EXHIBIT 4.2
BYLAWS
OF
EARTHLINK, INC.
(a Delaware corporation)
INDEX
Page
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ARTICLE I OFFICES.................................................................................................1
ARTICLE II STOCKHOLDERS' MEETINGS.................................................................................1
2.1 Places of Meetings...................................................................................1
2.2 Annual Meetings......................................................................................1
2.3 Special Meetings.....................................................................................1
2.4 Voting...............................................................................................1
2.5 Quorum...............................................................................................1
2.6 List of Stockholders.................................................................................2
2.7 Action Without Meeting...............................................................................2
ARTICLE III BOARD OF DIRECTORS....................................................................................2
3.1 Powers...............................................................................................2
3.2 Election of Directors................................................................................2
3.3 Compensation.........................................................................................2
3.4 Meetings and Quorum..................................................................................3
3.5 Committees...........................................................................................3
3.6 Conference Telephone Meetings........................................................................4
3.7 Action Without Meeting...............................................................................4
ARTICLE IV OFFICERS...............................................................................................4
4.1 Titles and Election..................................................................................4
4.2 Duties...............................................................................................5
(a) Chairman of the Board of Directors..........................................................5
(b) Vice-Chairman of the Board of Directors.....................................................5
(c) Chief Executive Officer.....................................................................5
(d) President...................................................................................5
(e) Vice Presidents.............................................................................5
(f) Secretary...................................................................................5
(g) Treasurer...................................................................................6
(g) Assistant Secretaries and Treasurers........................................................6
4.3 Delegation of Authority..............................................................................6
4.4 Compensation.........................................................................................6
ARTICLE V RESIGNATIONS, VACANCIES AND REMOVALS....................................................................6
5.1 Resignations.........................................................................................6
5.2 Vacancies............................................................................................7
(a) Directors...................................................................................7
(b) Officers....................................................................................7
5.3 Removals.............................................................................................7
(a) Directors...................................................................................7
(b) Officers....................................................................................7
ARTICLE VI CAPITAL STOCK..........................................................................................7
6.1 Certificates of Stock................................................................................7
6.2 Transfer of Stock....................................................................................7
(i)
6.3 Record Dates.........................................................................................8
6.4 Lost Certificates....................................................................................8
ARTICLE VII FISCAL YEAR, BANK DEPOSITS, CHECKS, ETC...............................................................8
7.1 Fiscal Year..........................................................................................8
7.2 Bank Deposit, Checks, Etc............................................................................8
ARTICLE VIII BOOKS AND RECORDS....................................................................................9
8.1 Place of Keeping Books...............................................................................9
8.2 Examination of Books.................................................................................9
ARTICLE IX NOTICES................................................................................................9
9.1 Requirements of Notice...............................................................................9
9.2 Waivers..............................................................................................9
ARTICLE X SEAL....................................................................................................9
ARTICLE XI POWERS OF ATTORNEY....................................................................................10
ARTICLE XII INDEMNIFICATION; INTERESTED PARTIES..................................................................10
12.1 Indemnification....................................................................................10
12.2 Miscellaneous......................................................................................11
ARTICLE XIII AMENDMENTS..........................................................................................11
13.1 Amendment or Repeal................................................................................11
13.2 Stockholder Proposals..............................................................................11
(ii)
BYLAWS
of
EARTHLINK, INC.
ARTICLE I
OFFICES
EarthLink, Inc. (the "Corporation") shall at all times
maintain a registered office in the State of Delaware and a registered agent at
that address but may have other offices located in or outside of the State of
Delaware as the Board of Directors may from time to time determine.
ARTICLE II
STOCKHOLDERS' MEETINGS
2.1 PLACES OF MEETINGS. All meetings of stockholders shall be held at
such place or places in or outside of the State of Delaware as the Board of
Directors may from time to time determine or as may be designated in the notice
of meeting or waiver of notice thereof, subject to any provisions of the laws of
the State of Delaware.
2.2 ANNUAL MEETINGS. The annual meeting of stockholders for the
election of directors and the transaction of such other business as may properly
come before the meeting shall be held on such date within five (5) months after
the end of each fiscal year of the Corporation and at such time as may be
designated from time to time by the Board of Directors. If the annual meeting is
not held as specified in the preceding sentence, it may be held as soon
thereafter as convenient and shall be called the annual meeting. Written notice
of the time and place of the annual meeting shall be given by mail to each
stockholder entitled to vote thereat at the address of such stockholder as it
appears on the records of the Corporation, not less than ten (10) nor more than
sixty (60) days prior to the scheduled date thereof, unless such notice is
waived as provided in Article IX of these Bylaws.
2.3 SPECIAL MEETINGS. Special meetings of stockholders may be called at
any time by the Chairman of the Board of Directors or a majority of the Board of
Directors. Written notice of the time, place and specific purposes of such
meeting shall be given by mail to each stockholder entitled to vote thereat at
the address of such stockholder as it appears on the records of the Corporation,
not less than ten (10) nor more than sixty (60) days prior to the scheduled date
thereof, unless such notice is waived as provided in Article IX of these Bylaws.
2.4 VOTING. At all meetings of stockholders, each stockholder entitled
to vote on the record date, as determined under Article VI, Section 6.3 of these
Bylaws or, if not so determined, as prescribed under the General Corporation Law
of the State of Delaware (the "DGCL"), shall be entitled to one vote for each
share of stock standing of record in the name of such stockholder, subject to
any restrictions or qualifications set forth in the Certificate of Incorporation
or any amendment thereto.
2.5 QUORUM. At any meeting of stockholders, a majority of the number of
shares of stock outstanding and entitled to vote thereat (or a majority of the
number of shares of stock entitled to vote as a class or series) present in
person or by proxy, shall constitute a quorum, but a smaller interest may
adjourn any meeting from time to time, and the meeting may be held as
adjourned without further notice, subject to such limitations as may be imposed
under the DGCL, and PROVIDED further that once a quorum is established at a
meeting as set forth hereunder, the quorum may not otherwise be eliminated
during such meeting. When a quorum is present at any meeting, a majority of the
number of shares of stock entitled to vote present thereat shall decide any
question brought before such meeting unless the question is one upon which a
different vote is required by the DGCL, the Certificate of Incorporation or
these Bylaws, in which case such express provision shall govern.
2.6 LIST OF STOCKHOLDERS. At least ten (10) days before every meeting,
a complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order and showing the address of and the number of shares
registered in the name of each stockholder, shall be prepared by the Secretary
or the transfer agent in charge of the stock ledger of the Corporation. Such
list shall be open for examination by any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten
(10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present. The stock ledger shall represent conclusive evidence as to who are the
stockholders entitled to examine such list or the books of the Corporation or to
vote in person or by proxy at such meeting.
2.7 ACTION WITHOUT MEETING. Action required to be taken or which may be
taken at any annual meeting or special meeting of stockholders may be taken
without a meeting, without prior notice and without a vote, if a consent or
consents in writing, setting forth the action so taken, shall be signed by all
the holders of outstanding stock entitled to vote on such action, and shall be
delivered in the manner specified by law or by the Corporation's Certificate of
Incorporation.
ARTICLE III
BOARD OF DIRECTORS
3.1 POWERS. The business and affairs of the Corporation shall be
carried on by or under the direction of the Board of Directors, which shall have
all the powers authorized by the DGCL, subject to such limitations as may be
provided by the Certificate of Incorporation or these Bylaws.
3.2 ELECTION OF DIRECTORS. Directors shall be elected at each annual
meeting of stockholders as provided in the Certificate of Incorporation, each
director so elected to serve until the election and qualification of his or her
successor or until his or her earlier death, resignation, retirement,
disqualification or removal from office. Directors need not be stockholders, nor
need they be residents of the State of Delaware.
3.3 COMPENSATION. The Board of Directors, or a committee thereof, may
from time to time by resolution authorize the payment of fees or other
compensation to the directors for services as such to the Corporation,
including, but not limited to, fees for serving as members of the Board of
Directors or any committee thereof and for attendance at meetings of the Board
of Directors or any committee thereof, and may determine the amount of such fees
and compensation. Directors shall in any event be paid their reasonable travel
and other expenses for
attendance at all meetings of the Board or committees thereof. Nothing herein
contained shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor in amounts
authorized or otherwise approved from time to time by the Board of Directors or
any committee thereof.
3.4 MEETINGS AND QUORUM. Meetings of the Board of Directors may be held
either in or outside of the State of Delaware. A quorum shall be a majority of
the then-authorized and sitting number of directors.
Meetings other than regular meetings may be called at any time by the
Chief Executive Officer or the Chairman of the Board of Directors and must be
called by the Chief Executive Officer upon the request of a majority or more of
the members of the Board of Directors.
Special meetings of the Board of Directors may be called by the
Chairman of the Board of Directors or the Chief Executive Officer on five days'
notice to each director, either personally or by telephone, express delivery
service (so that the scheduled delivery date of the notice is at least one day
in advance of the meeting), telegram or facsimile transmission, and on five
days' notice by mail (effective upon deposit of such notice in the mail). The
notice need not describe the purpose of a special meeting.
Notice of each meeting, other than a regular meeting (unless required
by the Board of Directors), shall be given to each director by mailing the same
to each director at his or her residence or business address at least five days
before the meeting or by delivering the same to him personally or by telephone,
telegraph or telecopier at least two days before the meeting unless, in case of
exigency, the Chairman of the Board of Directors or the Chief Executive Officer
shall prescribe a shorter notice to be given personally, or notice may
alternatively be given by telephone, telegraph, telecopier, cable or wireless to
all or any one or more of the directors at their respective residences or places
of business. Notice by mail shall be deemed to be given at the earlier of (a)
receipt thereof, or (b) five days after it is deposited in the United States
mail with first-class postage affixed thereon. Notice to directors may also be
given by telecopier transmission to the director's telecopier transmission
number supplied for the purpose of telecopier transmissions and, upon actual
confirmation of such receipt by the director, such notice shall be deemed to be
given as of the date and time of telephonic confirmation of receipt.
Telephonic notice shall be deemed given at such a time as such notice is
actually provided to the director.
Notice of any meeting shall state the time and place of such meeting,
but need not state the purposes thereof unless otherwise required by the DGCL,
the Certificate of Incorporation, the Bylaws or by the order of the Board of
Directors.
3.5 COMMITTEES. The Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, provide for committees of two or more
directors and shall elect the members thereof to serve at the pleasure of the
Board of Directors and may designate one of such members to act as chairman
thereof. The Board of Directors may at any time change the membership of any
committee, fill vacancies in it, designate alternate members to replace any
absent or disqualified members at any meeting of such committee or dissolve it.
During the intervals between the meetings of the Board of Directors, the
Executive Committee (if one shall have been constituted) shall possess and may
exercise any or all of the powers of the Board of
Directors in the management or direction of the business and affairs of the
Corporation and under the Bylaws to the extent authorized by resolution adopted
by a majority of the whole Board of Directors and subject to such limitations as
may be imposed by the DGCL.
Each committee may determine its rules of procedure and the notice to
be given of its meetings (although in the absence of any special notice
procedure, the notice provisions of Section 3.4 hereof shall govern), and it may
appoint such other committees and assistants as it shall from time to time deem
necessary. A majority of the members of the each committee shall constitute a
quorum.
3.6 CONFERENCE TELEPHONE MEETINGS. Any one or more members of the Board
of Directors or any committee thereof may participate in a meeting by means of a
conference telephone call or other similar communication equipment by means of
which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at such meeting.
3.7 ACTION WITHOUT MEETING. Any action required or permitted to be
taken at any meeting of the Board of Directors or any committee thereof may be
taken without a meeting if all members of the Board of Directors or such
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
such committee.
ARTICLE IV
OFFICERS
4.1 TITLES AND ELECTION. The officers of the Corporation shall be the
Chief Executive Officer, President and the Secretary, each of whom shall
initially be elected as soon as convenient by the Board of Directors. The
officers of the Corporation shall hold office until their successors are chosen
and qualify or until their earlier resignation or removal. Any officer may
resign at any time upon written notice to the Corporation. Any officer elected
or appointed by the Board of Directors may be removed at any time, with or
without cause, by the affirmative vote of a majority of the Board of Directors.
Any person may hold more than one office if the duties can be adequately
performed by the same person and to the extent permitted by the DGCL.
The Board of Directors, in its discretion, may also at any time elect
or appoint a Chairman of the Board of Directors, one or more Senior or Executive
Vice Presidents, one or more Vice Presidents, a Chief Operating Officer, a Chief
Financial Officer, a Treasurer and one or more Assistant Secretaries and
Assistant Treasurers and such other officers as it may deem advisable, each of
whom shall hold office at the pleasure of the Board of Directors, except as may
otherwise be approved by the Board of Directors, or until his or her earlier
death, resignation, retirement, removal or other termination of employment, and
shall have such authority and shall perform such duties as may be prescribed or
determined from time to time by the Board of Directors or in case of officers
other than the Chairman of the Board, if not prescribed or determined by the
Board of Directors, the Chief Executive Officer or the then senior executive
officer may prescribe or determine. The Board of Directors may require any
officer or other employee or agent to give bond for the faithful performance of
his or her duties in such form and with such sureties as the Board may require.
4.2 DUTIES. Subject to such limitations and other conditions as the
Board of Directors may from time to time prescribe or determine, the following
officers shall have the following powers and duties:
(a) CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the
Board of Directors, if one is elected, shall be a director and, when
present, shall preside at all meetings of the stockholders and of the
Board of Directors.
(b) CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall
be charged with general supervision of the management, business,
affairs and policy of the Corporation, shall be the senior executive of
the Corporation, shall report directly to the Board of Directors and
shall have such other powers and perform such other duties as the Board
of Directors may prescribe from time to time. The Chief Executive
Officer shall (subject to the presence of the Chairman of the Board of
Directors, if one exists) preside at all meetings of the stockholders
and, if he is a director, of the Board of Directors.
(c) PRESIDENT. The President shall exercise the powers and
authority and perform all of the duties commonly incident to his or her
office, shall report to the Chief Executive Officer and shall perform
such other duties as the Board of Directors or Chief Executive Officer
shall specify from time to time.
(d) VICE PRESIDENTS. The Vice President or Vice Presidents
shall perform such duties as may be assigned to them from time to time
by the Board of Directors or by the Chief Executive Officer if the
Board of Directors does not do so. In the absence or disability of the
Chief Executive Officer, President, the Executive Vice Presidents in
order of seniority, or if none, the Senior Vice Presidents in order of
seniority, or if none, the Vice Presidents in order of seniority, may,
unless otherwise determined by the Board of Directors, exercise the
powers and perform the duties pertaining to the office of President,
except that if one or more Vice Presidents has been elected or
appointed, the person holding such office in order of seniority shall
exercise the powers and perform the duties of the office of President.
(e) SECRETARY. The Secretary or in his or her absence an
Assistant Secretary shall keep the minutes of all meetings of
stockholders and of the Board of Directors and any committee thereof,
give and serve all notices, attend to such correspondence as may be
assigned to him or her, keep in safe custody the seal of the
Corporation, and affix such seal to all such instruments properly
executed as may require it, shall perform all of the duties commonly
incident to his or her office and shall have such other duties and
powers as may be prescribed or determined from time to time by the
Board of Directors or by the Chief Executive Officer if the Board of
Directors does not do so.
(f) TREASURER. The Treasurer or in his or her absence an
Assistant Treasurer, subject to the order of the Board of Directors,
shall have the care and custody of the monies, funds, securities,
valuable papers and documents of the Corporation (other than his or her
own bond, if any, which shall be in the custody of the Chief Executive
Officer), and shall have, under the supervision of the Board of
Directors, all the powers and duties commonly incident to his or her
office. He or she shall deposit all funds of the Corporation in such
bank or banks, trust company or trust companies, or with such firm or
firms doing a banking
business as may be designated by the Board of Directors or by the Chief
Executive Officer if the Board of Directors does not do so. He or she
may endorse for deposit or collection all checks, notes and similar
instruments payable to the Corporation or to its order. He or she shall
keep accurate books of account of the Corporation's transactions, which
shall be the property of the Corporation, and together with all of the
property of the Corporation in his or her possession, shall be subject
at all times to the inspection and control of the Board of Directors.
The Treasurer shall be subject in every way to the order of the Board
of Directors, and shall render to the Board of Directors and/or the
Chief Executive Officer of the Corporation, whenever they may require
it, an account of all his or her transactions and of the financial
condition of the Corporation. In addition to the foregoing, the
Treasurer shall have such duties as may be prescribed or determined
from time to time by the Board of Directors or by the Chief Executive
Officer if the Board of Directors does not do so.
(g) ASSISTANT SECRETARIES AND TREASURERS. Assistants to the
Secretaries and Treasurers may be appointed by the Chief Executive
Officer or elected by the Board of Directors and shall perform such
duties and have such powers as shall be delegated to them by the
President or the Board of Directors.
4.3 DELEGATION OF AUTHORITY. The Board of Directors may at any time
delegate the powers and duties of any officer for the time being to any other
officer, director or employee.
4.4 COMPENSATION. The compensation of the officers of the Corporation
shall be fixed by the Board of Directors or a committee thereof, and the fact
that any officer is a director shall not preclude such officer from receiving
compensation or from voting upon the resolution providing the same.
ARTICLE V
RESIGNATIONS, VACANCIES AND REMOVALS
5.1 RESIGNATIONS. Any director or officer may resign at any time by
giving written notice thereof to the Board of Directors, the Chairman of the
Board of Directors, the Chief Executive Officer or the Secretary. Any such
resignation shall take effect at the time specified therein or, if the time be
not specified, upon receipt thereof; and unless otherwise specified therein or
in these Bylaws, the acceptance of any resignation shall not be necessary to
make it effective.
5.2 VACANCIES.
(a) DIRECTORS. Any vacancy in the Board of Directors caused by
reason of death, disqualification, incapacity, resignation, removal,
increase in the authorized number of directors or otherwise, shall be
filled in the manner provided in the Certificate of Incorporation.
(b) OFFICERS. The Board of Directors may at any time or from
time to time fill any vacancy among the officers of the Corporation.
5.3 REMOVALS.
(a) DIRECTORS. Except as may otherwise be provided by the DGCL
or the Certificate of Incorporation or any amendment thereto, any
director or the entire Board of Directors may be removed, with or
without cause, by the affirmative vote of the holders of a majority of
all outstanding shares entitled to be voted at an election of
directors.
(b) OFFICERS. Subject to the provisions of any validly
existing agreement, the Board of Directors may at any meeting remove
from office any officer, with or without cause, and may appoint a
successor.
ARTICLE VI
CAPITAL STOCK
6.1 CERTIFICATES OF STOCK. Every stockholder shall be entitled to a
certificate or certificates for shares of the capital stock of the Corporation
in such form as may be prescribed or authorized by the Board of Directors, duly
numbered and setting forth the number and kind of shares represented thereby.
Such certificates shall be signed by the Chief Executive Officer, the President
or a Vice President, unless some other person is thereunto specifically
authorized as provided in Article IV, Section 4.2 of these Bylaws, and by the
Treasurer or an Assistant Treasurer or by the Secretary or an Assistant
Secretary. Any or all of such signatures may be in facsimile.
In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed on a certificate has ceased to be such
officer, transfer agent or registrar before the certificate has been issued,
such certificate may nevertheless be issued and delivered by the Corporation
with the same effect as if he were such officer, transfer agent or registrar at
the date of issue.
6.2 TRANSFER OF STOCK. Shares of the capital stock of the Corporation
shall be transferable only upon the books of the Corporation upon the surrender
of the certificate or certificates properly assigned and endorsed for transfer.
If the Corporation has a transfer agent or registrar acting on its behalf, the
signature of any officer or representative thereof may be in facsimile.
The Board of Directors may appoint a transfer agent and one or more
co-transfer agents and a registrar and one or more co-registrars and may make or
authorize such agents to make all such rules and regulations deemed expedient
concerning the issue, transfer and registration of shares of stock.
6.3 RECORD DATES. For the purpose of determining stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend, or to express consent
to corporate action in writing without a meeting, or in order to make a
determination of stockholders for any other proper purposes, the Corporation's
stock transfer books shall not be closed, but a record date shall be set by the
Board of Directors and, upon that date, the Corporation or its transfer agent
shall take a record of the stockholders without actually closing the stock
transfer books. Such record date shall not be more than sixty
(60) days, nor less than ten (10) days, prior to the date on which the
particular action requiring such determination of stockholders is to be taken.
If no such record date is fixed by the Board, the record date shall be
that prescribed by the DGCL.
A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may, in their discretion, fix a
new record date for the adjourned meeting.
6.4 LOST CERTIFICATES. In case of loss or mutilation or destruction of
a stock certificate, a duplicate certificate may be issued upon such terms as
may be determined or authorized by the Board of Directors or the Executive
Committee (if one has been appointed), or by the Chief Executive Officer if the
Board of Directors or the Executive Committee does not do so.
ARTICLE VII
FISCAL YEAR, BANK DEPOSITS, CHECKS, ETC.
7.1 FISCAL YEAR. The fiscal year of the Corporation shall be the
calendar year, unless otherwise fixed by resolution of the Board of Directors.
7.2 BANK DEPOSIT, CHECKS, ETC. The funds of the Corporation shall be
deposited in the name of the Corporation or of any division thereof in such
banks or trust companies in the United States or elsewhere as may be designated
from time to time by the Board of Directors or by such officer or officers as
the Board of Directors may authorize to make such designations.
All checks, drafts or other orders for the withdrawal of funds from any
bank account shall be signed by such person or persons as may be designated from
time to time by the Board of Directors. The signatures on checks, drafts or
other orders for the withdrawal of funds may be in facsimile if authorized in
the designation.
ARTICLE VIII
BOOKS AND RECORDS
8.1 PLACE OF KEEPING BOOKS. The books and records of the Corporation
may be kept within or outside of the State of Delaware.
8.2 EXAMINATION OF BOOKS. Except as may otherwise be provided by the
DGCL, the Certificate of Incorporation or these Bylaws, the Board of Directors
shall have the power to determine from time to time whether and to what extent
and at what times and places and under what conditions any of the accounts,
records and books of the Corporation are to be open to the inspection of any
stockholder. No stockholder shall have any right to inspect any account or book
or document of the Corporation except as prescribed by law or authorized by
express resolution of the stockholders or of the Board of Directors.
ARTICLE IX
NOTICES
9.1 REQUIREMENTS OF NOTICE. Whenever notice is required to be given by
statute, the Certificate of Incorporation or these Bylaws, except as otherwise
provided in Section 3.4 hereof, it shall not mean personal notice unless so
specified, but such notice may be given in writing by depositing the same in a
post office, letter box or mail chute postage prepaid and addressed to the
person to whom such notice is directed at the address of such person on the
records of the Corporation, and such notice shall be deemed given at the time
when the same shall be thus mailed.
9.2 WAIVERS. Any stockholder, director or officer may, in writing or by
telegram or cable, at any time waive any notice or other formality required by
law, the Certificate of Incorporation or these Bylaws. Such waiver of notice,
whether given before or after any meeting or action, shall be deemed equivalent
to notice. Presence of a stockholder either in person or by proxy at any meeting
of stockholders and presence of any director at any meeting of the Board of
Directors shall constitute a waiver of such notice as may be required by law,
the Certificate of Incorporation or these Bylaws, unless such presence is solely
for the purpose of objecting to the lack of notice and such objection is stated
at the commencement of the meeting.
ARTICLE X
SEAL
The corporate seal of the Corporation shall be in such form as the
Board of Directors shall determine from time to time and may consist of a
facsimile thereof or the word "SEAL" enclosed in parentheses or brackets. The
corporate seal of the Corporation shall not be necessary to validate or
authenticate any instrument duly executed by the Corporation or to render any
such instrument enforceable against the Corporation.
ARTICLE XI
POWERS OF ATTORNEY
The Board of Directors may authorize one or more of the officers of the
Corporation to execute powers of attorney delegating to named representatives or
agents power to represent or act on behalf of the Corporation, with or without
the power of substitution.
In the absence of any action by the Board of Directors, any officer of
the Corporation may execute, for and on behalf of the Corporation, waivers of
notice of meetings of stockholders and proxies, or may vote shares directly, for
such meetings of any company in which the Corporation may hold voting
securities.
ARTICLE XII
INDEMNIFICATION
12.1 INDEMNIFICATION. The Corporation shall have the power to indemnify
a director, officer or employee of the Corporation (including making provision
for advancement of expenses) to the full extent and under the circumstances
permitted by the DGCL in effect from time to time, as set forth in the
Corporation's Certificate of Incorporation (as amended from time
to time), in accordance with the procedures, conditions and limitations set
forth therein. The indemnification conferred in this Section 12.1 also shall
include the right to be paid by the Corporation (and such successor) the
expenses (including attorneys' fees) incurred in the defense of or other
involvement in any such proceeding in advance of its final disposition;
provided, however, that, if and to the extent the DGCL requires, the payment of
such expenses (including attorneys' fees) incurred by a director or officer in
advance of the final disposition of a proceeding shall be made only upon
delivery to the Corporation of an undertaking by or on behalf of such director
or officer to repay all amounts so paid in advance if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Section 12.1 or otherwise; and PROVIDED FURTHER, that, such expenses
incurred by other employees and agents may be so paid in advance upon such terms
and conditions, if any, as the Board of Directors deems appropriate.
12.2 Claims; Process. If a claim under Section 12.1 is not paid in full
by the Corporation within sixty days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring an action against
the Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such action. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in connection with any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the DGCL for
the Corporation to indemnify the claimant for the amount claimed or is otherwise
not entitled to indemnification under Section 12.1, but the burden of proving
such defense shall be on the Corporation. Unless otherwise specified in an
agreement with the claimant, an actual determination by the Corporation (in the
manner provided under the DGCL) after the commencement of such action that the
claimant has not met such applicable standard of conduct shall not be a defense
to the action, but shall create a presumption that the claimant has not met the
applicable standard of conduct. The rights to indemnification and advance
payment of expenses provided by Section 12.1 hereof shall not be deemed
exclusive of any other rights to which those seeking indemnification and advance
payment of expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding such
office.
12.3 SURVIVAL OF INDEMNIFICATION RIGHTS; INSURANCE. The indemnification
and advance payment of expenses and rights thereto provided by, or granted
pursuant to, Section 12.1 hereof shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee, partner or agent and shall inure to the benefit of the
personal representatives, heirs, executors and administrators of such person.
The Corporation shall have power to purchase and maintain insurance on behalf of
any person who 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, partner (limited or general) or agent of another
corporation or of a partnership, joint venture, limited liability company, trust
or other enterprise, against any liability asserted against such person or
incurred by such person in any such capacity, or arising out of such person's
status as such, and related expenses, whether or not the Corporation would have
the power to indemnify such person against such liability under the provisions
of the DGCL.
12.4 MISCELLANEOUS. Subject to the limitations set forth in the DGCL,
the Board of Directors may also on behalf of the Corporation grant
indemnification to any individual other than a Person to such extent and in such
matter as the Board of Directors in its sole discretion may from time to time
and at any time determine.
ARTICLE XIII
AMENDMENTS
13.1 AMENDMENT OR REPEAL. Except as provided otherwise by the laws of
the State of Delaware or the Certificate of Incorporation, these Bylaws may be
amended or repealed either:
(a) At any meeting of stockholders at which a quorum is
present by vote of a majority of the number of shares of stock entitled
to vote present in person or by proxy at such meeting as provided in
Article II of these Bylaws; provided that the notice of such meeting of
stockholders or waiver of notice thereof contains a statement of the
substance of the proposed amendment or repeal; or
(b) At any meeting of the Board of Directors by a majority
vote of the directors then in office, except for the provisions
authorizing actions by more than a majority of the directors in which
case such provision may be amended or repealed by such number of
directors as are required at act pursuant to such provision.
13.2 STOCKHOLDER PROPOSALS. Any stockholder who intends to
propose that any provision of these Bylaws be amended by action of the
stockholders shall notify the Secretary of the Corporation in writing
of the amendment or amendments which such stockholder intends to
propose not later than one hundred eighty (180) days prior to a request
by such stockholder to call a special meeting for such purpose or, if
such proposal is intended to be made at an annual meeting of
stockholders, not later than the latest date permitted for submission
of stockholder proposals by Rule 14a-8 under the Securities Exchange
Act of 1934. Such notice to the Secretary shall include the text of the
proposed amendment or amendments and a brief statement of the reason or
reasons why such stockholder intends to make such proposal.
EARTHLINK, INC.
By: /S/ CHARLES G. BETTY
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Name: CHARLES G. BETTY
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Title: CHIEF EXECUTIVE OFFICER
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Date: SEPTEMBER 23, 1999
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