Attached files
EXHIBIT
3.2
AMENDED
AND RESTATED BYLAWS
OF
CHARTER
COMMUNICATIONS, INC.
(As
adopted and in effect on [•], 2009)
ARTICLE
I
OFFICES
SECTION
1.1 Delaware
Office. The
office of Charter Communications, Inc. (the "Corporation") within the State of
Delaware shall be in the City of Wilmington, County of New Castle.
SECTION
1.2 Other
Offices. The
Corporation may also have an office or offices and keep the books and records of
the Corporation, except as otherwise may be required by law, in such other place
or places, either within or without the State of Delaware, as the Board of
Directors of the Corporation (the "Board") may from time to time determine or
the business of the Corporation may require.
ARTICLE
II
MEETINGS
OF STOCKHOLDERS
SECTION
2.1 Place of
Meetings. All
meetings of holders of shares of capital stock of the Corporation shall be held
at the office of the Corporation in the State of Delaware or at such other
place, within or without the State of Delaware, as may from time to time be
fixed by the Board or specified or fixed in the respective notices or waivers of
notice thereof.
SECTION
2.2 Annual
Meetings. An
annual meeting of stockholders of the Corporation for the election of directors
and for the transaction of such other business as may properly come
before the meeting (an "Annual Meeting") shall, if required by law, be held at
such place, on such date, and at such time as the Board shall each year
fix.
SECTION
2.3 Special
Meetings. Except
as required by law and subject to the rights of holders of any series of
Preferred Stock (as defined below), special meetings of stockholders may be
called at any time only by the Chairman of the Board, the Chief Executive
Officer or by the Board pursuant to a resolution approved by a majority of the
then authorized number of directors. Any such call must specify the matter or
matters to be acted upon at such meeting and only such matter or matters shall
be acted upon thereat.
SECTION
2.4 Notice of
Meetings. Except
as otherwise required by law, notice of each meeting of stockholders, whether an
Annual Meeting or a special meeting, shall state the purpose or purposes of the
meeting, the place, date and hour of the meeting and, unless it is an Annual
Meeting, shall indicate that the notice is being issued by or at the direction
of the
person or
persons calling the meeting and shall be given not less than ten (10) or more
than sixty (60) days before the date of said meeting, to each stockholder
entitled to vote at such meeting. If mailed, notice is given when deposited in
the United States mail, postage prepaid, directed to each stockholder at such
stockholder's address as it appears on the stock records of the Corporation.
Notice of an adjourned meeting need not be given if the date, time and place to
which the meeting is to be adjourned was announced at the meeting at which the
adjournment was taken, unless (i) the adjournment is for more than thirty (30)
days, or (ii) the Board shall fix a new record date for such adjourned meeting
after the adjournment.
SECTION
2.5 Quorum. At each
meeting of stockholders of the Corporation, the holders of shares having a
majority of the voting power of the capital stock of the Corporation issued and
outstanding and entitled to vote thereat shall be present or represented by
proxy to constitute a quorum for the transaction of business, except as
otherwise provided by law. Where a separate vote by a class or classes or series
is required, a majority of the voting power of the shares of such class or
classes or series in person or represented by proxy shall constitute a quorum
entitled to take action with respect to that vote on that matter.
SECTION
2.6 Adjournments. Any
meeting of the stockholders may be adjourned from time to time to reconvene at
the same or some other place, and notice need not be given of any such adjourned
meeting if the time and place, if any, thereof and the means of remote
communications, if any, by which holders of shares having a majority of the
voting power of the capital stock of the Corporation may be deemed to be present
or represented by proxy and vote at such adjourned meeting are announced at the
meeting at which the adjournment is taken. A meeting of the
stockholders may be adjourned only by the Chairman of the Board or holders of
shares having a majority of the voting power of the capital stock of the
Corporation present or represented by proxy at such meeting. At the
adjourned meeting, the Corporation may transact any business which might have
been transacted at the original meeting. If the adjournment is for
more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, notice of the adjourned meeting in accordance
with the requirements of Section 2.4 hereof shall be given to each stockholder
of record entitled to notice of and to vote at the meeting.
SECTION
2.7 Notice of Stockholder
Business and Director Nomination.
(a) Annual Meetings of
Stockholders. (1) Nominations of persons for election to the
Board and the proposal of business to be considered by the stockholders may be
made at an Annual Meeting only (A) pursuant to the Corporation's notice of
meeting (or any supplement thereto), (B) by or at the direction of the Board or
(C) by any stockholder of the Corporation who was a stockholder of record of the
Corporation at the time the notice provided for in this Section 2.7 is delivered
to the Secretary of the Corporation, who is entitled to vote at the meeting for
such director and who complies with the notice and delivery procedures set forth
in this Section 2.7.
(2) For
nominations or other business to be properly brought before an Annual Meeting by
a stockholder pursuant to clause (C) of paragraph (a)(1) of this Section 2.7,
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(A) the
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation, (B) any such proposed business other than nominations of
persons for election to the Board must constitute a proper matter for
stockholder action, (C) if the stockholder, or beneficial owner on whose behalf
any such proposal or nomination is made, has provided the Corporation with a
Solicitation Notice, as that term is defined in subclause III of this paragraph
(a)(2) of Section 2.7, such stockholder or beneficial owner must, in the case of
a proposal, have delivered a proxy statement and form of proxy to the holders of
at least the percentage of the Corporation's voting shares required under
applicable law to carry such proposal, or, in the case of a nomination or
nominations, have delivered a proxy statement and form of proxy to holders of at
least the percentage of the Corporation's voting shares reasonably believed by
such stockholder or beneficial owner to be sufficient to elect the nominee or
nominees proposed to be nominated by such stockholder and (D) if no Solicitation
Notice relating thereto has been timely provided pursuant to this section, the
stockholder or beneficial owner proposing such business or nomination must not
have solicited a number of proxies sufficient to have required the delivery of a
Solicitation Notice under this section. To be timely, a stockholder's notice
shall be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the forty-fifth (45th) day
nor earlier than the close of business on the seventieth (70th) day prior to the
first anniversary (the "Mailing Anniversary") of the date on which the
Corporation first mailed proxy materials for the preceding year's Annual Meeting
(provided, however, that in the event that the date of the Annual Meeting is
more than thirty (30) days before or more than thirty (30) days after the
anniversary date of the preceding year's Annual Meeting, notice by the
stockholder must be so delivered not earlier than the close of business on the
one hundred twentieth (120th) day prior to such Annual Meeting and not later
than the close of business on the later of the ninetieth (90th) day prior to
such Annual Meeting or the tenth (10th) day following the day on which public
announcement of the date of such meeting is first made by the Corporation). In
no event shall the public announcement of an adjournment or postponement of an
Annual Meeting commence a new time period (or extend any time period) for the
giving of a stockholder's notice as described above. Such stockholder's notice
shall set forth: (I) as to each person whom the stockholder proposes to nominate
for election as a director all information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors
in an election contest, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and Rule 14a-11 thereunder (and such person's written consent to
being named in the proxy statement as a nominee and to serving as a director if
elected); (II) as to any other business that the stockholder proposes to bring
before the meeting, a brief description of the business desired to be brought
before the meeting, the text of the proposal or business (including the text of
any resolutions proposed for consideration and in the event that such business
includes a proposal to amend the Bylaws of the Corporation, the language of the
proposed amendment), the reasons for conducting such business at the meeting and
any material interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and (III) as to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made (i) the name and address of such stockholder,
as they appear on the Corporation's books, and of such beneficial owner, if any,
(ii) the class and number of shares of capital stock of the Corporation which
are owned beneficially and of record by such stockholder and such beneficial
owner, (iii) 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
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person or
by proxy at the meeting to propose such business or nomination and (iv) a
representation whether the stockholder or the beneficial owner, if any, intends
or is part of a group which intends to deliver a proxy statement and/or form of
proxy to holders of at least the percentage of the Corporation's outstanding
capital stock required to approve or adopt the proposal or elect the nominee (an
affirmative statement of such intent, a "Solicitation Notice"). The Corporation
may require any proposed nominee to furnish such other information as it may
reasonably require to determine the eligibility of such proposed nominee to
serve as a director of the Corporation.
(3) Notwithstanding
anything in the second sentence of paragraph (a)(2) of this Section 2.7 to the
contrary, in the event that the number of directors to be elected to the Board
at an Annual Meeting is increased and there is no public announcement by the
Corporation naming the nominees for the additional directorships at least
fifty-five (55) days prior to the Mailing Anniversary, a stockholder's notice
required by this Section 2.7 shall also be considered timely, but only with
respect to nominees for the additional directorships, if it shall be delivered
to the Secretary at the principal executive offices of the Corporation not later
than the close of business on the tenth day following the day on which such
public announcement is first made by the Corporation.
(b) Special Meetings of
Stockholders. Only such business shall be conducted at a special meeting
of stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. Nominations of persons for election
to the Board may be made at a special meeting of stockholders at which directors
are to be elected pursuant to the Corporation's notice of meeting (1) by or at
the direction of the Board or (2) provided that the Board has determined that
directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder of record at the time the notice provided for
in this Section 2.7 is delivered to the Secretary of the Corporation, who is
entitled to vote at the meeting upon such election of such director and who
complies with the notice and delivery procedures set forth in this Section 2.7.
In the event the Corporation calls a special meeting of stockholders for the
purpose of electing one or more directors to the Board, any such stockholder
entitled to vote in such election of such directors may nominate a person or
persons (as the case may be) for election to such position(s) as specified in
the Corporation's notice of meeting, if the stockholder's notice required by
paragraph (a)(2) of this Section 2.7 shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the close of
business on the one hundred twentieth (120th) day prior to such special meeting
and not later than the close of business on the later of the ninetieth (90th)
day prior to such special meeting or the tenth (10th) day following the day on
which the public announcement is first made of the date of the special meeting
and of the nominees proposed by the Board to be elected at such meeting. In no
event shall the public announcement of an adjournment or postponement of a
special meeting commence a new time period (or extend any time period) for the
giving of a stockholder's notice as described above.
(c) General. (1) Only
such persons who are nominated in accordance with the procedures set forth in
this Section 2.7 shall be eligible to be elected at an Annual Meeting or
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special
meeting of stockholders of the Corporation to serve as directors and only such
business shall be conducted at a meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
Section 2.7. Except as otherwise provided by law, the chairman of the meeting
shall have the power and duty (A) to determine whether a nomination or any
business proposed to be brought before the meeting was made or proposed, as the
case may be, in accordance with the procedures set forth in this Section 2.7
(including whether the stockholder or beneficial owner, if any, on whose behalf
the nomination or proposal is made solicited (or is part of a group which
solicited) or did not so solicit, as the case may be, proxies in support of such
stockholder's nominee or proposal in compliance with such stockholder's
representation as required by clause (a)(2)(III)(iv) of this Section 2.7) and
(B) if any proposed nomination or business was not made or proposed in
compliance with this Section 2.7, to declare that such nomination shall be
disregarded or that such proposed business shall not be
transacted.
(2) For
purposes of this Section 2.7, "public announcement" shall include disclosure in
a press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Sections 13,
14 or 15(d) of the Exchange Act.
(3) Notwithstanding
the foregoing provisions of this Section 2.7, a stockholder shall also comply
with all applicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in this Section
2.7. Nothing in this Section 2.7 shall be deemed to affect any rights (A) of
stockholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (B) of the holders of
any series of Preferred Stock to elect directors pursuant to any applicable
provisions of the Certificate of Incorporation of the Corporation (the
"Certificate of Incorporation").
SECTION
2.8 Proxies and
Voting. At each
meeting of stockholders, all matters (except in cases where a larger vote is
required by law or by the Certificate of Incorporation or these Bylaws) shall be
decided by a majority of the votes cast at such meeting by the holders of shares
of capital stock present or represented by proxy and entitled to vote thereon, a
quorum being present. At any meeting of the stockholders, every stockholder
entitled to vote may vote in person or by proxy authorized by an instrument in
writing or by a transmission permitted by law filed in accordance with the
procedure established for the meeting. Any copy, facsimile telecommunication or
other reliable reproduction of the writing or transmission created pursuant to
this Section 2.8 may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
SECTION
2.9 Inspectors. In
advance of any meeting of stockholders, the Board may, and shall if required by
law, appoint an inspector or inspectors. If, for any election of directors or
the voting upon any other matter, any inspector appointed by the Board shall be
unwilling or unable to serve, the chairman of the meeting shall appoint the
necessary inspector or
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inspectors.
The inspectors so appointed, before entering upon the discharge of their duties,
shall be sworn faithfully to execute the duties of inspectors with strict
impartiality, and according to the best of their ability, and the oath so taken
shall be subscribed by them. Such inspectors shall determine the number of
shares of capital stock of the Corporation outstanding and the voting power of
each of the shares represented at the meeting, the existence of a quorum, and
the validity and effect of proxies, and shall receive votes, ballots or
consents, hear and determine all challenges and questions arising in connection
with the right to vote, count and tabulate all votes, ballots or consents,
determine the result, and do such acts as are proper to conduct the election or
vote with fairness to all stockholders. The inspectors shall make a report in
writing of any challenge, question or matter determined by them and shall
execute a certificate of any fact found by them. No director or candidate for
the office of director shall act as an inspector of election of directors.
Inspectors need not be stockholders.
SECTION
2.10 Consent of Stockholders in
Lieu of Meeting. Any
action required to be taken at any Annual Meeting or special meeting of
stockholders of the Corporation, or any action which may be taken at any Annual
Meeting or special meeting of the stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted and shall be delivered to the Corporation by
delivery to its registered office in Delaware, its principal place of business,
or an officer or agent of the Corporation having custody of the books in which
proceedings of meetings of stockholders are recorded. Delivery made to the
Corporation's registered office shall be made by hand or by certified or
registered mail, return receipt requested.
Every
written consent shall bear the date of signature of each stockholder who signs
the consent and no written consent shall be effective to take the corporate
action referred to therein unless, within sixty (60) days of the earliest dated
consent delivered to the Corporation in the manner prescribed in the first
paragraph of this Section, a written consent or consents signed by a sufficient
number of holders to take action are delivered to the Corporation in the manner
prescribed in the first paragraph of this Section.
ARTICLE
III
DIRECTORS
SECTION
3.1 Powers. The
business of the Corporation shall be managed by or under the direction of the
Board. The Board may, except as otherwise required by law, exercise all such
powers and do all such acts and things as may be exercised or done by the
Corporation.
SECTION
3.2 Number; Terms and
Vacancies. The
number of directors, which shall constitute the whole Board, shall be fixed at
eleven (11) persons. The holders of Class B Common Stock voting
together as a separate class shall be entitled to elect thirty-five
6
percent
(35%) of the members of the Board (rounded up to the nearest whole number) (the
"Class B Directors"), with the remaining directors to be elected by majority
vote of the holders of Class A Common Stock voting together as a separate class
(or if any holders of shares of Preferred Stock are entitled to vote thereon
together with the holders of Class A Common Stock, as one class with such
holders of shares of Preferred Stock); provided, however, that at such time as
all outstanding shares of Class B Common Stock have been converted into shares
of Class A Common Stock in accordance with Clause (b)(viii) of Article FOURTH of
the Certificate of Incorporation, the holders of Class A Common Stock (or if any
holders of shares of Preferred Stock are entitled to vote thereon together with
the holders of Class A Common Stock, as one class with such holders of shares of
Preferred Stock) shall be entitled to elect by majority vote all members of the
Board (other than any member of the Board elected separately by the holders of
one or more series of Preferred Stock). Any vacancies on the Board resulting
from death, resignation, disqualification, removal or other cause shall be
filled in the manner provided in the Certificate of
Incorporation.
SECTION
3.3 Place of
Meetings.
Meetings of the Board shall be held at the Corporation's office in the State of
Delaware or at such other places, within or without such State, as the Board may
from time to time determine or as shall be specified or fixed in the notice or
waiver of notice of any such meeting.
SECTION
3.4 Regular
Meetings. Regular
meetings of the Board shall be held in accordance with a yearly meeting schedule
as determined by the Board; or such meetings may be held on such other days and
at such other times as the Board may from time to time determine. Regular
meetings of the Board shall be held not less frequently than
quarterly.
SECTION
3.5 Special
Meetings. Special
meetings of the Board may be called by a majority of the directors then in
office (rounded up to the nearest whole number) or by the Chairman of the Board
and shall be held at such place, on such date, and at such time as they or he
shall fix.
SECTION
3.6 Notice of
Meetings. Notice
of each special meeting of the Board stating the time, place and purposes
thereof, shall be (i) mailed to each director not less than five (5) days prior
to the meeting, addressed to such director at his or her residence or usual
place of business, or (ii) shall be sent to him by facsimile or other means of
electronic transmission, or shall be given personally or by telephone, on not
less than twenty four (24) hours notice.
SECTION
3.7 Quorum and Manner of
Acting. The
presence of at least a majority of the authorized number of directors shall be
necessary and sufficient to constitute a quorum for the transaction of business
at any meeting of the Board. If a quorum shall not be present at any meeting of
the Board, a majority of the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present. Except where a different vote is required or
permitted by law, the Certificate of Incorporation or these Bylaws, the act of a
majority of the directors present at any meeting at which a quorum shall be
present shall be the act of the Board. Any action required or permitted to be
taken by the Board may be taken without a meeting if all the directors consent
in writing or by electronic transmission to the adoption of a resolution
authorizing the action. The
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resolution
and the written consents or copies of electronic consents thereto by the
directors shall be filed with the minutes of the proceedings of the Board. Any
one or more directors may participate in any meeting of the Board by means of a
conference telephone or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same time. Participation
by such means shall be deemed to constitute presence in person at a meeting of
the Board.
SECTION
3.8 Resignation. Any
director may resign at any time by giving written notice to the Corporation;
provided, however, that written notice to the Board, the Chairman of the Board,
the Chief Executive Officer of the Corporation or the Secretary of the
Corporation shall be deemed to constitute notice to the Corporation. Such
resignation shall take effect upon receipt of such notice or at any later time
specified therein and, unless otherwise specified therein, acceptance of such
resignation shall not be necessary to make it effective.
SECTION
3.9 Removal of
Directors.
Directors may be removed as provided by law and in the Corporation's Certificate
of Incorporation.
SECTION
3.10 Compensation of
Directors. The
Board may provide for the payment to any of the directors, other than officers
or employees of the Corporation, of a specified amount for services as director
or member of a committee of the Board, or of a specified amount for attendance
at each regular or special Board meeting or committee meeting, or of both, and
all directors shall be reimbursed for expenses of attendance at any such
meeting; provided, however, that nothing herein contained shall be construed to
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
ARTICLE
IV
COMMITTEES
OF THE BOARD
SECTION
4.1 Committees. The
Board may designate one or more committees, each committee to consist of one or
more of the directors of the Corporation. The Board may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting and not disqualified from voting, whether or not such member or
members constitute a quorum, may unanimously appoint another member of the Board
to act at the meeting in the place of any such absent or disqualified member.
Any such committee, to the extent provided herein or in the resolution of the
Board designating such committee, shall have and may exercise all the powers and
authority of the Board in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to the following matters: (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by the
Certificate of Incorporation or Delaware law to be submitted to stockholders for
approval or (ii) adopting, amending or repealing any Bylaws of the
Corporation.
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SECTION
4.2 Audit
Committee. Subject
to Section 4.1, the Board may designate an Audit Committee of the Board, which
shall consist of such number of members as the Board shall determine. The Audit
Committee shall: (i) make recommendations to the Board as to the independent
accountants to be appointed by the Board; (ii) review with the independent
accountants the scope of their examinations; (iii) receive the reports of the
independent accountants and meet with representatives of such accountants for
the purpose of reviewing and considering questions relating to their examination
and such reports; (iv) review, either directly or through the independent
accountants, the internal accounting and auditing procedures of the Corporation;
(v) review related party transactions; and (vi) perform such other functions as
may be assigned to it from time to time by the Board. The Audit Committee may
determine its manner of acting, and fix the time and place of its meetings,
unless the Board shall otherwise provide.
SECTION
4.3 Compensation
Committee. Subject
to Section 4.1, the Board may designate members of the Board to constitute a
Compensation Committee which shall consist of such number of directors as the
Board may determine. The Compensation Committee may determine its manner of
acting and fix the time and place of its meetings, unless the Board shall
otherwise provide.
SECTION
4.4 Action by Consent;
Participation by Telephone or Similar Equipment. Unless
the Board shall otherwise provide, any action required or permitted to be taken
by any committee may be taken without a meeting if all the members of the
committee consent in writing to the adoption of a resolution authorizing the
action. The resolution and the written consents thereto by the members of the
committee shall be filed with the minutes of the proceedings of the committee.
Unless the Board shall otherwise provide, any one or more members of any such
committee may participate in any meeting of the committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Participation by such means
shall constitute presence in person at a meeting of the committee.
SECTION
4.5 Resignations;
Removals. Any
member of any committee may resign at any time by giving notice to the
Corporation; provided, however, that notice to the Board, the Chairman of the
Board, the Chief Executive Officer of the Corporation, the chairman of such
committee or the Secretary of the Corporation shall be deemed to constitute
notice to the Corporation. Such resignation shall take effect upon receipt of
such notice or at any later time specified therein; and, unless otherwise
specified therein, acceptance of such resignation shall not be necessary to make
it effective. Subject to Section 4.6, any member of any such committee may be
removed at any time, either with or without cause, by the affirmative vote of a
majority of the authorized number of directors at any meeting of the Board
called for that purpose.
SECTION
4.6 Proportionate
Representation. Notwithstanding anything in this Article IV to the
contrary, the Class B Directors shall at all times have proportionate
representation on each committee of the Board, except for any committee (i)
required by applicable stock exchange rules to be comprised solely of
independent directors or (ii) formed solely for the purpose of reviewing,
recommending and/or authorizing any transaction in which holders of Class B
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Common
Stock or their affiliates (other than the Corporation or its subsidiaries) are
interested parties.
ARTICLE
V
OFFICERS
SECTION
5.1 Number, Titles and
Qualification. The
Corporation shall have such officers as may be necessary or desirable for the
business of the Corporation. The officers of the Corporation may include a
Chairman of the Board, a Chief Executive Officer, a President, one or more Vice
Presidents, a Chief Financial Officer, a Secretary, one or more Assistant
Secretaries, a Treasurer, and one or more Assistant Treasurers. The Chairman of
the Board, Chief Executive Officer, President, Executive Vice Presidents, Senior
Vice Presidents, and Chief Financial Officer shall be elected by the Board,
which shall consider that subject at its first meeting after every Annual
Meeting of stockholders. The Corporation shall have such other officers as may
from time to time be appointed by the Board or the Chief Executive Officer. Each
officer shall hold office until his or her successor is elected or appointed, as
the case may be, and qualified or until his or her earlier resignation or
removal. Any number of offices may be held by the same person.
SECTION
5.2 Chairman of the
Board. The
Chairman of the Board shall be elected from among the directors, and the
Chairman of the Board, or at the election of the Chairman of the Board, the
Chief Executive Officer shall preside at all meetings of the stockholders and
directors and shall have such other powers and perform such other duties as may
be prescribed by the Board or provided in these By-laws. The Chief Executive
Officer shall report to the Chairman of the Board.
SECTION
5.3 Chief Executive
Officer. The
Chief Executive Officer shall have general and active responsibility for the
management of the business of the Corporation, shall be responsible for
implementing all orders and resolutions of the Board, shall supervise the daily
operations of the business of the Corporation, and shall report to the Chairman
of the Board. Subject to the provisions of these Bylaws and to the direction of
the Chairman of the Board or the Board, he or she shall perform all duties which
are commonly incident to the office of Chief Executive Officer or which are
delegated to him or her by the Chairman of the Board or the Board. To the
fullest extent permitted by law, he or she shall have power to sign all
contracts and other instruments of the Corporation which are authorized and
shall have general supervision and direction of all of the other officers,
employees and agents of the Corporation. The Chief Executive Officer shall
perform the duties and exercise the powers of the Chairman of the Board in the
event of the Chairman of the Board's absence or disability.
SECTION
5.4 President. The
President shall have such powers and duties as may be delegated to him or her by
the Chairman of the Board, the Board, or the Chief Executive Officer. The
President shall perform the duties and exercise the powers of the Chief
Executive Officer in the event of the Chief Executive Officer's absence or
disability.
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SECTION
5.5 Vice
President. Each
Vice President shall have such powers and duties as may be delegated to him or
her by the Board or the Chief Executive Officer.
SECTION
5.6 Chief Financial
Officer. The
Chief Financial Officer shall have responsibility for maintaining the financial
records of the Corporation. He or she shall render from time to time an account
of all such transactions and of the financial condition of the Corporation. The
Chief Financial Officer shall also perform such other duties as the Board or the
Chief Executive Officer may from time to time prescribe.
SECTION
5.7 Treasurer. The
Treasurer shall have the responsibility for investments and disbursements of the
funds of the Corporation as are authorized and shall render from time to time an
account of all such transactions. The Treasurer shall also perform such other
duties as the Board or the Chief Executive Officer may from time to time
prescribe.
SECTION
5.8 Secretary. The
Secretary shall issue all authorized notices for, and shall keep minutes of, all
meetings of the stockholders and the Board. He or she shall have charge of the
corporate books and shall perform such other duties as the Board or the Chief
Executive Officer may from time to time prescribe.
SECTION
5.9 Delegation of
Authority. The
Chairman of the Board, the Board, or the Chief Executive Officer may from time
to time delegate the powers or duties of any officer to any other officers or
agents, notwithstanding any provision hereof.
SECTION
5.10 Removal. Any
officer of the Corporation may be removed at any time, with or without cause, by
the Chairman of the Board, by the Board, or, except as to the Chairman of the
Board, President, Executive Vice Presidents, Senior Vice Presidents, and Chief
Financial Officer, by the Chief Executive Officer.
SECTION
5.11 Resignations. Any
officer may resign at any time by giving written notice to the Corporation;
provided, however, that notice to the Chairman of the Board, the Chief Executive
Officer or the Secretary shall be deemed to constitute notice to the
Corporation. Such resignation shall take effect upon receipt of such notice or
at any later time specified therein; and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it
effective.
SECTION
5.12 Vacancies. Any
vacancy among the officers, whether caused by death, resignation, removal or any
other cause, shall be filled in the manner prescribed for election or
appointment to such office.
SECTION
5.13 Action with Respect to
Securities of Other Corporations. Unless
otherwise directed by the Board, the Chairman of the Board, the Chief Executive
Officer or any other officer of the Corporation authorized by the Chairman of
the Board or the Chief Executive Officer shall have power to vote and otherwise
act on behalf of the Corporation, in person or by proxy, at any meeting of
stockholders of or with respect to any action of stockholders of any other
corporation in which this Corporation may hold securities and otherwise to
exercise any and all rights and powers which this Corporation may possess by
reason of its ownership of securities in such other corporation.
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SECTION
5.14 Bonds of
Officers. If
required by the Chairman of the Board, the Board, or the Chief Executive
Officer, any officer of the Corporation shall give a bond for the faithful
discharge of his or her duties in such amount and with such surety or sureties
as the Chairman of the Board, the Board or the Chief Executive Officer may
require.
SECTION
5.15 Compensation. The
salaries of the officers shall be fixed from time to time by the Board, unless
and until the Board appoints a Compensation Committee.
SECTION
5.16 Officers of Operating
Companies, Regions or Divisions. The
Chief Executive Officer shall have the power to appoint, remove and prescribe
the terms of office, responsibilities and duties of the officers of the
operating companies, regions or divisions, other than those who are officers of
the Corporation appointed by the Board.
ARTICLE
VI
CONTRACTS,
CHECKS, LOANS, DEPOSITS, ETC.
SECTION
6.1 Contracts. The
Board may authorize any officer or officers, agent or agents, in the name and on
behalf of the Corporation, to enter into any contract or to execute and deliver
any instrument, which authorization may be general or confined to specific
instances; and, unless so authorized by the Board, no officer, agent or employee
shall have any power or authority to bind the Corporation by any contract or
engagement or to pledge its credit or to render it liable pecuniarily for any
purpose or for any amount.
SECTION
6.2 Checks,
etc. All
checks, drafts, bills of exchange or other orders for the payment of money out
of the funds of the Corporation, and all notes or other evidences of
indebtedness of the Corporation, shall be signed in the name and on behalf of
the Corporation in such manner as shall from time to time be authorized by the
Board or the Chief Executive Officer, which authorization may be general or
confined to specific instances.
SECTION
6.3 Loans. No loan
shall be contracted on behalf of the Corporation, and no negotiable paper shall
be issued in its name, unless authorized by the Board, which authorization may
be general or confined to specific instances, and bonds, debentures, notes and
other obligations or evidences of indebtedness of the Corporation issued for
such loans shall be made, executed and delivered as the Board shall
authorize.
SECTION
6.4 Deposits. All
funds of the Corporation not otherwise employed shall be deposited from time to
time to the credit of the Corporation in such banks, trust companies or other
depositories as may be selected by or in the manner designated by the Board, the
Chief Executive Officer or the Chief Financial Officer. The Board or its
designees may make such special rules and regulations with respect to such bank
accounts, not inconsistent with the provisions of the Certificate of
Incorporation or these Bylaws, as they may deem advisable.
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ARTICLE
VII
CAPITAL
STOCK
SECTION
7.1 Certificates of
Stock. The
shares of the capital stock of the Corporation shall be represented by
certificates, provided that the Board by resolution or resolutions may provide
that some or all of any or all classes or series of capital stock of the
Corporation shall be uncertificated shares. Any such resolution shall not apply
to shares represented by a certificate until such certificate is surrendered to
the Corporation. Notwithstanding the adoption of such a resolution by the Board,
every holder of stock represented by certificates and upon request every holder
of uncertificated shares shall be entitled to have a certificate signed by, or
in the name of the Corporation by, the Chairman of the Board, President or a
Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer
or an Assistant Treasurer, certifying the number of shares owned by him or her.
Any or all of the signatures on the certificate may be by
facsimile.
SECTION
7.2 Transfers of
Stock.
Transfers of stock shall be made only upon the transfer books of the Corporation
kept at an office of the Corporation or by transfer agents designated to
transfer shares of the stock of the Corporation. Except where a certificate is
issued in accordance with Section 7.4 of these Bylaws, an outstanding
certificate for the number of shares involved, if certificated, shall be
surrendered for cancellation before a new certificate is issued
therefor.
SECTION
7.3 Record
Date. In
order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders, or to receive payment of any dividend
or other distribution or allotment of any rights or 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 a record date, which record date shall
not precede the date on which the resolution fixing the record date is adopted
and which record date, except as set forth in the Certificate of Incorporation,
shall not be more than sixty (60) nor less than ten (10) days before the date of
any meeting of stockholders, nor more than sixty (60) days prior to the time for
such other action as hereinbefore described; provided, however, that if no
record date is fixed by the Board, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice 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, and, for determining stockholders entitled to
receive payment of any dividend or other distribution or allotment of rights or
to exercise any rights of change, conversion or exchange of stock or for any
other purpose, the record date shall be at the close of business on the day on
which the Board adopts a resolution relating thereto.
A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board may fix a new record date for the adjourned
meeting.
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In order
that the Corporation may determine the stockholders entitled to consent to
corporate action in writing without a meeting, the Board may fix a record date,
which shall not precede the date upon which the resolution fixing the record
date is adopted by the Board, and which record date shall be not more than ten
(10) days after the date upon which the resolution fixing the record date is
adopted. Any stockholder of record seeking to have the stockholders authorize or
take corporate action by written consent shall, by written notice to the
Secretary of the Corporation, request the Board to fix a record date. The Board
shall promptly, but in all events within ten (10) days after the date on which
such a request is received, adopt a resolution fixing the record date. If no
record date has been fixed by the Board and no prior action by the Board is
required by the Delaware General Corporation Law, the record date shall be the
first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation in the manner prescribed by
Section 2.10 hereof. If no record date has been fixed by the Board and prior
action by the Board is required by the Delaware General Corporation Law with
respect to the proposed action by written consent of the stockholders, the
record date for determining stockholders entitled to consent to corporate action
in writing shall be at the close of business on the day on which the Board
adopts the resolution taking such prior action.
SECTION
7.4 Lost, Stolen or Destroyed
Certificates. In the
event of the loss, theft or destruction of any certificate of stock, another may
be issued in its place pursuant to such regulations as the Board may establish
concerning proof of such loss, theft or destruction and concerning the giving of
satisfactory bond or bonds of indemnity.
SECTION
7.5 Regulations. The
issue, transfer, conversion and registration of certificates of stock shall be
governed by such other regulations as the Board may establish.
ARTICLE
VIII
NOTICES
SECTION
8.1 Notices. Except
as otherwise specifically provided herein or required by law, all notices
required to be given to any stockholder, director, officer, employee or agent
may in every instance be effectively given by hand delivery to the recipient
thereof, by depositing such notice in the mails, postage-paid, or with a
recognized overnight-delivery service or by sending such notice by facsimile or
other means of electronic transmission, or such other means as is provided by
law. Any such notice shall be addressed to such stockholder, director, officer,
employee or agent at such person's last known address as the same appears on the
books of the Corporation. The time when such notice is received, if hand
delivered, or dispatched, if delivered through the mails or by overnight
delivery service, or by telegram, mailgram or facsimile, shall be the time of
the giving of the notice.
SECTION
8.2 Waivers. A
written waiver of any notice, signed by a stockholder, director, officer,
employee or agent, whether before or after the time of the event for which
notice is to be given, shall be deemed equivalent to the notice required to be
given to such
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stockholder,
director, officer, employee, agent. Neither the business nor the purpose of any
meeting need be specified in such a waiver.
ARTICLE
IX
MISCELLANEOUS
SECTION
9.1 Facsimile
Signatures. In
addition to the provisions for use of facsimile signatures elsewhere
specifically authorized in these Bylaws, facsimile signatures of any officer or
officers of the Corporation may be used whenever and as authorized by the Board
or a committee thereof.
SECTION
9.2 Corporate
Seal. The
Board may provide a suitable seal, containing the name of the Corporation, which
seal shall be in the charge of the Secretary of the Corporation. If and when so
directed by the Board or a committee thereof, duplicates of the seal may be kept
and used by the Corporation's Treasurer or by an Assistant Secretary or
Assistant Treasurer.
SECTION
9.3 Reliance Upon Books, Reports
and Records. Each
director, each member of any committee designated by the Board, and each officer
of the Corporation shall, in the performance of his or her duties, be fully
protected in relying in good faith upon the books of account or other records of
the Corporation and upon such information, opinions, reports or statements
presented to the Corporation by any of its officers or employees, or committees
of the Board so designated, or by any other person as to matters which such
director or committee member reasonably believes are within such other person's
professional or expert competence and who has been selected with reasonable care
or on behalf of the Corporation.
SECTION
9.4 Fiscal
Year. The
fiscal year of the Corporation shall be as fixed by the Board.
SECTION
9.5 Time
Periods. In
applying any provision of these Bylaws which requires that an act be done or not
be done a specified number of days prior to an event or that an act be done
during a period of a specified number of days prior to an event, calendar days
shall be used, the day of the doing of the act shall be excluded, and the day of
the event shall be included.
ARTICLE
X
INDEMNIFICATION
OF DIRECTORS AND OFFICERS
SECTION
10.1 Right to
Indemnification. Each
person who was or is made a party or is threatened to be made a party or is
otherwise involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter, a "proceeding"), by reason of the
fact that he or she is or was a director or an officer of the Corporation or is
or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with
15
respect
to an employee benefit plan (hereinafter, a "Covered Person"), whether the basis
of such proceeding is alleged action in an official capacity as a director,
officer, employee or agent or in any other capacity while serving as a director,
officer, employee or agent, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may hereafter be amended, against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such Covered Person in connection therewith; provided, however,
that, except as provided in Section 10.3 hereof with respect to proceedings to
enforce rights to indemnification, the Corporation shall indemnify any such
Covered Person in connection with a proceeding (or part thereof) initiated by
such Covered Person only if such proceeding (or part thereof) was authorized by
the Board.
SECTION
10.2 Right to Advancement of
Expenses. The
Corporation shall pay the expenses (including attorneys' fees) incurred by a
Covered Person in defending any such proceeding in advance of its final
disposition (hereinafter, an "advancement of expenses"), provided, however,
that, if the Delaware General Corporation Law so requires, an advancement of
expenses incurred by a Covered Person in his or her capacity as such shall be
made only upon delivery to the Corporation of an undertaking (hereinafter, an
"undertaking"), by or on behalf of such Covered Person, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (hereinafter, a "final adjudication")
that such Covered Person is not entitled to be indemnified for such expenses
under this Section 10.2 or otherwise. The rights to indemnification and to the
advancement of expenses conferred in Sections 10.1 and 10.2 hereof shall be
contract rights and such rights shall continue as to a Covered Person who has
ceased to be such and shall inure to the benefit of the Covered Person's heirs,
executors and administrators.
SECTION
10.3 Right of Covered Person to
Bring Suit. If a
claim under Section 10.1 or 10.2 hereof is not paid in full by the Corporation
within sixty (60) days after a written claim therefor has been received by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be twenty (20) days, the Covered Person
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim. If successful in whole or in part in any such suit,
or in a suit brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the Covered Person shall be entitled to
be paid also the expense of prosecuting or defending such suit. In (i) any suit
brought by the Covered Person to enforce a right to indemnification hereunder
(but not in a suit brought by the Covered Person to enforce a right to an
advancement of expenses) it shall be a defense that, and (ii) any suit brought
by the Corporation to recover an advancement of expenses pursuant to the terms
of an undertaking the Corporation shall be entitled to recover such expenses
upon a final adjudication that, the Covered Person has not met the applicable
standard for indemnification set forth in the Delaware General Corporation Law.
To the fullest extent permitted by law, neither the failure of the Corporation
(including its disinterested directors, committee thereof, independent legal
counsel or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the Covered Person is proper
in the circumstances because the Covered Person has met the applicable standard
of conduct set forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its disinterested directors,
committee thereof, independent legal counsel or its stockholders) that the
Covered Person has
16
not met
such applicable standard of conduct, shall create a presumption that the Covered
Person has not met the applicable standard of conduct or, in the case of such a
suit brought by the Covered Person, be a defense to such suit. In any suit
brought by the Covered Person to enforce a right to indemnification or to an
advancement of expenses hereunder, or brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the Covered Person is not entitled to be indemnified, or to such
advancement of expenses, under this Article X or otherwise shall, to the extent
permitted by law, be on the Corporation.
SECTION
10.4 Non-Exclusivity of
Rights. The
rights to indemnification and to the advancement of expenses conferred in this
Article X shall not be exclusive of any other right which any person may have or
hereafter acquire by any statute, the Corporation's Certificate of Incorporation
or Bylaws, agreement, vote of stockholders or disinterested directors or
otherwise.
SECTION
10.5 Insurance. The
Corporation may maintain insurance, at its expense, to protect itself and any
director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law.
SECTION
10.6 Indemnification of Employees
and Agents of the Corporation. The
Corporation may, to the extent authorized from time to time by the Board, grant
rights to indemnification and to the advancement of expenses to any employee or
agent of the Corporation to the fullest extent of the provisions of this Article
X with respect to the indemnification and advancement of expenses of directors
and officers of the Corporation.
SECTION
10.7 Amendment or
Repeal.
Any
repeal or modification of the provisions of this Article X shall not adversely
affect any right or protection hereunder of any Covered Person in respect of any
proceeding (regardless of when such proceeding is first threatened, commenced or
completed) arising out of, or related to, any act or omission occurring prior to
the time of such repeal or modification.
ARTICLE
XI
AMENDMENTS
The Board
may from time to time adopt, make, amend, supplement or repeal these Bylaws by
vote of a majority of the Board. Notwithstanding the foregoing, any amendment,
supplement or repeal, including in each case by merger, consolidation or
otherwise, of Sections 3.2 and/or 4.6 hereof or this Article XI shall require a
majority vote of the holders of Class A Common Stock and a majority vote of the
holders of Class B Common Stock, each voting as a separate
class.
17