Exhibit 99.1
BYLAWS*
OF
FRONTIER COMMUNICATIONS CORPORATION
* As amended March 9, 1937; May 12, 1942; June 15, 1946; October 1, 1946; May
23, 1947; January 7, 1948; April 1, 1948; March 31, 1949; January 26, 1951;
April 11, 1952; July 28, 1954; February 24, 1960; November 18, 1963; May 10,
1966; February 3, 1967; April 10, 1968; April 17, 1970; June 11, 1970; June 7,
1974; August 8, 1975; November 7, 1980; January 16, 1981; March 3, 1981;
February 20, 1986; June 5, 1987; August 8, 1988; May 5, 1989; May 31, 1989; June
23, 1989; September 11, 1989 (clerical correction); May 1, 1990; April 14, 1992;
February 17, 1993; February 8, 1994 (clerical correction); October 24, 1995;
August 8, 1996 (clerical correction); December 17, 1996; January 20, 1998; May
20, 1999; July 18, 2000; March 6, 2002; May 16, 2002; July 30, 2002; April 1,
2003; July 10, 2004; May 25, 2006 and February 6, 2009.
BYLAWS
OF
FRONTIER COMMUNICATIONS CORPORATION
NAME
Section 1. The name of this Corporation is FRONTIER COMMUNICATIONS
CORPORATION.
LOCATION OF OFFICES
Section 2. The principal office of the Corporation in Delaware shall be in
Wilmington and the resident agent in charge thereof shall be THE CORPORATION
TRUST COMPANY, The Corporation Trust Center, 1209 Orange Street.
The Corporation may also have an office or offices at such other places
within or without the State of Delaware as the Board of Directors may from time
to time designate.
CORPORATE SEAL
Section 3. The corporate seal shall be circular in form and have inscribed
thereon the name of the Corporation, the year of its incorporation (1935) and
the words "Incorporated Delaware."
MEETINGS OF STOCKHOLDERS
Section 4. All meetings of stockholders shall be held at the offices of the
Corporation or such other place as shall be designated by the Board of Directors
of the Corporation.
Annual Meetings of Stockholders shall be held on a date and at a time
designated by the Board of Directors of the Corporation for the purpose of
electing directors and for the transaction of such other business as may be
properly brought before the meeting.
2
Each stockholder shall, at every meeting of the stockholders, be entitled
to one vote in person or by written proxy signed by him, for each share of stock
held by him, but no proxy shall be voted after one year from its date. Such
right to vote shall be subject to the right of the Board of Directors to close
the transfer books or to fix a record date for voting stockholders as
hereinafter provided.
Special meetings of the stockholders may be called by the Chairman of the
Board or the Chief Executive Officer and shall be called upon the request in
writing or by vote of a majority of the Board of Directors or upon request in
writing of stockholders of record owning fifty percent (50%) in amount of the
capital stock of the Corporation outstanding and entitled to vote. Any such
request by stockholders shall set forth a brief description of the business
desired to be brought before the special meeting and the reasons for conducting
such business at the special meeting.
The record date for determining the stockholders of record entitled to vote
at a special meeting called upon the written request of stockholders shall be
fixed by resolution of the Board of Directors. Written notice of such record
date shall be sent promptly to stockholders and the meeting shall be held on
such date as shall be determined by the Board of Directors which shall be not
less than sixty (60) nor more than one hundred and twenty (120) days after the
date on which a proper demand for a stockholders meeting has been made by
stockholders.
The Board of Directors may determine rules and procedures for the conduct
of the special meeting.
No business may be transacted at a special meeting of stockholders, other
than business that is either (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors (or
any duly authorized committee thereof), (b) otherwise properly brought before
the special meeting by or at the direction of the Board of Directors (or any
duly authorized committee thereof) or (c) otherwise properly brought before the
special meeting by any stockholder of the Corporation who complies with the
procedures set forth in this Section.
3
Notice of each meeting of stockholders, whether annual or special, shall be
mailed by the Secretary to each stockholder of record, at his or her post office
address as shown by the stock books of the Corporation, at least ten days and
not more than sixty days prior to the date of the meeting.
The holders of a majority of the stock outstanding and entitled to vote
shall constitute a quorum, but the holders of a smaller amount may adjourn any
meeting from time to time without further notice until a quorum is secured.
No business may be transacted at an annual meeting of stockholders, other
than business that is either (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors (or
any duly authorized committee thereof), (b) otherwise properly brought before
the annual meeting by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or (c) otherwise properly brought before the
annual meeting by any stockholder of the Corporation (i) who is a stockholder of
record on the date of the giving of the notice of the annual meeting provided
for in this Section and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (ii) who complies with the notice
procedures set forth in this Section.
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary of
the Corporation.
4
To be timely, a stockholder's notice to the Secretary of the Corporation
must be delivered to or mailed and received at the principal executive offices
of the Corporation not less than ninety (90) nor more than one hundred-twenty
(120) days prior to the anniversary date of the immediately preceding annual
meeting of stockholders; provided, however, that in the event that an annual
meeting was not held in the previous year, or if the annual meeting is called
for a date that is more than thirty (30) days from such anniversary date, notice
by the stockholder in order to be timely must be so received not less than a
reasonable time, as determined by the Board of Directors, prior to the printing
and mailing of the proxy materials for the applicable annual meeting.
To be in proper written form, a stockholder's notice to the Secretary of
the Corporation must set forth, as to each matter such stockholder proposes to
bring before the annual meeting, (i) a brief description of the business desired
to be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and record address of such
stockholder, (iii) the class and series and number of shares of each class and
series of capital stock of the Corporation which are owned beneficially or of
record by such stockholder, (iv) a description of all arrangements or
understandings between such stockholder and any other person or persons
(including their names) in connection with the proposal of such business by such
stockholder and any material interest of such stockholder in such business, (v)
a representation that such stockholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and that such stockholder intends
to appear in person or by proxy at the annual meeting to bring such business
before the meeting, and (vi) any other information relating to such stockholder
that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies pursuant to
Section 14 of the Securities Exchange Act of 1934 (the "Exchange Act") (or in
any law or statute replacing such section), and the rules and regulations
promulgated thereunder.
5
No business shall be conducted at any annual meeting of stockholders except
business brought before the meeting in accordance with the procedures set forth
in this Section; provided, however, that, once business has been properly
brought before the meeting in accordance with such procedures, nothing in this
Section shall be deemed to preclude discussion by any stockholder of any such
business. If the chairman of a meeting determines that business was not properly
brought before the meeting in accordance with the foregoing procedures, the
chairman shall declare to the meeting that the business was not properly brought
before the meeting and such business shall not be transacted.
In addition, notwithstanding anything in this Section to the contrary, a
stockholder intending to nominate one or more persons for election as a director
at an annual or special meeting of stockholders must comply with Section 5 for
such nominations to be properly brought before such meeting.
DIRECTORS
Section 5. The property and business of the Corporation shall be managed
and controlled by its Board of Directors, which shall consist of not less than
seven nor more than fifteen members. The number of Directors shall be fixed from
time to time, within the limits prescribed, by resolution of the Board of
Directors. Vacancies in the Board of Directors (except vacancies resulting from
the removal of directors by stockholders), including vacancies in the Board of
Directors resulting from any increase in the number of Directors, may be filled
by a majority of the Directors then in office.
6
Directors shall otherwise be elected by the stockholders at the annual
meeting and shall hold office until the next annual election and until their
successors are elected and qualified. At all elections of Directors of this
Corporation each stockholder shall be entitled to one vote in person or by
written proxy signed by him, for each share of stock owned by him, and election
shall be by majority vote of the stock present or represented by proxy and
entitled to vote at the meeting.
The Board of Directors may, by resolution passed by a majority of the whole
Board of Directors, designate one or more committees, each committee to consist
of one or more Directors. The Board of Directors may designate one or more
Directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of any such committee. In the absence or
disqualification of a member of a committee, and in the absence of a designation
by the Board of Directors of an alternate member to replace the absent or
disqualified member, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or she or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any absent or disqualified member. Any committee,
to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the Corporation.
The Board of Directors shall have the power to prescribe the manner in which
proceedings of any such committee shall be conducted. In the absence of any such
prescription, such committee shall have the power to prescribe the manner in
which its proceedings shall be conducted. Unless the Board of Directors or such
committee shall otherwise provide, regular and special meetings and other
actions of any such committee shall be governed by the provisions of this
Section applicable to meetings and actions of the Board of Directors. Each
committee shall keep regular minutes and report to the Board of Directors when
required.
7
Only persons who are nominated in accordance with the following procedures
shall be eligible for election as directors of the Corporation, subject to the
rights of holders of any class or series of stock having a preference over the
common stock of the Corporation as to dividends or upon liquidation to elect
directors under specified circumstances. Nominations of persons for election to
the Board of Directors may be made at any annual meeting of stockholders, or at
any special meeting of stockholders called for the purpose of electing
directors, (a) by or at the direction of the Board of Directors or the
Nominating and Corporate Governance Committee, or (b) by any stockholder of the
Corporation (i) who is a stockholder of record on the date of the giving of the
notice provided for in this Section and on the record date for the determination
of stockholders entitled to vote at such meeting and (ii) who complies with the
notice procedures set forth in this Section.
In addition to any other applicable requirements, for a nomination to be
made by a stockholder, such stockholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered to
or mailed and received at the principal executive offices of the Corporation (a)
in the case of an annual meeting, not less than ninety (90) days nor more than
one hundred-twenty (120) days prior to the anniversary date of the immediately
preceding annual meeting of stockholders; provided, however, that in the event
that an annual meeting was not held in the previous year, or if the annual
meeting is called for a date that is not within thirty (30) days before or after
such anniversary date, notice by the stockholder in order to be timely must be
so received not less than a reasonable time, as determined by the Board of
Directors, prior to the printing and mailing of the proxy materials for the
applicable annual meeting; and (b) in the case of a special meeting of
stockholders called for the purpose of electing directors, not later than the
tenth (10th) day following the day on which public announcement of the date of
such special meeting is first made by the Corporation.
8
To be in proper written form, a stockholder's notice to the Secretary must
set forth (a) as to each person whom the stockholder proposes to nominate for
election as a director (i) the name, age, business address and residence address
of the person, (ii) the principal occupation and employment of the person, (iii)
the class and series and number of shares of each class and series of capital
stock of the Corporation which are owned beneficially or of record by the person
and (iv) any other information relating to the person that would be required to
be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Exchange Act (or in any law or statute replacing such
section), and the rules and regulations promulgated thereunder; and (b) as to
the stockholder giving the notice (i) the name and record address of such
stockholder, (ii) the class and series and number of shares of each class and
series of capital stock of the Corporation which are owned beneficially or of
record by such stockholder, (iii) a description of all arrangements or
understandings between such stockholder and each proposed nominee and any other
person or persons (including their names) pursuant to which the nomination(s)
are to be made by such stockholder, (iv) a representation that such stockholder
is a holder of record of stock of the Corporation entitled to vote at such
meeting and that such stockholder intends to appear in person or by proxy at the
meeting to nominate the person or persons named in its notice, and (v) any other
information relating to such stockholder that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Exchange Act (or in any law or statute replacing such section) and the rules and
regulations promulgated thereunder. Such notice must be accompanied by a written
consent of each proposed nominee to being named as a nominee and to serve as a
director if elected.
9
No person shall be eligible for election as a director of the Corporation
unless nominated in accordance with the procedures set forth in this Section. If
the chairman of the meeting determines that a nomination was not made in
accordance with the foregoing procedures, the chairman shall declare to the
meeting that the nomination was defective and such defective nomination shall be
disregarded.
POWERS OF DIRECTORS
Section 6. The Board of Directors shall have all such powers as may be
exercised by the Corporation, subject to the provisions of the Delaware General
Corporation Law, the Certificate of Incorporation, and these Bylaws.
MEETINGS OF DIRECTORS
Section 7. Meetings of the Board of Directors shall be held at such place
within or without the State of Delaware as may from time to time be fixed by
resolution of the Board of Directors, or as may be specified by the Chairman of
the Board and/or the Chief Executive Officer in the notice of any meeting.
Regular meetings of the Board of Directors shall be held at such times as may
from time to time be fixed by resolution of the Board of Directors and special
meetings of the Board of Directors may be held at any time upon the call of two
(2) Directors or of the Chairman of the Board and/or the Chief Executive Officer
by oral, facsimile, written, electronic mail or other electronic notice duly
sent or mailed to each Director not less than twenty-four (24) hours before such
meeting. A meeting of the Board may be held without notice immediately after the
annual meeting of stockholders at the same place at which such meeting is held.
Notice need not be given of regular meetings of the Board held at times fixed by
resolution of the Board. Meetings may be held at any time without notice if all
the Directors are present or if those not present waive notice of the meeting in
writing.
10
Members of the Board of Directors (or any committees thereof) may
participate in a meeting of the Board of Directors (or of such committees) by
means of conference telephone or other communications equipment via which all
persons participating can hear each other. Such participation in the substantive
discussion and determinations of a meeting shall constitute presence in person
at such meeting.
A majority of the Directors shall constitute a quorum, but a smaller number
may adjourn any meeting from time to time without further notice until a quorum
is secured.
OFFICERS OF THE COMPANY
Section 8.
(a) General. The officers of the Corporation shall be chosen by the Board
of Directors and shall be a Chief Executive Officer, a President, a Chief
Financial Officer and a Secretary. The Board of Directors, in its sole
discretion, may also choose one or more Executive Vice Presidents, Senior Vice
Presidents, Vice Presidents and other officers (with such duties and titles as
may be assigned to them). Any number of offices may be held by the same person,
unless otherwise prohibited by law, the Certificate of Incorporation or these
Bylaws.
(b) Term of Office. The officers of the Corporation, except those elected
by delegated authority pursuant to Section 8(c), shall be elected annually by
the Board of Directors, and shall hold office until their successors are elected
and qualified, or until their earlier resignation or removal. If the office of
any officer or officers, other than the Chief Executive Officer, becomes vacant
for any reason, the vacancy shall be filled by the Chief Executive Officer. If
the office of Chief Executive Officer becomes vacant for any reason, the vacancy
shall be filled by resolution of the Board of Directors.
11
(c) Subordinate Officers, Committees and Agents. The Chief Executive
Officer shall have the power to appoint subordinate officers (including, without
limitation, Assistant Vice Presidents and Assistant Secretaries) and to retain
or appoint employees or other agents or committees thereof, and to prescribe the
authority and duties of such subordinate officers, committees, employees and
other agents.
(d) Execution of Contracts and Other Documents. Each officer of the
Corporation may execute, affix the corporate seal and/or deliver, in the name
and on behalf of the Corporation, deeds, mortgages, notes, bonds, contracts,
agreements, powers of attorney, guarantees, settlements, releases, evidences of
indebtedness, conveyances, or any other document or instrument which is
authorized by the Board of Directors or is required to be executed in the
ordinary course of business, except in cases where the execution, affixation of
the corporate seal and/or delivery thereof shall be expressly and exclusively
delegated by the Board of Directors or the Corporation to some other officer or
agent of the Corporation.
CERTIFICATED OR UNCERTIFICATED STOCK
Section 9.
(a) Form. Shares of the Corporation may be represented by certificates (in
such form as the Board of Directors may from time to time prescribe) or may be
issued in uncertificated, book-entry form. The issuance of shares in
uncertificated form shall not affect shares already represented by a certificate
until the certificate is surrendered to the Corporation.
12
(b) Signatures. Every holder of stock in the Corporation represented by
certificates, and upon request every holder of uncertificated shares, shall be
entitled to have a certificate signed, in the name of the Corporation (i) by the
Chairman of the Board, Chief Executive Officer, President or any Executive Vice
President, Senior Vice President or Vice President and (ii) by the Treasurer or
an Assistant Treasurer or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by such holder in the
Corporation.
(c) Lost Certificates. The Board of Directors may direct a new certificate
or uncertificated shares to be issued in place of any certificate theretofore
issued by the Corporation alleged to have been lost, stolen or destroyed, upon
the making of an affidavit of that fact by the person claiming the certificate
of stock to be lost, stolen or destroyed. When authorizing such issue of a new
certificate or uncertificated shares, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate, or his, her or its legal
representative, to give the Corporation a bond sufficient to indemnify the
Corporation against any claim that may be made against the Corporation on
account of the certificate alleged to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 10. All transfer of stock of the Corporation shall be made upon its
books, (a) in the case of certificated shares, only upon surrender of the
certificate or certificates representing such shares, properly endorsed or
accompanied by a duly executed stock transfer power, or (b) in the case of
uncertificated shares, upon receipt of proper transfer instructions from the
registered owner of such uncertificated shares, or from a duly authorized
attorney or from an individual presenting proper evidence of succession,
assignment or authority to transfer the stock. The Board of Directors may make
such additional rules and regulations as it may deem expedient concerning the
issue and transfer of certificates representing shares of the capital stock of
the Corporation.
13
CLOSING OF TRANSFER BOOKS
Section 11. The Board of Directors shall have the power to close the stock
transfer books of the Corporation for a period not exceeding sixty (60) days
preceding the date for any meeting of stockholders or for payment of any
dividend or for the allotment of rights or when any change or conversion or
exchange of capital stock shall go into effect. In lieu of so closing the books,
the Board of Directors may fix in advance a date, not exceeding sixty (60) days
preceding the abovementioned dates, as a record date for the determination of
the stockholders entitled to notice of or to vote at any such meeting, any
adjournment thereof, or entitled to dividends or other rights hereinbefore
mentioned.
In order that the Corporation may determine the stockholders entitled to
consent to corporate action in writing without a meeting, the Board of Directors
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Directors, and
which date shall not be more than ten (10) days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors (or such
later date as the stockholder may request). Any stockholder of record seeking to
have the stockholders authorize or take corporate action by written consent
shall, by written notice to the Secretary of the Corporation, request the Board
of Directors to fix a record date. The Board of Directors shall promptly, but in
all events within ten (10) days after the date on which such a request is
received, adopt a resolution fixing the record date. If no record date has been
fixed by the Board of Directors within ten (10) days after the date on which
such request is received, the record date for determining stockholders entitled
to consent to corporate action in writing without a meeting, when no prior
action by the Board of Directors is required by applicable law, shall be the
first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Secretary of the Corporation at its
principal executive offices. Delivery shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors is required by
applicable law, the record date for determining stockholders entitled to consent
to corporate action in writing without a meeting shall be at the close of
business on the date on which the Board of Directors adopts the resolution
taking such prior action.
14
STOCKHOLDERS OF RECORD
Section 12. The Corporation shall be entitled to treat the holder of record
of any share or shares of stock as the holder in fact thereof and accordingly
shall not be bound to recognize any equitable or other claim to or interest in
such share on the part of any other person whether or not it shall have express
or other notice thereof, save as expressly provided by the laws of Delaware.
FISCAL YEAR
Section 13. The fiscal year of the Corporation shall begin on the first day
in January in each year.
DIVIDENDS
Section 14. Subject to the restrictions contained in the Delaware General
Corporation Law, the Corporation's Certificate of Incorporation or by subsisting
agreements of the Corporation, the Board of Directors may declare any pay
dividends upon the shares of capital stock of the Corporation in cash, in
property, or in shares of the capital stock of the Corporation.
15
BOOKS AND RECORDS
Section 15. The books, accounts, and records of the Corporation may be kept
within or without the State of Delaware, at such place or places as may from
time to time be designated by the Bylaws or by resolution of the Directors.
NOTICES
Section 16. Notice required to be given under the provisions of these
Bylaws to any Director, officer or stockholder shall not be construed to mean
personal notice, but may be given in writing, by mail, courier service,
facsimile or electronic mail or other electronic transmission. If notice is sent
by mail or courier service, it shall be deemed to be given when deposited in the
United States mail or with a courier service, in the case of a facsimile
transmission, when received, or in the case of electronic mail or other
electronic transmission, when sent or given; provided, however, that any notice
to Directors may also be made orally, and such notice shall be deemed to be
given when made. In computing the number of days notice required for any
meeting, the day on which the notice shall be deposited in the United States
mail or with a courier service shall be excluded; provided, however, that in
computing the number of hours required for any oral, facsimile, electronic mail
or other electronic notice to Directors of a special meeting of Directors, the
time of delivery of such notice shall be the time of sending or giving such
notice.
WAIVER OF NOTICE
Section 17. Any stockholder, officer or Director may waive in writing, or
by electronic mail or other electronic transmission, any notice required to be
given under these Bylaws, whether before or after the time stated therein.
16
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 18.
(a) Right of Indemnification. The Corporation shall, to the fullest extent
permitted by applicable law as then in effect, indemnify any person (the
"indemnitee") who was or is involved in any manner (including, without
limitation, as a party or a witness) or was or is threatened to be made so
involved in any threatened, pending or completed investigation, claim, action,
suit or proceeding, whether civil, criminal, administrative or investigative
(including, without limitation, any action or proceeding by or in the right of
the Corporation to procure a judgment in its favor) (a "Proceeding") by reason
of the fact that he is or was a director or officer of the Corporation, or is or
was serving at the request of the Corporation as a director or officer of
another corporation, or of a partnership, joint venture, trust or other
enterprise (including, without limitation, service with respect to any employee
benefit plan), whether the basis of any such Proceeding is alleged action in an
official capacity as director or officer or in any other capacity while serving
as a director or officer, against all expenses, liability and loss (including,
without limitation, attorneys' fees, judgments, fines, ERISA excise taxes or
penalties, and amounts paid or to be paid in settlement) actually and reasonably
incurred by him in connection with such Proceeding. Such indemnification shall
continue as to a person who has ceased to be a director or officer and shall
inure to the benefit of his heirs, executors, administrators and legal
representatives. The right to indemnification conferred in this Section and in
Section 19 shall include the right to receive payment of any expenses incurred
by the indemnitee in connection with such Proceeding in advance of the final
disposition of the Proceeding, consistent with applicable law as then in effect.
All rights to indemnification conferred in this Section and in Section 19,
including rights to the advancement of expenses and the evidentiary, procedural
and other provisions of this Section and Section 19, shall be contract rights.
The Corporation may, by action of its Board of Directors, provide
indemnification for employees, agents, attorneys and representatives of the
Corporation with the same, or with more or less, scope and extent as herein
provided for officers and directors. No amendment to the Certificate of
Incorporation or amendment or repeal of these Bylaws purporting to have the
effect of modifying or repealing any of the provisions of this Section or
Section 19 in a manner adverse to the indemnitee shall abridge or adversely
affect any right to indemnification or other similar rights and benefits with
respect to any acts or omissions occurring prior to such amendment or repeal.
This Section and Section 19 shall be applicable to all Proceedings, whether
arising from acts or omissions occurring before or after the adoption of such
Sections.
17
(b) Bylaws Not Exclusive. The right of indemnification, including the right
to receive payment in advance of expenses, conferred in these Bylaws shall not
be exclusive of any other rights to which any person seeking indemnification may
otherwise be entitled under any provision of the Certificate of Incorporation,
any agreement, applicable corporate law and statute, vote of disinterested
directors or stockholders or otherwise. The indemnitee is free to proceed under
any of the rights or procedures available to him.
(c) Burden of Proof. In any determination, review of a determination,
action, arbitration, or other proceeding relating to the right to
indemnification conferred in this Section or Section 19, the Corporation shall
have the burden of proof that the indemnitee has not met any standard of conduct
or belief which may be required by applicable law to be applied in connection
with a determination that the indemnitee is not entitled to indemnity and also
the burden of proof on any of the issues which may be material to a
determination that the indemnitee is not entitled to indemnification. Neither a
failure to make such a determination of entitlement nor an adverse determination
of entitlement to indemnity shall be a defense of the Corporation in an action
or proceeding brought by the indemnitee or by or on behalf of the Corporation
relating to indemnification or create any presumption that the indemnitee has
not met any such standard of conduct or belief or is otherwise not entitled to
indemnity. If successful in whole or in part in such an action or proceeding,
the indemnitee shall be entitled to be further indemnified by the Corporation
for the expenses actually and reasonably incurred by him in connection with such
action or proceeding.
18
(d) Advancement of Expenses. All reasonable expenses incurred by or on
behalf of indemnitee in connection with any Proceeding shall be advanced from
time to time to the indemnitee by the Corporation promptly after the receipt by
the Corporation of a statement from the indemnitee requesting such advance,
whether prior to or after final disposition of such Proceeding.
(e) Insurance, Contracts and Funding. The Corporation may purchase and
maintain insurance to protect itself and any person who is, or may become an
officer, director, employee, agent, attorney, trustee or representative (any of
the foregoing being herein referred to as a "Representative") of the Corporation
or, at the request of the Corporation, a Representative of another corporation
or entity, against any expenses, liability or loss asserted against him or
incurred by him or her in connection with any Proceeding in any such capacity,
or arising out of his or her status as such, whether or not the Corporation
would have the power to indemnify him or her against such expense, liability or
loss under the provisions of these Bylaws or otherwise. The Corporation may
enter into contracts with any Representative of the Corporation, or any person
serving as such at the request of the Corporation for another corporation or
entity, in furtherance of the provisions of this Section or Section 19. Such
contracts shall be deemed specifically approved and authorized by the
stockholders of the Corporation and not subject to invalidity by reason of any
interested directors. The Corporation may create a trust fund, grant a security
interest or use other means (including, without limitation, a letter of credit,
surety bonds and/or other similar arrangements) to ensure the payment of such
amounts as may be necessary to effect indemnification of any person entitled
thereto.
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(f) Severability; Statutory Alternative. If any provision or provisions of
this Section or Section 19 shall be held to be invalid, illegal or unenforceable
for any reason whatsoever (i) the validity, legality and enforceability of all
of the remaining provisions of such Sections shall not in any way be affected or
impaired thereby; and (ii) to the fullest extent possible, the remaining
provisions of such Sections shall be construed so as to give effect to the
intent manifested by the provision held invalid, illegal or unenforceable. In
the event that the indemnitee elects, as an alternative to the procedures
specified in this Section or in Section 19, to follow one of the procedures
authorized by applicable corporate law or statute to enforce his right to
indemnification and notifies the Corporation of his or her election, the
Corporation agrees to follow the procedure so elected by the indemnitee. If in
accordance with the preceding sentence, the procedure therefor contemplated
herein or the procedure elected by the indemnitee in any specific circumstances
(or such election by the indemnitee) shall be invalid or ineffective in bringing
about a valid and binding determination of the entitlement of the indemnitee to
indemnification, the most nearly comparable procedure authorized by applicable
corporate law or statute shall be followed by the Corporation and the
indemnitee.
(g) Certain Limitations. The Corporation shall indemnify any indemnitee as
provided in this Section and in Section 19 in connection with a Proceeding
initiated by such indemnitee only if such Proceeding was authorized by the Board
of Directors of the Corporation; provided, however, that the Corporation shall
further indemnify an indemnitee in connection with a Proceeding to enforce such
indemnitee's rights under this Section and Section 19.
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Section 19. Procedures; Presumptions and Effect of Certain Proceedings;
Remedies. In furtherance, but not in limitation, of the foregoing provisions of
Section 18, the following procedures, presumptions and remedies shall apply with
respect to advancement of expenses and the right to indemnification under
Section 18:
(a) Advancement of Expenses. The advancement or reimbursement of expenses
to an indemnitee shall be made within twenty (20) days after the receipt by the
Corporation of a request therefor from the indemnitee. Such request shall
reasonably evidence the expenses incurred or about to be incurred by the
indemnitee and, if required by law at the time of such advance, shall include or
be accompanied by an undertaking by or on behalf of the indemnitee to repay the
amounts advanced if it should ultimately be determined that the indemnitee is
not entitled to be indemnified against such expenses.
(b) Procedure for Determination of Entitlement to Indemnification.
(i) To obtain indemnification (except with respect to the advancement of
expenses), an indemnitee shall submit to the Chief Executive Officer or
Secretary of the Corporation a written request, including such documentation and
information as is reasonably available to the indemnitee and reasonably
necessary to determine whether and to what extent the indemnitee is entitled to
indemnification (the "Supporting Documentation"). The Secretary of the
Corporation shall promptly advise the Board of Directors in writing that the
indemnitee has requested indemnification. The determination of the indemnitee's
entitlement to indemnification shall be made not later than sixty (60) days
after receipt by the Corporation of the written request and Supporting
Documentation.
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(ii) The indemnitee's entitlement to indemnification shall be determined in
one of the following ways: (A) by a majority vote of the Disinterested Directors
(as hereinafter defined) (which term shall mean the Disinterested Director, if
there is only one); (B) by a written opinion of the Independent Counsel (as
hereinafter defined) if (1) a majority of the Disinterested Directors so
directs; (2) there is no Disinterested Director, or (3) a Change of Control (as
hereinafter defined) shall have occurred and the indemnitee so requests in which
case the Disinterested Directors shall be deemed to have so directed; (C) by the
stockholders of the Corporation (but only if a majority of the Disinterested
Directors determines that the issue of entitlement to indemnification should be
submitted to the stockholders for their determination); or (D) as provided in
Section 19(c).
(iii) In the event the determination of entitlement to indemnification is
to be made by Independent Counsel pursuant to Section 19(b)(ii), a majority of
the Disinterested Directors shall select the Independent Counsel, but only an
Independent Counsel to which the indemnitee does not reasonably object;
provided, however, that if a Change of Control shall have occurred, the
indemnitee shall select such Independent Counsel, but only an Independent
Counsel to which the Board of Directors does not reasonably object.
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(c) Presumptions and Effect of Certain Proceedings. Except as otherwise
expressly provided in this Section or in Section 18, the indemnitee shall be
presumed to be entitled to indemnification upon submission of a request for
indemnification together with the Supporting Documentation, and thereafter in
any determination or review of any determination, and in any arbitration,
proceeding or adjudication the Corporation shall have the burden of proof to
overcome that presumption in reaching a contrary determination. In any event, if
the person or persons empowered under Section 19(b)(ii) to determine entitlement
to indemnification shall not have been appointed or shall not have made a
determination within 60 days after receipt by the Corporation of the request
therefor together with the Supporting Documentation, the indemnitee shall be
deemed to be entitled to indemnification. In either case, the indemnitee shall
be entitled to such indemnification, unless (i) the indemnitee misrepresented or
failed to disclose a material fact in making the request for indemnification or
in the Supporting Documentation or (ii) such indemnification is prohibited by
law, in either case as finally determined by adjudication or, at the
indemnitee's sole option, arbitration (as provided in Section 19(d)). The
termination of any Proceeding, or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo contendre or
its equivalent, shall not, of itself, adversely affect the right of the
indemnitee to indemnification or create any presumption with respect to any
standard of conduct or belief or any other matter which might form a basis for a
determination that the indemnitee is not entitled to indemnification. With
regard to the right to indemnification for expenses, (x) if and to the extent
that the indemnitee has been successful on the merits or otherwise in any
Proceeding, or (y) if a Proceeding was terminated without a determination of
liability on the part of the indemnitee with respect to any claim, issue or
matter therein or without any payments in settlement or compromise being made by
the indemnitee with respect to a claim, issue or matter therein, or (z) if and
to the extent that the indemnitee was not a party to the Proceeding, the
indemnitee shall be deemed to be entitled to indemnification, which entitlement
shall not be defeated or diminished by any determination which may be made
pursuant to Section 19(b)(i), (ii) or (iii). The indemnitee shall be
presumptively entitled to indemnification in all respects for any act, omission
or conduct taken or occurring which (whether by condition or otherwise) is
required, authorized or approved by any order issued or other action by any
commission or governmental body pursuant to any federal statute or state statute
regulating the Corporation or any of its subsidiaries by reason of its status as
a public utility or public utility holding company or by reason of its
activities as such. To the extent permitted by law, the presumption shall be
conclusive on all parties with respect to acts, omissions or conduct of the
indemnitee if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation or its subsidiary.
No presumption adverse to an indemnitee shall be drawn with respect to any act,
omission or conduct of the indemnitee if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation or its subsidiary taken or occurring in the absence of, or
inconsistent with, any order issued or action by any commission or governmental
body.
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(d) Remedies of Indemnitee.
(i) In the event that a determination is made pursuant to Section 19(b)
that the indemnitee is not entitled to indemnification under this Section or
Section 18, (A) the indemnitee shall be entitled to seek an adjudication of his
entitlement to such indemnification either, at the indemnitee's sole option, in
(1) an appropriate court of the State of Delaware or any other court of
competent jurisdiction or (2) to the extent consistent with law, arbitration to
be conducted by three arbitrators (or, if the dispute involves less than
$100,000, by a single arbitrator) pursuant to the rules of the American
Arbitration Association; (B) any such judicial Proceeding or arbitration shall
be de novo and the indemnitee shall not be prejudiced by reason of such adverse
determination; and (C) in any such judicial Proceeding or arbitration the
Corporation shall have the burden of proof that the indemnitee is not entitled
to indemnification under this Section or Section 19.
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(ii) If a determination shall have been made or deemed to have been made,
pursuant to Section 19(b) or (c), that the indemnitee is entitled to
indemnification, the Corporation shall be obligated to pay the amounts
constituting such indemnification within five days after such determination has
been made or deemed to have been made and shall be conclusively bound by such
determination, unless (A) the indemnitee misrepresented or failed to disclose a
material fact in making the request for indemnification or in the Supporting
Documentation or (B) such indemnification is prohibited by law, in either case
as finally determined by adjudication or, at the indemnitee's sole option,
arbitration (as provided in Section 19(d)(i)). In the event that (1) advancement
of expenses is not timely made by the Corporation pursuant to this Bylaw or (2)
payment of indemnification is not made within five days after a determination of
entitlement to indemnification has been made or deemed to have been made
pursuant to Section 19(b) or (c), the indemnitee shall be entitled to seek
judicial enforcement of the Corporation's obligations to pay to the indemnitee
such advancement of expense of indemnification. Notwithstanding the foregoing,
the Corporation may bring an action, in an appropriate court in the State of
Delaware or any other court of competent jurisdiction, contesting the right of
the indemnitee to receive indemnification hereunder due to the occurrence of a
circumstance described in subclause (A) of this Section 19(d)(ii) or a
prohibition of law (both of which are herein referred to as a "Disqualifying
Circumstance"). In either instance, if the indemnitee shall elect, at his sole
option, that such dispute shall be determined by arbitration (as provided in
Section 19(d)(i)), the indemnitee and the Corporation shall submit the
controversy to arbitration. In any such enforcement action or other proceeding
whether brought by the indemnitee or the Corporation, indemnitee shall be
entitled to indemnification unless the Corporation can satisfy the burden or
proof that indemnification is prohibited by reason of a Disqualifying
Circumstance.
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(iii) The Corporation shall be precluded from asserting in any judicial
Proceeding or arbitration commenced pursuant to Section 19(d) that the
procedures and presumptions of this Section and Section 18 are not valid,
binding and enforceable and shall stipulate in any such court or before any such
arbitrator or arbitrators that the Corporation is bound by all the provisions of
such Sections.
(iv) In the event that the indemnitee, pursuant to this Section or Section
18, seeks a judicial adjudication of or an award in arbitration to enforce his
rights under, or to recover damages for breach of, this Section or Section 18,
or is otherwise involved in any adjudication or arbitration with respect to his
right to indemnification, the indemnitee shall be entitled to recover from the
Corporation, and shall be indemnified by the Corporation against, any expenses
actually and reasonably incurred by him if the indemnitee prevails in such
judicial adjudication or arbitration. If it shall be determined in such judicial
adjudication or arbitration that the indemnitee is entitled to receive part but
not all of the indemnification or advancement of expenses sought, the expenses
incurred by the indemnitee in connection with such judicial adjudication or
arbitration shall be prorated accordingly.
(e) Definitions. For purposes of indemnification under this Section and
Section 18 or otherwise:
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(i) "Change in Control" means a change in control of the Corporation of a
nature that would be required to be reported in response to Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of 1934 (the
"Act"), whether or not the Corporation is then subject to such reporting
requirement; provided that, without limitation, such a change in control shall
be deemed to have occurred if (A) any "person" (as such term is used in Sections
13(d) and 14(d) of the Act) is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Act), directly or indirectly, of securities of the
Corporation representing 20 percent or more of the combined voting power of the
Corporation's then outstanding securities without the prior approval of at least
two-thirds of the members of the Board of Directors in office immediately prior
to such acquisition; (B) the Corporation is a party to a merger, consolidation,
sale of assets or other reorganization, or a proxy contest, as a consequence of
which, members of the Board of Directors in office immediately prior to such
transaction or event constitute less than a majority of the Board of Directors
thereafter; or (C) during any period of two consecutive years, individuals who
at the beginning of such period constituted the Board of Directors (including
for this purpose any new Director whose election or nomination for election by
the Corporation's stockholders was approved by a vote of at least two-thirds of
the Directors then still in office who were Directors at the beginning of such
period) cease for any reason to constitute at least a majority of the Board of
Directors.
(ii) "Disinterested Director" means a Director of the Corporation who is
not or was not a material party to the Proceeding in respect of which
indemnification is sought by the indemnitee.
(iii) "Independent Counsel" means a law firm or a member of a law firm that
neither presently is, nor in the past five years has been, retained to represent
(A) the Corporation or the indemnitee in any manner or (B) any other party to
the Proceeding giving rise to a claim for indemnification under this Section or
Section 18. Notwithstanding the foregoing, the term "Independent Counsel" shall
not include any person who, under the applicable standards of professional
conduct then prevailing under the law of the State of Delaware, would have a
conflict of interest in representing either the Corporation or the indemnitee in
an action to determine the indemnitee's rights under this Section or Section 18.
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(f) Acts of Disinterested Directors. Disinterested Directors considering or
acting on any indemnification matter under this Section or Section 18 or under
governing corporate law or otherwise may consider or take action as the Board of
Directors or may consider or take action as a committee or individually or
otherwise. In the event that Disinterested Directors consider or take action as
the Board of Directors, one-third of the total number of Directors in office
shall constitute a quorum.
AMENDMENTS OF BYLAWS
Section 20. These Bylaws may be amended or altered by the vote of a
majority of the whole Board of Directors at any meeting provided that notice of
such proposed amendment shall have been given in the notice given to the
Directors of such meeting. Such authority in the Board of Directors is subject
to the power of the stockholders to change or repeal any Bylaws by a majority
vote of the stockholders present and represented at any annual meeting or at any
special meeting called for such purpose, and the Board of Directors shall not
repeal or alter any Bylaws, other than Section 19, adopted by the stockholders.
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