Exhibit 4(b)


 


DIRECTV


 


(hereinafter called the “Corporation”)


 


AMENDED
AND RESTATED


 


BY-LAWS


 


ARTICLE I


 


STOCKHOLDERS


 


Section 1.  Notice of
Stockholder Business and Nominations.


 


(a)  Annual Meetings of Stockholders.


 


(1)           Except as may be otherwise provided in the Certificate of
Incorporation of the Corporation (the “Certificate
of Incorporation”) with respect to the right of holders of any class
or series of preferred stock of the Corporation to nominate and elect a
specified number of directors of the Corporation (“Directors”) in certain circumstances, nominations of persons
for election to the Board of Directors (the “Board”)
and the proposal of other business to be considered by the stockholders may be
made at an annual meeting of stockholders of the Corporation (an “Annual Meeting”) only (A) pursuant to
the Corporation’s notice of meeting (the “Notice
of Meeting”), (B) by or at the direction of the Board or (C) by
any stockholder of the Corporation who (i) was a stockholder of record at
the time of giving of notice provided for in this Section 1 and at the
time of the Annual Meeting, (ii) is entitled to vote at the meeting and (iii) complies
with the notice procedures set forth in this Section 1 as to such business
or nomination. The provisions of clause (C) of this Section 1(a)(1) shall
be the exclusive means for a stockholder to make nominations or submit other
business (other than matters properly brought under Rule 14a-8 under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), and included in the Corporation’s Notice of
Meeting) before an Annual Meeting.


 


(2)           Without qualification, for any nominations or any other
business to be properly brought before an Annual Meeting by a stockholder
pursuant to Section 1(a)(1)(C) of this Article I, the
stockholder must have given timely notice thereof in writing to the Secretary
of the Corporation (the “Secretary”)
and such other business must otherwise be a proper matter for stockholder
action. To be timely, a stockholder’s notice shall be delivered to the
Secretary at the principal executive offices of the Corporation or as specified
in the proxy statement for the preceding year’s Annual Meeting not earlier than
the close of business on the 120th day prior to, and not later than the
close of business on the 90th day prior to, the first anniversary of the
preceding year’s Annual Meeting; provided,
however, that in the event that
the date of the Annual Meeting is more than 30 days before, or more than
60 days after, such anniversary date, notice by the stockholder to be
timely must be so delivered not earlier than the close of business on the
120th day prior to the date of such Annual Meeting and not later than the
close of business on the later of the 90th day prior to the date of such Annual
Meeting or, if the first public announcement of the date of such Annual Meeting
is less than 100 days prior to the date of such Annual Meeting, the
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 any
adjournment or postponement of an Annual Meeting or the announcement thereof
commence a new time period for the giving of a stockholder’s notice as
described above. To be in proper form, a stockholder’s notice (whether given
pursuant to this Section 1(a)(2) or Section 1(b)) to the
Secretary must:


 


(A)          set forth, as to the stockholder
giving the notice and the beneficial owner, if any, on whose behalf the
nomination or proposal is made (which information shall be supplemented by such
stockholder and beneficial owner, if any, not later than 10 days after the
record date for the meeting to disclose such ownership as of the record date):


 


(i)            the name and address of such
stockholder, as they appear on the Corporation’s books, and of such beneficial
owner, if any,


 


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(ii)           the class or series and number of
shares of the Corporation which are, directly or indirectly, owned beneficially
and of record by such stockholder and such beneficial owner,


 


(iii)          any option, warrant, convertible
security, stock appreciation right, or similar right with an exercise or
conversion privilege or a settlement payment or mechanism at a price related to
any class or series of shares of the Corporation or with a value derived in
whole or in part from the value of any class or series of shares of the
Corporation, whether or not such instrument or right shall be subject to
settlement in the underlying class or series of capital stock of the
Corporation or otherwise (a “Derivative
Instrument”) directly or indirectly owned beneficially or otherwise
held by such stockholder (or if such nomination or proposal is made on behalf
of a beneficial owner, by such beneficial owner) and any other direct or
indirect opportunity to profit or share in any profit derived from any increase
or decrease in the value of shares of capital stock or other securities of the
Corporation to which such stockholder (or if such nomination or proposal is
made on behalf of a beneficial owner, such beneficial owner) is entitled by
contract or otherwise,


 


(iv)          any proxy, contract, arrangement,
understanding, or relationship pursuant to which such stockholder (or if such
nomination or proposal is made on behalf of a beneficial owner, such beneficial
owner) has a right to vote any shares of any capital stock or other securities
of the Corporation,


 


(v)           any short interest in any capital
stock or other security of the Corporation directly or indirectly owned
beneficially or otherwise held by such stockholder (or if such nomination or
proposal is made on behalf of a beneficial owner, by such beneficial owner)
(for purposes of this Article I a person shall be deemed to have a short
interest in capital stock or another security if such person directly or indirectly,
through any contract, arrangement, understanding, relationship or otherwise,
has the opportunity to profit or share in any profit derived from any decrease
in the value of the subject capital stock or other security),


 


(vi)          any rights to dividends on the shares
of capital stock of the Corporation directly or indirectly owned beneficially
or otherwise held by such stockholder (or if such nomination or proposal is
made on behalf of a beneficial owner, by such beneficial owner) that are
separated or separable from the underlying shares of capital stock of the
Corporation,


 


(vii)         any proportionate interest in shares of
capital stock of the Corporation or Derivative Instruments held, directly or
indirectly, by a general or limited partnership, or limited liability company
in which such stockholder (or if such nomination or proposal is made on behalf
of a beneficial owner, such beneficial owner) is a general partner or manager
or, directly or indirectly, beneficially owns an interest in a general partner
or manager,


 


(viii)        any performance-related fees (other than
an asset-based fee) to which such stockholder (or if such nomination or
proposal is made on behalf of a beneficial owner, such beneficial owner) is
entitled based on any increase or decrease in the value of shares of capital
stock or other securities of the Corporation or Derivative Instruments, if any,
as of the date of such notice, including without limitation any such interests
held by members of such stockholder’s (or such beneficial owner’s) immediate
family sharing the same household, and


 


(ix)           any other information relating to
such stockholder and beneficial owner, if any, on whose behalf the proposal is
made, that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of proxies for, as
applicable, the proposal and/or for the election of directors in a contested
election pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder;


 


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(B)           if the notice relates to any business
other than a nomination of a director or directors that the stockholder
proposes to bring before the meeting, set forth


 


(i)            (a) a brief description of the
business desired to be brought before the meeting, (b) 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 By-Laws of the Corporation, the language of the proposed amendment), (c) the
reasons for conducting such business at the meeting, and (d) any direct or
indirect interest of such stockholder and beneficial owner, if any, on whose
behalf the proposal is made, in such business, and


 


(ii)           a description of all agreements,
arrangements and understandings between such stockholder and beneficial owner,
if any, on whose behalf the proposal is made, and any other person or persons
(including their names) in connection with the proposal of such business by such
stockholder;


 


(C)           set forth, as to each person, if any,
whom the stockholder proposes to nominate for election or reelection to the
Board


 


(i)            all information relating to such
person that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election of
directors in a contested election pursuant to Section 14 of the Exchange
Act and the rules and regulations promulgated thereunder (including such
person’s written consent to being named in the proxy statement as a nominee and
to serving as a director if elected), and


 


(ii)           a description of all direct and
indirect compensation and other monetary agreements, arrangements and
understandings during the past three years, and any other direct or indirect
relationships, between or among such stockholder and beneficial owner, if any,
on whose behalf the nomination is made, and their respective affiliates and
associates, or others acting in concert therewith, on the one hand, and each
proposed nominee, and his or her respective affiliates and associates, or
others acting in concert therewith, on the other hand, including, without
limitation, all information that would be required to be disclosed pursuant to Rule 404
promulgated under Regulation S-K if the stockholder making the nomination
and any beneficial owner on whose behalf the nomination is made, if any, or any
affiliate or associate thereof or person acting in concert therewith, were the “registrant” for purposes of such rule and
the nominee were a director or executive officer of such registrant; and


 


(iii)          any other information required to
determine whether the person is an Independent Director or, if applicable, a
Qualifying Director (each as defined in Section 2 of Article II); and


 


(D)          with respect to each nominee for
election or reelection to the Board, include a completed and signed
questionnaire, representation and agreement required by Section 2 of this Article I.
The Corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the Corporation to determine (i) the
eligibility of such proposed nominee to serve as a director of the Corporation,
and (ii) whether such proposed nominee qualifies as a Qualifying Director
or an Independent Director or “audit committee financial expert” under
applicable securities law, securities exchange rule or regulation, or any
publicly-disclosed corporate governance guideline or committee charter of the
Corporation, and such other information as could be material to a reasonable
stockholder’s understanding of the qualifications or independence, or lack
thereof, of such nominee.


 


(3)           Notwithstanding anything in the second sentence of Section 1(a)(2) of
this Article I to the contrary, in the event that the number of directors
to be elected to the Board is increased and there is no public announcement by
the Corporation naming all of the nominees for director or specifying the size
of the increased Board at least 100 days prior to the first anniversary of
the preceding year’s Annual Meeting, a stockholder’s notice required by this Article I
shall also be considered timely, but only with respect to 


 


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nominees for any new positions created by
such increase, 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 10th day following the day on which such public announcement is first
made by the Corporation.


 


(b)  Special Meetings of Stockholders.  The only business that shall be conducted at
a special meeting of stockholders is the business that shall have been brought
before the meeting pursuant to the Corporation’s Notice of Meeting. Except as
may be otherwise provided in the Certificate of Incorporation with respect to
the right of holders of any class or series of preferred stock of the
Corporation to nominate and elect a specified number of Directors in certain
circumstances, 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 only (A) by or at the direction of
the Board or (B) provided that the Board has determined that directors
shall be elected at such meeting, by any stockholder of the Corporation who (i) is
a stockholder of record at the time of giving of notice provided for in this Section 1(b) and
at the time of the special meeting, (ii) is entitled to vote at the
meeting, and (iii) complies with the notice procedures set forth in this Section 1(b) as
to such nomination. 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 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 in the same form required by Section 1(a)(2) of
Article I with respect to any nomination (including the completed and
signed questionnaire, representation and agreement required by Section 2
of Article I) shall be delivered to the Secretary at the principal
executive offices of the Corporation not earlier than the close of business on
the 120th day prior to the date of such special meeting and not later than
the close of business on the later of the 90th day prior to the date of
such special meeting or, if the first public announcement of the date of such
special meeting is less than 100 days prior to the date of such special
meeting, the 10th day following the day on which 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. No other person or persons may call a special
meeting of stockholders except as may be provided in the Certificate of
Incorporation, as amended from time to time. The foregoing notwithstanding,
unless otherwise provided in the Certificate of Incorporation, whenever the
holders of any one or more outstanding series of preferred stock shall have the
right, voting separately by class or by series, as applicable, to elect
Directors at any Annual Meeting or special meeting of stockholders, the calling
of special meetings of the holders of such class or series shall be governed by
the terms of the applicable resolution or resolutions of the Board establishing
such series of preferred stock pursuant to the Certificate of Incorporation.


 


(c)           In no event shall any adjournment or postponement of a
special meeting or the announcement thereof commence a new time period for the
giving of a stockholder’s notice as described above in Section 1(b) of
Article I.


 


(d)  General.


 


(1)           Only such persons who are nominated in accordance with the
procedures set forth in this Article I shall be eligible 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 Article I. Except as otherwise provided
by law, the Certificate of Incorporation or these By-Laws, the chairman of the
meeting shall have the power and duty 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 Article I
and, if any proposed nomination or business is not in compliance with this Article I,
to declare that such defective proposal or nomination shall be disregarded.
Notwithstanding the foregoing provisions of this Article I, unless
otherwise required by law, if the stockholder (or a qualified representative of
the stockholder) does not appear at the annual or special meeting of
stockholders of the Corporation to present a nomination or proposed business,
such nomination shall, if so determined by the chairman of the meeting, be
disregarded and such proposed business shall, if so determined by the chairman
of the meeting, not be transacted, notwithstanding that proxies in respect of
such nomination or proposed business may have been received by the Corporation.
For purposes of this Section 1(d)(1), to be considered a qualified
representative of the stockholder, a person must be authorized by a writing
executed by such stockholder or an electronic transmission delivered by such
stockholder to 


 


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act for such stockholder as proxy at the
meeting of stockholders and such person must produce such writing or electronic
transmission, or a reliable reproduction of the writing or electronic
transmission, at the meeting of stockholders.


 


(2)           For purposes of this Article I, “public announcement” shall mean disclosure
in a (x) press release reported by the Dow Jones News Service, Associated
Press or a comparable national news service, (y) press release posted in
the “Press Releases” section of the Corporation’s website or (z) document
publicly filed by the Corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and
regulations promulgated thereunder.


 


(3)           Notwithstanding the foregoing provisions of this Article I,
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 Article I; provided, however, that any
references in these By-Laws to the Exchange Act or the rules promulgated
thereunder are not intended to and shall not limit the requirements applicable
to nominations or proposals as to any other business to be considered pursuant
to Section 1(a)(1)(C) or Section 1(b) of this Article I.
Nothing in this By-Law shall be deemed to affect any rights (i) of
stockholders to request inclusion of proposals in the Corporation’s proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of
the holders of any series of preferred stock if and to the extent provided for
under law, the Certificate of Incorporation or these By-Laws. Nothing in this
By-Law shall be deemed to confer upon any stockholder a right to have a nominee
or any proposed business included in the Corporation’s proxy statement.


 


Section 2.  Submission of
Questionnaire, Representation and Agreement.


 


To be eligible to be a
nominee for election or reelection as a director of the Corporation, a person
must deliver (in accordance with the time periods prescribed for delivery of
notice under Section 1 of this Article I) to the Secretary at the
principal executive offices of the Corporation a written questionnaire with
respect to the background and qualification of such person and the background
of any other person or entity on whose behalf the nomination is being made
(which questionnaire shall be provided by the Secretary upon written request)
and a written representation and agreement (in the form provided by the
Secretary upon written request) that such person (A) is not and will not
become a party to (1) any agreement, arrangement or understanding with,
and has not given any commitment or assurance to, any person or entity as to
how such person, if elected as a director of the Corporation, will act or vote
on any issue or question (a “Voting
Commitment”) that has not been disclosed to the Corporation or (2) any
Voting Commitment that could limit or interfere with such person’s ability to
comply, if elected as a Director, with such person’s fiduciary duties under
applicable law, (B) is not and will not become a party to any agreement,
arrangement or understanding with any person or entity other than the
Corporation with respect to any direct or indirect compensation, reimbursement
or indemnification in connection with service or action as a Director that has
not been disclosed therein, and (C) in such person’s individual capacity
and on behalf of any person or entity on whose behalf the nomination is being
made, would be in compliance, if elected as a Director, and will comply with
all applicable publicly disclosed corporate governance, conflict of interest,
confidentiality and stock ownership and trading policies and guidelines of the
Corporation.


 


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Section 3.  Notice of
Meetings; Adjournment.


 


Except
as otherwise provided herein or required by “applicable
law” (meaning, here and hereinafter, as required from time to time
by the General Corporation Law of the State of Delaware (the “DGCL”)) or the Certificate of
Incorporation, written notice of the place, if any (or the means of remote
communication, if any, by which stockholders and proxy holders may be deemed to
be present in person), date, and time of all meetings of the stockholders and,
in the case of a special meeting of stockholders, the purpose or purposes for
which such meeting is called shall be given by notice addressed to each
stockholder of the Corporation entitled to vote at such meeting not less than
10 nor more than 60 days before the date on which the meeting is to be
held. Notice may be given personally, by mail or by electronic transmission in
accordance with Section 232 of the DGCL. If mailed, such notice shall be
deemed given when deposited in the United States mail, postage prepaid,
directed to each stockholder at such stockholder’s address appearing on the
records of the Corporation or given by the stockholder for such purpose. Notice
by electronic transmission shall be deemed given as provided in Section 232
of the DGCL. An affidavit of the mailing or other means of giving any notice of
any stockholders’ meeting, executed by the Secretary, Assistant Secretary or
any transfer agent of the Corporation giving the notice, shall be prima facie evidence of the giving of such
notice or report. Notice shall be deemed to have been given to all stockholders
of record who share an address if notice is given in accordance with the “householding”
rules set forth in Rule 14a-3(e) under the Exchange Act and Section 233
of the DGCL.


 


Any meeting may be adjourned
from time to time, whether or not there is a quorum, either (i) in the
discretion of the chairman of the meeting (including, without limitation, where
necessary to tabulate any vote the tabulation of which is necessary for the
continued conduct of the meeting) or (ii) by vote of the holders of a
majority of the voting power of the shares of stock present at the meeting and
entitled to vote on the subject matter of such meeting.


 


When a meeting is adjourned
to another date, time or place, if any, notice need not be given of the
adjourned meeting if the date, time and place, if any (and the means of remote
communication, if any, by which stockholders and proxy holders of the Corporation
may be deemed to be present in person at such adjourned meeting), thereof are
announced at the meeting at which the adjournment is taken; provided, however,
that if the date of any adjourned meeting is more than 30 days after the
date for which the meeting was originally noticed, or if a new record date is
fixed for the adjourned meeting, notice of the date, time and place of the
adjourned meeting shall be given in conformity herewith to each stockholder of
the Corporation of record entitled to vote at the adjourned meeting. At any
adjourned meeting, any business may be transacted which might have been
transacted at the original meeting.


 


Section 4.  Quorum.


 


At any meeting of the
stockholders, the holders of a majority of all of the outstanding shares of
stock entitled to vote at the meeting, present in person or represented by
proxy, shall constitute a quorum for all purposes, unless or except to the
extent that the presence of a larger number may be required by these By-Laws,
the Certificate of Incorporation or by applicable law. Where a separate vote by
a class or classes or series is required by law or by the Certificate of
Incorporation, a majority of the shares of such class or classes or series
present in person or represented by proxy shall constitute a quorum entitled to
take action with respect to that vote on that matter. Shares of capital stock
of the Corporation held of record or beneficially by the Corporation or by
another entity, if a majority of the voting power or economic interest of such
other entity is held, directly or indirectly, by the Corporation, shall neither
be entitled to vote at a meeting of stockholders of the Corporation nor be
counted for quorum purposes on any matter brought before the meeting; provided, however,
that the foregoing shall not limit the right of the Corporation or any
subsidiary of the Corporation to vote stock, including but not limited to its
own stock, held by it in a fiduciary capacity.


 


If a quorum shall fail to
attend any meeting, the chairman of the meeting may adjourn the meeting from
time to time, without notice other than by announcement to the meeting, to
another date, place, if any, and time until a quorum shall be present.


 


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Section 5.  Organization.


 


The Chairman of the Board of
the Corporation, or, in his or her absence, such person as the Board may have
designated or, in the absence of such a person, such person as may be chosen by
the holders of a majority of the shares entitled to vote who are present, in
person or represented by proxy, shall call to order any meeting of the
stockholders and act as chairman of the meeting. The Secretary, or if he or she
is not present, any Assistant Secretary, or in the absence of any Assistant
Secretary, any person the chairman of the meeting appoints shall act as the
secretary of the meeting and keep a record of the proceedings thereof.


 


Section 6.  Place of
Meeting.


 


Meetings of the stockholders
for the election of Directors or for any other purpose shall be held at such
time and place, if any (or by means of remote communication, if any, by which
stockholders and proxy holders may be deemed to be present in person), either
within or outside the State of Delaware, as shall be designated from time to
time by the Board and stated in the notice of the meeting.


 


Section 7.  Conduct of
Business.


 


The Board may adopt by
resolution such rules and regulations for the conduct of meetings as it
shall deem appropriate. Except to the extent inconsistent with such rules and
regulations as adopted by the Board, the chairman of the meeting shall have the
right and authority to convene and to adjourn the meeting, to prescribe such
rules, regulations and procedures and to do all such acts as, in the judgment
of such chairman of the meeting, are appropriate for the proper conduct of the
meeting. Such rules, regulations or procedures, whether adopted by the Board or
prescribed by the chairman of the meeting, may include, without limitation, the
following: (i) the establishment of an agenda or order of business for the
meeting; (ii) rules and procedures for maintaining order at the
meeting and the safety of those present; (iii) limitations on attendance
at or participation in the meeting to stockholders of record of the Corporation,
their duly authorized and constituted proxies and such other persons as the
chairman of the meeting shall determine; (iv) restrictions on entry to the
meeting after the time fixed for the commencement thereof; (v) limitations
on the time allotted to questions or comments by participants; and (vi) the
date and time of the opening and closing of the polls for each matter upon
which the stockholders will vote at the meeting. The chairman of the meeting,
in addition to making any other determinations that may be appropriate to the
conduct of the meeting, shall, if the facts warrant, determine and declare to
the meeting that a matter or business was not properly brought before the
meeting and if such chairman should so determine, such chairman shall so declare
to the meeting, and any such matter or business not properly brought before the
meeting shall not be transacted or considered. Unless and to the extent
determined by the Board or the chairman of the meeting, meetings of
stockholders shall not be required to be held in accordance with the rules of
parliamentary procedure.


 


Section 8.  Proxies and
Voting.


 


At any meeting of the
stockholders where a quorum is present, every stockholder entitled to vote at
such meeting of stockholders may vote in person or by proxy authorized by an
instrument in writing or by an electronic transmission permitted by law filed
in accordance with the procedure established for the meeting. Unless otherwise
provided in the Certificate of Incorporation, each stockholder present in person
or represented by proxy at a meeting of stockholders shall be entitled to cast
one vote for each share of capital stock entitled to vote thereat held by such
stockholder. If the Certificate of Incorporation provides for the issuance of
any class or series of stock which is convertible into any other class or
series of stock, as a condition to counting the votes cast by any holder of
shares at any annual or special meeting of stockholders, the Board or a duly
authorized committee thereof, in its discretion, may require the holder of any
shares to furnish such affidavits or other proof as the Board or such committee
deems necessary and advisable to determine whether such shares have been
converted pursuant to the terms governing the issuance and conversion of such
shares in the Certificate of Incorporation. Any copy, facsimile
telecommunication or other reliable reproduction of the writing or electronic
transmission created pursuant to this paragraph may be substituted or used in
lieu of the original writing or electronic transmission for any and all
purposes for which the original writing or electronic transmission could be
used, provided that such 


 


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copy, facsimile telecommunication or other
reproduction shall be a complete reproduction of the entire original writing or
electronic transmission. All voting, except as may be required by applicable
law or otherwise determined by the chairman of the meeting, including voting
for the election of Directors, may be by a voice vote; provided, however,
that upon demand therefor by a stockholder entitled to vote or by his or her
proxy, or upon resolution by the Board in its discretion or by action of the
chairman of the meeting, in his or her discretion, a stock vote may be taken.
Every stock vote shall be taken by written ballots, each of which shall state
the name of the stockholder or proxy holder voting and such other information
as may be required under the procedure established for the meeting. Unless
otherwise specified by the Certificate of Incorporation, these By-Laws, the rules or
regulations of any stock exchange applicable to the Corporation, or applicable
law or pursuant to any regulation applicable to the Corporation or its
securities (i) at all meetings of stockholders for the election of
Directors at which a quorum is present, a plurality of the votes cast by the
holders of stock represented in person or by proxy and entitled to vote shall
be sufficient, and (ii) any other question brought before any meeting of
stockholders at which a quorum is present shall be determined by the votes cast
affirmatively by the holders of a majority of the voting power represented in
person or by proxy and entitled to vote thereon.


 


Section 9.  Stock List.


 


The
officer of the Corporation who has charge of the stock ledger of the
Corporation shall prepare and make, at least 10 days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, at least ten days prior to the meeting, (i) on
a reasonably accessible electronic network, provided that the information
required to gain access to such list is provided with the Notice of Meeting, or
(ii) during ordinary business hours at the principal place of business of
the Corporation. The list shall also be produced and kept at the time and
place, if any, of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present. Except as
otherwise provided by applicable law, the stock ledger of the Corporation shall
be the only evidence as to who are the stockholders entitled to examine the
list required by this Section 9 or the books of the Corporation, or to
vote in person or by proxy at any meeting of stockholders.


 


Section 10.  Inspector of
Elections.


 


Before any meeting of
stockholders, the Board shall appoint one or more inspectors to act at the
meeting and make a written report thereof. The Board may designate one or more
persons as alternate inspectors to replace any inspector who fails to act. If
no inspector or alternate is able to act at a meeting of stockholders, the
chairman of the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability.


 


The inspectors shall, in
accordance with these By-Laws, the Certificate of Incorporation and Section 231
of the DGCL, ascertain the number of shares outstanding and the voting power of
each, determine the shares represented at the meeting and the validity of
proxies and ballots, count all votes and ballots, determine and retain for a
reasonable period a record of the disposition of any challenges made to any
determination made by the inspectors, and certify their determination of the
number of shares represented at the meeting and their count of all votes and
ballots.


 


The inspectors may appoint
or retain other persons or entities to assist the inspectors in the performance
of their duties. In determining the validity and counting of proxies and
ballots, the inspectors shall act in accordance with applicable law.


 


ARTICLE II


 


BOARD OF DIRECTORS


 


Section 1.  Number,
Election and Term of Directors.


 


Except as otherwise provided
in the Certificate of Incorporation (including any provisions of the
Certificate of Incorporation relating to the rights of the holders of any class
or series of preferred stock), the 


 


8

















 


number of Directors of the Corporation shall
be fixed from time to time exclusively by resolution adopted by a majority of
the entire Board, but the number of Directors shall initially be eleven (11).
Notwithstanding the foregoing, any increase to the number of Directors of the
Corporation in excess of twelve (12) Directors that would become effective
prior to the first annual meeting of the stockholders of the Corporation
occurring after the Merger Effective Time shall require the affirmative vote of
not less than 80% of the Directors then serving on the Board, with any
fractional number being rounded up to the next whole number. Directors need not
be stockholders. Directors shall (except as hereinafter provided for the
filling of vacancies or newly-created directorships) be elected by the holders
of the shares of stock entitled to vote thereon, by a plurality vote thereof,
at the Annual Meeting or at any special meeting of stockholders (solely to the
extent permitted by and in the manner set forth in Section 1(b) above).
Each Director so elected shall hold office until such Director’s successor is
duly elected and qualified, or until such Director’s death, or until such
Director’s earlier disqualification, resignation, retirement or removal.


 


Section 2.  Certain
Definitions.


 


For the purposes of these
By-Laws:


 


“Affiliate” with respect to any person
shall mean any other person who, directly or indirectly, controls, is
controlled by or is under common control with such person.


 


“Beneficially Owns” (and variations
thereof) shall have the same meaning as under Section 13(d) of the
Exchange Act and Regulation 13D-G thereunder (or any successor provision
of law).


 


“Employee Director” means a Director who,
at the time of taking office as a Director, is an employee of the Corporation
or any Subsidiary of the Corporation.


 


“Independent Director” means a director who
qualifies as an “independent director”
under the rules and regulations of the NASDAQ Stock Market or the
applicable primary stock exchange on which the Corporation’s equity securities
are listed in effect from time to time, and under such rules and
regulations as may be established by the Nominating and Corporate Governance
Committee of the Board from time to time.


 


“Merger Agreement” means the Merger
Agreement, dated as of May 3, 2009, as it may be amended from time to
time, by and among Liberty Media Corporation, Liberty Entertainment, Inc.,
The DIRECTV Group, Inc., the Corporation, DTVG One, Inc. and DTVG Two, Inc.


 


“Merger Effective Time” has the meaning
given to such term in the Merger Agreement.


 


“Qualifying Director” means a director who:


 


A.            Is not currently, and within the
last five years has not been, employed by the Corporation or by a Corporation
Affiliate.


 


B.            Has not received during any 12-month
period in the last three years more than $50,000 in direct compensation from
the Corporation or from a Corporation Affiliate, exclusive of:


 


i.              Director and committee fees,
including bona fide expense reimbursements.


 


ii.             Payments arising solely from
investments in the Corporation’s or such Corporation Affiliate’s securities.


 


iii.            Payments in respect of a pension or
other form of deferred compensation for prior service, provided that such
payments are pursuant to


 


9














 


plans
or arrangements of the Corporation or such Corporation Affiliate generally
available to similarly situated personnel.


 


C.            Is neither currently employed as an
executive officer, nor is an Affiliate, of a company that provides
professional, advisory or consulting services to the Corporation or to a
Corporation Affiliate that has received more than $250,000 from the Corporation
or such Corporation Affiliate during any 12-month period in the last two years.


 


D.            Is neither currently employed as an
executive officer, nor is an Affiliate, of (i) a customer or supplier of
the Corporation or a customer or supplier of a Corporation Affiliate that has
made payments to, or received payments from, the Corporation or such
Corporation Affiliate that exceed the greater of $200,000 or 1% of such other
company’s consolidated gross revenues in the most recent full fiscal year or (ii) a
debtor or creditor of the Corporation or a debtor or creditor of a Corporation
Affiliate where the amount owed to or by the Corporation or such Corporation
Affiliate exceeds the greater of $200,000 or 1% of such company’s assets,
determined at the end of the most recently completed fiscal year of such other
company.


 


E.             Is neither currently employed as an
executive officer nor an Affiliate of a not-for-profit entity (including
charitable organizations) that receives annual contributions from the
Corporation or from a Corporation Affiliate that exceed $200,000.


 


F.             Is not, and for the past five years
has not been, an executive officer of a for-profit company in which the Chief
Executive Officer or another executive officer of the Corporation serves on the
board.


 


G.            Is not an immediate family member of
an individual who has had any of the relationships described above within the
time periods described above.


 


Solely
for purposes of the foregoing definition of “Qualifying
Director,” (i) a person shall be considered an “Affiliate” of another person if such first
person exercises a controlling influence over the management or policies of
such other person, whether through the ownership of securities, by contract or
otherwise, and any person who beneficially owns, directly or indirectly, at
least twenty percent (20%) or more of the voting interests of such other person
is an Affiliate of such other person unless at such time another person or
group of persons acting in concert owns in excess of fifty percent (50%) of the
voting interests of such other person; (ii) “Corporation Affiliate” means a person that is currently or
was at any time during the prior twenty-four months an Affiliate of the
Corporation or of The DIRECTV Group, Inc.; (iii) “immediate family
member” means an individual’s spouse, parent and any person who shares an
individual’s home; and (iv) “executive officer” shall have the meaning
ascribed thereto under the Exchange Act. In determining whether any individual
is a Qualifying Director under the foregoing definition (a) the
Corporation shall be entitled to rely on information provided by such
individual to the Corporation; and (b) the determination of a majority of
the Qualifying Directors (other than such individual) shall be presumed to be
valid.


 


“Subsidiary” with respect to a Person,
means any corporation, limited liability company, partnership, trust or
unincorporated organization of which such Person owns, directly or indirectly,
50% or more of the outstanding stock or other equity interests, the holders of
which are entitled to vote for the election of the Board or others performing
similar functions with respect to such corporation, limited liability company,
partnership, trust or unincorporated organization.


 


“Voting Securities” means the Class A
common stock, par value $0.01 per share, and the Class B common stock, par
value $0.01 per share, of the Corporation and any shares of capital stock of
the Corporation entitled to vote generally in the election of Directors. A
stated percentage of the Voting Securities shall mean a number of shares of the
Voting Securities as shall equal in 


 


10

















 


voting power that stated
percentage of the total voting power of the then outstanding shares of Voting
Securities entitled to vote in the election of Directors.


 


Section 3.  Newly Created
Directorships and Board Vacancies.


 


Subject to applicable law
and except as otherwise provided for or fixed by or pursuant to the Certificate
of Incorporation relating to the rights of the holders of any class or series
of preferred stock with respect to such class or series of preferred stock,
newly created Directorships resulting from any increase in the authorized
number of Directors or, subject to Section 11(b) of this Article II
below, any vacancies on the Board resulting from death, resignation,
retirement, disqualification, removal from office or other cause between
meetings of stockholders shall be filled only by the affirmative vote of a
majority of all of the Directors then in office, even if less than a quorum, or
a duly appointed committee of the Board or in such other manner as may be
determined by the Board, but in any event not by the stockholders.
Notwithstanding the foregoing, in the event that the Additional Director (as
defined in the Merger Agreement) is not serving as a member of the board of
directors of The DIRECTV Group, Inc. immediately prior to the Merger
Effective Time, then the first individual (the “New Additional Director”) appointed by the Board to serve as
an independent Director (for NASDAQ purposes) following the Merger Effective
Time (other than any person appointed to replace a person who was serving as a
member of the board of directors of The DIRECTV Group, Inc. on May 3,
2009) shall require the affirmative vote of not less than 80% of the Directors
then serving on the Board, with any fractional number being rounded up to the
next whole number. Directors so chosen shall hold office until such Director’s
successor shall have been duly elected and qualified or until his or her
earlier death, resignation, retirement, disqualification or removal from office
in accordance with the Certificate of Incorporation, these By-Laws, or any
applicable law or pursuant to an order of a court. No decrease in the number of
authorized Directors constituting the entire Board shall shorten the term of
any incumbent Director.


 


Section 4.  Regular
Meetings.


 


A meeting of the Board shall
be held after the Annual Meeting of the stockholders and regular meetings of
the Board shall be held at such place or places, if any, on such date or dates,
and at such time or times as shall have been established by the Board and
publicized among all Directors. Meetings may be held either within or outside
the State of Delaware. A notice of each regular meeting shall not be required.


 


Section 5.  Special
Meetings.


 


Special meetings of the
Board may be called by the Chairman of the Board, by the Vice Chairman, by the
President or by two or more Directors then in office and shall be held at such
place, if any, on such date, and at such time as they or he or she shall fix.
Special meetings of the Board may be held either within or outside the State of
Delaware. Notice thereof, stating the place, if any, date and time of each such
special meeting shall be given to each Director by whom it is not waived by
mailing written notice not less than four (4) days before the meeting or personally
by telephone, or by other means of electronic transmission of notice, not less
than 12 hours before the meeting or on such shorter notice as the person
or persons calling the meeting may deem necessary and appropriate under the
circumstances. Unless otherwise indicated in the notice thereof, any and all
business may be transacted at a special meeting.


 


Section 6.  Quorum and
Voting.


 


Except as may be otherwise
provided by applicable law, the Certificate of Incorporation or these By-Laws,
at all meetings of the Board, a majority of the entire Board shall constitute a
quorum for the transaction of business. The act of a majority of the Directors
present at any meeting at which there is a quorum shall be the act of the
Board, except as otherwise provided in these By-Laws (including, without
limitation, the second sentence of Section 1 of Article II, the
second sentence of Section 3 of Article II, the second sentence of Section 2
of Article IV and the second sentence of Sub-section (a) of Article IX)
or required by applicable law. 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. At such adjourned meeting at which a
quorum is present, any business may be transacted which might have been
transacted at the meeting as originally called.


 


11

















 


Section 7.  Participation
in Meetings by Conference Telephone.


 


Members of the Board, or of
any committee thereof, may participate in and act at a meeting of such Board or
committee by means of conference telephone or other communications equipment by
means of which all persons participating in the meeting can hear each other and
such participation shall constitute presence in person at such meeting.


 


Section 8.  Conduct of
Business; Action by Written Consent.


 


At any meeting of the Board,
or of any committee thereof, business shall be transacted in such manner as the
Board or such committee may from time to time determine and all matters shall
be determined by the vote of a majority of the Directors present, except as
otherwise provided herein or required by applicable law. The Board, or any
committee thereof, may take action without a meeting if all members thereof consent
thereto in writing or writings (or electronic transmission or transmissions),
and the writing or writings (or electronic transmission or transmissions) are
filed with the minutes of proceedings of the Board or of such committee.


 


Section 9.  Powers.


 


The property, 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 applicable law or by the Certificate of
Incorporation or by these By-Laws directed or required to be exercised or done
by the stockholders of the Corporation, including, without limiting the
generality of the foregoing, the unqualified power:


 


(1)           To declare dividends from time to
time in accordance with law;


 


(2)           To purchase or otherwise acquire any
property, rights or privileges on such terms as it shall determine;


 


(3)           To authorize the creation, making and
issuance, in such form as it may determine, of written obligations of every
kind, negotiable or non-negotiable, secured or unsecured, and to do all things
necessary in connection therewith;


 


(4)           To remove any officer of the
Corporation with or without cause, and from time to time to devolve the powers
and duties of any officer upon any other person for the time being;


 


(5)           To adopt from time to time such stock
option, stock purchase, bonus or other compensation plans for Directors,
officers, employees and agents of the Corporation and its Subsidiaries as it
may determine;


 


(6)           To adopt from time to time such
insurance, retirement, and other benefit plans for Directors, officers,
employees and agents of the Corporation and its Subsidiaries as it may
determine; and


 


(7)           To adopt from time to time
regulations, not inconsistent with these By-Laws, for the management of the
Corporation’s business and affairs.


 


Section 10.  Compensation
of Directors.


 


Unless otherwise restricted
by the Certificate of Incorporation, the Board shall have the authority to fix
the compensation of the Directors. The Directors may be paid their expenses, if
any, of attendance at each meeting of the Board and may be paid a fixed sum for
attendance at each meeting of the Board or paid a stated salary or paid other
compensation as Director. No such payment shall preclude any Director from
serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.


 


12

















 


Section 11.  Removal;
Employee Director Disqualification.


 


Any Director may be removed
from office in accordance with the provisions of Section 6.3 of Article VI
of the Certificate of Incorporation.


 


Section 12.  Majority of
Qualifying Directors.


 


The Board shall consist of
at least a majority of Qualifying Directors.


 


ARTICLE III


 


COMMITTEES


 


Section 1.  Committees of
the Board.


 


(a)           The Board may from time to time designate committees of
the Board, with such lawfully delegable powers and duties as it thereby
confers, to serve at the pleasure of the Board and shall, for those committees
and any others provided for herein, elect a Director or Directors to serve as
the member or members, designating, if it desires, other Directors as alternate
members who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of any member of any committee
and any alternate member in his or her place, the member or members of the
committee present at the meeting and not disqualified from voting, whether or
not he or she or they constitute a quorum, may by unanimous vote appoint
another member of the Board to act at the meeting in the place of the absent or
disqualified member. Notwithstanding the foregoing provisions of this Section if
either (A) required by the applicable rules and regulations of the
NASDAQ Stock Market or the Securities and Exchange Commission (in each case, as
may be amended from time to time) or (B) under the Certificate of
Incorporation the Board is required to consist of a majority of Independent
Directors, then for so long as the conditions in clauses (A) or (B) above
are satisfied, the Standing Committees (as defined herein), shall at all such
times consist solely of Independent Directors, except as otherwise provided by
these By-Laws. Without limiting the foregoing, the Board shall designate the
following committees (the “Standing
Committees”): Audit Committee, Nominating and Corporate Governance
Committee and Compensation Committee.


 


Section 2.  Conduct of
Business.


 


Any committee, to the extent
permitted by applicable law and provided in these By-Laws or in the resolutions
establishing the authority of 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 (including the power and authority to designate
other committees of the Board). The Board shall have the power to prescribe the
manner in which proceedings of any such committee shall be conducted. In the
absence of any such prescription, such committee shall have the power to
prescribe the manner in which its proceedings shall be conducted. Unless the
Board or such committee shall otherwise provide, regular and special meetings
and other actions of any such committee shall be governed by the provisions of Article II
applicable to meetings and actions of the Board. Each committee shall keep
regular minutes and report to the Board when required.


 


Section 3.  Audit
Committee.


 


(a)           The Audit Committee shall be composed of three or more
Directors. Each member of the Audit Committee shall meet the independence
standards set forth in the Corporation’s Audit Committee Charter.


 


(b)           The Audit Committee shall have such powers and authority
as necessary to carry out the responsibilities as shall be set forth in the
Corporation’s Audit Committee Charter and shall have such other
responsibilities, and such other powers and authority, as may be determined by
the Board. Among the duties and responsibilities of the Audit Committee are the
following: to select the independent auditors, to review and approve the fees
to be paid to the independent auditors, to assess the adequacy of the audit and
accounting procedures of the Corporation, and such other matters as may be set
forth in the Audit Committee Charter, delegated to it by the Board or required
by law or regulation. The Audit Committee shall periodically meet with
representatives of the independent auditors and with the internal auditor of
the Corporation separately or jointly. In performing its duties the Audit
Committee may retain such professionals as it deems necessary and appropriate.


 


13

















 


Section 4.  Compensation
Committee.


 


(a)           The Compensation Committee shall be composed of no less
than three and no more than four Directors; provided that at least one of the
initial members of the Compensation Committee is a Splitco Designee (as defined
in the Merger Agreement) who qualifies as an independent director of the
Corporation for NASDAQ purposes; and provided, further, that, if the Additional
Director or the New Additional Director is then serving as a Director, then the
Compensation Committee may instead be composed of five members, and such
Additional Director or New Additional Director, as applicable, shall be
appointed to serve as the fifth member of such committee. Each member of the
Compensation Committee shall meet the independence standards set forth in the
Corporation’s Compensation Committee Charter.


 


(b)           The Compensation Committee shall have the power and
authority to approve, adopt and implement the incentive, stock option and
similar plans of the Corporation and its Subsidiaries. The Compensation
Committee shall have the power to approve, disapprove, modify or amend all
plans designed and intended to provide compensation primarily for Board-elected
officers of the Corporation. The Compensation Committee shall review, fix and
determine from time to time the salaries and other remunerations of all officers
of the Corporation.


 


(c)           The Compensation Committee shall have such powers and
authority as necessary to carry out the foregoing responsibilities and shall
have such other responsibilities, and such other powers and authority, as may
be determined by the Board.


 


(d)           The Compensation Committee may have additional
responsibilities as shall be set forth in the Compensation Committee Charter
from time to time.


 


Section 5.  Nominating
and Corporate Governance Committee.


 


(a)           The Nominating and Corporate Governance Committee shall be
composed of no less than three and no more than four Directors; provided that
at least one of the initial members of the Nominating and Corporate Governance
Committee is a Splitco Designee (as defined in the Merger Agreement) who qualifies
as an independent director of the Corporation for NASDAQ purposes; and
provided, further, that, if the Additional Director or the New Additional
Director is then serving as a Director, then the Nominating and Corporate
Governance Committee may instead be composed of five members, and such
Additional Director or New Additional Director, as applicable, shall be
appointed to serve as the fifth member of such committee. The Nominating and
Corporate Governance Committee shall have the full and exclusive power and
authority to evaluate Director candidates for election to the Board and
committees of the Board, to nominate Directors for election to the Board at any
annual or special meeting of stockholders. The Committee shall also be
responsible for matters related to service on the Board and associated issues
of corporate governance.


 


(b)           The Nominating and Corporate Governance Committee shall
have such powers and authority as necessary to carry out the foregoing
responsibilities and shall have such other responsibilities, and such other
powers and authority, as may be determined by the Board.


 


(c)           The Nominating and Corporate Governance Committee may have
additional responsibilities as shall be set forth in the Nominating and
Corporate Governance Committee Charter from time to time.


 


Section 6.  Qualifying
Director Composition of Committees.


 


(a)           In addition to the standards set forth above in Section 3
and Section 4, at least fifty percent (50%) of the members of each of the
Audit Committee and the Compensation Committee shall be Qualifying Directors.


 


14

















 


(b)           From time to time the Board may, in its discretion,
designate and establish a special transaction committee of the Board for the
purpose of evaluating a change of control transaction proposal received by the
Corporation (it being understood that the Board shall be responsible for
determining whether a special transaction committee should be established in
any given instance). In the event the Board designates and establishes such a
special transaction committee, at least fifty percent (50%) of the members of
such committee shall be Qualifying Directors.


 


ARTICLE IV


 


OFFICERS


 


Section 1.  General.


 


The officers of the
Corporation shall be elected by the Board and shall be a Chairman of the Board
(who must be a Director), a President, a Secretary and a Treasurer. The Board,
in its sole discretion, may also choose one or more Vice Chairmen, Senior
Executive Vice Presidents, Executive Vice Presidents, Senior Vice Presidents,
Vice Presidents, Assistant Secretaries, Assistant Treasurers and other
officers. Any number of offices may be held by the same person, unless
otherwise prohibited by law, the Certificate of Incorporation or these By-Laws.
The Board may, from time to time, delegate the powers or duties of any officer
to any other officers or agents, notwithstanding any contrary provision hereof.
In addition, the Board may delegate to any officer of the Corporation the power
to appoint, remove and suspend subordinate officers (other than the Chairman of
the Board, any Vice Chairman, the President, the Secretary, and the Treasurer),
employees and agents.


 


Section 2.  Election;
Removal.


 


The Board shall elect the
officers of the Corporation who shall hold their offices for such terms and
shall exercise such powers and perform such duties as shall be determined from
time to time solely by the Board, which determination may be by resolution of
the Board or in any By-Law provisions duly adopted or approved by the Board and
all officers of the Corporation shall hold office until their successors are
chosen and qualified, or until their earlier resignation or removal.
Notwithstanding the foregoing, the affirmative vote of not less than 80% of the
number of Directors then serving on the Board, with any fractional number being
rounded up to the next whole number, shall be required to fill the vacancy in
the office of President and Chief Executive Officer of the Corporation created
by the resignation of Mr. Chase Carey (and without regard to the
appointment of Mr. Larry D. Hunter as interim Chief Executive Officer).
The salaries of the officers elected by the Board shall be fixed from time to
time by the Board or the Compensation Committee or by such officers as may be
designated by resolution of the Board or action of the Compensation Committee.
Any officer, whether or not elected or appointed by the Board, may be removed
at any time by the Board with or without cause. Except to the extent expressly
delegated by the Board as permitted by Section 1 of this Article IV,
only the Board may fill any vacancy occurring in any office of the Corporation.


 


Section 3.  Chairman of
the Board.


 


The Chairman of the Board
may but need not be an officer of the Corporation and shall, if present,
preside at all meetings of the Board and of stockholders (unless the Board
designates another person) and, except where by applicable law the signature of
the President is required, the Chairman of the Board shall possess the same
power as the President to sign all contracts, certificates and other
instruments of the Corporation which may be authorized by the Board. The
Chairman of the Board shall also perform such other duties and may exercise
such other powers as may from time to time be assigned by these By-Laws or by
the Board.


 


15

















 


Section 4.  Vice Chairman
of the Board.


 


The Vice Chairman, if such
is appointed by the Board, shall report and be responsible to the Chairman of
the Board or, if the Board so directs, the President and Chief Executive
Officer. The Vice Chairman shall have such powers and perform such duties as
from time to time may be assigned or delegated to him or her by the Board or
are incident to the office of Vice Chairman. During the absence, disability, or
at the request of the Chairman of the Board, a Vice Chairman shall perform the
duties and exercise the powers of the Chairman of the Board. In the absence or
disability of both the Vice Chairman and the Chairman of the Board, the President
or another person designated by the Board shall perform the duties and exercise
the powers of the Vice Chairman, and unless otherwise determined by the Board,
the duties and powers of the Chairman.


 


Section 5.  Chief
Executive Officer.


 


The Chief Executive Officer
(who may also be Chairman of the Board and/or President of the Corporation)
shall have general supervision and direction of the business and affairs of the
Corporation, shall be responsible for corporate policy and strategy, and shall report
directly to the Board. Unless otherwise provided in these By-Laws, all other
officers of the Corporation shall report directly to the Chief Executive
Officer or as otherwise determined by the Chief Executive Officer. The Chief
Executive Officer shall, if present and in the absence of the Chairman of the
Board and the Vice Chairman of the Board, preside at the meetings of the
stockholders and of the Board.


 


Section 6.  President.


 


The President, if any, shall
have such powers and duties as shall be prescribed by the Chief Executive
Officer or the Board. The President shall, when requested, counsel with and
advise the other officers of the Corporation and shall perform such other
duties as the Board or the Chief Executive Officer may from time to time determine.


 


Section 7.  Chief
Operating Officer.


 


The Chief Operating Officer,
if any, shall exercise all the powers and perform the duties of the office of
the chief operating officer and in general have overall supervision of the
operations of the Corporation. The Chief Operating Officer shall, when
requested, counsel with and advise the other officers of the Corporation and
shall perform such other duties as the Board or the Chief Executive Officer may
from time to time determine.


 


Section 8.  Chief Financial
Officer.


 


The Chief Financial Officer,
if any, shall exercise all the powers and perform the duties of the office of
the chief financial officer and in general have overall supervision of the
financial operations of the Corporation. The Chief Financial Officer shall,
when requested, counsel with and advise the other officers of the Corporation
and shall perform such other duties as the Board or the Chief Executive Officer
may from time to time determine.


 


Section 9.  Chief Legal
Officer; General Counsel.


 


The General Counsel, if any,
shall be the chief legal officer of the Corporation and in general shall have
overall supervision of the legal affairs of the Corporation. The General
Counsel shall, when requested, counsel with and advise the Board and the other
officers, of the Corporation and shall perform such other duties as the Board
or the Chief Executive Officer may from time to time determine.


 


Section 10.  Chief
Accounting Officer; Controller.


 


The Controller, if any,
shall be the chief accounting officer of the Corporation. The Controller shall,
when requested, counsel with and advise the other officers of the Corporation
and shall perform such other duties as he or she may agree with the Chief
Executive Officer, the Chief Financial Officer or as the Board may from time to
time determine.


 


16

















 


Section 11.  Senior
Executive Vice Presidents.


 


The Senior Executive Vice
Presidents shall have such powers and perform such duties as from time to time
may be prescribed for them respectively by the Board or the Chief Executive
Officer or are incident to the office of Senior Executive Vice President.


 


Section 12.  Executive
Vice Presidents.


 


The Executive Vice
Presidents shall have such powers and perform such duties as from time to time
may be prescribed for them respectively by the Board or the Chief Executive
Officer or other officer to whom they report or are incident to the office of
Executive Vice President.


 


Section 13.  Senior Vice
Presidents.


 


The Senior Vice Presidents
shall have such powers and perform such duties as from time to time may be
prescribed for them respectively by the Board or the Chief Executive Officer or
other officer to whom they report or are incident to the office of Senior Vice
President.


 


Section 14.  Vice
Presidents.


 


The Vice Presidents shall
have such powers and perform such duties as from time to time may be prescribed
for them respectively by the Board or the Chief Executive Officer or other
officer to whom they report or are incident to the office of Vice President.


 


Section 15.  Secretary.


 


The Secretary shall keep or
cause to be kept, at the principal executive office of the Corporation or such
other place as the Board may order, a book of minutes of all meetings of
stockholders, the Board and its committees, with the time and place of holding,
whether regular or special, and if special, how authorized, the notice thereof
given, the names of those present at Board and committee meetings, the number
of shares present or represented at stockholders’ meetings, and the proceedings
thereof. The Secretary shall keep, or cause to be kept, a copy of the By-Laws
of the Corporation at the principal executive office of the Corporation or such
other place as the Board may order.


 


The Secretary shall keep, or
cause to be kept, at the principal executive office of the Corporation or at
the office of the Corporation’s transfer agent or registrar, if one be
appointed, a stock register, or a duplicate stock register, showing the names
of the stockholders and their addresses, the number and classes of shares held
by each, the number and date of certificates issued for the same, and the
number and date of cancellation of every certificate surrendered for
cancellation.


 


The Secretary shall give, or
cause to be given, notice of all meetings of the stockholders, and of the Board
and any committees thereof required by these By-Laws or by applicable law to be
given, shall keep the seal of the Corporation in safe custody and shall have
such other powers and perform such other duties as may be prescribed by the
Board.


 


Section 16.  Treasurer.


 


The Treasurer shall report
to the Chief Financial Officer and shall have custody of the corporate funds
and securities of the Corporation.


 


The Treasurer shall deposit
all monies and valuables in the name and to the credit of the Corporation with
such depositories as may be designated by the Board or the Chief Financial
Officer. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board, shall render to the Chief Executive Officer, the Chief
Financial Officer or the Board, whenever they request it, an account of all
transactions and of the financial condition of the Corporation, and shall have
such other powers and perform such other duties as may be prescribed by the
Board, the Chief Executive Officer or the Chief Financial Officer.


 


17

















 


Section 17.  Other
Officers.


 


Such other officers or
assistant officers as the Board may designate shall perform such duties and
have such powers as from time to time may be assigned to them by the Board. The
Board may delegate to any other officer of the Corporation the power to choose
such other officers and to prescribe their respective duties and powers.


 


Section 18.  Execution of
Contracts and Other Documents.


 


Each officer of the
Corporation may execute, affix the corporate seal and/or deliver, in the name
and on behalf of the Corporation, deeds, mortgages, notes, bonds, contracts,
agreements, powers of attorney, guarantees, settlements, releases, evidences of
indebtedness, conveyances, or any other document or instrument which is
authorized by the Board or is required to be executed in the ordinary course of
business of the Corporation, except in cases where the execution, affixation of
the corporate seal and/or delivery thereof shall be delegated by the Board to
some other officer or agent of the Corporation.


 


Section 19.  Action with
Respect to Securities of Other Corporations.


 


Powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to
securities or equity interests owned by the Corporation may be executed in the
name of and on behalf of the Corporation by the Chairman of the Board or the
Chief Executive Officer or any other officer or officers authorized by the
Board, the Chairman of the Board or the Chief Executive Officer, and any such
officer may, in the name of and on behalf of the Corporation, vote, represent
and exercise on behalf of the Corporation all rights incident to any and all
securities or any other equity interest of any other corporation, partnership,
limited liability company, or other entity, and take all such action as any
such officer may deem advisable to vote in person or by proxy at any meeting of
security or equity holders of any corporation, partnership, limited liability
company, or other entity in which the Corporation may own securities or equity
interests and at any such meeting shall possess and may exercise any and all
rights and powers incident to the ownership of such securities or equity
interests and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board may, by resolution from time to time,
confer like powers upon any other person or persons.


 


ARTICLE V


 


STOCK


 


Section 1.  Certificates
of Stock.


 


The interest of each
stockholder of the Corporation shall be evidenced by certificates for shares of
stock in such form as the appropriate officers of the Corporation may from time
to time determine, provided that the Board may provide by resolution or
resolutions that some or all of any or all classes or series of the stock of
the Corporation shall be represented by uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until such
certificate is surrendered to the Corporation. Each holder of stock represented
by certificates shall be entitled, upon request, to a certificate certifying
the number of shares owned by him or her and signed in the name of the Corporation
(i) by the Chairman or Vice Chairman of the Board, the President or any
Executive Vice President, Senior Vice President or Vice President and (ii) by
the Secretary or an Assistant Secretary, or the Treasurer or an Assistant
Treasurer. Where a certificate is countersigned by (i) a transfer agent or
(ii) a registrar, any other signature on the certificate may be a
facsimile. In case any officer, transfer agent or registrar whose signature
appears on the certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he or she were such officer, transfer
agent or registrar at the date of issue. Except as expressly provided by law,
the rights and obligations of the holders of uncertificated shares and the
rights and obligations of the holders of certificates representing stock of the
same class and series shall be identical.


 


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Section 2.  Transfers of
Stock.


 


Transfers of shares of
capital stock of the Corporation shall be made only on the stock records of the
Corporation by the holder of record thereof or by his, her or its attorney
thereunto authorized by a power of attorney duly executed and filed with the
Secretary or the transfer agent thereof, and, in the case of certificated
shares, only on surrender of the certificate or certificates representing such
shares, properly endorsed or accompanied by a duly executed stock transfer
power. Upon receipt of proper transfer instructions from the registered owner
of uncertificated shares, such uncertificated shares shall be cancelled and
issuance of new equivalent uncertificated shares or certificated shares shall
be made to the person entitled thereto and the transaction shall be recorded in
the books of the Corporation. Registration of transfer of any shares shall be
subject to applicable provisions of the Certificate of Incorporation and
applicable law with respect to the transfer of such shares. The Board may make
such additional rules and regulations as it may deem expedient concerning
the issue and transfer of certificates representing shares of the capital stock
of the Corporation.


 


Section 3.  Record Date.


 


(a)           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 of any rights, or entitled to exercise any rights
in any other lawful action, the Board may fix, in advance, a record date in
respect of such meeting, which record date shall not precede the date upon
which the resolution fixing the record date is adopted by the Board, and except
as otherwise provided by applicable law, shall not be more than 60 nor less
than 10 days before the date of such meeting and, in respect of the
payment of any dividend, shall not be more than 60 days prior to the
payment thereof; 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.


 


Section 4.  Lost, Stolen
or Destroyed Certificates.


 


The Board may direct a new
certificate or uncertificated shares to be issued in place of any certificate
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or uncertificated shares, the Board may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate, or his or her legal
representative, to advertise the same in such manner as the Board shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.


 


Section 5.  Regulations.


 


The issue, transfer,
conversion and registration of certificates of stock and uncertificated shares
shall be governed by such other regulations as the Board may establish.


 


Section 6.  Record
Owners.


 


The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books
as the owner of shares to receive dividends, and to vote as such owner, and to
hold liable for calls and assessments a person registered on its books as the
owner of shares, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by applicable law.


 


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ARTICLE VI


 


NOTICES


 


Section 1.  Notices.


 


Whenever written notice is
required by law, the Certificate of Incorporation or these By-Laws, except as
otherwise specifically provided herein or required by law, all notices required
to be given to any stockholder, Director, officer, employee or agent shall be
in writing and may in every instance be effectively given by hand delivery to
the recipient thereof, by depositing such notice in the mails, postage paid,
recognized overnight delivery service or by sending such notice by electronic
transmission in accordance with Section 232 of the DGCL. Any such notice
shall be addressed to such stockholder, Director, officer, employee or agent at
his or her 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 shall be the time of the giving of the notice.
Notice by electronic transmission shall be deemed given as provided in Section 232
of the DGCL.


 


Section 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 stockholder,
Director, officer, employee or agent. Neither the business nor the purpose of
any meeting need be specified in such a waiver. Attendance at any meeting shall
constitute waiver of notice of such meeting except attendance for the express
purpose of objecting, at the beginning of the meeting, to the transaction of
any business because the meeting was not lawfully called or convened.


 


ARTICLE VII


 


MISCELLANEOUS


 


Section 1.  Facsimile
Signatures.


 


In addition to the
provisions for use of facsimile signatures elsewhere specifically authorized in
these By-Laws, 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 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. If and when so directed by the Board or a
committee thereof, duplicates of the seal may be kept and used by the Treasurer
or by an Assistant Secretary or Assistant Treasurer.


 


Section 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 by or on behalf of the Corporation.


 


Section 4.  Fiscal Year.


 


The fiscal year of the
Corporation shall be as fixed by the Board.


 


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Section 5.  Time Periods.


 


In applying any provision of
these By-Laws 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.


 


Section 6. 
Disbursements.


 


All checks or demands for
money and notes of the Corporation shall be signed by such officer or officers
or such other person or persons as the Board may from time to time designate.


 


ARTICLE VIII


 


INDEMNIFICATION


 


Section 1.  Power to
Indemnify in Actions, Suits or Proceedings Other Than Those by or in the Right
of the Corporation.


 


Subject to Section 3 of
this Article VIII, the Corporation shall indemnify, to the full extent
that it shall have power under applicable law to do so and in a manner
permitted by such law, any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Corporation) by reason of the fact
that such person is or was a Director or officer of the Corporation, or is or
was a Director or officer of the Corporation serving at the request of the
Corporation as a director or officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding if such person acted in good faith and in
a manner such person reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person’s conduct was
unlawful. The termination of any action, suit or 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 person did not act in good
faith and in a manner which such person reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that such person’s
conduct was unlawful.


 


Section 2.  Power to
Indemnify in Actions, Suits or Proceedings by or in the Right of the
Corporation.


 


Subject to Section 3 of
this Article VIII, the Corporation shall indemnify, to the full extent
that it shall have power under applicable law to do so and in a manner
permitted by such law, any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of
the fact that such person is or was a Director or officer of the Corporation,
or is or was a Director or officer of the Corporation serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys’ fees) actually and reasonably
incurred by such person in connection with the defense or settlement of such action
or suit if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.


 


Section 3.  Authorization
of Indemnification.


 


Any indemnification under
this Article VIII (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the 


 


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Director or officer is proper in the
circumstances because such person has met the applicable standard of conduct
set forth in Sections 1 or 2 of this Article VIII, as the case may
be. Such determination shall be made, with respect to a person who is a
Director or officer at the time of such determination, (i) by a majority
vote of the Directors who are not parties to such action, suit or proceeding,
even though less than a quorum, or (ii) by a committee of such Directors
designated by a majority vote of such Directors, even though less than a
quorum, or (iii) if there are no such Directors, or if such Directors so
direct, by independent legal counsel in a written opinion or (iv) by the
stockholders. Such determination shall be made, with respect to former
Directors and officers, by any person or persons having the authority to act on
the matter on behalf of the Corporation. To the extent, however, that a present
or former Director or officer of the Corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding described
above, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys’ fees) actually and
reasonably incurred by such person in connection therewith, without the
necessity of authorization in the specific case.


 


Section 4. 
Indemnification by a Court.


 


Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII,
and notwithstanding the absence of any determination thereunder, any Director
or officer may apply to the Court of Chancery in the State of Delaware for
indemnification to the extent otherwise permissible under Sections 1 and 2
of this Article VIII. The basis of such indemnification by a court shall
be a determination by such court that indemnification of the Director or
officer is proper in the circumstances because such person has met the
applicable standards of conduct set forth in Section 1 or 2 of this Article VIII,
as the case may be. Neither a contrary determination in the specific case under
Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that
the Director or officer seeking indemnification has not met any applicable
standard of conduct. Notice of any application for indemnification pursuant to
this Section 4 shall be given to the Corporation promptly upon the filing
of such application. If successful, in whole or in part, the Director or
officer seeking indemnification shall also be entitled to be paid the expense
of prosecuting such application to the fullest extent permitted by law.


 


Section 5.  Expenses
Payable in Advance.


 


Expenses
incurred by a Director or officer in defending any civil, criminal,
administrative or investigative action, suit or proceeding to which such
Director or officer is made or threatened to be made a party by reason of the
fact he or she is or was a Director or officer of the Corporation, or is or was
a Director or officer of the Corporation serving at the request of the
Corporation as a director or officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
shall be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking, if required by
applicable law, by or on behalf of such Director or officer to repay such
amount if it shall ultimately be determined that such person is not entitled to
be indemnified by the Corporation as authorized in this Article VIII.


 


Section 6. 
Non-exclusivity of Indemnification and Advancement of Expenses.


 


The indemnification and
advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under the
Certificate of Incorporation, any By-Law, agreement, vote of stockholders or
disinterested Directors or otherwise, both as to action in such person’s
official capacity and as to action in another capacity while holding such
office, it being the policy of the Corporation that indemnification of the
persons specified in Sections 1 and 2 of this Article VIII, and
advancement of expenses of the persons specified in Section 5 of this Article VIII,
shall be made to the fullest extent permitted by law. The provisions of this Article VIII
shall not be deemed to preclude the indemnification of any person who is not
specified in Section 1 or 2 of this Article VIII or the advancement
of expenses of any person who is not specified in Section 5 of this Article VIII,
but whom the Corporation has the power to or obligation to indemnify under the
provisions of the DGCL, or otherwise.


 


22

















 


Section 7.  Insurance.


 


The Corporation may purchase
and maintain insurance on behalf of any person who is or was a Director or
officer of the Corporation, or is or was a Director or officer of the
Corporation serving at the request of the Corporation as a Director, officer,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against any liability asserted
against such person and incurred by such person in any such capacity, or
arising out of such person’s status as such, whether or not the Corporation
would have the power or the obligation to indemnify such person against such
liability under the provisions of this Article VIII.


 


Section 8.  Certain
Definitions.


 


For purposes of this Article VIII,
references to “the Corporation”
shall include, in addition to the resulting corporation, any predecessor
corporation or any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
Directors or officers, so that any person who is or was a Director or officer
of such constituent corporation, or is or was a Director or officer of such
constituent corporation serving at the request of such constituent corporation
as a Director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, shall stand in
the same position under the provisions of this Article VIII with respect
to the resulting or surviving corporation as such person would have with
respect to such constituent corporation if its separate existence had
continued. For purposes of this Article VIII, references to “fines” shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and references
to “serving at the request of the
Corporation” shall include any service as a Director, officer,
employee or agent of the Corporation which imposes duties on, or involves
services by, such Director or officer with respect to an employee benefit plan,
its participants or beneficiaries; and a person who acted in good faith and in
a manner such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner “not opposed to the
best interests of the Corporation” as referred to in this Article VIII.


 


Section 9.  Survival of
Indemnification and Advancement of Expenses.


 


The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a Director or officer and shall inure to the
benefit of the heirs, executors and administrators of such a person. The right
to indemnification and advancement of expenses provided by, or granted pursuant
to, this Article VIII, shall vest as to a person when such person first becomes
a Director or officer entitled to such rights and regardless of when any claim,
action, suit or proceeding naming or implicating such person has been
initiated.


 


Section 10.  Limitation on
Indemnification.


 


Notwithstanding anything
contained in this Article VIII to the contrary, except for proceedings to
enforce rights to indemnification (which shall be governed by Section 4 of
this Article VIII), the Corporation shall not be obligated to indemnify
any Director or officer in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was
authorized or consented to by the Board of the Corporation.


 


Section 11. 
Indemnification of Employees and Agents.


 


The Corporation may, to the
extent authorized from time to time by the Board, provide rights to
indemnification and to the advancement of expenses to employees and agents of
the Corporation similar to those conferred in this Article VIII to
Directors and officers of the Corporation.


 


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Section 12.  Subrogation.


 


In the event of payment
under this Article VIII, the Corporation shall be subrogated to the extent
of such payment to all of the rights of recovery of the indemnitee, who shall
execute all papers required and shall do everything that may be necessary to
secure such rights, including the execution of such documents necessary to
enable the Corporation effectively to bring suit to enforce such rights.


 


ARTICLE IX


 


AMENDMENTS


 


(a)           Subject to the Certificate of Incorporation and any other
provision in this Article IX, these By-laws may be altered, amended or
repealed, in whole or in part, or new By-laws may be adopted by the
stockholders or by the Board at any meeting thereof. Unless otherwise required
by the Certificate of Incorporation or paragraph (c) of this Article IX,
all such amendments must be approved by either the holders of a majority or
more of the combined voting power of the outstanding shares of all classes and
series of capital stock of the Corporation entitled to vote thereupon, voting
as a single class, or by a majority of the whole Board, except that (i) any
amendment, alteration, repeal or modification by the Board of, or (ii) any
amendment, alteration, repeal or modification by the Board of any provisions in
these By-Laws, or the adoption of any new By-Law, inconsistent with, the second
sentence of Section 1 of Article II, the second sentence of Section 3
of Article II, the first sentence of Sub-section (a) of Section 4
of Article III, the first sentence of Sub-section (a) of Section 5
of Article III, the second sentence of Section 2 of Article IV
or this second sentence of this Sub-section (a) of this Article IX
shall require the affirmative vote of not less than 80% of the Directors then
serving on the Board, with any fractional number being rounded up to the next
whole number. Notwithstanding anything herein to the contrary, (i) after
the first annual meeting of the stockholders of the Corporation occurring after
the Merger Effective Time, the second sentence of Section 1 of Article II
and the second sentence of Section 3 of Article II shall be of no
further force and effect and shall be deleted from these By-laws without any
further action by the Board or the stockholders, (ii) after the vacancy in
the office of President and Chief Executive Officer of the Corporation created
by the resignation of Mr. Chase Carey (and without regard to the
appointment of Mr. Larry D. Hunter as interim Chief Executive Officer) is
filled, the second sentence of Section 2 of Article IV shall be of no
further force and effect and shall be deleted from these By-laws without any
further action by the Board or the stockholders and (iii) the Secretary of
the Corporation shall have the authority to restate these By-laws to reflect
the deletions contemplated by clauses (i) and (ii) of this
sentence and delete any other references to such deleted sections at any time
after such deletions have occurred.


 


(b)           No amendment, repeal or modification of Article VIII
or this paragraph (b) of Article IX of these By-laws, or
adoption of any provision inconsistent therewith, shall in any way diminish or
adversely affect the rights of any present or former Director or officer
entitled to indemnification or advancement of expenses under Article VIII
of these By-laws in respect of any occurrence or matter arising, or of any
claim, action, suit or proceeding involving allegations of acts or omissions
occurring or arising, prior to any such amendment, repeal or modification (regardless
of whether any such claim, action, suit or proceeding relating to such acts or
omissions, or any proceeding relating to such person’s right to indemnification
or advancement of expenses, is commenced before or after the time of such
amendment, repeal or modification).


 


(c)           Notwithstanding paragraph (a) of
this Article IX, the definition of Qualifying Director, Section 12 of
Article II and Section 6 of Article III may be altered, amended
or repealed only by (i) the approval of a majority of the whole Board
(which must include the unanimous approval of the Qualifying Directors then
serving on the Board) or (ii) the approval of the holders of a majority of
the voting power of the outstanding shares of Class A common stock of the
Corporation (other than shares held by the Malones (as defined in the Malone
Agreement)); provided, however, that no such amendment by the
Board pursuant to the preceding clause (i) may be made prior to the
third anniversary of the Merger Effective Time (as defined in the Merger Agreement);
provided, further, that Section 12 of Article II,
Section 6 of Article III and this paragraph (c) shall cease
to be of any force or effect and shall be automatically repealed without any
action on the part of the Corporation or the stockholders of the Corporation
and replaced with the words “Intentionally Omitted” (and the Corporation will
issue a public announcement of such occurrence) 


 


24

















 


upon
the earliest to occur of (x) such time as the Malones (as defined in the
Malone Agreement) in the aggregate do not own shares of Class B common
stock of the Corporation entitling them to vote at least 10% of the combined
voting power of all outstanding shares of Class A common stock and Class B
common stock of the Corporation, (y) the death of Mr. John C. Malone
and (z) June 30, 2010, if the Judgment Effective Date in respect of
the Stipulation of Settlement has not occurred as of such date. For purposes of
this paragraph (c), “Malone Agreement,”
“Merger Agreement,” “Stipulation of Settlement” and “Judgment Effective Date” shall have the
meanings ascribed to such terms in the Certificate of Incorporation of the
Corporation.


 


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