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 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 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 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 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 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 90 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,
within 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 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 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.
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 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.
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.
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 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.
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 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
(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 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 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.
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.