BYLAWS
OF
U S WEST, INC.
(FORMERLY USW-C, INC.)
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of U S WEST,
INC. (formerly USW-C, Inc.) (the "Corporation") in the State of Delaware
shall be at 1209 Orange Street, in the City of Wilmington, County of New
Castle, 19801 and its registered agent at such address shall be The
Corporation Trust Company, or such other office or agent as the Board of
Directors of the Corporation (the "Board") shall from time to time select.
SECTION 2. OTHER OFFICES. The Corporation may also have an office
or offices, and keep the books and records of the Corporation, except as may
otherwise be required by law, at such other place or places, either within or
without the State of Delaware, as the Board may from time to time determine
or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETING. All meetings of the stockholders of
the Corporation shall be held at the office of the Corporation or at such
other places, within or without the State of Delaware, as may from time to
time be fixed by the Board.
SECTION 2. ANNUAL MEETINGS. The annual meeting of the
stockholders for the election of directors and for the transaction of such
other business as may properly come before the meeting shall be held on the
first Friday of June in each year, at an hour to be named in the notice of
the meeting, unless such day should fall on a legal holiday in the State of
Colorado, in which event the meeting shall be held on the next succeeding
business day that is not a legal holiday, or on such date and at such hour as
shall from time to time be fixed by the Board. Any previously scheduled
annual meeting of the stockholders may be postponed by action of
the Board taken prior to the time previously scheduled for such annual
meeting of stockholders.
SECTION 3. SPECIAL MEETINGS. Except as otherwise required by law
or the Certificate of Incorporation of the Corporation (the "Certificate"),
special meetings of the stockholders for any purpose or purposes may be
called by the Chairman of the Board, the Chief Executive Officer or a
majority of the entire Board. Only such business as is specified in the
notice of any special meeting of the stockholders shall come before such
meeting.
SECTION 4. NOTICE OF MEETINGS. Except as otherwise provided by
law, written notice of each meeting of the stockholders, whether annual or
special, shall be given, either by personal delivery or by mail, not less
than 10 nor more than 60 days before the date of the meeting to each
stockholder of record entitled to notice of the meeting. If mailed, such
notice shall be deemed given when deposited in the United States mail,
postage prepaid, directed to the stockholder at such stockholder's address as
it appears on the records of the Corporation. Each such notice shall state
the place, date and hour of the meeting, and the purpose or purposes for
which the meeting is called. Notice of any meeting of stockholders shall not
be required to be given to any stockholder who shall attend such meeting in
person or by proxy without protesting, prior to or at the commencement of the
meeting, the lack of proper notice to such stockholder, or who shall sign a
written waiver of notice thereof, whether before or after such meeting.
Notice of adjournment of a meeting of stockholders need not be given if the
time and place to which it is adjourned are announced at such meeting, unless
the adjournment is for more than 30 days or, after adjournment, a new record
date is fixed for the adjourned meeting.
SECTION 5. QUORUM. Except as otherwise provided by law or by the
Certificate, the holders of a majority of the votes entitled to be cast by
the stockholders entitled to vote generally, present in person or by proxy,
shall constitute a quorum for the transaction of business at any meeting of
the stockholders; PROVIDED, HOWEVER, that in the case of any vote to be taken
by classes, the holders of a majority of the votes entitled to be cast by the
stockholders of a particular class shall constitute a quorum for the
transaction of business by such class.
SECTION 6. ADJOURNMENTS. The chairman of the meeting or the
holders of a majority of the votes entitled to be cast by the stockholders
who are present in person or by proxy may adjourn
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the meeting from time to time whether or not a quorum is present. In the
event that a quorum does not exist with respect to any vote to be taken by a
particular class, the chairman of the meeting or the holders of a majority of
the votes entitled to be cast by the stockholders of such class who are
present in person or by proxy may adjourn the meeting with respect to the
vote(s) to be taken by such class. At such adjourned meeting at which a
quorum may be present, any business may be transacted which might have been
transacted at the meeting as originally called.
SECTION 7. ORDER OF BUSINESS. (a) At each meeting of the
stockholders, the Chairman of the Board or, in the absence of the Chairman of
the Board, the Chief Executive Officer or, in the absence of the Chief
Executive Officer, such person as shall be selected by the Board shall act as
chairman of the meeting. The order of business at each such meeting shall be
as determined by the chairman of the meeting. The chairman of the meeting
shall have the right and authority to prescribe such rules, regulations and
procedures and to do all such acts and things as are necessary or desirable
for the proper conduct of the meeting, including, without limitation, the
establishment of procedures for the maintenance of order and safety,
limitations on the time allotted to questions or comments on the affairs of
the Corporation, restrictions on entry to such meeting after the time
prescribed for the commencement thereof, and the opening and closing of the
voting polls.
(b) At any annual meeting of stockholders, only such business shall
be conducted as shall have been brought before the annual meeting (i) by or
at the direction of the chairman of the meeting, (ii) pursuant to the notice
provided for in Section 4 of this Article II or (iii) by any stockholder who
is a holder of record at the time of the giving of such notice provided for
in this Section 7, who is entitled to vote at the meeting and who complies
with the procedures set forth in this Section 7.
(c) For business properly to be brought before an annual meeting by
a stockholder, the stockholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation (the "Secretary").
To be timely, a stockholder's notice must be delivered to or mailed and
received at the principal executive offices of the Corporation not less than
90 days prior to the date of an annual meeting of stockholders. To be in
proper written form, a stockholder's notice to the Secretary shall set forth
in writing as to each matter the 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
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annual meeting; (ii) the name and address of the stockholder proposing such
business and all persons or entities acting in concert with the stockholder;
(iii) the class and number of shares of the Corporation which are
beneficially owned by the stockholder and all persons or entities acting in
concert with such stockholder; and (iv) any material interest of the
stockholder in such business. The foregoing notice requirements shall be
deemed satisfied by a stockholder if the stockholder has notified the
Corporation of his or her intention to present a proposal at an annual
meeting and such stockholder's proposal has been included in a proxy
statement that has been prepared by management of the Corporation to solicit
proxies for such annual meeting; PROVIDED, HOWEVER, that if such stockholder
does not appear or send a qualified representative to present such proposal
at such annual meeting, the Corporation need not present such proposal for a
vote at such meeting, notwithstanding that proxies in respect of such vote
may have been received by the Corporation. Notwithstanding anything in the
bylaws to the contrary, no business shall be conducted at any annual meeting
except in accordance with the procedures set forth in this Section 7. The
chairman of an annual meeting shall, if the facts warrant, determine that
business was not properly brought before the annual meeting in accordance
with the provisions of this Section 7 and, if the chairman should so
determine, the chairman shall so declare to the annual meeting and any such
business not properly brought before the annual meeting shall not be
transacted.
SECTION 8. LIST OF STOCKHOLDERS. It shall be the duty of the
Secretary or other officer who has charge of the stock ledger to prepare and
make, at least 10 days before each meeting of the stockholders, a complete
list of the stockholders entitled to vote thereat, arranged in alphabetical
order, and showing the address of each stockholder and the number of shares
registered in such stockholder's name. Such list shall be produced and kept
available at the times and places required by law.
SECTION 9. VOTING. (a) Except as otherwise provided by law or by
the Certificate, each stockholder of record of any class or series of capital
stock of the Corporation shall be entitled at each meeting of stockholders to
such number of votes for each share of such stock as may be fixed in the
Certificate or in the resolution or resolutions adopted by the Board
providing for the issuance of such stock, registered in such stockholder's
name on the books of the Corporation:
(1) on the date fixed pursuant to Section 6 of Article VII of
these bylaws as the record date for the determination
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of stockholders entitled to notice of and to vote at such meeting; or
(2) if no such record date shall have been so fixed, then at the
close of business on the day next preceding the day on which notice of
such meeting is given, or, if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held.
(b) Each stockholder entitled to vote at any meeting of
stockholders may authorize not in excess of three persons to act for such
stockholder by proxy. Any such proxy shall be delivered to the secretary of
such meeting at or prior to the time designated for holding such meeting. No
such proxy shall be voted or acted upon after three years from its date,
unless the proxy provides for a longer period.
(c) At each meeting of the stockholders, all corporate actions to
be taken by vote of the stockholders (except as otherwise required by law and
except as otherwise provided in the Certificate or these bylaws) shall be
authorized by a majority of the votes cast by the stockholders entitled to
vote thereon who are present in person or represented by proxy, and where a
separate vote by class is required, a majority of the votes cast by the
stockholders of such class who are present in person or represented by proxy
shall be the act of such class.
(d) Unless required by law or determined by the chairman of the
meeting to be advisable, the vote on any matter, including the election of
directors, need not be by written ballot. In the case of a vote by written
ballot, each ballot shall be signed by the stockholder voting, or by such
stockholder's proxy.
SECTION 10. INSPECTORS. The chairman of the meeting shall appoint
one or more inspectors to act at any meeting of stockholders. Such
inspectors shall perform such duties as shall be specified by the chairman of
the meeting. Inspectors need not be stockholders. No director or nominee
for the office of director shall be appointed such inspector.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs of the
Corporation shall be managed by or under the direction of the
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Board, which may exercise all such powers of the Corporation and do all such
lawful acts and things as are not by law or by the Certificate directed or
required to be exercised or done by the stockholders.
SECTION 2. NUMBER, QUALIFICATION AND ELECTION. (a) Except as
otherwise fixed by or pursuant to the provisions of Article V of the
Certificate relating to the rights of the holders of any class or series of
stock having preference over the common stock of the corporation as to
dividends or upon liquidation, the number of directors of the Corporation
shall be determined from time to time by the Board by the affirmative vote of
directors constituting at least a majority of the entire Board; provided that
the number thereof may not be less than six nor more than seventeen.
(b) The directors, other than those who may be elected by the
holders of shares of any class or series of stock having a preference over
the common stock of the Corporation as to dividends or upon liquidation
pursuant to the terms of Article V of the Certificate or any resolution or
resolutions providing for the issuance of such stock adopted by the Board,
shall be classified, with respect to the time for which they severally hold
office, into three classes as nearly equal in number as possible, with each
class to hold office until its successors are elected and qualified. Subject
to the rights of the holders of any class or series of stock having a
preference over the common stock of the Corporation as to dividends or upon
liquidation, at each such annual meeting of the stockholders, the successors
of the class of directors whose term expires at that meeting shall be elected
to hold office for a term expiring at the annual meeting of stockholders held
in the third year following the year of their election.
(c) Each director shall be at least 21 years of age. Directors
need not be stockholders of the Corporation.
(d) In any election of directors held at a meeting of stockholders,
the persons receiving a plurality of the votes cast by the stockholders
entitled to vote thereon at such meeting who are present or represented by
proxy, up to the number of directors to be elected in such election, shall be
deemed elected.
SECTION 3. NOTIFICATION OF NOMINATION. Subject to the rights of
the holders of any class or series of stock having a preference over the
common stock as to dividends or upon liquidation, nominations for the
election of directors may be made by the Board or by any stockholder who is a
stockholder of record
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at the time of giving of the notice of nomination provided for in this
Section 3 of this Article III and who is entitled to vote for the election of
directors. Any stockholder of record entitled to vote for the election of
directors at a meeting may nominate persons for election as directors only if
timely written notice of such stockholder's intent to make such nomination is
given, either by personal delivery or by United States mail, postage prepaid,
to the Secretary. To be timely, a stockholder's notice must be delivered to
or mailed and received at the principal executive offices of the Corporation
(i) with respect to an election to be held at an annual meeting of
stockholders, not less than 60 days prior to the date of such annual meeting
and (ii) with respect to an election to be held at a special meeting of
stockholders for the election of directors, not less than 15 days following
the public announcement of the date of such special meeting. Each such
notice shall set forth: (a) the name and address of the stockholder who
intends to make the nomination, of all persons or entities acting in concert
with the stockholder, and of the person or persons to be nominated; (b) a
representation that the stockholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to nominate the person or persons specified in the
notice; (c) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or entities acting in
concert with the stockholder (naming such person or entities) pursuant to
which the nomination or nominations are to be made by the stockholder; (d)
such other information regarding each nominee proposed by the stockholder as
would have been required to be included in a proxy statement filed pursuant
to the proxy rules of the Securities and Exchange Commission had each nominee
been nominated, or intended to be nominated, by the Board; (e) the class and
number of shares of the Corporation that are beneficially owned by the
stockholder and all persons or entities acting in concert with the
stockholder; and (f) the consent of each nominee to being named in a proxy
statement as nominee and to serve as a director of the Corporation if so
elected. The chairman of the meeting may refuse to acknowledge the
nomination of any person not made after compliance with the foregoing
procedure. Only such persons who are nominated in accordance with the
procedures set forth in this Section 3 of this Article III shall be eligible
to serve as directors of the Corporation.
SECTION 4. QUORUM AND MANNER OF ACTING. Except as otherwise
provided by law, the Certificate or these bylaws, a majority of the entire
Board shall constitute a quorum for the transaction of business at any
meeting of the Board, and, except as so provided, the vote of a majority of
the directors present at
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any meeting at which a quorum is present shall be the act of the Board. The
chairman of the meeting or a majority of the directors present may adjourn
the meeting to another time and place whether or not a quorum is present. At
any adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as originally
called.
SECTION 5. PLACE OF MEETING. The Board may hold its meetings at
such place or places within or without the State of Delaware as the Board may
from time to time determine or as shall be specified or fixed in the
respective notice or waivers of notice thereof.
SECTION 6. REGULAR MEETINGS. Regular meetings of the Board shall
be held at such times and places as the Chairman of the Board or the Board
shall from time to time by resolution determine. If any day fixed for a
regular meeting shall be a legal holiday under the laws of the place where
the meeting is to be held, the meeting which would otherwise be held on that
day shall be held at the same hour on the next succeeding business day.
SECTION 7. SPECIAL MEETINGS. Special meetings of the Board shall
be held whenever called by the Chairman of the Board or by a majority of the
directors.
SECTION 8. NOTICE OF MEETINGS. Notice of regular meetings of the
Board or of any adjourned meeting thereof need not be given. Notice of each
special meeting of the Board shall be given by overnight delivery service or
mailed to each director, in either case addressed to such director at such
director's residence or usual place of business, at least two days before the
day on which the meeting is to be held or shall be sent to such director at
such place by telegraph or telecopy or be given personally or by telephone,
not later than the day before the meeting is to be held, but notice need not
be given to any director who shall, either before or after the meeting,
submit a signed waiver of such notice or who shall attend such meeting
without protesting, prior to or at its commencement, the lack of notice to
such director. Every such notice shall state the time and place but need not
state the purpose of the meeting.
SECTION 9. RULES AND REGULATIONS. The Board may adopt such rules
and regulations not inconsistent with the provisions of law, the Certificate
or these bylaws for the conduct of its meetings and management of the affairs
of the Corporation as the Board may deem proper.
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SECTION 10. PARTICIPATION IN MEETING BY MEANS OF COMMUNICATION
EQUIPMENT. Any one or more members of the Board or any committee thereof may
participate in any meeting of the Board or of any such committee by means of
conference telephone or similar communications 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.
SECTION 11. ACTION WITHOUT MEETING. Any action required or
permitted to be taken at any meeting of the Board or any committee thereof
may be taken without a meeting if all of the members of the Board or of any
such committee consent thereto in writing and the writing or writings are
filed with the minutes or proceedings of the Board or of such committee.
SECTION 12. RESIGNATIONS. Any director of the Corporation may at
any time resign by giving written notice to the Board, the Chairman of the
Board, the Chief Executive Officer, the President or the Secretary. Such
resignation shall take effect at the time specified therein or, if the time
be not specified therein, upon receipt thereof; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary
to make it effective.
SECTION 13. REMOVAL OF DIRECTORS. Directors may be removed only
as provided in Section 5 of Article VI of the Certificate.
SECTION 14. VACANCIES. Subject to the rights of the holders of
any class or series of stock having a preference over the common stock of the
Corporation as to dividends or upon liquidation, any vacancies on the Board
resulting from death, resignation, removal or other cause shall only be
filled by the Board by the affirmative vote of a majority of the remaining
directors then in office, even though less than a quorum of the Board, or by
a sole remaining director, and newly created directorships resulting from any
increase in the number of directors shall be filled by the Board, or if not
so filled, by the stockholders at the next annual meeting thereof or at a
special meeting called for that purpose in accordance with Section 3 of
Article II of these bylaws. Any director elected in accordance with the
preceding sentence of this Section 14 of this Article III shall hold office
for the remainder of the full term of the class of directors in which the new
directorship was created or the vacancy occurred and until such director's
successor shall have been elected and qualified.
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SECTION 15. COMPENSATION. Each director, in consideration of such
person serving as a director, shall be entitled to receive from the
Corporation such amount per annum and such fees for attendance at meetings of
the Board or of committees of the Board, or both, as the Board shall from
time to time determine. In addition, each director shall be entitled to
receive from the Corporation reimbursement for the reasonable expenses
incurred by such person in connection with the performance of such person's
duties as a director. Nothing contained in this Section 15 of this Article
III shall preclude any director from serving the Corporation or any of its
subsidiaries in any other capacity and receiving proper compensation therefor.
ARTICLE IV
COMMITTEES OF THE BOARD OF DIRECTORS
SECTION 1. ESTABLISHMENT OF COMMITTEES OF THE BOARD OF DIRECTORS;
ELECTION OF MEMBERS OF COMMITTEES OF THE BOARD OF DIRECTORS; FUNCTIONS OF
COMMITTEES OF THE BOARD OF DIRECTORS. The Board may, in accordance with and
subject to the General Corporation Law of the State of Delaware, from time to
time establish committees of the Board to exercise such powers and
authorities of the Board, and to perform such other functions, as the Board
may from time to time determine.
SECTION 2. PROCEDURE; MEETINGS; QUORUM. Regular meetings of
committees of the Board, of which no notice shall be necessary, may be held
at such times and places as shall be fixed by resolution adopted by a
majority of the members thereof. Special meetings of any committee of the
Board shall be called at the request of a majority of the members thereof.
Notice of each special meeting of any committee of the Board shall be given
by overnight delivery service or mailed to each member, in either case
addressed to such member at such member's residence or normal place of
business, at least two days before the day on which the meeting is to be held
or shall be sent to such members at such place by telegraph or telecopy or be
given personally or by telephone, not later than the day before the meeting
is to be held, but notice need not be given to any member who shall, either
before or after the meeting, submit a signed waiver of such notice or who
shall attend such meeting without protesting, prior to it or at its
commencement, the lack of such notice to such member. Any special meeting of
any committee of the Board shall be a legal meeting without any notice
thereof having been given, if all the
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members thereof shall be present thereat. Notice of any adjourned meeting of
any committee of the Board need not be given. Any committee of the Board may
adopt such rules and regulations not inconsistent with the provisions of law,
the Certificate or these bylaws for the conduct of its meetings as such
committee of the Board may deem proper. A majority of the members of any
committee of the Board shall constitute a quorum for the transaction of
business at any meeting, and the vote of a majority of the members thereof
present at any meeting at which a quorum is present shall be the act of such
committee. Each committee of the Board shall keep written minutes of its
proceedings and shall report on such proceedings to the Board.
ARTICLE V
OFFICERS
SECTION 1. NUMBER; TERM OF OFFICE. The officers of the
Corporation shall be such officers as the Board may from time to time
determine, which may include a Chairman of the Board, Chief Executive
Officer, President, Chief Financial Officer, General Counsel and one or more
Vice Presidents (including, without limitation, Assistant, Executive and
Senior Vice Presidents) and a Treasurer, Secretary and Controller and such
other officers or agents with such titles and such duties as the Board may
from time to time determine, each to have such authority, functions or duties
as provided in these bylaws or as the Board may from time to time determine,
and each to hold office for such term as may be prescribed by the Board and
until such person's successor shall have been chosen and shall qualify, or
until such person's death or resignation, or until such person's removal in
the manner hereinafter provided. One person may hold the offices and perform
the duties of any two or more of said officers; PROVIDED, HOWEVER, that no
officer shall execute, acknowledge or verify any instrument in more than one
capacity if such instrument is required by law, the Certificate or these
bylaws to be executed, acknowledged or verified by two or more officers. The
Board may from time to time authorize any officer to appoint and remove any
such other officers and agents and to prescribe their powers and duties. The
Board may require any officer or agent to give security for the faithful
performance of such person's duties.
SECTION 2. REMOVAL. Any officer may be removed, either with or
without cause, by the Board at any meeting thereof or, except in the case of
any officer elected by the Board, by any superior officer upon whom such
power may be conferred by the Board.
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SECTION 3. RESIGNATION. Any officer may resign at any time by
giving notice to the Board, the Chief Executive Officer or the Secretary.
Any such resignation shall take effect at the date of receipt of such notice
or at any later date specified therein; and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
SECTION 4. VACANCIES. A vacancy in any office because of death,
resignation, removal or any other cause may be filled for the unexpired
portion of the term in the manner prescribed in these bylaws for election to
such office.
SECTION 5. CHAIRMAN OF THE BOARD; POWERS AND DUTIES. The Chairman
of the Board shall preside at all meetings of the stockholders and the Board
at which he or she is present. Unless otherwise precluded from doing so by
these By-laws, the Chairman of the Board may be a member of the committees of
the Board. The Chairman of the Board shall act as chairman at all meetings
of the stockholders at which he or she is present unless he or she elects
that the Chief Executive Officer shall so preside. The Chairman of the Board
may be designated by the Board as an officer of the Company and may be
elected by the Board as the Chief Executive Officer. The Chairman of the
Board shall perform all duties as may be assigned to him or her by the Board
of Directors. In case of the absence or disability of the Chairman of the
Board or a vacancy in the office, Chief Executive Officer or, if none, the
President shall exercise all the powers and perform all the duties of the
Chairman of the Board.
SECTION 6. CHIEF EXECUTIVE OFFICER; POWERS AND DUTIES. Subject to
the control of the Board, the Chief Executive Officer shall supervise and
direct generally all the business and affairs of the Corporation. Any
document may be signed by the Chief Executive Officer or any other person who
may be thereunto authorized by the Board or the Chief Executive Officer. The
Chief Executive Officer may appoint such assistant officers as are deemed
necessary.
SECTION 7. PRESIDENT, EXECUTIVE VICE PRESIDENTS, SENIOR VICE
PRESIDENTS AND VICE PRESIDENTS; POWERS AND DUTIES. The President shall be
the chief operating officer of the Corporation. The President and each
Executive Vice President, each Senior Vice President, and each Vice President
shall have such powers and perform such duties as may be assigned by the
Board of Directors or the Chief Executive Officer.
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SECTION 8. SECRETARY AND ASSISTANT SECRETARIES; POWERS AND DUTIES.
The Secretary shall attend all meetings of the stockholders and the Board
and shall keep the minutes for such meetings in one or more books provided
for that purpose. The Secretary shall be custodian of the corporate records,
except those required to be in the custody of the Treasurer or the
Controller, shall keep the seal of the Corporation, and shall execute and
affix the seal of the Corporation to all documents duly authorized for
execution under seal on behalf of the Corporation, and shall perform all of
the duties incident to the office of Secretary, as well as such other duties
as may be assigned by the Chief Executive Officer or the Board.
The Assistant Secretaries shall perform such of the Secretary's
duties as the Secretary shall from time to time direct. In case of the
absence or disability of the Secretary or a vacancy in the office, an
Assistant Secretary designated by the Chief Executive Officer or by the
Secretary, if the office is not vacant, shall perform the duties of the
Secretary.
SECTION 9. CHIEF FINANCIAL OFFICER; POWERS AND DUTIES. The Chief
Financial Officer shall be responsible for maintaining the financial
integrity of the Corporation, shall prepare the financial plans for the
Corporation, and shall monitor the financial performance of the Corporation
and its subsidiaries, as well as performing such other duties as may be
assigned by the Chief Executive Officer or the Board.
SECTION 10. TREASURER AND ASSISTANT TREASURERS; POWERS AND DUTIES.
The Treasurer shall have care and custody of the funds and securities of the
Corporation, shall deposit such funds in the name and to the credit of the
Corporation with such depositories as the Treasurer shall approve, shall
disburse the funds of the Corporation for proper expenses and dividends, and
as may be ordered by the Board, taking proper vouchers for such
disbursements. The Treasurer shall perform all of the duties incident to the
office of Treasurer, as well as such other duties as may be assigned by the
Chief Executive Officer or the Board.
The Assistant Treasurers shall perform such of the Treasurer's
duties as the Treasurer shall from time to time direct. In case of the
absence or disability of the Treasurer or a vacancy in the office, an
Assistant Treasurer designated by the Chief Executive Officer or by the
Treasurer, if the office is not vacant, shall perform the duties of the
Treasurer.
SECTION 11. GENERAL COUNSEL; POWERS AND DUTIES. The General
Counsel shall be a licensed attorney at law and shall be
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the chief legal officer of the Corporation. The General Counsel shall have
such power and exercise such authority and provide such counsel to the
Corporation as deemed necessary or desirable to enforce the rights and
protect the property and integrity of the Corporation, shall also have the
power, authority, and responsibility for securing for the Corporation all
legal advice, service, and counseling, and shall perform all of the duties
incident to the office of General Counsel, as well as such other duties as
may be assigned by the Chief Executive Officer or the Board.
SECTION 12. CONTROLLER AND ASSISTANT CONTROLLERS; POWERS AND
DUTIES. The Controller shall be the chief accounting officer of the
Corporation and shall keep and maintain in good and lawful order all accounts
required by law and shall have sole control over, and ultimate responsibility
for, the accounts and accounting methods of the Corporation and the
compliance of the Corporation with all systems of accounts and accounting
regulations prescribed by law. The Controller shall audit, to such extent
and at such times as may be required by law or as the Controller may think
necessary, all accounts and records of corporate funds or property, by
whomsoever kept, and for such purposes shall have access to all such accounts
and records. The Controller shall make and sign all necessary and proper
accounting statements and financial reports of the Corporation, and shall
perform all of the duties incident to the office of Controller, as well as
such other duties as may be assigned by the Chief Executive Officer or the
Board.
The Assistant Controllers shall perform such of the Controller's
duties as the Controller shall from time to time direct. In case of the
absence or disability of the Controller or a vacancy in the office, an
Assistant Controller designated by the Chief Executive Officer or the
Controller, if the office is not vacant, shall perform the duties of the
Controller.
SECTION 13. SALARIES. The salaries of all officers of the
Corporation shall be fixed by or in the manner provided by the Board. If
authorized by a resolution of the Board, the salary of any officer other than
the Chief Executive Officer may be fixed by the Chief Executive Officer or a
Committee of the Board. No officer shall be disqualified from receiving a
salary by reason of also being a director of the Corporation.
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ARTICLE VI
INDEMNIFICATION
SECTION 1. SCOPE OF INDEMNIFICATION. (a) The Corporation shall
indemnify an indemnified representative against any liability incurred in
connection with any proceeding in which the indemnified representative may be
involved as a party or otherwise, by reason of the fact that such person is
or was serving in an indemnified capacity, except to the extent that any such
indemnification against a particular liability is expressly prohibited by
applicable law or where a judgment or other final adjudication adverse to the
indemnified representative establishes, or where the Corporation determines,
that his or her acts or omissions (i) were in breach of such person's duty of
loyalty to the Corporation or its stockholders, (ii) were not in good faith
or involved intentional misconduct or a knowing violation of law, or (iii)
resulted in receipt by such person of an improper personal benefit. The
rights granted by this Article shall not be deemed exclusive of any other
rights to which those seeking indemnification, contribution, or advancement
of expenses may be entitled under any statute, certificate of incorporation,
agreement, contract of insurance, vote of stockholders or disinterested
directors, or otherwise. The rights of indemnification and advancement of
expenses provided by or granted pursuant to this Article shall continue as to
a person who has ceased to be an indemnified representative in respect of
matters arising prior to such time and shall inure to the benefit of the
heirs, executors, administrators and personal representatives of such a
person.
(b) If an indemnified representative is not entitled to
indemnification with respect to a portion of any liabilities to which such
person may be subject, the Corporation shall nonetheless indemnify such
indemnified representative to the maximum extent for the remaining portion of
the liabilities.
(c) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that the indemnified representative is not
entitled to indemnification.
(d) To the extent permitted by law, the payment of indemnification
provided for by this Article, including the advancement of expenses pursuant
to Section 2 of this Article VI, with respect to proceedings other than those
brought by or in the right of the Corporation, shall be subject to the
conditions that the indemnified representative shall give the Corporation
prompt
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notice of any proceeding, that the Corporation shall have complete charge of
the defense of such proceeding and the right to select counsel for the
indemnified representative, and that the indemnified representative shall
assist and cooperate fully in all matters respecting the proceeding and its
defense or settlement. The Corporation may waive any or all of the
conditions set forth in the preceding sentence. Any such waiver shall be
applicable only to the specific payment for which the waiver is made and
shall not in any way obligate the Corporation to grant such waiver at any
future time. In the event of a conflict of interest between the indemnified
representative and the Corporation that would disqualify the Corporation's
counsel from representing the indemnified representative under the rules of
professional conduct applicable to attorneys, it shall be the policy of the
Corporation to waive any or all of the foregoing conditions subject to such
limitations or conditions as the Corporation shall deem to be reasonable in
the circumstances.
(e) For purposes of this Article:
(1) "indemnified capacity" means any and all past, present, or
future services by an indemnified representative in one or more capacities as
a director, officer, employee, or agent of the Corporation or, at the request
of the Corporation, as a director, officer, employee, agent, fiduciary, or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan, or other entity or enterprise; any indemnified representative
serving an affiliate of the Corporation in any capacity shall be deemed to be
doing so at the request of the Corporation;
(2) an "affiliate of the Corporation" means an entity that directly
or indirectly, through one or more intermediaries, controls, or is controlled
by, or is under common control with, the Corporation;
(3) "indemnified representative" means any and all directors,
officers, and employees of the Corporation and any other person designated as
an indemnified representative by the Board;
(4) "liability" means any damage, judgment, amount paid in
settlement, fine, penalty, punitive damage, excise tax assessed with respect
to an employee benefit plan, or cost or expense of any nature (including,
without limitation, expert witness fees, costs of investigation, litigation
and appeal costs, attorneys' fees, and disbursements); and
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(5) "proceeding" means any threatened, pending, or completed
action, suit, appeal, or other proceeding of any nature, whether civil,
criminal, administrative, or investigative, whether formal or informal,
whether external or internal to the Corporation, and whether brought by or in
the right of the Corporation, a class of its security holders or otherwise.
SECTION 2. ADVANCING EXPENSES. All reasonable expenses incurred
in good faith by an indemnified representative in advance of the final
disposition of a proceeding described in Section 1 of this Article VI shall
be advanced to the indemnified representative by the Corporation. Before
making any such advance payment of expenses, the Corporation shall receive an
undertaking by or on behalf of the indemnified representative to repay such
amount if it shall ultimately be determined that such indemnified
representative is not entitled to be indemnified by the Corporation pursuant
to this Article VI. No advance shall be made by the Corporation if a
determination is reasonably and promptly made by a majority vote of
disinterested directors, even if the disinterested directors constitute less
than a quorum, or (if such a quorum is not obtainable or, even if obtainable,
a quorum of disinterested directors so directs) by independent legal counsel
in a written opinion, that, based upon the facts known to the Board or
counsel at the time such determination is made, the indemnified
representative has acted in such a manner as to permit or require the denial
of indemnification pursuant to the provisions of Section 1 of this Article VI.
ARTICLE VII
CAPITAL STOCK
SECTION 1. SHARE OWNERSHIP. (a) Holders of shares of stock of each
class of the Corporation shall be recorded on the books of the Corporation
and ownership of such stock shall be evidenced by a certificate or other form
as shall be approved by the Board. Certificates representing shares of stock
of each class, if any, shall be signed by, or in the name of, the Corporation
by the Chairman of the Board or the President, any Vice President and by the
Secretary or any Assistant Secretary or the Treasurer or any Assistant
Treasurer of the Corporation, and sealed with the seal of the Corporation,
which may be a facsimile thereof. Any or all such signatures may be
facsimiles if countersigned by a transfer agent or registrar. Although any
officer, transfer agent or registrar whose manual or facsimile signature is
affixed to such a certificate ceases to be such officer, transfer agent or
registrar before such certificate has
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been issued, it may nevertheless be issued by the Corporation with the same
effect as if such officer, transfer agent or registrar were still such at the
date of its issue.
(b)The stock ledger and blank share certificates shall be kept by
the Secretary or by a transfer agent or by a registrar or by any other
officer or agent designated by the Board.
SECTION 2. TRANSFER OF SHARES. Transfers of shares of stock of
each class of the Corporation shall be made only on the books of the
Corporation by the holder thereof, or by such holder's attorney thereunto
authorized by a power of attorney duly executed and filed with the Secretary
or a transfer agent for such stock, if any, and on surrender of the
certificate or certificates, if any, for such shares properly endorsed or
accompanied by a duly executed stock transfer power (or by proper evidence of
succession, assignment or authority to transfer) and the payment of any taxes
thereon; PROVIDED, HOWEVER, that the Corporation shall be entitled to
recognize and enforce any lawful restriction on transfer. The person in
whose name shares are registered on the books of the Corporation shall be
deemed the owner thereof for all purposes as regards the Corporation;
PROVIDED, HOWEVER, that whenever any transfer of shares shall be made for
collateral security and not absolutely, and written notice thereof shall be
given to the Secretary or to such transfer agent, such fact shall be stated
in the entry of the transfer. No transfer of shares shall be valid as
against the Corporation, its stockholders and creditors for any purpose,
except to render the transferee liable for the debts of the Corporation to
the extent provided by law, until it shall have been entered in the stock
records of the Corporation by an entry showing from and to whom transferred.
SECTION 3. REGISTERED STOCKHOLDERS AND ADDRESSES OF STOCKHOLDERS.
(a) The Corporation shall be entitled to recognize the exclusive right of a
person registered on its records as the owner of shares of stock to receive
dividends and to vote as such owner, shall be entitled to hold liable for
calls and assessments a person registered on its records as the owner of
shares of stock, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares of stock on the part of any
other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of Delaware.
(b)Each stockholder shall designate to the Secretary or transfer
agent of the Corporation an address at which notices of meetings and all
other corporate notices may be delivered or
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mailed to such person, and, if any stockholder shall fail to designate such
address, corporate notices may be delivered to such person by mail directed
to such person at such person's post office address, if any, as the same
appears on the stock record books of the Corporation or at such person's last
known post office address.
SECTION 4. LOST, DESTROYED AND MUTILATED CERTIFICATES. The
Corporation may issue to any holder of shares of stock the certificate for
which has been lost, stolen, destroyed or mutilated a new certificate or
certificates for shares, upon the surrender of the mutilated certificate or,
in the case of loss, theft or destruction of the certificate, upon
satisfactory proof of such loss, theft or destruction. The Board, or a
committee designated thereby, or the transfer agents and registrars for the
stock, may, in their discretion, require the owner of the lost, stolen or
destroyed certificate, or such person's legal representative, to give the
Corporation a bond in such sum and with such surety or sureties as they may
direct to indemnify the Corporation and said transfer agents and registrars
against any claim that may be made on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such new certificate.
SECTION 5. REGULATIONS. The Board may make such additional rules
and regulations as it may deem expedient concerning the issue and transfer of
shares of stock of each class of the Corporation and may make such rules and
take such action as it may deem expedient concerning the issue of
certificates in lieu of certificates claimed to have been lost, destroyed,
stolen or mutilated.
SECTION 6. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF
RECORD. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment or any rights, or entitled to exercise any rights
in respect of any change, conversion or exchange of stock or for the purpose
of any other lawful action, the Board may fix, in advance, a record date,
which shall not be more than 60 nor less than 10 days before the date of such
meeting, nor more than 60 days prior to any other action. A determination of
stockholders entitled to notice of or to vote at a meeting of the
stockholders shall apply to any adjournment of the meeting; PROVIDED,
HOWEVER, that the Board may fix a new record date for the adjourned meeting.
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SECTION 7. TRANSFER AGENTS AND REGISTRARS. The Board may appoint,
or authorize any officer or officers to appoint, one or more transfer agents
and one or more registrars.
ARTICLE VIII
SEAL
The Board shall provide a corporate seal, which shall be in the
form of a circle and shall bear the full name of the Corporation and the
words and figures of "Corporate Seal Delaware", or such other words or
figures as the Board may approve and adopt. The seal may be used by causing
it or a facsimile thereof to be impressed or affixed or in any other manner
reproduced.
ARTICLE IX
FISCAL YEAR
The fiscal year of the Corporation shall end on the 31st day of
December in each year.
ARTICLE X
AMENDMENTS
Any bylaw may be adopted, repealed, altered or amended by
two-thirds of the entire Board at any meeting thereof. The stockholders of
the Corporation shall have the power to amend, alter or repeal any provision
of these bylaws only to the extent and in the manner provided in the
Certificate.
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