arrangement for the distribution of an annual report to
Stockholders of the Corporation as required by as 10.06.433(a) Alaska
Corporations Code.
(b) The annual report to Stockholders will contain, at
minimum, a balance sheet as of the end of the fiscal year and an income
statement and statement of changes in financial position for the fiscal year
accompanied by (1) a report on the fiscal year by independent accountants or
(2) if there is no such report from accountants, a certificate of an
authorized officer of the Corporation that the financial statements were
prepared without audit from the books and records of the Corporation;
provided that, so long as the Corporation's stock is registered pursuant to
the federal Securities Exchange Act of 1934, the Annual Report to
Stockholders required under that act will be provided to all Stockholders.
Section 2. Other Reports. A Stockholder holding at least
five percent of the outstanding shares of a class of the Corporation may
make a written request to the Corporation in accordance with AS 10.06.433(c)
of the Alaska Corporations Code, for a quarterly income statement of the
Corporation and a balance sheet of the Corporation and, in addition, if an
annual report for the last fiscal year has not been sent to Stockholders,
the statements required by (a) of Section 1 of Article VIII of these Bylaws
for the last fiscal year. These statements will be delivered or mailed by
the Corporation to the person making the request within 30 days of the
request. A copy of these statements will be kept on file in the principal
office of the Corporation for 12 months, and they will be exhibited at all
reasonable times to a Stockholder demanding an examination of the
statements, or a copy of the statements will be mailed to that Stockholder.
Section 3. Delivery. (a) The Corporation will, in
accordance with AS 10.06.433(d) of the Alaska Corporations Code, upon the
written request of a Stockholder, mail to the Stockholder a copy of the
reports described in this Article VIII.
(b) The income statements and balance sheets referred to
in this Article VIII must be accompanied by any report on those statements
prepared by independent accountants engaged by the Corporation or the
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certificate of an authorized officer of the Corporation that the financial
statements were prepared without audit from the books and records of the
Corporation.
ARTICLE IX
TRANSACTIONS WITH OFFICERS,
DIRECTORS AND SHAREHOLDERS
Section 1. Director Material Interest. A contract or other
transaction between the Corporation and one or more of the directors of the
Corporation, or between the Corporation and a corporation, firm, or
association in which one or more of the directors of the Corporation has a
material financial interest, is neither void nor voidable because the
director or directors or other corporation, firm, or association is a party
or because the director or directors is present at the meeting of the Board
that authorizes, approves, or ratifies the contract or transaction, if the
material facts as to the transaction and as to the director's interest are
fully disclosed or known to the
(1) Stockholders and the contract or transaction
is approved by the Stockholders in good faith, with the shares
owned by the interested director or directors not being entitled to
vote; or
(2) Board, and the Board authorizes, approves, or
ratifies the contract or transaction in good faith by a sufficient
vote without counting the vote of the interested director or
directors, and the person asserting the validity of the contract or
transaction sustains the burden of proving that the contract or
transaction was just and reasonable as to the Corporation at the
time it was authorized, approved, or ratified.
Section 2. Common Directorships, Votes on Compensation.
(a) A common directorship does not alone constitute a material financial
interest within the meaning of this Article IX. A director is not
interested, within the meaning of this Article IX, in a resolution fixing
the compensation of another director as a director, officer, or employee of
the Corporation, notwithstanding the fact that the first director is also
receiving compensation from the Corporation.
(b) Interested or common directors may be counted in
determining the presence of a quorum at a meeting of the Board that
authorizes, approves, or ratifies a contract or transaction under this
Article IX.
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Section 3. Transactions Involving Cross Directorships. A
contract or other transaction between the Corporation and a corporation or
association of which one or more directors of the Corporation are directors
is neither void nor voidable because the director or directors are present
at the meeting of the Board that authorizes, approves, or ratifies the
contract or transaction, if the material facts of the transaction and the
director's other directorship are fully disclosed or known to the Board and
the Board authorizes, approves, or ratifies the contract or transaction in
good faith by a sufficient vote without counting the vote of the common
director or directors or the contract or transaction is approved by the
Stockholders in good faith. This Section 3 does not apply to contracts or
transactions covered by Section 1 of this Article IX.
ARTICLE X
GENERAL PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation
shall convene on the first day of January of each year, unless otherwise
determined by the Board.
Section 2. Books and Records. A certified copy of the
Articles of Incorporation and the Bylaws shall be deposited in the name of
the Corporation in such bank or banks, trust company or trust companies or
other institutions as the Board shall designate by resolution. All checks or
demands for the payment of money and all notes and other instruments of a
negotiable nature shall be signed by the person designated by appropriate
resolution of the Board or these Bylaws.
Section 3. Contracts. The Board may authorize any officer
or officers or agent or agents to enter into any contract or execute and
deliver any instrument in the name and on behalf of the Corporation, and
such authority may be general or confined to specific instances.
Section 4. Loans. No loans shall be contracted on behalf
of the Corporation and no evidence of indebtedness shall be issued in its
name unless authorized by a resolution of the Board, and such authorization
may be general or confined to specific instances.
Section 5. Saving Clause. In the event any provision of
these Bylaws is inconsistent with the Articles of Incorporation or the
corporate laws of the State of Alaska, such provision shall be invalid to
the extent of such conflict; and such conflict shall not affect the validity
of all other provisions of these Bylaws.
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ARTICLE XI
AMENDMENTS
Section 1. Amendment and Repeal. Except as otherwise
provided by law, the power to alter, amend or repeal these Bylaws and adopt
new Bylaws will be vested exclusively in the Board, provided that such
action must be taken by a vote of at least a simple majority of the whole
Board.
Section 2. Recordation. Whenever an amendment or new bylaw
is adopted and thereby made a part of the Bylaws, a copy of that bylaw will
be kept in the minute book with these Bylaws. If any position of the Bylaws
is repealed, the fact of such repeal and the date on which it occurred will
be recorded in the minute book, and a copy of it will be placed next to and
include in these Bylaws.
I, the undersigned being the Secretary of GENERAL
COMMUNICATION, INC., hereby certify the foregoing to be the amended and
revised Bylaws of the Corporation, as adopted by the Board, on the day
of , 1993.
----------------------------
Secretary
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