Exhibit 3.1
BYLAWS*
OF
CITIZENS COMMUNICATIONS COMPANY
* 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; and March 6,2002 (other than amendments to
By-Laws 4 and 5 relating to advance notice of stockholder proposed business
and notification of director nominations by stockholders that shall not take
effect until immediately after the Corporation's 2002 annual meeting).
BYLAWS
OF
CITIZENS COMMUNICATIONS COMPANY
TITLE
1. The title of this corporation is CITIZENS COMMUNICATIONS COMPANY.
LOCATION OF OFFICES
2. The principal office of the corporation in Delaware shall be in
Wilmington and the resident agent in charge thereof shall be CORPORATION
SERVICE COMPANY, 2711 Centerville Road.
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
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
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. At each annual
meeting the stockholders shall elect a Board of Directors, such election to be
by majority of the stock present or represented by proxy, and entitled to vote
at the meeting.
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 on 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 Chief
Executive Officer and shall be called on the request in writing or by vote of
a majority of the Board of Directors or on 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 on 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 or the Chairman of 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 Bylaw.
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 Company, at least ten
days and not more than sixty days prior to the date of the meeting. If the
transfer books are closed or a record date is fixed in connection with an
annual meeting, as permitted by By-Law 17, the notice of the meeting shall be
given to the stockholders of record as of the time said books are closed or
record date is fixed, but if the transfer books are not closed or a record
date is not fixed, said notice shall be given to the stockholders of record at
the time the notice is mailed.
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 Bylaw 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 Bylaw.
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.
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) 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 the annual meeting is called for a date that is not within
twenty-five (25) days before or after such anniversary date, notice by the
stockholder in order to be timely must be so received not later than the close
of business on the tenth (10th) day following the day on which notice of the
date of the annual meeting was mailed or public disclosure of the date of the
annual meeting was made, whichever first occurs.
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.
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 Bylaw; provided, however, that, once business has been
properly brought before the meeting in accordance with such procedures,
nothing in this Bylaw 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 Bylaw 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
Bylaw 5 for such nominations to be properly brought before such meeting.
DIRECTORS
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 thirteen members. The number of Directors shall be
fixed from time to time, within the limits prescribed, by resolution of the
Board of Directors. As of July 18, 2000, the Board of Directors shall
consist of thirteen members, unless a different number shall thereafter be
fixed 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.
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
stockholders of this corporation shall have no preemptive right to
subscribe to any issue of shares of stock of this corporation now or
hereafter made.
A Director may be designated a "Director Emeritus" of the Company
by the vote of the Board of Directors. A Director Emeritus shall be invited
to attend all meetings of the Board of Directors but shall not have the
right to vote. A Director Emeritus shall receive such compensation as the
Board shall determine.
A Director Emeritus shall be designated by the Board of Directors
for a one-year term (and may be reappointed) at the Annual Meeting of the
Board of Directors following the Company's Annual Meeting of Shareholders.
The Board of Directors shall have an Executive Committee. The
Executive Committee of the Board shall consist of four (4) members, to be
appointed by and to serve at the pleasure of the Board. The Chairman of the
Board shall be the Chairman of the Executive Committee. During intervals
between meetings of the Board, the Committee shall have the power and
authority of the Board of Directors of the management of the business
affairs and property of the Company.
A majority of the Directors in office shall be independent
directors as hereinafter defined. At the time that the nominees for the
Board of Directors are selected for proposal for election at the Annual
Meeting of Shareholders, the Board of Directors will review the
circumstances of each nominee and determine whether he or she is an
independent director. If it should be determined that a majority of the
nominees are not independent directors, the Nominating Committee shall take
steps to select and recommend the nomination of a sufficient number of
individuals who are independent directors so that a majority of members of
the Board of Directors shall be independent directors.
The Board of Directors shall have a Nominating Committee. The
Nominating Committee shall consist of not less than two directors and not
more than four directors, to be appointed by and to serve at the pleasure
of the Board. Each member of the Nominating Committee shall be an
independent director as hereinafter defined. The Nominating Committee shall
consider recommendations of individuals who may be expected to make
contributions to the Company or members of the Board of Directors. The
Nominating Committee shall establish procedures for the nominating process
and make recommendations to the Board of Directors annually for the slate
of nominees for the Board of Directors to be proposed at the Annual Meeting
of Shareholders.
The Board of Directors shall have a Compensation Committee. The
Compensation Committee shall consist of not less than two directors and not
more than five directors, to be appointed by and to serve at the pleasure
of the Board. Each member of the Compensation Committee shall be an
independent director as hereafter defined. The Compensation Committee shall
consider matters related to compensation of officers, directors and
employees of the Company and to make recommendations with respect thereto
to the Board of Directors. The Compensation Committee shall have the
authority to retain independent legal counsel and compensation advisors.
The Board of Directors shall have an Audit Committee. The Audit
Committee shall consist of not less than three Directors, to be appointed
and to serve at the pleasure of the Board. Except as otherwise provided by
such rules, each member of the Audit Committee shall be qualified to serve
thereon in accordance with the applicable rules of the New York Stock
Exchange. The Audit Committee shall have such powers, duties and authority
as shall be determined by resolution of the Board of Directors from time to
time, including as set forth in the charter of the Audit Committee adopted
by the Board of Directors in accordance with the rules of the New York
Stock Exchange.
For purposes of this Article 5 of the Bylaws, "independent
director" shall mean a director who is:
(a) an individual who is not and has not been employed as an
executive officer by the Company (or any corporation, the majority of
the voting stock of which is owned, directly or indirectly through
one or more other subsidiaries, by the Company) within three (3)
fiscal years immediately prior to his or her most recent election or
appointment as a member of the Board of Directors; or
(b) an individual who is not a regular paid advisor or
consultant to the Company and who is not an affiliate (within the
meaning of Exchange Act Rule 12b-2 of the Securities and Exchange
Commission) of any entity that is a regular paid advisor or
consultant to the Company; or
(c) an individual who is not an employee or owner of five
percent (5%) or more of the voting stock of any business or
professional entity that has made, during the Company' s last full
fiscal year, payments to the Company or its subsidiaries for
property, goods or services in excess of five percent (5%) of the
lesser of (i) the Company's consolidated gross revenues for its last
full fiscal year, or (ii) such other entity's consolidated gross
revenues for its last full fiscal year; or
(d) an individual who is not an employee or owner of five
percent (5%) or more of the voting stock of any business or
professional entity to which the Company or its subsidiaries have
made, during the Company's last full fiscal year, payments for
property, goods or services in excess of five percent (5%) of the
lesser of (i) the Company's consolidated gross revenues for its last
full fiscal year, or (ii) such other entity's consolidated gross
revenues for its last full fiscal year; or
(e) an individual who is not a party to a personal service
contract with the Company pursuant to which fees or other
compensation received by the individual from the Company during his
or her last full fiscal year (other than fees received as a member of
the Company's Board of Directors or a committee thereof so as to
require description of such contract under Item 404(a) of Regulation
S-K promulgated by the Securities and Exchange Commission, as in
effect on January 1, 1994; or
(f) an individual who is not employed by a tax-exempt
organization that received, during its last full fiscal year,
contributions from the Company in excess of five percent (5%) of the
lesser of (i) the consolidated gross revenues of the Company during
its last full fiscal year, or (ii) the contributions received by the
tax-exempt organization during its last full fiscal year; or
(g) an individual who has not carried out a transaction or
did not have a relationship, during the Company's last full fiscal
year, such that the specifics of a transaction would be required to
be described under Item 404 of Regulation S-K promulgated by the
Securities and Exchange Commission, as in effect on January 1, 1994;
or
(h) an individual who is not employed by a public company at
which an executive officer of the Company serves as a member of the
board of directors; or
(i) an individual who has not had any relationship
described in paragraphs (a) - (h) with any corporation, the
majority of the voting stock of which is owned directly or
indirectly, through one or more subsidiaries, by the Company; or
(j) an individual who is not a member of the immediate
family of any person described in paragraphs (a) - (i). For these
purposes, an individual's immediate family shall include such
individual's spouse, parents, children, siblings, mothers- and
fathers-in-law, sons- and daughters-in-laws, and brothers and
sisters-in-law.
The term "independent director" shall have no legal significance
under applicable corporate or securities law or in any respect other than for
the purposes of this Bylaw. No inference shall be drawn that a director is
"not independent," "interested," or "a party to a contract or transaction" or
has a "financial interest" in any contract or transaction within the meaning
of any applicable corporate or securities law, and no director shall be
disqualified from taking action or refraining from acting on any matter coming
before the Board of Directors by reason of his or her status as an independent
director under this Bylaw.
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 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 Bylaw 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 Bylaw.
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 the annual meeting is called for a date that
is not within twenty-five (25) days before or after such anniversary date,
notice by the stockholder in order to be timely must be so received not later
than the close of business on the tenth (10th) day following the day on which
notice of the date of the annual meeting was mailed or public disclosure of
the date of the annual meeting was made, whichever first occurs; and (b) in
the case of a special meeting of stockholders called for the purpose of
electing directors, not later than the close of business on the tenth (10th)
day following the day on which notice of the date of the special meeting was
mailed or public disclosure of the date of the special meeting was made,
whichever first occurs.
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.
No person shall be eligible for election as a director of the
corporation unless nominated in accordance with the procedures set forth in
this Bylaw. 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
6. The Board of Directors shall have all such powers as may be
exercised by the Corporation, subject to the provisions of the statutes, the
Certificate of Incorporation, and the Bylaws.
MEETINGS OF DIRECTORS
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 Chief
Executive Officer in the call 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
Chief Executive Officer by oral, telegraphic, 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.
(Telephone Participation in Meetings)
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
8. The officers of the Company shall be a Chairman of the Board of
Directors, a President, one or more vice presidents (with such duties and
titles as may be assigned to them), a secretary, a treasurer, one or more
assistant vice presidents (with such duties and titles as may be assigned to
them), and such other officers as may from time to time be chosen by the Board
of Directors.
The officers of the Company shall hold office until their
successors are elected and qualified. If the office of any officer or
officers becomes vacant for any reason, the vacancy shall be filled by the
affirmative vote of a majority of the whole Board of Directors.
DUTIES OF THE CHAIRMAN
9. The Chairman presides at all meetings of the Board of Directors
and at all meetings of the shareholders. It shall be his prerogative to see
that all orders, resolutions, and policy determinations of the Board of
Directors are carried into effect. He acts in a general oversight and advisory
capacity with respect to the affairs of the Company. He provides leadership to
the Board in reviewing and deciding upon matters which constitute major
policies of the Company, what the Company does and the manner in which the
Company business is conducted.
DUTIES OF THE CHIEF EXECUTIVE OFFICER
9A. It shall be the duty of the Chief Executive Officer to carry into
effect all orders, resolutions, and policy determinations of the Board of
Directors; to execute all contracts and agreements; to keep the seal of the
Company; and to sign and to affix the seal of the Company to any instrument
requiring the same, which seal shall be attested by the signature of the
Secretary or Treasurer or Assistant Secretary or Assistant Treasurer. He shall
have the general supervision and direction of the other officers of the
Company.
He shall submit a report of the operations of the Company for the
year to the Directors at their meeting next preceding the annual meeting of
the stockholders and to the stockholders at their annual meeting.
He shall have the general duties and powers of supervision and
management usually vested in the chief executive officer of a corporation.
The Chief Executive may also hold another office with the Company.
Accordingly, the duties and responsibilities of the position may be assigned
by the Board of Directors to any Company officer.
DUTIES OF THE PRESIDENT
9B. Unless otherwise decided by the Board of Directors, the President
shall be the chief executive and administrative officer of the Company. It
shall be his duty to see that all orders and policy determination conveyed by
the Chairman are carried into effect. He shall have the general supervision
and direction of the operations and administration of the affairs of the
Company and general supervision and direction of the other officers and
employees of the Company and shall see that their duties are properly
performed.
VICE PRESIDENT
10. The vice president or vice presidents, in the order of their
seniority, shall be vested with all the powers and required to perform all the
duties of the President in his absence or disability and shall perform such
other duties as may be prescribed by the Board of Directors.
CHIEF EXECUTIVE PRO TEM
11. In the absence or disability of both the Chairman and President,
the Board may appoint a chief executive pro tem.
SECRETARY
12. The secretary shall attend all meetings of the corporation and
the Board of Directors. He shall act as clerk thereof and shall record all of
the proceedings of such meetings in a book kept for that purpose. He shall
give proper notice of meetings of stockholders and Directors and shall perform
such other duties as shall be assigned to him by the Chairman, President or
the Board of Directors.
TREASURER
13. The treasurer shall have custody of the funds and securities of
the corporation and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all
moneys and other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the Board of
Directors.
He shall disburse the funds of the corporation as may be ordered by
the Board, or Chairman or President, taking proper vouchers for such
disbursements and shall render to the Chairman, President and Directors,
whenever they may require it, an account of all his transactions as treasurer
and of the financial condition of the corporation.
He shall keep an account of stock and income notes registered and
transferred in such manner and subject to such regulations as the Board of
Directors may prescribe.
He shall give the corporation a bond, if required by the Board of
Directors, in such sum and in form and with security satisfactory to the Board
of Directors for the faithful performance of the duties of his office and the
restoration to the corporation, in case of his death, resignation, or removal
from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession, belonging to the corporation. He shall
perform such other duties as the Board of Directors may from time to time
prescribe or require.
DUTIES OF OFFICERS MAY BE DELEGATED
14. In case of the absence or disability of any officer of the
corporation or for any other reason deemed sufficient by a majority of the
Board, the Board of Directors may delegate his powers or duties to any other
officer or to any Director for the time being. The duties relating to the
execution of contracts and agreements and the signing of instruments and
affixing the seal of the Company and other matters may be delegated to any
officer, from time to time, as the Board shall see fit.
CERTIFICATES OF STOCK
15. Certificates of stock shall be signed by the Chairman, President
or a vice president and either the treasurer, assistant treasurer, secretary
or assistant secretary. If a certificate of stock be lost or destroyed,
another may be issued in its stead upon proof of such loss or destruction and
the giving of a satisfactory bond of indemnity, in an amount sufficient to
indemnify the corporation against any claim.
TRANSFER OF STOCK
16. All transfer of stock of the corporation shall be made upon its
books upon presentation of the certificate or certificates therefor, properly
endorsed by the holder of the shares in person or by his lawfully constituted
representative, and upon surrender of such certificate or certificates of
stock for cancellation.
CLOSING OF TRANSFER BOOKS
17. 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.
STOCKHOLDERS OF RECORD
18. 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
19. The fiscal year of the corporation shall begin on the first day
in January in each year.
DIVIDENDS
20. Dividends, to the extent not restricted by provisions of the
corporation's Certificate of Incorporation or by subsisting agreements of the
corporation, may be declared by the Board of Directors and paid in cash, in
property, or in shares of the capital stock of the corporation to the extent
permitted by law, out of net assets in excess of its capital or out of its net
profits, provided there shall be no impairment of the capital of the
corporation represented by its issued and outstanding stock of all classes
having a preference upon the distribution of assets.
BOOKS AND RECORDS
21. 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
22. 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 depositing the same in a post
office or letter box, in a postpaid sealed or unsealed wrapper, addressed to
such stockholder, officer or Director at such address as appears on the books
of the corporation, and such notice shall be deemed to be given at the time
when the same shall be thus mailed; provided, however, that any notice to
Directors may also be made by oral, telegraphic, electronic mail or other
electronic transmission, and such notice shall be deemed to be given at the
time when the same shall be sent or given. In computing the number of days
notice required for any meeting, the day on which the notice shall be
deposited in the mail or sent by telegraph shall be excluded; provided,
however, that in computing the number of hours required for any oral,
telegraphic, 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
23. Any stockholder, officer, or Director may waive in writing, or by
telegraph, any notice required to be given under these Bylaws, whether before
or after the time stated therein.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
24. Paragraph (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 judgement 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 By-law 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 By-law, including rights to the advancement of expenses and the
evidentiary, procedural and other provisions of this By-law, 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 Restated Certificate
of Incorporation or amendment or repeal of the By-laws purporting to have the
effect of modifying or repealing any of the provisions of this By-law 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 By-law
shall be applicable to all Proceedings, whether arising from acts or omissions
occurring before or after the adoption of this Bylaw. The phrases "this
By-law" and "By-law" shall refer to "By-laws 24 and 24A," and for all
purposes, except the corporate procedure required for amendment of the By-law,
this By-law shall be considered as one By-law.
Paragraph (b). By-Law Not Exclusive. The right of indemnification,
including the right to receive payment in advance of expenses, conferred in
this By-law shall not be exclusive of any other rights to which any person
seeking indemnification may otherwise be entitled under any provision of the
Restated Certificate of Incorporation, By-law, 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.
Paragraph (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 By-law, 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.
Paragraph (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.
Paragraph (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 in connection with
any Proceeding in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such expense, liability or loss under the provisions of this By-law 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 By-law. 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) to ensure the payment of such amounts
as may be necessary to effect indemnification of any person entitled thereto.
Paragraph (f) Severability; Statutory Alternative. If any provision
or provisions of this By-law 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 this By-law shall not in
any way be affected or impaired thereby; and (ii) to the fullest extent
possible, the remaining provisions of this By-law 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 By-law, 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 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.
Paragraph (g). Certain Limitations. The corporation shall indemnify
any indemnitee as provided in By-laws 24 and 24A 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 By-laws 24 and 24A.
24A. Procedures; Presumptions and Effect of Certain Proceedings;
Remedies. In furtherance, but not in limitation, of the foregoing provisions
of this By-law, the following procedures, presumptions and remedies shall
apply with respect to advancement of expenses and the right to indemnification
under this By-law:
Section 1. Advancement of Expenses. The advancement or reimbursement of
expenses to an indemnitee shall be made within 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.
Section 2. Procedure for Determination of Entitlement to Indemnification.
Section 2.l. 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 60
days after receipt by the Corporation of the written request and Supporting
Documentation.
Section 2.2. 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 (i) a majority of the
Disinterested Directors so directs; (ii) there is no Disinterested Director,
or (iii) 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 3 of this By-law.
Section 2.3. In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to Section 2.2
of this By-law, 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.
Section 3. Presumptions and Effect of Certain Proceedings. Except as
otherwise expressly provided in this By-law, 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 2.2 of this By-law 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 (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 4 of this By-law). 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 contenders 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, (a) if and to the extent that the indemnitee
has been successful on the merits or otherwise in any Proceeding, or (b) 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 (c) 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 clauses (a), (b) or (c) of Section 2.2. 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.
Section 4. Remedies of Indemnitee.
Section 4.1. In the event that a determination is made pursuant to
Section 2 of this By-law that the indemnitee is not entitled to
indemnification under this By-law, (a) the indemnitee shall be entitled to
seek an adjudication of his entitlement to such indemnification either, at the
indemnitee's sole option, in (i) an appropriate court of the State of Delaware
or any other court of competent jurisdiction or (ii) 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 By-law.
Section 4.2. If a determination shall have been made or deemed to
have been made, pursuant to Sections 2 or 3 of this By-law, 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 4.1 of
this By-law). In the event that (i) advancement of expenses is not timely made
by the Corporation pursuant to this By-law or (ii) 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
2 or 3 of this By-law, 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 4.2 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 4.1 of this By-law), 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.
Section 4.3. The Corporation shall be precluded from asserting in any
judicial Proceeding or arbitration commenced pursuant to this Section 4 that
the procedures and presumptions of this By-law 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 this By-law.
Section 4.4. In the event that the indemnitee, pursuant to this
By-law, seeks a judicial adjudication of or an award in arbitration to enforce
his rights under, or to recover damages for breach of, this By-law, 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.
Section 5. Definitions. For purposes of indemnification under this By-law
or otherwise.
Section 5.1. "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.
Section 5.2. "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.
Section 5.3. "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 By-law. 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 By-law.
Section 6. Acts of Disinterested Directors. Disinterested Directors
considering or acting on any indemnification matter under this By-law 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
25. These By-laws 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 By-laws 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 By-laws, other than By-law 24A, adopted by the
stockholders.