EXHIBIT 3-C
BYLAWS
OF
MEDIAONE GROUP, INC.
(formerly U S WEST, INC.)
ARTICLE I
OFFICES
SECTION 1. Registered Office. The registered office of MEDIAONE GROUP, INC.
(formerly U S WEST, 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 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 the meeting from time to time whether or not a
quorum is present.
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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, 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 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
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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 of stockholders entitled to
notice of and to vote at such meeting; or
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(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 chair- man 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 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
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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 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
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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
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
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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.
SECTION 10. Participation in Meeting by Means of Communication Equipment.
Any one or more members of the Board or
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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
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.
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
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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 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
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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, 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.
SECTION 3. Resignation. Any officer may resign at any time by giving notice
to the Board, the Chairman of the Board or
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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 be the chief executive officer of the Corporation. Subject to the
control of the Board, the Chairman of the Board shall supervise and direct
generally all the business and affairs of the Corporation. The Chairman of the
Board shall preside at all meetings of the stockholders and the Board. Any
document may be signed by the Chairman of the Board or any other person who may
be thereunto authorized by the Board or the Chairman of the Board. The Chairman
of the Board may appoint such assistant officers as are deemed necessary.
SECTION 6. 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 Chairman
of the Board. In case of the absence or disability of the Chairman of the Board
or a vacancy in the office, the President, an Executive Vice President, a Senior
Vice President, or a Vice President designated by the Chairman of the Board or
the Board shall exercise all the powers and perform all the duties of the
Chairman of the Board.
SECTION 7. 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 Chairman of
the Board or the Board.
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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 Chairman of the Board or by the Secretary, if the office is
not vacant, shall perform the duties of the Secretary.
SECTION 8. 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 Chairman of the
Board or the Board.
SECTION 9. 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 Chairman of the Board 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 Chairman of the Board or by the Treasurer, if the office is
not vacant, shall perform the duties of the Treasurer.
SECTION 10. General Counsel; Powers and Duties. The General Counsel shall
be a licensed attorney at law and shall be 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 Chairman of the Board or the
Board.
SECTION 11. Controller and Assistant Controllers; Powers and Duties. The
Controller shall be the chief accounting
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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 Chairman of the Board 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 Chairman of the Board or the Controller, if the office is not
vacant, shall perform the duties of the Controller.
SECTION 12. 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 Chairman of
the Board may be fixed by the Chairman of the Board 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.
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
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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 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
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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
(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
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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
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 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
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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 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
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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
certificates representing 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.
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.
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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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