As filed with the Securities and Exchange Commission on January 7, 2019
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MEREDITH CORPORATION*
(Exact name of registrant as specified in its charter)
*See table of additional registrants
Iowa | 2721 | 42-0410230 | ||
(State of Incorporation) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
1716 Locust Street
Des Moines, Iowa 50309-3023
Tel: (515) 284-3000
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
John S. Zieser
Chief Development Officer /
General Counsel and Secretary
Meredith Corporation
1716 Locust Street
Des Moines, Iowa 50309-3023
(515) 284-3000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With a copy to:
J. Kevin Mills
Cooley LLP
1299 Pennsylvania Avenue, NW, Suite 700
Washington, DC 20004
(202) 842-7800
Approximate date of commencement of proposed exchange offer: As soon as practicable after this Registration Statement is declared effective.
If the securities being registered on this form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, please check the following box. ☐
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of large accelerated filer, accelerated filer, smaller reporting company and emerging growth company in Rule 12b-2 of the Exchange Act.
Large accelerated filer | ☒ | Accelerated filer | ☐ | |||
Non-accelerated filer | ☐ | Smaller reporting company | ☐ | |||
Emerging growth company | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) ☐
Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) ☐
CALCULATION OF REGISTRATION FEE
| ||||||||
Title of Each Class of Securities to be Registered |
Amount to be Registered |
Proposed Maximum Offering Price per Note |
Proposed Maximum Offering Price(1) |
Amount of Registration Fee | ||||
6.875% Senior Notes due 2026 |
$1,272,940,000 | 100% | $1,272,940,000 | $154,280.33 | ||||
Guarantees of 6.875% Senior Notes due 2026(2) |
N/A | N/A | N/A | N/A(3) | ||||
| ||||||||
|
(1) | Estimated solely for the purpose of calculating the registration fee under Rule 457(f) of the Securities Act of 1933, as amended (the Securities Act). |
(2) | See inside facing page for additional registrants. |
(3) | Pursuant to Rule 457(n) under the Securities Act, no separate filing fee is required for the guarantees. |
Table of Additional Registrants(1)(2)
Exact Name of Registrant Guarantor as Specified in its Charter |
State or other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number | ||
Allrecipes.com, Inc. |
Washington | 61-1809295 | ||
BIZRATE INSIGHTS INC. |
Delaware | 81-3387655 | ||
Book-of-the-Month Club, Inc. |
New York | 13-2912773 | ||
Cozi Inc. |
Delaware | 46-1871123 | ||
Eating Well, Inc. |
Iowa | 03-0322411 | ||
Entertainment Weekly Inc. |
Delaware | 13-3531720 | ||
FanSided Inc. |
Delaware | 47-3949424 | ||
Health Media Ventures Inc. |
Delaware | 63-1276037 | ||
Hello Giggles, Inc. |
Delaware | 27-5305459 | ||
KPHO Broadcasting Corporation |
Arizona | 46-1419978 | ||
KPTV-KPDX Broadcasting Corporation |
Oregon | 46-1428762 | ||
KVVU Broadcasting Corporation |
Nevada | 88-0150559 | ||
Meredith Performance Marketing, LLC |
Iowa | 81-4439693 | ||
Meredith Shopper Marketing, LLC |
Iowa | (3) | ||
MNI Targeted Media Inc. |
Delaware | 06-1478215 | ||
MyWedding, LLC |
Colorado | 27-0968081 | ||
NewSub Magazine Services LLC |
Delaware | 06-1535009 | ||
NSSI Holdings Inc. |
Delaware | 13-4118261 | ||
Selectable Media Inc. |
Delaware | 01-0829100 | ||
SI DIGITAL GAMES, INC. |
Delaware | 46-5427147 | ||
Southern Progress Corporation |
Delaware | 63-0169565 | ||
SynapseConnect, Inc. |
Delaware | 06-1592469 | ||
Synapse Direct, Inc. |
Delaware | 06-1588839 | ||
Synapse Group, Inc. |
Delaware | 06-1310649 | ||
Synapse Retail Ventures, Inc. |
Delaware | 27-0036946 | ||
Synapse Ventures, Inc. |
Delaware | 06-1587880 | ||
TI Administrative Holdings LLC |
Delaware | 13-4113302 | ||
TI Books Holdings LLC |
Delaware | 13-4145911 | ||
TI Circulation Holdings LLC |
Delaware | 13-4091846 | ||
TI Consumer Marketing, Inc. |
Delaware | 13-4003379 | ||
TI Corporate Holdings LLC |
Delaware | 13-4145908 | ||
TI Customer Service, Inc. |
Delaware | 13-3388590 | ||
TI Direct Ventures LLC |
Delaware | 32-0045153 | ||
TI Distribution Holdings LLC |
Delaware | 13-4145913 | ||
TI Distribution Services Inc. |
Delaware | 13-2791594 | ||
TI Gotham Inc. |
Delaware | 13-3486363 | ||
TI Inc. Affluent Media Group |
New York | 13-1426942 | ||
TI Inc. Books |
Delaware | 13-3997977 | ||
TI Inc. Lifestyle Group |
Delaware | 63-0515956 | ||
TI Inc. Play |
Delaware | 47-2495788 | ||
TI Inc. Retail |
New York | 13-0869490 | ||
TI Inc. Ventures |
Delaware | 13-3687855 | ||
TI International Holdings Inc. |
Delaware | 13-4086900 | ||
TI Live Events Inc. |
Delaware | 27-4101204 | ||
TI Magazine Holdings LLC |
Delaware | 13-4135343 | ||
TI Marketing Services Inc. |
Delaware | 26-1591865 | ||
TI Media Solutions Inc. |
Delaware | 13-1996792 | ||
TI MEXICO HOLDINGS INC. |
Delaware | 20-3139129 | ||
TI PAPERCO INC. |
Delaware | 13-3985403 |
TI Publishing Ventures, Inc. |
Delaware | 13-3353266 | ||
TI Sales Holdings LLC |
Delaware | 13-4145903 | ||
Viant Technology Holding Inc. |
Delaware | 13-4142023 |
(1) | The address and telephone number for each of the additional registrant guarantors is 1716 Locust Street, Des Moines, Iowa 50309-3023, (515) 284-3000. |
(2) | The name, address, including zip code, and telephone number, including area code, of agent for service for each of the Additional Registrants is John S. Zieser, Chief Development Officer / General Counsel and Secretary, Meredith Corporation, 1716 Locust Street, Des Moines, Iowa 50309-3023, (515) 284-3000. |
(3) | Does not have employees; no employer identification number issued. |
The information in this prospectus is not complete and may be changed. We may not exchange the securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED January 7, 2019
PRELIMINARY PROSPECTUS
MEREDITH CORPORATION
Offer to Exchange
This is an offer by Meredith Corporation to exchange up to $1,272,940,000 aggregate principal amount of its 6.875% Senior Notes due 2026 (the exchange notes), which have been registered under the Securities Act of 1933, as amended (the Securities Act), for any and all of its outstanding unregistered 6.875% Senior Notes due 2026 that were issued in a private offering on January 31, 2018 (the outstanding unregistered notes, and such transaction, the exchange offer).
We are conducting the exchange offer in order to provide you with an opportunity to exchange your outstanding unregistered notes for freely tradable notes that have been registered under the Securities Act.
The Exchange Offer:
| We will exchange all outstanding unregistered notes that are validly tendered and not validly withdrawn for an equal principal amount of exchange notes that are freely tradable. |
| You may withdraw tenders of outstanding unregistered notes at any time prior to the expiration date of the exchange offer. |
| The exchange offer will expire at 5:00 p.m., New York City time, on , 2019, unless extended. We do not currently intend to extend the expiration date. |
| The exchange of outstanding unregistered notes for exchange notes in the exchange offer will not be a taxable event for United States federal income tax purposes. |
| The terms of the exchange notes to be issued in the exchange offer are substantially identical to the terms of the outstanding unregistered notes, except that the exchange notes will be freely tradable. |
Results of the Exchange Offer:
| The exchange notes may be sold in the over-the-counter-market, in negotiated transactions or through a combination of such methods. We do not plan to list the exchange notes on a national exchange. |
All untendered outstanding unregistered notes will continue to be subject to the restrictions on transfer set forth in the outstanding unregistered notes and in the indenture governing the notes. In general, the outstanding unregistered notes may not be offered or sold, unless registered under the Securities Act, except pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. Other than in connection with the exchange offer, we do not currently anticipate that we will register the outstanding unregistered notes under the Securities Act.
Each broker-dealer that receives exchange notes for its own account pursuant to the exchange offer must acknowledge that it shall deliver a prospectus in connection with any resale of such exchange notes. The letter of transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer shall not be deemed to admit that it is an underwriter within the meaning of the Securities Act. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of exchange notes received in exchange for unregistered notes where such notes were acquired by such broker-dealer as a result of market-making activities or other trading activities. Meredith Corporation and the guarantors have agreed that, for a period ending on the earlier of (i) 180 days from the date on which this registration statement is declared effective and (ii) the date on which broker-dealers are no longer required to deliver a prospectus in connection with market-making or other trading activities, they shall make this prospectus available to any broker-dealer for use in connection with any such resale. See Plan of Distribution.
See Risk Factors beginning on page 11 for a discussion of certain risks that you should consider before participating in the exchange offer.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of the exchange notes to be distributed in the exchange offer or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2019.
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F-1 |
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AVAILABLE INFORMATION AND INCORPORATION BY REFERENCE
We file periodic reports and other information with the Securities and Exchange Commission, or SEC. In this prospectus, we incorporate by reference certain information we file with the SEC, which means that important information is being disclosed to you by referring to those documents. Those documents that are filed prior to the date of this prospectus are considered part of this prospectus, and those documents that are filed after the date of this prospectus and prior to the completion of the exchange offer will be considered a part of this prospectus from the date of the filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated herein by reference, or contained in this prospectus, shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein or in any other subsequently dated or filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement.
You should rely only on the information contained in or incorporated by reference in this prospectus. We have not authorized anyone to provide you with different information. The prospectus may be used only for the purposes for which it has been published and no person has been authorized to give any information not contained herein. If you receive any other information, you should not rely on it. We are not making an offer of these securities in any state where the offer is not permitted.
The documents listed below and any future filings we make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act) are incorporated by reference in this prospectus:
| Our Annual Report on Form 10-K for the year ended June 30, 2018, filed with the SEC on September 4, 2018 and our Quarterly Report on Form 10-Q for the period ended September 30, 2018, filed with the SEC on November 9, 2018; |
| Our Current Report on Form 8-K filed with the SEC on November 15, 2018; |
| Our Definitive Proxy Statement on Schedule 14A, filed with the SEC on September 24, 2018; and |
| All documents filed by us with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus and before completion of the exchange offer. |
We are not, however, incorporating by reference any documents or portions thereof, whether specifically listed above or filed in the future, that are not deemed filed with the SEC, including any information furnished pursuant to Items 2.02 or 7.01 of Form 8-K or certain exhibits furnished pursuant to Item 9.01 of Form 8-K.
We will, upon any request, provide to any prospective investor to whom a copy of this prospectus is delivered, a copy of any and all information that has been incorporated by reference herein. In addition, we will upon request, provide to any prospective investor to whom a copy of this prospectus is delivered, a copy of the documents summarized in this prospectus. Such information will be provided upon written or oral request and at no cost to the requested. You may obtain documents incorporated by reference in this prospectus by writing to us at the following address or by calling us at the telephone number listed below:
Meredith Corporation
1716 Locust Street
Des Moines, Iowa 50309-3023
Telephone: +1 (515) 284-3000
IN ORDER TO OBTAIN TIMELY DELIVERY, YOU MUST REQUEST THIS INFORMATION NO LATER THAN FIVE BUSINESS DAYS BEFORE YOU MUST MAKE YOUR INVESTMENT DECISION. ACCORDINGLY, YOU MUST REQUEST THIS INFORMATION NO LATER THAN 5:00 P.M. NEW YORK CITY TIME ON , 2019.
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In addition, all other information we file with the SEC can be accessed electronically by means of our website at www.meredith.com or the SECs home page on the Internet at http:// www.sec.gov. Such material may also be read and copied at the public reference room of the SEC at 100 F Street, Room 1580, N.E., Washington, D.C. 20549. Copies of such material can also be obtained at prescribed rates by writing to the public reference room. The public may obtain information on the operation of the public reference room by calling the SEC at 1-800-SEC-0330.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus includes forward-looking statements within the meaning of U.S. federal securities laws. All statements other than statements of historical facts included in this prospectus, including, without limitation, statements regarding our future financial position, business strategy, cost savings, industry trends and plans and objectives of management for future operations, are forward-looking statements. In addition, forward-looking statements generally can be identified by the use of forward-looking terminology such as may, will, expect, intend, estimate, anticipate, believe or continue or the negative thereof or variations thereon or similar terminology. Although we believe that the expectations reflected in such forward-looking statements are reasonable, we can give no assurance that such expectations will prove to have been correct.
There are a number of risks and uncertainties that could cause our actual results to differ materially from the forward-looking statements contained in this prospectus. Additionally, important factors could cause our actual results to differ materially from such forward-looking statements. Such risks, uncertainties and other important factors include, among others:
| changes in and the execution of our plans, initiatives and strategies; |
| growth potential in certain markets; |
| recent and future changes in technology, including methods for the delivery of our content; |
| changes in consumer behavior, including changes in spending behavior, changes in when, where and how content is consumed; |
| our ability to develop or acquire technologies that enable us to serve changing consumer behaviors and support our evolving business needs; |
| competitive pressures; |
| our ability to deal effectively with economic slowdowns or other economic or market difficulties; |
| our ability to realize the anticipated synergies or cost savings from the acquisition of Time Inc. in the time period expected or at all; |
| possible disruptions in our retail distribution channels due to challenging conditions in the highly concentrated wholesale magazine distribution industry, the financial instability of certain wholesalers and a reduction of retail outlets as a result of weak economic or industry conditions; |
| increases in the price of paper or in postal rates and services or disruption of services from our suppliers including our printers; |
| world, national, or local events that could disrupt broadcast television; |
| changes in advertising market conditions or advertising expenditures due to, among other things, economic conditions, changes in consumer behavior, changes in advertising standards or the implementation of technologies that interfere with advertisements, pressure from public interest groups, changes in laws and regulations and other societal or political developments; |
| changes in television network affiliation agreements; |
| our ability to exploit and protect our intellectual property rights in and to our content and other products; |
| lower than expected valuations associated with our cash flows and revenues, which could impair our ability to realize the value of recorded intangible assets and goodwill; |
| increased volatility or decreased liquidity in the capital markets, including any limitation on our ability to access the capital markets, refinance our outstanding indebtedness or obtain bank financing on acceptable terms; |
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| impacts on our pension obligations due to changes in equity markets, our credit rating, interest rates, actuarial assumptions and regulatory actions; |
| the effect of any significant acquisitions, investments, dispositions and other similar transactions by us; |
| the adequacy of our risk management framework; |
| changes in accounting principles generally accepted in the United States or other applicable accounting policies; |
| the impact of terrorist acts, hostilities, natural disasters (including extreme weather) and pandemic viruses; |
| a disruption, breach (including misappropriation or accidental release of data) or failure of network and information systems or other technology on which our business relies (including the network and information systems or other technology of our vendors, partners and suppliers), or any delay in recovering from such, that occurs as a result of computer viruses, malware, hackers or similar causes, including possible loss of revenue due to cancellation of customers credit cards on file for subscription auto-renewals resulting from credit card data breaches affecting us or third parties, and reputational harm that may result from any of these incidents; |
| changes in tax and other laws and regulations affecting our domestic or international operations, including the impact of Brexit and new U.S. tax reform legislation; |
| changes in foreign exchange rates; |
| the outcome of litigation and other proceedings, including the matters described in the notes to our financial statements, as well as possible regulatory actions and civil claims involving privacy issues related to consumer data collection and use practices; and |
| the other risks and uncertainties detailed herein under the section titled Risk Factors. |
There may be other factors not presently known to us or which we currently consider to be immaterial that could cause our actual results to differ materially from those projected in any forward-looking statements we make. You should read carefully the factors described in the section titled Risk Factors of this prospectus, including the Risk Factors incorporated herein by reference to our Quarterly and Annual Reports filed with the SEC, to better understand the risks and uncertainties inherent in our business and underlying any forward-looking statements.
All forward-looking statements attributable to us or persons acting on our behalf apply only as of the date hereof and are expressly qualified in their entirety by the cautionary statements included herein. We assume no obligation to update or revise these forward-looking statements for any reason, or to update the reasons actual results could differ materially from those anticipated in these forward-looking statements, even if new information becomes available in the future. Comparisons of results for current and any prior periods are not intended to express any future trends or indications of future performance, unless expressed as such, and should only be viewed as historical data.
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MARKET AND INDUSTRY DATA AND FORECASTS
This prospectus includes publishing industry data, rankings, circulation information, Internet user data and other industry and market information that we obtained from public filings, internal company sources and various third-party sources. These third-party sources include, but are not limited to, Publishers Information Bureau as provided by Kantar Media (PIB), the Alliance for Audited Media (AAM), the Audit Bureau of Circulations (ABC), comScore Media Metrix (comScore) and GfK Mediamark Research and Intelligence (MRI). While we are not aware of any misstatements regarding any industry data presented in this prospectus and believe such data are accurate, we have not independently verified any data obtained from third-party sources, and we cannot assure you of the accuracy or completeness of such data. Similarly, we believe our internal company data are accurate, but such internal data have not been verified by any independent sources. Such data involve uncertainties and are subject to change based on various factors. Accordingly, investors should not place undue reliance on such data.
Unless otherwise stated herein, all U.S. circulation data included in this prospectus are sourced from AAM reports, or from ABC reports. All Internet user data included in this prospectus are sourced from comScore reports. All print advertising revenue data, including statements as to our position in the print publishing industry and ranking based on print advertising revenues in the United States, are sourced from PIB reports. Magazine readership and audience statistics included in this prospectus are based on surveys conducted by MRI.
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We own or have rights to various trademarks, logos, service marks and trade names that we use in connection with the operation of our business. We also own or have the rights to copyrights that protect the content of our products. Solely for convenience, the trademarks, service marks, trade names and copyrights referred to in this prospectus are listed without the TM, SM, ® and © symbols, but these references do not constitute a waiver of any rights that might be associated with the respective trademarks, service marks, trade names and copyrights included in this prospectus.
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This summary highlights selected information about us and the exchange offer. This summary is not complete and does not contain all of the information that may be important to you. You should read carefully this entire prospectus, including the Risk Factors section, and the other documents that we refer to and incorporate by reference in this prospectus, for a more complete understanding of us and the exchange offer. In particular, we incorporate by reference important business and financial information into this prospectus. This summary contains forward-looking statements that involve risks and uncertainties.
Unless the context requires otherwise, in this prospectus, Meredith, the Company, we, us, and our refer to Meredith Corporation and its consolidated subsidiaries.
Meredith has been committed to service journalism for over 115 years. Meredith uses multiple media platforms, including print, digital, mobile, video and broadcast television, to provide consumers with content they desire and to deliver the messages of its advertising and marketing partners.
Meredith operates two business segments. The national media segment reaches more than 175 million unduplicated American consumers every month, including more than 80 percent of U.S. millennial women. Meredith is the No. 1 U.S. magazine operator, possessing leading positions in entertainment, food, lifestyle, parenting, and home content creation, as well as enhanced positions in the beauty, fashion, and luxury advertising categories through well-known brands such as People, Better Homes & Gardens, InStyle, Allrecipes, Real Simple, Shape, Southern Living, and Martha Stewart Living. Meredith is also the owner of the largest premium content digital network for American consumers. The national media segment features robust brand licensing activities, including more than 3,000 SKUs of branded products at 4,000 Walmart stores across the United States. and at Walmart.com. The national media segment also includes leading affinity marketer Synapse, and The Foundry, Merediths state-of-the-art creative content studio.
Merediths local media segment includes 17 television stations reaching 11 percent of U.S. households. Merediths portfolio is concentrated in large, fast-growing markets, with seven stations in the nations Top 25 markets-including Atlanta, Phoenix, St. Louis, and Portlandand 13 in Top 50 markets. Merediths stations produce over 700 hours of local news and entertainment content each week, and operate leading local digital properties. The local media segment also generates revenue through the sale of geographic and demographic-targeted digital and print advertising programs sold to third parties.
In the third quarter of fiscal 2018, Meredith acquired Time Inc. (Time). The operating results of Time have been included in Merediths consolidated operating results since the first day of combined company operations on February 1, 2018.
Recent Developments
Divestitures
In September 2018, Meredith entered into a definitive agreement to sell the TIME brand to an unrelated third party for $190.0 million in cash. This sale closed on October 31, 2018. In November 2018, Meredith entered into a definitive agreement to sell the Fortune brand to an unrelated third party for $150.0 million in cash. This sale closed on December 21, 2018. Meredith anticipates agreements to sell the Sports Illustrated and Money brands, along with its 60 percent equity investment in Viant, to be finalized in fiscal 2019.
Credit Facility Repricing
In October 2018, Meredith repriced its variable-rate senior credit facility term loan. The original interest rate was based on the London Interbank Offered Rate (LIBOR) plus a spread of 3.0 percent. The new interest rate under the term loan is based on LIBOR plus a spread of 2.75 percent as of the repricing date until maturity. In addition, when Merediths leverage ratio drops below 2.25 to 1.00, the spread will decrease to 2.50 percent.
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The Exchange Offer
In this prospectus, the term outstanding unregistered notes refers to the outstanding 6.875% Senior Notes due 2026 that were issued in a private offering on January 31, 2018 (the private offering). The term exchange notes refers to the 6.875% Senior Notes due 2026 offered hereby, as registered under the Securities Act, and the term notes refers collectively to the outstanding unregistered notes and the exchange notes.
General |
In connection with the private offering, Meredith Corporation, or the Issuer, entered into a registration rights agreement (the registration rights agreement) with the initial purchasers of the outstanding unregistered notes, pursuant to which the Issuer and the guarantors agreed, among other things, to cause this registration statement to be declared effective within 360 days after the issue date of the outstanding unregistered notes and upon effectiveness of this registration statement, to commence the exchange offer. |
You are entitled to exchange in the exchange offer your outstanding unregistered notes for exchange notes, which are substantially identical to the outstanding unregistered notes except: |
| the exchange notes contain no restrictive legend thereon; |
| the exchange notes accrue interest from (A) the later of (x) the last date on which interest was paid on the outstanding unregistered notes and (y) if outstanding unregistered notes are surrendered for exchange on a date in a period that includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, such interest payment date or (B) if no such interest has been paid, from the issue date of the outstanding unregistered notes; |
| the exchange notes will contain no provisions relating to additional interest; |
| the exchange notes will be entitled to the benefits of the indenture governing the outstanding unregistered notes or a trust indenture that is identical in all material respects to the indenture governing the outstanding unregistered notes and that, in either case, has been qualified under the Trust Indenture Act; |
| the exchange notes have been registered under the Securities Act; and |
| the exchange notes are not entitled to any registration rights which are applicable to the outstanding unregistered notes under the registration rights agreement. |
The Exchange Offer |
We are offering to exchange up to $1,272,940,000 aggregate principal amount of 6.875% Senior Notes due 2026, which have been registered under the Securities Act, for any and all of the outstanding unregistered 6.875% Senior Notes due 2026. |
You may only exchange outstanding unregistered notes in denominations of $2,000, and integral multiples of $1,000 in excess thereof. |
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Subject to the satisfaction or waiver of specified conditions, we will exchange the exchange notes for all outstanding unregistered notes that are validly tendered and not validly withdrawn prior to the expiration of the exchange offer. We will cause the exchange to be effected promptly after the expiration of the exchange offer. |
Upon completion of the exchange offer, there may be no market for the outstanding unregistered notes and you may have difficulty selling them. |
Resale |
Based on interpretations by the staff of the SEC set forth in no-action letters issued to third parties referred to below, we believe that you may resell or otherwise transfer exchange notes issued in the exchange offer without complying with the registration and prospectus delivery requirements of the Securities Act, if: |
| you are acquiring the exchange notes in the ordinary course of your business; |
| you do not have an arrangement or understanding with any person to participate in a distribution of the exchange notes; |
| you are not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act; and |
| you are not engaged in, and do not intend to engage in, a distribution of the exchange notes. |
We have not entered into any arrangement or understanding with any person who will receive exchange notes in the exchange offer to distribute such securities following completion of the exchange offer. We are not aware of any person that will participate in the exchange offer with a view to distribute the exchange notes. If you are not acquiring the exchange notes in the ordinary course of your business, or if you are engaging in, intend to engage in, or have any arrangement or understanding with any person to participate in, a distribution of the exchange notes, or if you are our affiliate, then: |
| you cannot rely on the position of the staff of the SEC enunciated in Morgan Stanley & Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SECs letter to Shearman & Sterling dated July 2, 1993, or similar no-action letters; and |
| in the absence of an exception from the position of the SEC stated in the first bullet point above, you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale or other transfer of the exchange notes. |
Each broker-dealer that receives exchange notes for its own account in exchange for unregistered notes, where such notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it shall deliver a prospectus |
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in connection with any resale of such exchange notes. See Plan of Distribution. |
Expiration Date |
The exchange offer will expire at 5:00 p.m., New York City time, on , 2019, unless extended by us. We do not currently intend to extend the expiration date of the exchange offer. |
Withdrawal |
You may withdraw the tender of your outstanding unregistered notes at any time prior to the expiration of the exchange offer. We will return to you any of your outstanding unregistered notes that for any reason are not accepted for exchange, without expense to you, promptly after the expiration or termination of the exchange offer. |
Interest on the Exchange Notes and the Outstanding Unregistered Notes |
Each exchange note will bear interest at the rate per annum of 6.875% from the most recent date to which interest has been paid on the outstanding unregistered notes. The interest on the notes will be payable on February 1 and August 1 of each year. No interest will be paid on outstanding unregistered notes that are tendered and accepted for exchange following their acceptance for exchange. |
Conditions to the Exchange Offer |
The exchange offer is subject to customary conditions, which we may assert or waive. See The Exchange OfferConditions to the Exchange Offer. |
Procedures for Tendering Outstanding Unregistered Notes |
If you wish to participate in the exchange offer, you must complete, sign and date the accompanying letter of transmittal, or a facsimile of the letter of transmittal, according to the instructions contained in this prospectus and the letter of transmittal. You must then mail or otherwise deliver the letter of transmittal, or a facsimile of the letter of transmittal, together with the outstanding unregistered notes and any other required documents, to the exchange agent at the address set forth on the cover page of the letter of transmittal. If you hold outstanding unregistered notes through The Depository Trust Company (DTC) and wish to participate in the exchange offer for the outstanding unregistered notes, you must comply with the Automated Tender Offer Program (ATOP) procedures of DTC by which you will agree to be bound by the letter of transmittal. By signing, or agreeing to be bound by, the letter of transmittal, you will represent to us that, among other things: |
| any exchange notes to be received by you will be acquired in the ordinary course of your business; |
| at the time of the commencement of the exchange offer, you do not have an arrangement or understanding with any person to participate in a distribution of the exchange notes; |
| you are not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act or, if you are an affiliate, you |
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will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable; |
| if you are not a broker-dealer, you are not engaged in, and do not intend to engage in, a distribution of the exchange notes; and |
| if you are a broker-dealer that will receive exchange notes for your own account in exchange for outstanding unregistered notes that were acquired as a result of market-making or other trading activities, you will deliver a prospectus, as required by law, in connection with any resale or other transfer of such exchange notes. |
If you are not acquiring the exchange notes in the ordinary course of your business, or if you are engaged in, or intend to engage in, or have an arrangement or understanding with any person to participate in, a distribution of the exchange notes, or if you are an affiliate of the Issuer, then you cannot rely on the positions and interpretations of the staff of the SEC and you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale or other transfer of the exchange notes. |
Special Procedures for Beneficial Owners |
If you are a beneficial owner of outstanding unregistered notes that are held in the name of a broker, dealer, commercial bank, trust company or other nominee, and you wish to tender those outstanding unregistered notes in the exchange offer, you should contact such person promptly and instruct such person to tender those outstanding unregistered notes on your behalf. |
Guaranteed Delivery Procedures |
If you wish to tender your outstanding unregistered notes and your outstanding unregistered notes are not immediately available or you cannot deliver your outstanding unregistered notes and any other documents required by the letter of transmittal or you cannot comply with the DTC procedures for book-entry transfer prior to the expiration date, then you must tender your outstanding unregistered notes according to the guaranteed delivery procedures set forth in this prospectus under The Exchange OfferGuaranteed Delivery Procedures. |
Effect on Holders of Outstanding Unregistered Notes |
In connection with the sale of the outstanding unregistered notes, the Issuer and the guarantors entered into a registration rights agreement with the initial purchasers of the outstanding unregistered notes that grants the holders of outstanding unregistered notes certain registration rights. By consummating the exchange offer, we will have fulfilled most of our obligations under the registration rights agreement. Accordingly, upon consummation of the exchange offer, we will not be obligated to pay additional interest as described in the registration rights agreement. If you do not tender your outstanding unregistered notes in the exchange offer, you will continue to be |
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entitled to all the rights and limitations applicable to the outstanding unregistered notes as set forth in the indenture, except that we will not have any further obligation to you to provide for the registration of the outstanding unregistered notes under the registration rights agreement and we will not be obligated to pay additional interest as described in the registration rights agreement. To the extent that outstanding unregistered notes are tendered and accepted in the exchange offer, the trading market for outstanding unregistered notes could be adversely affected. |
Consequences of Failure to Exchange |
All untendered outstanding unregistered notes will continue to be subject to the restrictions on transfer set forth in the outstanding unregistered notes and in the indenture. In general, the outstanding unregistered notes may not be offered or sold, unless registered under the Securities Act, except pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. Other than in connection with the exchange offer, we do not currently anticipate that we will register the outstanding unregistered notes under the Securities Act. |
Material United States Federal Income Tax Consequences |
The exchange of outstanding unregistered notes for exchange notes in the exchange offer will not be a taxable event for United States federal income tax purposes. See Material United States Federal Income Tax Consequences. |
Use of Proceeds |
We will not receive any cash proceeds from the issuance of exchange notes in the exchange offer. See Use of Proceeds. |
Exchange Agent |
U.S. Bank National Association, whose address and telephone number are set forth in the section captioned The Exchange OfferExchange Agent of this prospectus, is the exchange agent for the exchange offer. |
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The Exchange Notes
The summary below describes the principal terms of the exchange notes. Certain of the terms and conditions described below are subject to important limitations and exceptions. The Description of Notes section of this prospectus contains more detailed descriptions of the terms and conditions of the outstanding unregistered notes and the exchange notes. The exchange notes will have terms substantially identical to the terms of the outstanding unregistered notes, except that the exchange notes will not contain terms with respect to additional interest for failure to fulfill certain of our obligations under the registration rights agreement and transfer restrictions.
Issuer |
Meredith Corporation |
Notes Being Exchanged Hereby |
Our 6.875% Senior Notes due 2026. |
Maturity Date |
February 1, 2026. |
Interest |
6.875% per annum. |
Interest Payment Dates |
February 1 and August 1 of each year, commencing on August 1, 2019. |
Guarantees |
The notes are fully and unconditionally guaranteed on a senior unsecured basis by each of the guarantors. |
Ranking |
The notes and the guarantees are the general senior unsecured obligations of the Issuer and the guarantors. The notes rank: |
| pari passu in right of payment with all existing and senior indebtedness (including the Senior Credit Facilities, defined herein) and all other obligations (other than subordinated indebtedness) of the Issuer; |
| effectively subordinated to all existing and future secured indebtedness of the Issuer (including the Senior Credit Facilities) to the extent of the value of the assets securing such indebtedness; |
| senior in right of payment to any existing and future subordinated indebtedness of the Issuer; |
| structurally subordinated to all existing and future indebtedness, claims of holders of preferred stock and other liabilities of each of the Issuers subsidiaries that is not a guarantor; and |
| guaranteed on a general senior unsecured basis by each of the restricted subsidiaries that guarantee the Senior Credit Facilities. |
Each guarantee of a guarantor ranks: |
| pari passu in right of payment with all existing and senior indebtedness (including such guarantors guarantee of the Senior Credit Facilities) and all other obligations (other than subordinated indebtedness) of such guarantor; |
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| effectively subordinated to all existing and future secured indebtedness of such guarantor (including such guarantors guarantee of the Senior Credit Facilities) to the extent of the value of the assets securing such indebtedness; |
| senior in right of payment to any existing and future subordinated indebtedness of such guarantor; and |
| structurally subordinated to all existing and future indebtedness, claims of holders of preferred stock and other liabilities of the subsidiaries of such guarantor that do not guarantee the notes. |
Optional Redemption |
Prior to February 1, 2021, we may redeem the notes, in whole at any time or in part from time to time, at a redemption price equal to 100% of the principal amount of the notes to be redeemed, plus the applicable make-whole premium plus accrued and unpaid interest, if any, to, but excluding, the date of redemption. |
On and after February 1, 2021, we may redeem the notes, in whole at any time or in part from time to time, at the redemption prices and as described under Description of NotesOptional Redemption plus accrued and unpaid interest, if any, to, but excluding, the date of redemption. |
Until February 1, 2021, we may, at any time and from time to time, redeem up to 40% of the aggregate principal amount of the notes at a redemption price of 106.875% of the aggregate principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption, in an amount no greater than the aggregate cash proceeds received from one or more equity offerings; provided that (1) at least 60% of the aggregate principal amount of the notes issued under the indenture remains outstanding immediately after each such redemption and (2) each such redemption occurs within 120 days of the closing of such equity offering. See Description of NotesOptional Redemption. |
Change of Control Offer |
If we experience a change of control, each holder of the notes will have the right to require us to repurchase all or any part of their notes at a purchase price of 101% of the aggregate principal amount of such notes, plus accrued and unpaid interest, if any, to, but excluding, the applicable repurchase date. If holders of not less than 90% of the aggregate principal amount of notes outstanding validly tender their notes in such offer, we will have the right to redeem all remaining notes following such purchase at a price equal to 101% of the aggregate principal amount of such notes, plus accrued and unpaid interest, if any, to, but excluding, the date of such redemption. See Description of NotesChange of Control. |
Asset Sale Offer |
If we or our restricted subsidiaries sell assets under certain circumstances and do not apply the proceeds as provided in Description of NotesCertain CovenantsAsset Sales, we or any |
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of our restricted subsidiaries must use the excess proceeds from such asset sales to offer to repurchase the notes at a repurchase price equal to 100% of the principal amount of the notes repurchased, plus accrued and unpaid interest, if any, to, but excluding, the applicable repurchase date. See Description of NotesCertain CovenantsAsset Sales. |
Certain Covenants |
The indenture that governs the notes contains covenants that, among other things, limit our ability and the ability of our restricted subsidiaries to: |
| pay dividends on, repurchase or make distributions on account of capital stock or make other restricted payments; |
| make certain investments or acquisitions; |
| designate restricted subsidiaries as unrestricted subsidiaries; |
| incur additional indebtedness, guarantee indebtedness or issue disqualified stock and, in the case of such subsidiaries, preferred stock; |
| create certain liens; |
| consolidate, merge, sell or otherwise dispose of all or substantially all of our or such subsidiarys assets; |
| enter into transactions with affiliates; |
| enter into agreements that restrict dividends or other payments from our restricted subsidiaries to us; |
| sell, transfer or otherwise convey certain assets; |
| enter into sale/leaseback transactions; and |
| engage in businesses not similar to ours. |
These covenants are subject to a number of important exceptions and qualifications. Many of these covenants cease to apply to the notes during any period in which the notes have investment grade ratings from both Moodys Investors Service, Inc. and Standard & Poors Financial Services LLC and no default has occurred and is continuing under the indenture that governs the notes. |
For more details, see Description of NotesCertain Covenants. |
Trading Market |
The exchange notes will be freely transferrable. Although the initial purchasers in the private offering of the outstanding unregistered notes have informed us that they intend to make a market in the exchange notes, they are not obligated to do so and they may discontinue market-making activities at any time without notice. Accordingly, we cannot assure you that a liquid market for the exchange notes will be maintained. See Risk FactorsRisks Related to the Exchange OfferYour ability to transfer the notes may be limited by the absence of an active trading market, and we cannot assure you that any active trading market will develop for the notes. |
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Use of Proceeds |
We will not receive any cash proceeds from the issuance of the exchange notes in the exchange offer. See Use of Proceeds. |
Trustee |
U.S. Bank National Association |
Governing Law |
The indenture and the notes are governed by the law of New York. |
Risk Factors |
Investing in the notes and participating in this exchange offer involves risks. You should carefully read and consider the information set forth under Risk Factors beginning on page 11 and all other information included or incorporated by reference in this prospectus. |
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You should carefully consider the following risk factors and all other information contained in this prospectus and in the documents incorporated by reference herein before tendering for exchange any outstanding unregistered notes. The risks and uncertainties described below are not the only risks facing us and your investment in the notes. Additional risks and uncertainties that we are unaware of, or those we currently deem immaterial, also may become important factors that affect us. The following risks could materially and adversely affect our business, financial condition, cash flows or results of operations. In such a case, you may lose all or part of your original investment.
Risks Related to the Exchange Offer
If you choose not to exchange your outstanding unregistered notes in the exchange offer, the transfer restrictions currently applicable to your outstanding unregistered notes will remain in force and the market price of your outstanding unregistered notes could decline.
If you do not exchange your outstanding unregistered notes for exchange notes in the exchange offer, then you will continue to be subject to the transfer restrictions that apply to the outstanding unregistered notes as set forth in the offering memorandum distributed in connection with the private offering of the outstanding unregistered notes. In general, the outstanding unregistered notes may not be sold unless the sale is registered or exempt from registration under the Securities Act. Except as required by the registration rights agreement, we do not intend to register resales of the outstanding unregistered notes under the Securities Act. You should refer to Prospectus SummaryThe Exchange Offer for information about how to tender your outstanding unregistered notes.
The tender of outstanding unregistered notes pursuant to the exchange offer will reduce the outstanding principal amount of the outstanding unregistered notes, which may have an adverse effect upon, and increase the volatility of, the market price of the outstanding unregistered notes due to reduction in liquidity.
Late deliveries of outstanding unregistered notes and other required documents could prevent you from exchanging your notes.
Holders of the notes are responsible for complying with all exchange offer procedures. The issuance of exchange notes in exchange for outstanding unregistered notes will only occur upon completion of the procedures described under Prospectus SummaryThe Exchange Offer. Therefore, holders of outstanding unregistered notes who wish to exchange them for exchange notes should allow sufficient time for timely completion of the exchange offer procedures. Neither we nor the exchange agent are obligated to extend the offer or notify you of any failure to follow the proper procedures or waive any defect if you fail to follow the proper procedures.
Certain persons who participate in the exchange offer must deliver a prospectus in connection with resales of the exchange notes.
Based on interpretations of the staff of the SEC contained in Exxon Capital Holdings Corp., SEC no-action letter (April 13, 1988), Morgan Stanley & Co. Inc., SEC no-action letter (June 5, 1991) and Shearman & Sterling, SEC no-action letter (July 2, 1983), we believe that you may offer for resale, resell or otherwise transfer the exchange notes without compliance with the registration and prospectus delivery requirements of the Securities Act. However, in some instances described in this prospectus under Plan of Distribution, certain holders of exchange notes will remain obligated to comply with the prospectus delivery requirements of the Securities Act in order to transfer the exchange notes. If such a holder transfers any exchange notes without delivering a prospectus meeting the requirements of the Securities Act or without an applicable exemption from registration under the Securities Act, such a holder may incur liability under the Securities Act. We do not and will not assume, or indemnify such a holder against, this liability.
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Risks Related to Our Indebtedness
Our substantial level of indebtedness and our ability to incur significant additional indebtedness could adversely affect our business, financial condition and results of operations.
Our level of indebtedness could have important consequences. For example, it could:
| increase our vulnerability to general adverse economic and industry conditions; |
| limit our ability to obtain additional financing to fund future working capital, capital expenditures and other general corporate requirements or to carry out other aspects of our business; |
| increase our cost of borrowing; |
| make it more difficult for us to satisfy our obligations with respect to the notes and our other debt; |
| require us to dedicate a substantial portion of our cash flow from operations to payments on indebtedness, thereby reducing the availability of such cash flow to fund working capital, capital expenditures and other general corporate requirements or to carry out other aspects of our business; |
| limit our ability to make material acquisitions or take advantage of business opportunities that may arise; |
| expose us to fluctuations in interest rates, to the extent our borrowings bear variable rates of interest; |
| limit our flexibility in planning for, or reacting to, changes in our business and industry; |
| place us at a potential disadvantage compared to our competitors that have less debt; and |
| affect our credit ratings. |
Our ability to make scheduled payments on and to refinance our indebtedness will depend on and be subject to our future financial and operating performance, which in turn is affected by general economic, financial, competitive, business and other factors beyond our control, including the availability of financing in the banking and capital markets. Our business may fail to generate sufficient cash flow from operations or we may be unable to efficiently repatriate the portion of our cash flow that is derived from our foreign operations or borrow funds in an amount sufficient to enable us to make payments on our debt, to refinance our debt or to fund our other liquidity needs. If we were unable to make payments on or refinance our debt or obtain new financing under these circumstances, we would have to consider other options, such as asset sales, equity issuances or negotiations with our lenders to restructure the applicable debt. The terms of our debt agreements and market or business conditions may limit our ability to take some or all of these actions. In addition, if we incur additional debt, the related risks described above could be exacerbated.
When the Senior Credit Facilities mature, we may not be able to refinance or replace them.
The Senior Credit Facilities have an earlier maturity date than that of the notes. When the Senior Credit Facilities mature, we may need to refinance them and may not be able to do so on favorable terms or at all. If we are able to refinance maturing indebtedness, the terms of any refinancing or alternate credit arrangements may contain terms and covenants that restrict our financial and operating flexibility.
The terms of the credit agreement that governs the Senior Credit Facilities and the indenture that governs the notes may restrict our current and future operations, particularly our ability to incur debt that we may need to fund initiatives in response to changes in our business, the industries in which we operate, the economy and governmental regulations.
The credit agreement that governs the Senior Credit Facilities and the indenture that governs the notes contain a number of restrictive covenants that impose significant operating and financial restrictions on us and our
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subsidiaries and limit our ability to engage in actions that may be in our long-term best interests, including restrictions on our and our subsidiaries ability to:
| incur or guarantee additional indebtedness or sell disqualified or preferred stock; |
| pay dividends on, make distributions in respect of, repurchase or redeem, capital stock; |
| make investments or acquisitions; |
| sell, transfer or otherwise dispose of assets out of the ordinary course of business, including restrictions on the use of proceeds of such sales; |
| create liens; |
| enter into sale/leaseback transactions; |
| enter into agreements restricting the ability to pay dividends or make other intercompany transfers; |
| consolidate, merge, sell or otherwise dispose of all or substantially all of our or our subsidiaries assets; |
| enter into transactions with affiliates; |
| prepay, repurchase or redeem certain kinds of indebtedness; |
| issue or sell stock of our subsidiaries; and |
| significantly change the nature of our business. |
In addition, the Revolving Credit Facility has a financial covenant that, in the event that on the last day of any fiscal quarter of the Issuer that the aggregate amount of all outstanding loans and letters of credit (other than those letters of credit that have been cash collateralized or otherwise backstopped) under the Revolving Credit Facility exceeds 30% of the revolving commitments thereunder, requires us to maintain a total net leverage ratio of no greater than 4.25 to 1.00. Our ability to meet this financial covenant may be affected by events beyond our control.
As a result of all of these restrictions, we may be:
| limited in how we conduct our business and pursue our strategy; |
| unable to raise additional debt or equity financing to operate during general economic or business downturns; or |
| unable to compete effectively or to take advantage of new business opportunities. |
A breach of the covenants under the indenture that governs the notes or the credit agreement that governs the Senior Credit Facilities could result in an event of default under the applicable agreement. If such an event of default occurs, the lenders under the Senior Credit Facilities and holders of the notes , as applicable, would have the right to accelerate the repayment of such debt and the event of default or acceleration may result in the acceleration of the repayment of any other debt to which a cross-default or cross-acceleration provision applies. In addition, an event of default under the credit agreement that governs the Senior Credit Facilities would also permit the lenders under the Revolving Credit Facility to terminate all other commitments to extend additional credit under the Revolving Credit Facility.
Furthermore, if we were unable to repay the amounts due and payable under the Senior Credit Facilities, the lenders under the Senior Credit Facilities could proceed against the collateral that secures the indebtedness. In the event our creditors accelerate the repayment of our borrowings, we may not have sufficient assets to repay such indebtedness and we may not be able to access the capital markets to refinance such indebtedness on terms we find acceptable or at all.
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Our indebtedness subjects us to interest rate risk, which could cause our debt service obligations to increase significantly or could prevent us from taking advantage of lower rates.
A portion of our indebtedness consists of term loans and revolving credit facility borrowings with variable rates of interest that expose us to interest rate risk. If interest rates increase, our debt service obligations on the variable rate indebtedness will increase even though the amount borrowed remains the same, and our net income and cash flows will correspondingly decrease. Even if we enter into interest rate swaps in the future in order to reduce future interest rate volatility, we may not elect to maintain such interest rate swaps with respect to any of our variable rate indebtedness, and any swaps we enter into may not fully mitigate our interest rate risk. In addition, we have significant fixed rate indebtedness that includes prepayment penalties which could prevent us from taking advantage of any future decrease in interest rates that may otherwise be applicable to us.
We and our subsidiaries may be able to incur substantially more indebtedness, including secured indebtedness. This could further exacerbate the risks to our financial condition described above.
We and our subsidiaries may incur significant additional indebtedness in the future, including secured indebtedness. Although the indenture that governs the notes contains, and the credit agreement that governs the Senior Credit Facilities contains, restrictions on the incurrence of additional indebtedness and additional liens, these restrictions are subject to a number of qualifications and exceptions, and the additional indebtedness, including secured indebtedness, incurred in compliance with these restrictions could be substantial. The holders of our future indebtedness that ranks equally in right of payment with the notes, subject to any collateral arrangements in favor of such indebtedness, will be entitled to share ratably with holders of notes in any proceeds distributed in connection with any insolvency, liquidation, reorganization, dissolution or other winding up of our business. This could reduce the amount of proceeds paid to holders of notes. These restrictions also do not prevent us from incurring obligations that do not constitute indebtedness. If new debt is added to our current debt levels, the related risks that we now face would increase.
The calculation of Consolidated Adjusted EBITDA under the indenture that governs the notes permits certain estimates and assumptions that may differ materially from actual results, and the estimated savings, expected from the cost saving plan, may not be achieved.
The calculation of Consolidated Adjusted EBITDA, a defined term under the indenture that governs the notes, allows us to add back certain non-cash, non-operating or non-recurring or unusual charges that are deducted in calculating net income attributable to us, even though these are expenses that may recur, vary greatly and are difficult to predict and can represent the effect of long-term strategies as opposed to shorter term results. In addition, certain of these expenses can represent the reduction of cash that could be used for other corporate purposes. See Description of NotesCertain DefinitionsConsolidated Adjusted EBITDA.
The calculation of Consolidated Adjusted EBITDA under the indenture that governs the notes allows us to add estimated cost savings, operating expense reductions, other operating improvements initiatives and projected synergies related to various actions, including investments, acquisitions, dispositions, mergers and consolidations. As a result of these and other adjustments that are permitted by the indenture, we may be able to incur more debt or pay dividends or make other restricted payments in amounts greater than would be permitted without such adjustments.
Because the calculation of Consolidated Adjusted EBITDA under the indenture that governs the notes permits certain estimates and assumptions that may differ materially from actual results, we are permitted to incur debt and pay dividends or make other restricted payments based on such estimates even if those estimates are not achieved in the timeframe anticipated or at all. Accordingly, you should carefully consider the calculation of Consolidated Adjusted EBITDA in accordance with the indenture that governs the notes. See Description of NotesCertain Definitions.
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To service our indebtedness, we require a significant amount of cash and our ability to generate cash depends on many factors beyond our control.
Our ability to make cash payments on and to refinance our indebtedness, including the notes, and to fund planned capital expenditures depends on our ability to generate significant operating cash flow in the future. Our ability to generate such cash flow is subject to general economic, financial, competitive, legislative, regulatory and other factors that are beyond our control.
Our business may not generate cash flow from operations in an amount sufficient to enable us to pay the principal, premium, if any, and interest on our indebtedness, including the notes, or to fund our other liquidity needs. If we cannot service our indebtedness, we may have to take actions such as refinancing or restructuring our indebtedness, selling assets, issuing equity or reducing or delaying capital expenditures, strategic acquisitions and investments. These actions, if necessary, may not be effected on commercially reasonable terms or at all. Our ability to refinance or restructure our debt will depend on the condition of the capital markets and our financial condition at the applicable time. Any refinancing of our debt, if we are able to refinance our debt at all, could be at higher interest rates and may require us to comply with more onerous covenants, which could further restrict our business operations. Further, the credit agreement that governs the Senior Credit Facilities and the indenture that governs the notes restrict our ability to undertake, or use the proceeds from, such measures.
Our ability to repay our indebtedness, including the notes, is largely dependent on the generation of cash flow by our operating subsidiaries and our operating subsidiaries ability to make cash available to us by dividend, intercompany loans, advances and other transactions or otherwise. Our subsidiaries may not be able to, or may not be permitted to, transfer cash to us to enable us to make payments in respect of our indebtedness. Each of our subsidiaries is a distinct legal entity and, under certain circumstances, legal and contractual restrictions, as well as the financial condition and operating requirements of our subsidiaries, may limit our ability to obtain cash from our subsidiaries.
If we default on our obligations to pay our other indebtedness, we may not be able to make payments on the notes.
Any default under the agreements governing our indebtedness, including the Senior Credit Facilities, that is not waived by the required lenders, and the remedies sought by the holders of such indebtedness, could prevent us from paying principal, premium, if any, and interest on the notes. In addition, if we are unable to generate sufficient cash flow or are otherwise unable to obtain funds necessary to meet required payments of principal, premium, if any, and interest on our indebtedness, or if we otherwise fail to comply with the various covenants in the instruments governing our indebtedness (including covenants in the credit agreement that governs the Senior Credit Facilities and the indenture that governs the notes), we could be in default under the terms of the agreements governing such indebtedness. In this event, the holders of such indebtedness could elect to declare all the funds borrowed thereunder to be due and payable, together with accrued and unpaid interest; the lenders under the Senior Credit Facilities could elect to terminate their commitments thereunder, cease making further loans and institute foreclosure proceedings against our assets; and we could be forced into bankruptcy or liquidation. If our operating performance declines, we may need to obtain waivers from the required lenders under the Senior Credit Facilities to avoid being in default. If we breach these covenants and seek a waiver from the required lenders, we may not be able to obtain it. If this occurs, we would be in default under the Senior Credit Facilities, the lenders could exercise their rights, as described above, and we could be forced into bankruptcy or liquidation.
The notes are unsecured and effectively subordinated to our and the guarantors indebtedness under the Senior Credit Facilities and any other of our secured indebtedness or of the guarantors secured indebtedness, in each case, to the extent of the value of the assets securing that indebtedness.
The notes are not secured by any of our or the guarantors assets. As a result, the notes and the guarantees are effectively subordinated to our and the guarantors indebtedness under the Senior Credit Facilities with respect to
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the assets that secure that indebtedness. As of September 30, 2018, we had approximately $3 billion of senior indebtedness. Additionally, we expect that we will be able, if we obtain commitments from lenders to do so, to incur significant additional secured indebtedness. For example, the Senior Credit Facilities initially permit us to increase the Senior Credit Facilities by an aggregate principal amount not to exceed the sum of (x) $700.0 million plus (y) additional amounts so long as, on a pro forma basis at the time of incurrence, our senior secured net leverage ratio does not exceed 2.00 to 1.00. All additional indebtedness under the Senior Credit Facilities would be secured. In addition, we may incur additional secured debt in the future. The effect of the effective subordination of the notes to our secured indebtedness, to the extent of the collateral securing our secured indebtedness, is that upon a default in payment on, or the acceleration of, any of our secured indebtedness, or in the event of bankruptcy, insolvency, liquidation, dissolution or reorganization of us or the guarantors, the proceeds from the sale of assets securing our secured indebtedness will be available to repay obligations on the notes only after all obligations under the Senior Credit Facilities and any other secured debt has been paid in full. As a result, the holders of the notes may receive less, ratably, than the holders of secured debt in the event of a bankruptcy, insolvency, liquidation, dissolution or reorganization of us or the guarantors.
Not all of our subsidiaries guarantee the notes, and the notes are structurally subordinated to all obligations of our existing and future subsidiaries that are not and do not become guarantors of the notes.
The notes are guaranteed by each of our existing and future subsidiaries that guarantee the Senior Credit Facilities. However, the guarantee of the notes by a subsidiary will be automatically released under certain circumstances, including if such subsidiarys guarantee of the Senior Credit Facilities is released or discharged. See Description of NotesGuarantees for more information. In the future, other subsidiaries will be required to guarantee the notes only under certain limited circumstances. The indenture that governs the notes does not limit the transfer of assets to, or the making of investments in, any of our restricted subsidiaries, including our non-guarantor subsidiaries. Our subsidiaries that do not guarantee the notes, including the non-domestic, non-wholly owned and immaterial subsidiaries, have no obligation, contingent or otherwise, to pay amounts due under the notes or to make any funds available to pay those amounts, whether by dividend, distribution, loan or other payment. In the event that any non-guarantor subsidiary becomes insolvent or is liquidated, reorganized or dissolved, the assets of such non-guarantor subsidiary will be used first to satisfy the claims of its creditors, including trade creditors, banks and other lenders followed by claims of any holders of preferred stock of such non-guarantor subsidiary. Only the residual equity value will be available to us and our guarantors, and only to the extent we or any guarantor is a parent company of such non-guarantor subsidiary. Consequently, each guarantee of the notes is structurally subordinated to claims of creditors of non-guarantor subsidiaries. The indenture that governs the notes permits our subsidiaries, including our non-guarantor subsidiaries, to incur additional indebtedness, and does not limit their ability to incur trade payables and similar liabilities.
For the twelve-month period ended September 30, 2018, the Issuers subsidiaries that are not guarantors accounted for less than 4% of our total revenue. In addition, as of September 30, 2018, the Issuers subsidiaries that are not guarantors accounted for less than 6% of our total assets and less than 3%, of our total liabilities (all amounts presented exclude intercompany balances).
In addition, our subsidiaries that provide guarantees of the notes will be automatically released from those guarantees upon (1) receipt by the trustee of a notification from us that such guarantee be released and (2) the occurrence of any of the following:
| the release or discharge of the guarantee by such guarantor of the Senior Credit Facilities or the guarantee which resulted in the creation of such guarantee, except a discharge or release by or as a result of payment under such guarantee; |
| the sale or other disposition, including the sale of substantially all the assets, of that guarantor, as permitted by the indenture that governs the notes; |
| designation of such guarantor as an unrestricted subsidiary in accordance with the terms of the indenture that governs the notes; or |
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| the achievement of investment grade status; provided that such guarantee will be reinstated if we subsequently fail to maintain investment grade status. |
If any guarantee provided by a subsidiary is released, no holder of the notes will have a claim as a creditor against that subsidiary, and the indebtedness and other liabilities, including trade payables and preferred stock, if any, whether secured or unsecured, of that subsidiary will be effectively senior to the claim of any noteholders. See Description of NotesGuarantees.
The lenders under the Senior Credit Facilities have the discretion to release the guarantors under the Senior Credit Facilities in a variety of circumstances, which would cause those guarantors to be released from their guarantees of the notes.
While any obligations under the Senior Credit Facilities remain outstanding, any guarantee of the notes by a guarantor may be released without action by, or consent of, any holder of the notes or the trustee under the indenture that governs the notes, if the release of the guarantee of the Senior Credit Facilities by such guarantor is approved by the lenders under the Senior Credit Facilities or otherwise permitted under the Senior Credit Facilities. See Description of NotesGuarantees. The lenders under the Senior Credit Facilities have the discretion to release the guarantees of guarantors under the Senior Credit Facilities in all cases, and are obligated to release the guarantees of guarantors in a variety of circumstances. You will not have a claim as a creditor against any of our subsidiaries that is no longer a guarantor of the notes, and the indebtedness and other liabilities, including trade payables, whether secured or unsecured, of those subsidiaries are effectively senior to claims of noteholders.
We may not be able to repurchase the notes upon a change of control.
Upon the occurrence of specific kinds of change of control events, we will be required to offer to repurchase all outstanding notes at 101% of their principal amount, plus accrued and unpaid interest, if any, to (but not including) the applicable repurchase date. Additionally, under the Senior Credit Facilities, a change of control (as defined therein) will constitute an event of default that permits the lenders to accelerate the maturity of borrowings under the Senior Credit Facilities and terminate their commitments to lend. The source of funds for any purchase of the notes and repayment of borrowings under the Senior Credit Facilities would be our available cash or cash generated from our subsidiaries operations or other sources, including borrowings, sales of assets or sales of equity. We may not be able to repurchase the notes upon a change of control repurchase event because we may not have sufficient financial resources to purchase all of the debt securities that are tendered upon a change of control repurchase event and repay the other indebtedness that will become due. We may require additional financing from third parties to fund any such purchases, and we may be unable to obtain such financing on satisfactory terms or at all. Further, our ability to repurchase the notes may be limited by law. In order to avoid the obligations to repurchase the notes and events of default and potential breaches of the credit agreement that governs the Senior Credit Facilities, we may have to avoid certain change of control transactions that would otherwise be beneficial to us.
Certain corporate events may not trigger a change of control, in which case we will not be required to repurchase the notes.
The indenture that governs the notes permits us to engage in certain corporate events that would increase indebtedness or alter our business but would not constitute a change of control as defined in the indenture that governs the notes. As a result of the definition of change of control, certain extraordinary corporate events could take place without having the change of control provision of the notes apply.
In addition, if we effected a leveraged recapitalization or other transactions excluded from the definition of change of control that resulted in an increase in indebtedness, adversely affected our credit rating or fundamentally changed our business, our ability to make payments on the notes would be adversely affected.
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However, we would not be required to offer to repurchase the notes, despite our decreased ability to meet our obligations under the notes. See Description of NotesChange of Control.
Holders of the notes may not be able to determine when a change of control giving rise to their right to have the notes repurchased has occurred following a sale of substantially all of our assets.
The definition of change of control in the indenture that governs the notes includes a phrase relating to the sale of all or substantially all of our assets. Although there is a limited body of case law interpreting the phrase substantially all, there is no precise established definition of the phrase under applicable law. Accordingly, in certain circumstances there may be a degree of uncertainty as to whether a particular transaction would involve a disposition of substantially all of our assets. As a result, it may be unclear as to whether a change of control has occurred and whether we are required to make an offer to repurchase the notes.
Federal and state fraudulent transfer laws may permit a court to void the notes and/or the guarantees and, if that occurs, you may not receive any payments on the notes.
Federal and state fraudulent transfer and conveyance statutes may apply to the issuance of the notes and the incurrence of the guarantees of the notes. Under federal bankruptcy law and comparable provisions of state fraudulent transfer or conveyance laws, which may vary from state to state, the notes or the guarantees thereof could be voided as a fraudulent transfer or conveyance if we or any of the guarantors, as applicable, (1) issued the notes or incurred the guarantees with the intent of hindering, delaying or defrauding creditors or (2) received less than reasonably equivalent value or fair consideration in return for either issuing the notes or incurring the guarantees and, in the case of (2) only, one of the following were also true at the time thereof:
| we or any of the guarantors, as applicable, were insolvent or rendered insolvent by reason of the issuance of the notes or the incurrence of the guarantees; |
| the issuance of the notes or the incurrence of the guarantees left us or any of the guarantors, as applicable, with an unreasonably small amount of capital or assets to carry on the business, in which we or the guarantors, as applicable, are engaged; or |
| we or any of the guarantors intended to, or believed that we or such guarantor would, incur debts beyond our or such guarantors ability to pay as they mature. |
As a general matter, value is given for a transfer or an obligation if, in exchange for the transfer or obligation, property is transferred or a valid antecedent debt is secured or satisfied. A court would likely find that we or a guarantor, as applicable, did not receive reasonably equivalent value or fair consideration for our issuance of the notes or its guarantee to the extent that we or such guarantor did not obtain a reasonably equivalent benefit directly or indirectly from the issuance of the notes or the applicable guarantee. A debtor will generally not be considered to have received value in connection with a debt offering if the debtor uses the proceeds to make a dividend payment or otherwise retire or redeem equity interests of the debtor.
We cannot be certain as to the standards a court would use to determine whether or not we or the guarantors were insolvent at the relevant time or, regardless of the standard that a court uses, whether the notes or the guarantees would be subordinated to any of our or the guarantors other debt. In general, however, a court would deem an entity insolvent if:
| the sum of its debts, including contingent liabilities, was greater than the present fair saleable value of all of its assets; or |
| the present fair saleable value of its assets was less than the amount that would be required to pay its probable liability on its existing debts, including contingent liabilities, as they become absolute and mature. |
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If a court were to find that the issuance of the notes or the incurrence of a guarantee was a fraudulent transfer or conveyance, the court could void the payment obligations under the notes or that guarantee, could subordinate the notes or that guarantee to presently existing and future indebtedness of ours or of the related guarantor or could require the noteholders to repay any amounts received with respect to that guarantee. If the notes or a guarantee is voided as a fraudulent conveyance or found to be unenforceable for any other reason, you will not have a claim against that obligor and will only be a creditor of the issuer or any guarantor whose obligation was not set aside or found to be unenforceable. In addition, the guarantors assets would be applied first to satisfy its other liabilities, before any portion of its assets might be available, directly or indirectly, to pay the notes. Sufficient funds to repay the notes may not be available from other sources, including the remaining guarantors, if any. Furthermore, the loss of a guarantee will constitute a default under the indenture that governs the notes and could result in the acceleration of the notes, if not otherwise accelerated due to our or our guarantors insolvency or bankruptcy filing. In the event of a finding that a fraudulent transfer or conveyance occurred, you may not receive any repayment on the notes.
The indenture that governs the notes contains a savings clause intended to limit each subsidiary guarantors liability under its guarantee to the maximum amount that it could incur without causing the guarantee to be a fraudulent transfer under applicable law. We cannot assure you that this provision will be upheld as intended.
Under the United States Bankruptcy Code, a bankruptcy court may subordinate claims in respect of the notes to other claims against us under the principle of equitable subordination if the court determines that (1) the holder of notes engaged in some type of inequitable conduct, (2) the inequitable conduct resulted in injury to the Issuers other creditors or conferred an unfair advantage upon the holders of notes and (3) equitable subordination is not inconsistent with the provisions of the United States Bankruptcy Code.
Your ability to transfer the notes may be limited by the absence of an active trading market, and an active trading market may not develop for the notes.
The notes are a new issue of securities for which there is no established trading market. The initial purchasers of the notes have advised us that they intend to make a market in the notes, as permitted by applicable laws and regulations. However, the initial purchasers are not obligated to make a market in the notes and, if commenced, may discontinue their market-making activities at any time without notice. Therefore, an active market for the notes may not develop or be maintained, which would adversely affect the market price and liquidity of the notes. In that case, the noteholders may not be able to sell their notes at a particular time or at a favorable price, if at all.
Even if an active trading market for the notes does develop, there is no guarantee that it will continue. Historically, the market for non-investment grade debt has been subject to severe disruptions that have caused substantial volatility in the prices of securities similar to the notes. The market, if any, for the notes may experience similar disruptions, and any such disruptions may adversely affect the liquidity in that market or the prices at which you may sell your notes. In addition, subsequent to their initial issuance, the notes may trade at a discount from their initial offering price, depending upon prevailing interest rates, the market for similar notes, our performance and other factors. You should not purchase any of the notes unless you understand and know you can bear all of the investment risks involving the notes.
A lowering or withdrawal of our credit ratings may increase our future borrowing costs and reduce our access to capital and may adversely affect the price of the notes.
Our credit rating and any rating assigned to the notes, if any, could be lowered or withdrawn entirely by a rating agency if, in that rating agencys judgment, future circumstances relating to the basis of the rating, such as adverse changes, warrant. Consequently, real or anticipated changes in our credit ratings will generally affect the market value of the notes. Credit ratings are not recommendations to purchase, hold or sell securities. Additionally, our credit ratings may not reflect the potential effect of risks relating to our business or the structure or marketing of the notes.
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Any future lowering of our ratings likely would make it more difficult or more expensive for us to obtain additional debt financing. If any credit rating initially assigned to the notes is subsequently lowered or withdrawn for any reason, you may not be able to resell your notes without a substantial discount.
We may choose to redeem the notes prior to maturity.
We may redeem the notes, in whole or in part, at any time at the applicable redemption price set forth under Description of NotesOptional Redemption for the notes redeemed plus, in each case, accrued and unpaid interest to but excluding the redemption date. If prevailing interest rates are lower at the time of redemption, holders of the notes may not be able to reinvest the redemption proceeds in a comparable security at an interest rate as high as the interest rate of the notes being redeemed. Our redemption right may also adversely affect holders ability to sell their notes.
Most of the covenants in the indenture that governs the notes do not apply during any period in which the notes are rated investment grade by both Moodys and S&P.
Most of the covenants in the indenture that governs the notes does not apply to us during any period in which the notes are rated investment grade by both Moodys and S&P, as long as at such time no default has occurred and is continuing. These covenants restrict, among other things, our ability to pay distributions, incur debt and enter into certain other transactions. We cannot assure you that the notes will maintain investment grade these ratings. However, to the extent the notes are rated investment grade and these covenants are therefore suspended, we would then be allowed to engage in certain transactions that would not be permitted while these covenants were in force. To the extent the covenants are subsequently reinstated, any such actions taken while the covenants were suspended would not result in an event of default under the indenture that governs the notes. See Description of NotesCertain Covenants.
The restrictive covenants in the credit agreement that governs the Senior Credit Facilities and the indenture that governs the notes are subject to a number of qualifications, exceptions and limitations, and are subject to amendment.
The restrictive covenants in the credit agreement that governs the Senior Credit Facilities and the indenture that governs the notes only applies to our restricted subsidiaries and is subject to a number of other important qualifications, exceptions and limitations. This means that the restrictions are not absolute prohibitions. We and our restricted subsidiaries may be able to engage in some of the restricted activities, such as incurring additional debt, securing assets in priority to the claims of the holders of the notes, paying dividends, making investments, selling assets and entering into mergers or other business combinations, in limited amounts, or in certain circumstances, in unlimited amounts, notwithstanding the restrictive covenants. Our unrestricted subsidiaries are permitted to engage in such activities without limitations under these agreements. These actions could be detrimental to our ability to make payments of principal and interest when due and to comply with our other obligations under the notes or the Senior Credit Facilities, and could reduce the amount of our assets that would be available to satisfy such claims should we default on the notes or the Senior Credit Facilities.
In addition, the restrictive covenants in the indenture that governs the notes generally can be amended with the consent of holders of a majority of the notes, and the restrictive covenants in the credit agreement that governs the Senior Credit Facilities generally can be amended or waived without the consent of the holders of the notes and the lenders under the Senior Credit Facilities may have interests that are opposed to the interests of the holders of the notes.
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SELECTED HISTORICAL CONSOLIDATED FINANCIAL INFORMATION
The following table sets forth selected historical consolidated financial information for Meredith. The selected historical consolidated financial information for the fiscal year ended June 30, 2018 have been derived from our audited consolidated financial statements included elsewhere in this prospectus. The selected historical consolidated financial information for the fiscal years ended June 30, 2017, 2016, 2015 and 2014 have been derived from our audited consolidated financial statements not included in this prospectus.
The information set forth for the year ended June 30, 2018 includes results of the Time acquisition from February 1, 2018 through June 30, 2018.
Information contained in the below table is not necessarily indicative of results of operations in future years and should be read in conjunction with Item 7-Managements Discussion and Analysis of Financial Condition and Results of Operations and Item 8-Financial Statements and Supplementary Data of our Annual Report on Form 10-K for the year ended June 30, 2018, filed with the SEC on September 4, 2018.
Years ended June 30, |
2018 | 2017 | 2016 | 2015 | 2014 | |||||||||||||||
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Results of operations |
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Revenues |
$ | 2,247.4 | $ | 1,713.3 | $ | 1,649.6 | $ | 1,594.2 | $ | 1,468.7 | ||||||||||
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Costs and expenses |
1,823.3 | 1,333.9 | 1,334.8 | 1,276.8 | 1,204.9 | |||||||||||||||
Acquisition, disposition, and restructuring related activities |
173.4 | 10.3 | (36.4 | ) | 17.5 | 17.4 | ||||||||||||||
Depreciation and amortization |
129.0 | 53.8 | 59.1 | 56.5 | 48.7 | |||||||||||||||
Impairment of goodwill and other long-lived assets |
22.7 | 6.2 | 161.5 | 1.3 | 11.2 | |||||||||||||||
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Income from operations |
99.0 | 309.1 | 130.6 | 242.1 | 186.5 | |||||||||||||||
Non-operating expenses, net |
(11.7 | ) | | | | | ||||||||||||||
Net interest expense |
(96.9 | ) | (18.8 | ) | (20.4 | ) | (19.3 | ) | (12.2 | ) | ||||||||||
Income taxes |
123.6 | (101.4 | ) | (76.3 | ) | (86.0 | ) | (60.8 | ) | |||||||||||
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Earnings from continuing operations |
114.0 | 188.9 | 33.9 | 136.8 | 113.5 | |||||||||||||||
Discontinued operations |
(14.6 | ) | | | | | ||||||||||||||
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Net earnings |
$ | 99.4 | $ | 188.9 | $ | 33.9 | $ | 136.8 | $ | 113.5 | ||||||||||
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Basic earnings per share information |
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Earnings from continuing operations |
$ | 1.80 | $ | 4.23 | $ | 0.76 | $ | 3.07 | $ | 2.54 | ||||||||||
Discontinued operations |
(0.32 | ) | | | | | ||||||||||||||
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Net earnings |
$ | 1.48 | $ | 4.23 | $ | 0.76 | $ | 3.07 | $ | 2.54 | ||||||||||
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Diluted earnings per share information |
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Earnings from continuing operations |
$ | 1.79 | $ | 4.16 | $ | 0.75 | $ | 3.02 | $ | 2.50 | ||||||||||
Discontinued operations |
(0.32 | ) | | | | | ||||||||||||||
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Net earnings |
$ | 1.47 | $ | 4.16 | $ | 0.75 | $ | 3.02 | $ | 2.50 | ||||||||||
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Average diluted shares outstanding |
45.2 | 45.5 | 45.4 | 45.3 | 45.4 | |||||||||||||||
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Other per share information |
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Dividends |
$ | 2.130 | $ | 2.030 | $ | 1.905 | $ | 1.780 | $ | 1.680 | ||||||||||
Stock price-high |
72.25 | 66.25 | 53.11 | 57.22 | 53.84 | |||||||||||||||
Stock price-low |
47.30 | 43.85 | 35.03 | 41.95 | 40.11 | |||||||||||||||
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Financial position at June 30, |
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Current assets |
$ | 1,979.1 | $ | 505.4 | $ | 481.2 | $ | 482.5 | $ | 493.1 | ||||||||||
Working capital |
788.8 | 45.7 | 3.3 | (48.5 | ) | 10.0 | ||||||||||||||
Total assets |
6,727.2 | 2,729.7 | 2,626.8 | 2,843.3 | 2,543.8 | |||||||||||||||
Long-term obligations (including current portion) |
3,165.3 | 729.9 | 703.6 | 802.8 | 723.8 | |||||||||||||||
Redeemable, convertible Series A preferred stock |
522.6 | | | | | |||||||||||||||
Shareholders equity |
1,097.5 | 996.0 | 889.0 | 951.9 | 891.7 | |||||||||||||||
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The exchange offer is intended to satisfy our obligations under the registration rights agreement that we entered into in connection with the private offering of the outstanding unregistered notes. We will not receive any cash proceeds from the issuance of the exchange notes in the exchange offer. As consideration for issuing the exchange notes as contemplated by this prospectus, we will receive in exchange a like principal amount of outstanding unregistered notes, the terms of which are substantially identical to the terms of the exchange notes, except that the exchange notes will not contain terms with respect to additional interest for failure to fulfill certain of our obligations under the registration rights agreement and transfer restrictions. The outstanding unregistered notes that are surrendered in exchange for the exchange notes will be retired and cancelled and cannot be reissued. As a result, the issuance of the exchange notes will not result in any change to our capitalization.
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DESCRIPTION OF OTHER INDEBTEDNESS
We summarize below the principal terms of the Senior Credit Facilities. This summary is not a complete description of all of the terms of the Senior Credit Facilities.
Senior Credit Facilities
On January 31, 2018, we entered into a senior secured credit facility (the Senior Credit Facilities), consisting of:
| a term loan in an initial principal amount of $1,800 million with a seven-year maturity (the Term Loans); and |
| a $350 million revolving credit facility with a five-year maturity, of which $175 million is available for the issuance of letters of credit from time to time (the Revolving Credit Facility) with approximately $3.4 million in rollover or replacement letters of credit initially outstanding (including those assumed from Time). |
The credit agreement that governs the Senior Credit Facilities (the Credit Agreement) initially permits us to incur incremental senior secured term loan borrowings, and incremental senior secured revolving credit facilities, subject to the satisfaction of certain conditions, in an aggregate principal amount not to exceed the sum of (x) $700 million plus (y) additional amounts so long as, on a pro forma basis at the time of incurrence, our consolidated secured net leverage ratio does not exceed 2.00 to 1.00.
All obligations under the Senior Credit Facilities, any interest rate protection or other hedging arrangement entered into with a lender, agent, arranger or affiliate thereof and certain cash management arrangements entered into with a lender, agent, arranger or affiliate thereof is unconditionally guaranteed by our material direct and indirect wholly owned domestic subsidiaries, subject to certain exceptions. All obligations under the Senior Credit Facilities, any interest rate protection or other hedging arrangements entered into with any lender, agent, arranger or affiliate thereof, certain cash management arrangements entered into with a lender, agent, arranger or affiliate thereof and the guarantees of those obligations, is secured, subject to certain permitted liens and other agreed upon exceptions, on a senior basis by a perfected security interest in all of the Issuers and each guarantors existing or after-acquired personal property, including all of the capital stock directly held by the Issuer or any guarantor (limited, in the case of first-tier foreign subsidiaries of the Issuer or any subsidiary of the Issuer that is a guarantor, to 100% of the non-voting equity interests (if any) and 65% of the voting equity interests of such subsidiaries).
The Term Loans originally amortized at 1% per annum in equal quarterly installments until the final maturity date. All then outstanding principal and interest under the Term Loans will be due and payable seven years from the closing date of the Senior Credit Facilities. All then outstanding principal and interest under the Revolving Credit Facility are due and payable, and all commitments under the Revolving Credit Facility will terminate five years from the closing date of the Senior Credit Facilities. Term Loans that are repaid or prepaid may not be reborrowed, and amounts prepaid under the Revolving Credit Facility may be reborrowed.
We are permitted to prepay amounts outstanding under the Senior Credit Facilities at any time without payment of a premium, except that with respect to the Term Loans, a 1% premium will apply to a repayment of the Term Loans in connection with a repricing of such loans effected on or prior to the date that is six months following October 26, 2018. We are required to prepay certain amounts outstanding under the Term Loans with a certain percentage of excess cash flow, the net cash proceeds of certain asset sales, certain casualty events, and certain issuances of debt, in each case subject to certain exceptions.
In October 2018, we repriced the Term Loans. The original interest rate was based on LIBOR plus a spread of 3.0 percent. The new interest rate under the term loan is based on LIBOR plus a spread of 2.75 percent as of the
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repricing date until maturity. In addition, when our leverage ratio drops below 2.25 to 1.00, the spread will decrease to 2.50 percent. We are also required to pay a quarterly commitment fee under the Revolving Credit Facility based on the average daily unused portion of the commitments during the applicable quarter, which fee decreases if our total net leverage ratio is less than certain levels, as well as a fee which accrues at a rate per annum equal to the applicable margin under the Revolving Credit Facility on the daily maximum amount available to be drawn under outstanding letters of credit under our Revolving Credit Facility, payable in arrears at the end of each quarter. In addition, we are required to pay a fronting fee in respect of letters of credit issued under our Revolving Credit Facility at a rate of 0.125% per annum of the daily maximum amount available to be drawn under issued letters of credit, payable in arrears at the end of each quarter. The Revolving Credit Facility will permit multicurrency letters of credit, that may need to be cash collateralized if they exceed their limits as a result of currency fluctuations.
The Senior Credit Facilities contain certain customary affirmative and negative covenants, including, among other things, restrictions on indebtedness, investments, sales of assets, mergers and consolidations, prepayments of junior lien, unsecured and subordinated indebtedness, liens and dividends and other distributions, and customary events of default. With respect to the Revolving Credit Facility only, we are required to maintain a total net leverage ratio of 4.25 to 1.00, as tested at the end of each fiscal quarter in which the aggregate amount of all loans outstanding under the Revolving Credit Facility (including swingline loans), and letters of credit (other than letters of credit that have been cash collateralized or otherwise backstopped) exceeds 30% of commitments under the Revolving Credit Facility.
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General
The Issuer hereby offers to exchange a like principal amount of exchange notes for any or all outstanding unregistered notes on the terms and subject to the conditions set forth in this prospectus and accompanying letter of transmittal. We refer to the offer as the exchange offer. You may tender some or all of your outstanding unregistered notes pursuant to the exchange offer.
As of the date of this prospectus, $1,272,940,000 aggregate principal amount of 6.875% Senior Notes due 2026 that were issued in a private offering on January 31, 2018 are outstanding. This prospectus, together with the letter of transmittal, is first being sent to all holders of outstanding unregistered notes known to us on or about , 2019. The Issuers obligation to accept outstanding unregistered notes for exchange pursuant to the exchange offer is subject to certain conditions set forth under Conditions to the Exchange Offer below. The Issuer currently expects that each of the conditions will be satisfied and that no waivers will be necessary.
Purpose and Effect of the Exchange Offer
We issued the outstanding unregistered notes on January 31, 2018 in transactions exempt from registration under the Securities Act. In connection with this issuance, we entered into a registration rights agreement with the initial purchasers of the outstanding unregistered notes pursuant to which we agreed to file a registration statement relating to an offer to exchange the outstanding unregistered notes for exchange notes. We also agreed to use commercially reasonable efforts to cause this registration statement to be declared effective within 360 days after the issue date of the outstanding unregistered notes (or if such 360th day is not a business day, the next succeeding business day) and upon effectiveness of this registration statement, to commence the exchange offer. We also agreed to use commercially reasonable efforts to issue the exchange notes within 30 business days after the effective date of this registration statement. The exchange notes will have terms substantially identical to the terms of the outstanding unregistered notes, except that the exchange notes will not contain terms with respect to additional interest for failure to fulfill certain of our obligations under the registration rights agreement and transfer restrictions. The outstanding unregistered notes were issued on January 31, 2018.
Under the circumstances set forth below, we will use our commercially reasonable efforts to, as promptly and as reasonably practicable, file with the SEC a shelf registration statement with respect to the resale of the outstanding unregistered notes within the time period specified in the registration rights agreement and to keep the shelf registration statement continuously effective until the earlier of (i) the date upon which all the notes covered by the shelf registration statement have been sold pursuant to the shelf registration statement or (ii) one year from the effective date of the shelf registration statement. These circumstances include if:
(1) the Issuer and the guarantors are not:
(A) required to file the exchange offer registration statement; or
(B) permitted to consummate the exchange offer because the registered exchange offer is not permitted by applicable law or SEC policy; or
(2) any holder of registrable securities notifies the Issuer prior to the 20th business day following consummation of the registered exchange offer that:
(A) it is prohibited by law or SEC policy from participating in the registered exchange offer;
(B) it may not resell the exchange notes acquired by it in the registered exchange offer to the public without delivering a prospectus and the prospectus contained in this registration statement is not appropriate or available for such resales; or
(C) it is a broker-dealer and owns notes acquired directly from the Issuer or an affiliate of the Issuer.
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If we fail to comply with certain obligations under the registration rights agreement, we will be required to pay additional interest to holders of the outstanding unregistered notes required to be registered on a shelf registration statement.
Each holder of outstanding unregistered notes that wishes to exchange its outstanding unregistered notes for exchange notes in the exchange offer will be required to make the following written representations:
| any exchange notes to be received by such holder will be acquired in the ordinary course of its business; |
| such holder has no arrangement or understanding with any person to participate in the distribution (within the meaning of the Securities Act) of the exchange notes in violation of the provisions of the Securities Act or SEC policy; |
| such holder is not an affiliate of the Issuer or any guarantor within the meaning of Rule 405 under the Securities Act or, if it is an affiliate, such holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable; |
| if such holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of the exchange notes; |
| if such holder is a broker-dealer that will receive exchange notes for its own account in exchange for outstanding unregistered notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus that meets the requirements of the Securities Act in connection with any resale of such exchange notes; and |
| such holder has the full power and authority to transfer the unregistered notes in exchange for the exchange notes and that the Issuer will acquire good and unencumbered title thereto free and clear of any liens, restrictions, charges or encumbrances and not subject to any adverse claims. |
Please see Plan of Distribution.
Resale of Exchange Notes
Based on interpretations by the staff of the SEC as set forth in no-action letters issued to third parties referred to below, we believe that you may resell or otherwise transfer exchange notes issued in the exchange offer without complying with the registration and prospectus delivery provisions of the Securities Act, if:
| you are acquiring the exchange notes in your ordinary course of business; |
| you do not have an arrangement or understanding with any person to participate in a distribution of the exchange notes; |
| you are not an affiliate of any Issuer as defined by Rule 405 of the Securities Act; and |
| you are not engaged in, and do not intend to engage in, a distribution of the exchange notes. |
We have not entered into any arrangement or understanding with any person who will receive exchange notes in the exchange offer to distribute such securities following completion of the exchange offer. We are not aware of any person that will participate in the exchange offer with a view to distribute the exchange notes. If you are an affiliate of any Issuer, or are engaging in, or intend to engage in, or have any arrangement or understanding with any person to participate in, a distribution of the exchange notes, or are not acquiring the exchange notes in the ordinary course of your business, then:
| you cannot rely on the position of the staff of the SEC enunciated in Morgan Stanley & Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SECs letter to Shearman & Sterling dated July 2, 1993, or similar no-action letters; and |
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| in the absence of an exception to the position stated immediately above, you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale of the exchange notes. |
This prospectus may be used for an offer to resell, for the resale or for other retransfer of exchange notes only as specifically set forth in this prospectus. With regard to broker dealers, only broker dealers that acquired the outstanding unregistered notes as a result of market making activities or other trading activities may participate in the exchange offer. Each broker-dealer that receives exchange notes for its own account in exchange for unregistered notes, where such notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it shall deliver a prospectus in connection with any resale of such exchange notes. Please read Plan of Distribution for more details regarding the transfer of exchange notes.
Terms of the Exchange Offer
On the terms and subject to the conditions set forth in this prospectus and in the accompanying letter of transmittal, we will accept for exchange in the exchange offer outstanding unregistered notes that are validly tendered and not validly withdrawn prior to the expiration date. Outstanding unregistered notes may only be tendered in denominations of $2,000 and integral multiples of $1,000 in excess of $2,000. We will issue $2,000 principal amount or an integral multiple of $1,000 of exchange notes in exchange for a corresponding principal amount of outstanding unregistered notes surrendered in the exchange offer.
The terms of the exchange notes will be substantially identical to the terms of the outstanding unregistered notes, except that the exchange notes will not contain terms with respect to additional interest for failure to fulfill certain of our obligations under the registration rights agreement and transfer restrictions. The exchange notes will evidence the same debt as the outstanding unregistered notes. The exchange notes will be issued under and entitled to the benefits of the same indenture under which the outstanding unregistered notes were issued. The exchange notes and the outstanding unregistered notes will constitute a single class for all purposes under the indenture governing the notes. For a description of the indenture governing the notes, please see Description of Notes.
On the terms and subject to the conditions set forth in this prospectus and the accompanying letter of transmittal, the guarantors of the outstanding unregistered notes offer to issue new guarantees with respect to all exchange notes issued in the exchange offer. Throughout this prospectus, unless the context otherwise requires and whether so expressed or not, references to the exchange offer include the guarantors offer to exchange the new guarantees for the old guarantees, references to the exchange notes include the related new guarantees and references to the outstanding unregistered notes include the related old guarantees.
The exchange offer is not conditioned upon any minimum aggregate principal amount of outstanding unregistered notes being tendered for exchange.
As of the date of this prospectus, $1,272,940,000 aggregate principal amount of notes that were issued in a private offering on January 31, 2018 are outstanding and unregistered. This prospectus and a letter of transmittal are being sent to all registered holders of outstanding unregistered notes. There will be no fixed record date for determining registered holders of outstanding unregistered notes entitled to participate in the exchange offer.
We intend to conduct the exchange offer in accordance with the provisions of the registration rights agreement, the applicable requirements of the Securities Act and the Exchange Act, and the rules and regulations of the SEC. Outstanding unregistered notes that are not tendered for exchange in the exchange offer will remain outstanding and continue to accrue interest and will be entitled to the rights and benefits that such holders have under the indenture, except for any rights under the registration rights agreement that by their terms terminate upon the consummation of the exchange offer.
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We will be deemed to have accepted for exchange properly tendered outstanding unregistered notes when we have given oral (promptly confirmed in writing) or written notice of the acceptance of tenders to the exchange agent. The exchange agent will act as agent for the tendering holders for the purposes of receiving the exchange notes from us and delivering exchange notes to holders. Subject to the terms of the registration rights agreement, we expressly reserve the right to amend or terminate the exchange offer and to refuse to accept notes due to the failure of any of the conditions specified below under Conditions to the Exchange Offer.
Holders who tender outstanding unregistered notes in the exchange offer will not be required to pay brokerage commissions or fees or, subject to the instructions in the letter of transmittal, transfer taxes with respect to the exchange of outstanding unregistered notes. We will pay all charges and expenses, other than certain applicable taxes described below, in connection with the exchange offer. It is important that you read Fees and Expenses below for more details regarding fees and expenses incurred in the exchange offer.
Expiration Date, Extensions and Amendments
As used in this prospectus, the term expiration date means 5:00 p.m., New York City time, on , 2019. However, if we, in our sole discretion, extend the period of time for which the exchange offer is open, the term expiration date will mean the latest time and date to which we shall have extended the expiration of the exchange offer.
To extend the period of time during which the exchange offer is open, we will notify the exchange agent of any extension in writing, followed by notification to the registered holders of the outstanding unregistered notes, no later than 9:00 a.m., New York City time, on the business day after the previously scheduled expiration date.
We reserve the right, in our sole discretion:
| to delay accepting for exchange any outstanding unregistered notes (only if we amend or extend the exchange offer); |
| to extend the exchange offer or to terminate the exchange offer and to refuse to accept outstanding unregistered notes not previously accepted if any of the conditions set forth below under Conditions to the Exchange Offer has not been satisfied, by giving oral (promptly confirmed in writing) or written notice of such delay, extension or termination to the exchange agent; and |
| subject to the terms of the registration rights agreement, to amend the terms of the exchange offer in any manner. |
Any delay in acceptance, extension, termination or amendment will be followed as promptly as practicable by written notice to the registered holders of the outstanding unregistered notes. If we amend the exchange offer in a manner that we determine to constitute a material change, including the waiver of a material condition, we will promptly disclose the amendment by press release or other public announcement as required by Rule 14e-1(d) of the Exchange Act and will extend the offer period if necessary so that at least five business days remain in the offer following notice of the material change.
Conditions to the Exchange Offer
Despite any other term of the exchange offer, we will not be required to accept for exchange, or to issue exchange notes in exchange for, any outstanding unregistered notes, and we may terminate or amend the exchange offer as provided in this prospectus before accepting any outstanding unregistered notes for exchange, if:
| the exchange offer, or the making of any exchange by a holder of outstanding unregistered notes, violates any applicable law or interpretation of the staff of the SEC; |
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| any action or proceeding shall have been instituted or threatened in any court or by any governmental agency that might materially impair our ability to proceed with the exchange offer, or any material adverse development shall have occurred in any existing action or proceeding with respect to us; or |
| all governmental approvals shall not have been obtained, which approvals we deem necessary for the consummation of the exchange offer. |
In addition, we will not be obligated to accept for exchange the outstanding unregistered notes of any holder that has not made to us:
| the representations described under Purpose and Effect of the Exchange Offer and Procedures for Tendering Outstanding Unregistered Notes; and |
| any other representations as may be reasonably necessary under applicable SEC rules, regulations, or interpretations to make available to us an appropriate form for registration of the exchange notes under the Securities Act. |
We expressly reserve the right at any time or at various times to extend the period of time during which the exchange offer is open. Consequently, we may delay acceptance of any outstanding unregistered notes by notice, by press release or other public announcement as required by Rule 14e-1(d) of the Exchange Act of such extension to their holders. During any such extensions, all outstanding unregistered notes previously tendered will remain subject to the exchange offer, and we may accept them for exchange. We will return any outstanding unregistered notes that we do not accept for exchange for any reason without expense to their tendering holder promptly after the expiration or termination of the exchange offer.
We expressly reserve the right to amend or terminate the exchange offer and to reject for exchange any outstanding unregistered notes not previously accepted for exchange upon the occurrence of any of the conditions to the exchange offer specified above. We will give notice by press release or other public announcement as required by Rule 14e-1(d) of the Act of any extension, amendment, non-acceptance or termination to the holders of the outstanding unregistered notes. In the case of any extension, such notice will be issued no later than 9:00 a.m., New York City time, on the business day after the previously scheduled expiration date.
These conditions are for our sole benefit, and we may assert them regardless of the circumstances that may give rise to them so long as such circumstances do not arise due to our action or inaction or waive them in whole or in part at any or at various times in our sole discretion. If we fail at any time to exercise any of the foregoing rights, this failure will not constitute a waiver of such right. Each such right will be deemed an ongoing right that we may assert at any time or at various times.
Approvals
Other than the registration of the notes under the Securities Act and the qualification of the Trustee and the indenture governing the notes under the Trust Indenture Act, there are no federal or state regulatory requirements that must be complied with prior to the commencement of the exchange offer.
Procedures for Tendering Outstanding Unregistered Notes
Only a holder of outstanding unregistered notes may tender its outstanding unregistered notes in the exchange offer. To tender outstanding unregistered notes in the exchange offer, a holder must comply with either of the following:
| complete, sign and date the letter of transmittal or a facsimile of the letter of transmittal, have the signature on the letter of transmittal guaranteed if required by the letter of transmittal and mail or deliver such letter of transmittal or facsimile to the exchange agent prior to the expiration date; or |
| comply with DTCs ATOP procedures described below. |
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In addition, prior to the expiration date, either:
| the exchange agent must receive outstanding unregistered notes along with the letter of transmittal; or |
| the exchange agent must receive a timely confirmation of book-entry transfer of outstanding unregistered notes into the exchange agents account at DTC according to the procedure for book-entry transfer described below or a properly transmitted agents message, as defined below; or |
| the holder must comply with the guaranteed delivery procedures described below. |
To be tendered effectively, the exchange agent must receive any physical delivery of the letter of transmittal and other required documents at the address set forth below under Exchange Agent prior to the expiration date.
A tender to us that is not withdrawn prior to the expiration date constitutes an agreement between us and the tendering holder upon the terms and subject to the conditions described in this prospectus and in the letter of transmittal.
The method of delivery of outstanding unregistered notes, letter of transmittal and all other required documents to the exchange agent is at the holders election and risk. Rather than mail these items, we recommend that holders use an overnight or hand delivery service. In all cases, holders should allow sufficient time to assure timely delivery to the exchange agent before the expiration date. Holders should not send letters of transmittal or certificates representing outstanding unregistered notes to us. Holders may request that their respective brokers, dealers, commercial banks, trust companies or other nominees effect the above transactions for them.
If you are a beneficial owner whose outstanding unregistered notes are held in the name of a broker, dealer, commercial bank, trust company, or other nominee who wishes to participate in the exchange offer, you should promptly contact such party and instruct such person to tender outstanding unregistered notes on your behalf. If you are a beneficial owner and you wish to tender your outstanding unregistered notes on your own behalf, you must, prior to completing and executing the letter of transmittal and delivering your outstanding unregistered notes, either make appropriate arrangements to register ownership of the outstanding unregistered notes in your own name or obtain a properly completed bond power from the registered holder. The transfer of registered ownership may take considerable time.
You must make these arrangements or follow these procedures before completing and executing the letter of transmittal and delivering the outstanding unregistered notes.
Signatures on the letter of transmittal or a notice of withdrawal, as the case may be, must be guaranteed by an eligible institution (as defined below) unless the outstanding unregistered notes surrendered for exchange are being or were tendered:
| by a registered holder of the outstanding unregistered notes who has not completed the box entitled Special Registration Instructions or Special Delivery Instructions on the letter of transmittal; or |
| for the account of an eligible institution. |
In the event that signatures on a letter of transmittal or a notice of withdrawal, as the case may be, are required to be guaranteed, such guarantee must be by a financial institution (including most banks, savings and loan associations and brokerage houses) that is a participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchanges Medallion Program (each such entity, an eligible institution).
If the applicable letter of transmittal is signed by a person other than the registered holder of any outstanding unregistered notes listed on the outstanding unregistered notes, such outstanding unregistered notes must be endorsed or accompanied by a properly completed bond power. The bond power must be signed by the registered holder as the registered holders name appears on the outstanding unregistered notes, and an eligible institution must guarantee the signature on the bond power.
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If the applicable letter of transmittal or any certificates representing outstanding unregistered notes or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations, or others acting in a fiduciary or representative capacity, those persons should also so indicate when signing and, unless waived by us, they should also submit evidence satisfactory to us of their authority to so act.
Any financial institution that is a participant in DTCs system may, instead of physically completing and signing the letter of transmittal and delivering it to the exchange agent, electronically transmit their tender of outstanding unregistered notes in the exchange offer by causing DTC to transfer their outstanding unregistered notes into the exchange agents DTC account in accordance with DTCs electronic ATOP procedures for such transfer, as set forth below under the caption Book-Entry Delivery Procedures.
Acceptance of Exchange Notes
In all cases, we will promptly issue exchange notes for outstanding unregistered notes that we have accepted for exchange under the applicable exchange offer only after the exchange agent timely receives:
| outstanding unregistered notes or a timely book-entry confirmation of such outstanding unregistered notes into the exchange agents account at the applicable book-entry transfer facility; and |
| a properly completed and duly executed letter of transmittal and all other required documents or a properly transmitted agents message. |
By tendering outstanding unregistered notes pursuant to the exchange offer, you will represent to us that, among other things:
| any exchange notes to be received by you will be acquired in the ordinary course of your business; |
| at the time of the commencement of the exchange offer, you do not have an arrangement or understanding with any person to participate in a distribution of the exchange notes; |
| you are not an affiliate of the Issuer within the meaning of Rule 405 under the Securities Act or, if you are an affiliate, you will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable; |
| if you are not a broker-dealer, you are not engaged in, and do not intend to engage in, a distribution of the exchange notes; and |
| if you are a broker-dealer that will receive exchange notes for your own account in exchange for outstanding unregistered notes that were acquired as a result of market-making or other trading activities, you will deliver a prospectus that meets the requirements of the Securities Act in connection with any resale or other transfer of such exchange notes. |
The applicable letter of transmittal states that by so acknowledging and by delivering a prospectus, a broker dealer will not be deemed to admit that it is an underwriter within the meaning of the Securities Act. See Plan of Distribution.
We will interpret the terms and conditions of the exchange offer, including the letters of transmittal and the instructions to the letters of transmittal, and will resolve all questions as to the validity, form, eligibility, including time of receipt, and acceptance of outstanding unregistered notes tendered for exchange. Our determinations in this regard will be final and binding on all parties. We reserve the absolute right to reject any and all tenders of any particular outstanding unregistered notes not properly tendered or to not accept any particular outstanding unregistered notes if the acceptance might, in our or our counsels judgment, be unlawful. We also reserve the absolute right to waive any defects or irregularities as to any tender of any particular outstanding unregistered notes prior to the expiration date.
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Unless waived, any defects or irregularities in connection with tenders of outstanding unregistered notes for exchange must be cured within such reasonable period of time as we determine. Neither we, the exchange agent, nor any other person will be under any duty to give notification of any defect or irregularity with respect to any tender of outstanding unregistered notes for exchange, nor will any of them incur any liability for any failure to give notification. Any outstanding unregistered notes received by the exchange agent that are not properly tendered and as to which the irregularities have not been cured or waived will be returned by the exchange agent to the tendering holder, unless otherwise provided in the applicable letter of transmittal, promptly after the expiration date.
Book-Entry Delivery Procedures
Promptly after the date of this prospectus, the exchange agent will establish an account with respect to the outstanding unregistered notes at DTC as the book-entry transfer facility, for purposes of the exchange offer. Any financial institution that is a participant in DTCs system may make book-entry delivery of the outstanding unregistered notes by causing DTC to transfer those outstanding unregistered notes into the exchange agents account at DTC in accordance with DTCs ATOP procedures for such transfer. To be timely, book-entry delivery of outstanding unregistered notes requires receipt of a confirmation of a book-entry transfer, a book-entry confirmation, prior to the expiration date. In addition, although delivery of outstanding unregistered notes may be effected through book-entry transfer into the exchange agents account at DTC, the applicable letter of transmittal or a manually signed facsimile thereof, together with any required signature guarantees and any other required documents, or an agents message, as defined below, in connection with a book-entry transfer, must, in any case, be delivered or transmitted to and received by the exchange agent at its address set forth below under the caption Exchange Agent prior to the expiration date to receive exchange notes for tendered outstanding unregistered notes, or the guaranteed delivery procedure described below must be complied with. The term agents message means a message transmitted by DTC, received by the exchange agent and forming part of the book-entry confirmation of the electronic tender, that states that DTC has received an express acknowledgment from a participant in its ATOP that is tendering outstanding unregistered notes that are the subject of the book-entry confirmation that:
| the participant has received and agrees to be bound by the terms of the letter of transmittal or, in the case of an agents message relating to guaranteed delivery, such participant has received and agrees to be bound by the applicable notice of guaranteed delivery; and |
| we may enforce that agreement against such participant. |
Tender will not be deemed made until such documents or an agents message are received by the exchange agent. Delivery of documents to DTC does not constitute delivery to the exchange agent.
Guaranteed Delivery Procedures
If you wish to tender your outstanding unregistered notes but your outstanding unregistered notes are not immediately available or you cannot deliver your outstanding unregistered notes to the exchange agent or comply with the applicable procedures under DTCs ATOP prior to the expiration date, you may still tender if:
| the tender is made through an eligible institution; |
| prior to the expiration date, the exchange agent receives from such eligible institution either: (i) a properly completed and duly executed letter of transmittal, or facsimile thereof, and notice of guaranteed delivery, by facsimile transmission, mail or hand delivery or (ii) a properly transmitted agents message and notice of guaranteed delivery that (a) sets forth your name and address, the certificate number(s) of such outstanding unregistered notes and the principal amount of outstanding unregistered notes tendered; (b) states that the tender is being made by that notice of guaranteed delivery; and (c) guarantees that, within three New York Stock Exchange trading days after the expiration date, the outstanding unregistered notes or a book-entry confirmation, and any other |
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documents required by the letter of transmittal, will be deposited by the eligible institution with the exchange agent; and |
| the exchange agent receives the certificate(s) representing all tendered outstanding unregistered notes in proper form for transfer or a book-entry confirmation of transfer of the outstanding unregistered notes into the exchange agents account at DTC, and all other documents required by the letter of transmittal within three New York Stock Exchange trading days after the expiration date. |
Upon request, the exchange agent will send to you a notice of guaranteed delivery if you did not receive one and you wish to tender your notes according to the guaranteed delivery procedures.
Withdrawal Rights
Except as otherwise provided in this prospectus, you may withdraw your tender of outstanding unregistered notes at any time prior to 5:00 p.m., New York City time, on the expiration date. For a withdrawal to be effective:
| the exchange agent must receive a written notice, which may be by telegram, telex, facsimile or letter, of withdrawal; or |
| you must comply with the appropriate procedures of DTCs ATOP system; |
Any notice of withdrawal must:
| specify the name of the person who tendered the outstanding unregistered notes to be withdrawn; |
| identify the outstanding unregistered notes to be withdrawn, including the certificate numbers and principal amount of the outstanding unregistered notes to be withdrawn; and |
| where certificates for outstanding unregistered notes have been transmitted, specify the name in which such outstanding unregistered notes were registered, if different from that of the withdrawing holder. |
If certificates for outstanding unregistered notes have been delivered or otherwise identified to the exchange agent, then, prior to the release of such certificates, you must also submit:
| the serial numbers of the particular certificates to be withdrawn; and |
| a signed notice of withdrawal with signatures guaranteed by an eligible institution unless you are an eligible institution. |
If outstanding unregistered notes have been tendered pursuant to the procedures for book-entry transfer described above, any notice of withdrawal must specify the name and number of the account at the applicable book-entry transfer facility to be credited with the withdrawn outstanding unregistered notes and otherwise comply with the procedures of the facility. We will determine all questions as to the validity, form and eligibility, including time of receipt of notices of withdrawal, and our determination will be final and binding on all parties. Any outstanding unregistered notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the exchange offer. Any outstanding unregistered notes that have been tendered for exchange but that are not exchanged for any reason will be returned to their holder, without cost to the holder, or, in the case of book-entry transfer, the outstanding unregistered notes will be credited to an account at the applicable book-entry transfer facility, promptly after withdrawal, rejection of tender or termination of the applicable exchange offer. Properly withdrawn outstanding unregistered notes may be retendered by following the procedures described under Procedures for Tendering Outstanding Unregistered Notes above at any time on or prior to the expiration date.
Exchange Agent
U.S. Bank National Association has been appointed as the exchange agent for the exchange offer. U.S. Bank National Association also acts as trustee under the indenture governing the notes. You should direct all executed
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letters of transmittal and all questions and requests for assistance with respect to tendering procedures, requests for additional copies of this prospectus or of the letters of transmittal, and requests for notices of guaranteed delivery to the exchange agent addressed as follows:
By overnight courier or mail to: | By certified or registered mail to: | |
U.S. Bank National Association | U.S. Bank National Association | |
60 Livingston Avenue | 60 Livingston Avenue | |
St. Paul, Minnesota 55107 | St. Paul, Minnesota 55107 | |
Attn: Specialized Finance | Attn: Specialized Finance | |
By Facsimile Transmission | By hand: | |
(For Eligible Institutions Only): | U.S. Bank National Association | |
(651) 466-7372 | 60 Livingston Avenue | |
Confirm by Telephone: | 1st Floor - Bond Drop Window | |
(800) 934-6802 | St. Paul, Minnesota 55107 |
If you deliver the letter of transmittal to an address other than the one set forth above or transmit instructions via facsimile other than the one set forth above, that delivery or those instructions will not be effective.
Fees and Expenses
The registration rights agreement provides that we will bear all expenses in connection with the performance of our obligations relating to the registration of the exchange notes and the conduct of the exchange offer. These expenses include registration and filing fees, accounting and legal fees and printing costs, among others. We will pay the exchange agents fees for its services and its out-of-pocket expenses (including attorney fees). We will also reimburse brokerage houses and other custodians, nominees and fiduciaries for customary mailing and handling expenses incurred by them in forwarding this prospectus and related documents to their clients that are holders of outstanding unregistered notes and for handling or tendering for such clients.
We have not retained any dealer manager in connection with the exchange offer and will not pay any fee or commission to any broker, dealer, nominee or other person, other than the exchange agent, for soliciting tenders of outstanding unregistered notes pursuant to the exchange offer.
Accounting Treatment
We will record the exchange notes in our accounting records at the same carrying value as the outstanding unregistered notes, which is the aggregate principal amount as reflected in our accounting records on the date of exchange. Accordingly, we will not recognize any gain or loss for accounting purposes upon the consummation of the exchange offer. We will record the expenses of the exchange offer as incurred.
Transfer Taxes
We will pay all transfer taxes, if any, applicable to the exchanges of outstanding unregistered notes under the exchange offer. The tendering holder, however, will be required to pay any transfer taxes, whether imposed on the registered holder or any other person, if:
| certificates representing outstanding unregistered notes for principal amounts not tendered or accepted for exchange are to be delivered to, or are to be issued in the name of, any person other than the registered holder of outstanding unregistered notes tendered; |
| tendered outstanding unregistered notes are registered in the name of any person other than the person signing the letter of transmittal; or |
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| a transfer tax is imposed for any reason other than the exchange of outstanding unregistered notes under the exchange offer. |
If satisfactory evidence of payment of such taxes is not submitted with the letter of transmittal, the amount of such transfer taxes will be billed to that tendering holder.
Holders who tender their outstanding unregistered notes for exchange will not be required to pay any transfer taxes. However, holders who instruct us to register exchange notes in the name of, or request that outstanding unregistered notes not tendered or not accepted in the exchange offer be returned to, a person other than the registered tendering holder will be required to pay any applicable transfer tax.
Consequences of Failure to Exchange
If you do not exchange your outstanding unregistered notes for exchange notes pursuant to the exchange offer, your outstanding unregistered notes will remain subject to the restrictions on transfer of such outstanding unregistered notes as set forth in the legend printed on the outstanding unregistered notes as a consequence of the issuance of the outstanding unregistered notes pursuant to the exemptions from, or in transactions not subject to, the registration requirements of the Securities Act.
In general, you may not offer or sell your outstanding unregistered notes unless they are registered under the Securities Act or if the offer or sale is exempt from registration under the Securities Act. Except as required by the registration rights agreement, we do not intend to register resales of the outstanding unregistered notes under the Securities Act.
Other
Participating in the exchange offer is voluntary, and you should carefully consider whether to accept. You are urged to consult your financial and tax advisors in making your own decision on what action to take.
We may in the future seek to acquire untendered outstanding unregistered notes in open market or privately negotiated transactions, through a subsequent exchange offer or otherwise. We have no present plans to acquire any outstanding unregistered notes that are not tendered in the exchange offer or to file a registration statement to permit resales of any untendered outstanding unregistered notes.
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General
In this Description of Notes, (1) the term Issuer refers only to Meredith Corporation and (2) the terms we, us and our each refer collectively to the Issuer and its Subsidiaries.
The Issuer issued $1,400.0 million aggregate principal amount of 6.875% Senior Notes due 2026 (the Notes) and will issue the Exchange Notes under an indenture dated as of the Issue Date (the Indenture) among the Issuer, the Guarantors and U.S. Bank National Association, a national banking association organized and existing under the laws of the United States of America (the Trustee). Any outstanding unregistered notes that remain outstanding after completion of the exchange offer, together with the Exchange Notes issued in such exchange offer, will be treated as a single class of securities under the Indenture. The Notes were issued in a private transaction that was not subject to the registration requirements of the Securities Act. The terms of the Exchange Notes are substantially identical to the terms of the outstanding unregistered notes, except that the Exchange Notes will not contain terms with respect to additional interest for failure to fulfill certain of our obligations under the registration rights agreement and transfer restrictions. Unless the context requires otherwise, references to Notes for all purposes of the Indenture and this Description of Notes include any Additional Notes (defined below) that are issued and any Exchange Notes that are issued in exchange for unregistered Notes under the Registration Rights Agreement. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended.
The following is only a summary of the material provisions of the Indenture and the Registration Rights Agreement and does not purport to be complete and is qualified in its entirety by reference to the provisions of the Indenture and the Registration Rights Agreement, including the definitions therein of certain terms used below. We urge you to read these documents because they, not this Description of Notes, define your rights as Holders of the Notes. You may request a copy of these documents at our address set forth under the heading Available Information and Incorporation by Reference. The registered holder of a Note is treated as the owner of it for all purposes. Only registered holders have rights under the Indenture and the Registration Rights Agreement.
Brief Description of the Notes
The Notes are:
| general senior unsecured obligations of the Issuer; |
| pari passu in right of payment with all existing and future Indebtedness (including the Senior Credit Facilities) and all other obligations (other than Subordinated Indebtedness) of the Issuer; |
| effectively subordinated to all existing and future secured Indebtedness of the Issuer (including the Senior Credit Facilities) to the extent of the value of the assets securing such Indebtedness; |
| senior in right of payment to any existing and future Subordinated Indebtedness of the Issuer; |
| structurally subordinated to all existing and future Indebtedness, claims of holders of Preferred Stock and other liabilities of each of the Issuers Subsidiaries that is not a Guarantor; and |
| guaranteed on a general senior unsecured basis by each of the Restricted Subsidiaries that guarantee the Senior Credit Facilities. |
Guarantees
The Guarantors jointly and severally unconditionally Guarantee, on a senior unsecured basis, the performance and full and punctual payment when due, whether at maturity, by acceleration or otherwise, of all obligations of the Issuer under the Indenture and the Notes, whether for payment of principal of or interest on the Notes, expenses, indemnification or otherwise, on the terms set forth in the Indenture.
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Each Guarantee of a Guarantor is:
| a general senior unsecured obligation of such Guarantor; |
| pari passu in right of payment with all existing and future Indebtedness (including such Guarantors guarantee of the Senior Credit Facilities) and all other obligations (other than Subordinated Indebtedness) of such Guarantor; |
| effectively subordinated to all existing and future secured Indebtedness of such Guarantor (including such Guarantors guarantee of the Senior Credit Facilities) to the extent of the value of the assets securing such Indebtedness; |
| senior in right of payment to any existing and future Subordinated Indebtedness of such Guarantor; and |
| structurally subordinated to all existing and future Indebtedness, claims of holders of Preferred Stock and other liabilities of the Subsidiaries of such Guarantor that do not guarantee the Notes. |
Not all of the Issuers Subsidiaries guarantee the Notes. In the event of a bankruptcy, liquidation or reorganization of any of these Subsidiaries that are not Guarantors, such Subsidiaries that are not Guarantors will pay the holders of their debt, their trade creditors and holders of their Preferred Stock before they will be able to distribute or contribute, as the case may be, any of their assets to the Issuer or a Guarantor. As a result, all of the existing and future liabilities of the Subsidiaries that are not Guarantors, including any claims of trade creditors and holders of their Preferred Stock, are structurally senior to the Notes. For the twelve-month period ended September 30, 2018, the Issuers Subsidiaries that are not Guarantors accounted for less than 4% of our total revenue. In addition, as of September 30, 2018, the Issuers Subsidiaries that are not Guarantors accounted for less than 6% of our total assets and less than 3%, of our total liabilities (all amounts presented exclude intercompany balances).
The obligations of each Guarantor under its Guarantee are limited as necessary to prevent the Guarantees from constituting a fraudulent conveyance under applicable law and, therefore, are limited to the amount that such Guarantor could guarantee without such Guarantee constituting a fraudulent conveyance; this limitation, however, may not be effective to prevent such Guarantee from constituting a fraudulent conveyance.
Any Guarantor that makes a payment under its Guarantee will be entitled, upon payment in full of all guaranteed obligations under the Indenture, to a contribution from each other Guarantor in an amount equal to such other Guarantors pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP.
If a Guarantee was rendered voidable, it could be subordinated by a court to all other obligations (including guarantees and other contingent liabilities) of the applicable Guarantor, and, depending on the amount of such obligations, a Guarantors liability on its Guarantee could be reduced to zero. See Risk FactorsRisks Related to Our IndebtednessFederal and state fraudulent transfer laws may permit a court to void the notes and/or the guarantees and, if that occurs, you may not receive any payments on the notes.
The Indenture provides by its terms that a Guarantee by a Guarantor will be automatically and unconditionally released and discharged upon (a) receipt by the Trustee of a notification from the Issuer that such Guarantee be released and (b) the occurrence of any of the following:
(1) any direct or indirect sale, exchange, disposition or other transfer (including by merger, consolidation or otherwise) of (A) the Capital Stock of such Guarantor, after which such Guarantor is no longer a Restricted Subsidiary or (B) all or substantially all the assets of such Guarantor, which sale, exchange, disposition or other transfer is made in a manner not in violation of the applicable provisions of the Indenture;
(2) (A) the release or discharge of the guarantee by such Guarantor of the Senior Credit Facilities or (B) the release or discharge of the guarantee which resulted in the creation of such Guarantee, in each case except a release or discharge by or as a result of payment under such guarantee;
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(3) designation of any Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary in accordance with the provisions set forth under Certain CovenantsLimitation on Restricted Payments and the definition of Unrestricted Subsidiary;
(4) the Issuers exercise of its legal defeasance option or covenant defeasance option as described under Legal Defeasance and Covenant Defeasance or the Issuers obligations under the Indenture being discharged in a manner not in violation of the provisions described under Satisfaction and Discharge; or
(5) the occurrence of a Covenant Suspension Event as described under Certain Covenants; provided that such Guarantee will be reinstated upon the applicable Reversion Date in accordance with the Indenture.
Upon request of the Issuer, the Trustee shall evidence such release by its execution of a supplemental indenture or other instrument that may be executed by the Trustee and the Issuer without the consent of any Holder, upon receipt of an Opinion of Counsel and Officers Certificate as required by the Indenture.
If any Guarantor is released from its Guarantee, any of its Subsidiaries that are Guarantors will also be released from their Guarantees, if any.
All of our subsidiaries are Restricted Subsidiaries. We are permitted to designate certain of our Subsidiaries as Unrestricted Subsidiaries under the circumstances described in the definition of Unrestricted Subsidiary. Our Unrestricted Subsidiaries are not subject to any of the restrictive covenants in the Indenture and do not guarantee the Notes.
Ranking
The payment of the principal of, premium, if any, and interest on the Notes and the payment of any Guarantee will rank pari passu in right of payment with all Indebtedness and all other obligations (other than Subordinated Indebtedness) of the Issuer or the relevant Guarantor, as the case may be, including the obligations of the Issuer and such Guarantor under the Senior Credit Facilities.
The Notes are effectively subordinated to all Secured Indebtedness of the Issuer and each Guarantor, including Secured Indebtedness under the Senior Credit Facilities, to the extent of the value of the assets securing such Indebtedness, and are structurally subordinated to all Indebtedness, claims of preferred stockholders and other liabilities of the Subsidiaries that are not Guarantors. As of September 30, 2018, we had $2,995.5 million of senior indebtedness, of which $1,595.5 million was secured indebtedness, and we had undrawn availability of $350.0 million under the revolving credit facility of the Senior Credit Facilities.
Although the Indenture contains limitations on the amount of additional Indebtedness that the Issuer and the Guarantors may incur, the amount of such Indebtedness could be substantial, and such additional Indebtedness may be Secured Indebtedness. See Certain CovenantsLimitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock.
Paying Agent and Registrar for the Notes
The Issuer maintains a paying agent and registrar for the Notes. The initial paying agent and registrar for the Notes is the Trustee. The Issuer may change the paying agent or the registrar without prior notice to the Holders. The Issuer or any of its Subsidiaries may act as a paying agent or registrar. Upon written request from the Issuer, the registrar shall provide the Issuer with a copy of the register reflecting ownership of the Notes at its registered office.
Transfer and Exchange
A Holder may transfer or exchange Notes in accordance with the Indenture. The registrar and the Trustee may require a Holder to, among other things, furnish appropriate endorsements and transfer documents in connection
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with a transfer of Notes. Holders will be required to pay all taxes due on transfer. The Issuer will not be required to transfer or exchange any Note selected for redemption. Also, the Issuer will not be required to transfer or exchange any Note for a period of 15 days before the mailing of a notice of redemption of Notes to be redeemed or within 15 days of an interest payment date.
Principal, Maturity and Interest
The Issuer issued $1,400.0 million aggregate principal amount of Notes. The Notes will mature on February 1, 2026. Subject to compliance with the covenant described below under Certain CovenantsLimitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock, the Issuer may issue additional Notes (the Additional Notes) from time to time under the Indenture. Each of the Notes issued and any Additional Notes issued under the Indenture will be treated as a single class for all purposes under the Indenture, including waivers, amendments, redemptions and offers to purchase. Additional Notes will not be issued with the same CUSIP, if any, as existing Notes unless such Additional Notes are fungible with existing Notes for U.S. federal income tax purposes. Notes can only be exchanged in minimum denominations of $2,000 and integral multiples of $1,000 in excess of $2,000.
Interest will accrue on the Notes at a rate per annum equal to 6.875% from (x) in the case of any outstanding unregistered notes, the most recent date to which interest has been paid or provided for and (y) in the case of the Exchange Notes, the latter of (1) the last interest payment date on which interest was paid on the outstanding unregistered notes surrendered for exchange and (2) if the outstanding unregistered notes are surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date. Interest will be payable semi-annually in arrears using a 360-day year comprised of twelve 30-day months in cash to Holders of record at the close of business on January 15 or July 15 immediately preceding the interest payment date (whether or not a Business Day), on February 1 and August 1 of each year, as the case may be, commencing August 1, 2019. At maturity, the Issuer will pay accrued and unpaid interest from the most recent date to which interest has been paid or provided for.
Sinking Fund; Offers to Purchase; Open Market Purchases
The Issuer is not required to make any mandatory redemption or sinking fund payments with respect to the Notes. However, under certain circumstances, the Issuer may be required to offer to purchase Notes as described under Change of Control and Certain CovenantsAsset Sales. We may at any time and from time to time purchase Notes in the open market or otherwise.
Optional Redemption
Except as set forth below, the Issuer will not be entitled to redeem the Notes at its option prior to February 1, 2021.
Prior to February 1, 2021, the Issuer may redeem the Notes, in whole at any time or in part from time to time, upon notice as described below under Selection and Notice, at a redemption price equal to 100% of the principal amount of Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest thereon, if any, to, but excluding, the date of redemption (the Redemption Date), subject to the rights of Holders of record on the relevant record date to receive interest due on the relevant interest payment date.
On and after February 1, 2021, the Issuer may redeem the Notes, in whole at any time or in part from time to time, upon notice as described below under Selection and Notice, at the redemption prices (expressed as percentages of principal amount of the Notes to be redeemed) set forth below plus accrued and unpaid interest thereon, if any, to, but excluding, the applicable Redemption Date, subject to the right of Holders of record on the
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relevant record date to receive interest due on the relevant interest payment date, if redeemed during the twelve-month period beginning on of each of the years indicated below:
Year |
Redemption Price |
|||
2021 |
103.438 | % | ||
2022 |
101.719 | % | ||
2023 |
100.859 | % | ||
2024 and thereafter |
100.000 | % |
In addition, until February 1, 2021, the Issuer may, at any time and from time to time, upon notice as described below under Selection and Notice, redeem up to 40.0% of the aggregate principal amount of Notes (including any Additional Notes) at a redemption price equal to 106.875% of the aggregate principal amount thereof plus accrued and unpaid interest thereon, if any, to, but excluding, the applicable Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date), in an amount no greater than the aggregate cash proceeds received from one or more Equity Offerings; provided that (1) at least 60.0% of the aggregate principal amount of Notes (including any Additional Notes) remains outstanding immediately after the occurrence of each such redemption and (2) each such redemption occurs within 120 days of the closing of such Equity Offering.
In addition to the foregoing, in connection with any tender offer for the Notes (including, without limitation, any Change of Control Offer), if Holders of not less than 90.0% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in such tender offer and the Issuer, or any third party making a such tender offer in lieu of the Issuer, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer or such third party will have the right upon not less than 15 nor more than 60 days prior notice, given not more than 30 days following such purchase date, to redeem (with respect to the Issuer) or purchase (with respect to a third party) all Notes that remain outstanding following such purchase at a price equal to the price offered to each other Holder in such tender offer (which may be less than par) plus, to the extent not included in the tender offer payment, accrued and unpaid interest, if any, thereon, to, but excluding, the Redemption Date.
We may acquire Notes by means other than a redemption, whether by tender offer, open market purchases, negotiated transactions or otherwise, in accordance with applicable securities laws, so long as such acquisition does not otherwise violate the terms of the Indenture.
Notice of any redemption of the Notes (including upon an Equity Offering or in connection with a transaction (or series of related transactions) or an event that constitutes a Change of Control) may, at the Issuers discretion, be given prior to the completion or the occurrence thereof and any such redemption or notice may, at the Issuers discretion, be subject to one or more conditions precedent, including, but not limited to, completion or occurrence of the related transaction or event, as the case may be. In addition, if such redemption or purchase is subject to satisfaction of one or more conditions precedent, such notice shall describe each such condition, and if applicable, shall state that, in the Issuers discretion, the Redemption Date may be delayed until such time (including more than 60 days after the date the notice of redemption was mailed or delivered, including by electronic transmission) as any or all such conditions shall be satisfied, or such redemption or purchase may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the Redemption Date, or by the Redemption Date as so delayed, or such notice may be rescinded at any time in the Issuers discretion if in the good faith judgment of the Issuer any or all of such conditions will not be satisfied. In addition, the Issuer may provide in such notice that payment of the redemption price and performance of the Issuers obligations with respect to such redemption may be performed by another Person.
Selection and Notice
If the Issuer is offering to purchase or redeeming less than all of the Notes at any time, the Trustee will select the Notes to be redeemed on a pro rata basis (or as nearly pro rata as practicable) or by such method as the trustee
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shall deem fair and appropriate, unless otherwise required by law or the rules of the principal national securities exchange, if any, on which the Notes are listed or by lot or such other similar method in accordance with the procedures of DTC; provided that no Notes of $2,000 or less shall be redeemed or repurchased in part.
Notices of purchase or redemption shall be mailed by first-class mail (or otherwise sent in accordance with the applicable procedures of DTC), at least 30 but not more than 60 days before the purchase or redemption date to each Holder at such Holders registered address or otherwise in accordance with the procedures of DTC, except that redemption notices may be mailed (or otherwise sent in accordance with the applicable procedures of DTC) more than 60 days prior to a Redemption Date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture. If any Note is to be purchased or redeemed in part only, any notice of purchase or redemption that relates to such Note shall state the portion of the principal amount thereof that is to be purchased or redeemed. The Issuer will issue a new Note in a principal amount equal to the unredeemed portion of the original Note in the name of the Holder upon cancellation of the original Note.
Subject to the terms of the applicable redemption notice (including any conditions precedent contained therein), Notes called for redemption become due on the date fixed for redemption, subject to the satisfaction of any conditions precedent to the redemption. On and after the Redemption Date, interest ceases to accrue on Notes or portions of them called for redemption.
Change of Control
The Indenture provides that if a Change of Control occurs after the Issue Date, unless the Issuer has previously or concurrently mailed (or otherwise sent in accordance with the applicable procedures of DTC) a redemption notice with respect to all the outstanding Notes as described under Optional Redemption, the Issuer will make an offer to purchase all of the Notes pursuant to the offer described below (the Change of Control Offer) at a price in cash (the Change of Control Payment) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to, but excluding, the date of purchase, subject to the right of Holders of the Notes of record on the relevant record date to receive interest due on the relevant interest payment date. Within 30 days following any Change of Control, unless the Issuer has previously or concurrently mailed (or otherwise sent in accordance with the applicable procedures of DTC) a redemption notice with respect to all the outstanding Notes as described under Optional Redemption or the Issuer has previously made a Change of Control Offer in connection with such Change of Control, the Issuer will send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, to each Holder of Notes to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC, with the following information:
(1) that a Change of Control Offer is being made pursuant to the covenant entitled Change of Control, and that, subject to clause (7) below, all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Issuer;
(2) the purchase price and the purchase date, which will, subject to clause (7) below, be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the Change of Control Payment Date);
(3) that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest on the Change of Control Payment Date;
(5) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the paying agent receives, not later than the expiration time of the Change of Control Offer, a facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
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(6) that if the Holders tender less than all of the Notes, the Holders of the remaining Notes will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to $2,000 or an integral multiple of $1,000 in excess thereof;
(7) if such notice is delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control, and if applicable, shall state that, in the Issuers discretion, the Change of Control Payment Date may be delayed until such time as the Change of Control shall occur, or that such redemption may not occur and such notice may be rescinded in the event that the Issuer shall determine that such condition will not be satisfied by the Change of Control Payment Date or by the Change of Control Payment Date as so delayed; and
(8) the other instructions, as determined by the Issuer, consistent with the covenant described hereunder, that a Holder must follow.
The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture, the Issuer will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in the Indenture by virtue thereof.
On the Change of Control Payment Date, the Issuer will, to the extent permitted by law,
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the paying agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officers Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer.
The Senior Credit Facilities provide, and future credit agreements, indentures or other agreements relating to Indebtedness to which the Issuer becomes a party may provide, that certain change of control events with respect to the Issuer (including a Change of Control under the Indenture) would constitute a default (or require us to repurchase all of the applicable Indebtedness) thereunder. If we experience a change of control that triggers a default or requirement to repurchase under our Senior Credit Facilities, we could seek a waiver of such default or requirement or seek to refinance our Senior Credit Facilities. In the event we do not obtain such a waiver or refinance the Senior Credit Facilities, all amounts outstanding under our Senior Credit Facilities could become immediately due and payable.
Our ability to pay cash to the Holders of Notes following the occurrence of a Change of Control may be limited by our then-existing financial resources. Therefore, sufficient funds may not be available when necessary to make any required repurchases.
The Change of Control purchase feature of the Notes may in certain circumstances make more difficult or discourage a sale or takeover of us and, thus, the removal of incumbent management. The Change of Control purchase feature is a result of negotiations between the Initial Purchasers and the Issuer. The Issuer has no present intention to engage in a transaction involving a Change of Control, although it is possible that the Issuer could decide to do so in the future. Subject to the limitations discussed below, the Issuer could, in the future, enter into certain transactions, including acquisitions, refinancings or other recapitalizations, that would not constitute a Change of Control under the Indenture, but that could increase the amount of indebtedness
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outstanding at such time or otherwise affect the Issuers capital structure or credit ratings. Restrictions on the Issuers ability to incur additional Indebtedness are contained in the covenants described under Certain CovenantsLimitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock and Certain CovenantsLiens. Such restrictions in the Indenture can be waived only with the consent of the Holders of a majority in principal amount of the Notes then outstanding. Except for the limitations contained in such covenants, however, the Indenture does not contain any covenants or provisions that may afford Holders of the Notes protection in the event of a highly leveraged transaction.
The Issuer will not be required to make a Change of Control Offer following a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of the making of the Change of Control Offer.
Notes repurchased by the Issuer pursuant to a Change of Control Offer will have the status of Notes issued but not outstanding or will be retired and canceled at the option of the Issuer. Notes purchased by a third party pursuant to the preceding paragraph will have the status of Notes issued and outstanding unless transferred to the Issuer.
The definition of Change of Control includes a disposition of all or substantially all of the assets of the Issuer and its Restricted Subsidiaries to any Person other than a Restricted Subsidiary. Although there is a limited body of case law interpreting the phrase substantially all, there is no precise established definition of the phrase under applicable law. Accordingly, in certain circumstances there may be a degree of uncertainty as to whether a particular transaction would involve a disposition of all or substantially all of the assets of the Issuer. As a result, it may be unclear as to whether a Change of Control has occurred and whether a Holder of Notes may require the Issuer to make an offer to repurchase the Notes as described above.
The provisions under the Indenture relative to the Issuers obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of the Holders of a majority in principal amount of the Notes.
Certain Covenants
Set forth below are summaries of certain covenants that are contained in the Indenture. Beginning on the day of a Covenant Suspension Event (as defined below) and ending on a Reversion Date (as defined below) (such period a Suspension Period) with respect to the Notes, the covenants specifically listed under the following captions are not applicable to the Notes (collectively, the Suspended Covenants):
(1) Limitation on Restricted Payments;
(2) Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock;
(3) clause (4) of the first paragraph of Merger, Consolidation or Sale of All or Substantially All Assets;
(4) Transactions with Affiliates;
(5) Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries;
(6) Asset Sales;
(7) Limitation on Guarantees of Indebtedness by Restricted Subsidiaries;
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(8) Limitation on Sale and Lease-Back Transactions; and
(9) Business Activities.
During any Suspension Period, the Guarantees of the Guarantors will be suspended, and such Guarantees will be reinstated on each Reversion Date. On each Reversion Date, all Indebtedness, Disqualified Stock or Preferred Stock incurred during the Suspension Period will be classified as having been incurred pursuant to the first paragraph of the covenant described under Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock or one of the clauses set forth in the second paragraph of Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock (to the extent such Indebtedness or Disqualified Stock or Preferred Stock would be permitted to be incurred thereunder as of the Reversion Date and after giving effect to Indebtedness or Disqualified Stock or Preferred Stock incurred prior to the Suspension Period and outstanding on the Reversion Date). To the extent such Indebtedness or Disqualified Stock or Preferred Stock would not be so permitted to be incurred pursuant to the first or second paragraph of Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock, such Indebtedness or Disqualified Stock or Preferred Stock will be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under clause (3) of the second paragraph under Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock.
Calculations made after the Reversion Date of the amount available to be made as Restricted Payments under Limitation on Restricted Payments will be made as though the covenant described under Limitation on Restricted Payments had been in effect since the Issue Date (but not during the Suspension Period); provided that, during the Suspension Period the Issuer shall not designate any of its Restricted Subsidiaries to be Unrestricted Subsidiaries unless the Issuer would have been permitted to designate such Subsidiary as an Unrestricted Subsidiary if a Suspension Period had not been in effect for any period. In addition, for purposes of the covenant described under Transactions with Affiliates, all agreements, arrangements and transactions entered into by the Issuer or any of its Restricted Subsidiaries with an Affiliate of the Issuer during the applicable Suspension Period prior to such Reversion Date will be deemed to have been entered into on or prior to the Issue Date, and for purposes of the covenant described under Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries, all contracts entered into during the applicable Suspension Period prior to such Reversion Date that contain any of the restrictions contemplated by such covenant will be deemed to have been existing on the Issue Date.
For purposes of the covenant described under Asset Sales, on the Reversion Date, the unutilized Excess Proceeds amount will be reset to zero.
If, at any date following the Issue Date, (1) the Notes have Investment Grade Ratings from both Rating Agencies and (2) no Default has occurred and is continuing under the Indenture as of such date, a Covenant Suspension Event will be deemed to have occurred. If on any subsequent date (the Reversion Date) one or both of the Rating Agencies withdraws its Investment Grade Rating or downgrades the rating assigned to the Notes below an Investment Grade Rating, the Issuer and its Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants with respect to future events. The Issuer will provide written notice to the Trustee of any Covenant Suspension Event and reinstatement of Suspended Covenants on a Reversion Date. The Trustee shall not have any duty to monitor whether or not a Covenant Suspension Event or Reversion Date has occurred or if a Suspension Period has commenced or ended, nor any duty to notify the noteholders of any of the foregoing.
Notwithstanding the reinstatement of the Suspended Covenants on a Reversion Date, no Default or Event of Default or breach of any kind under the Indenture, the Notes or the Guarantees will be deemed to have occurred on such Reversion Date as a result of any actions taken by the Issuer or its Restricted Subsidiaries during the Suspension Period (or upon the termination of the Suspension Period or thereafter based solely on events that occurred during the Suspension Period) to the extent such actions were permitted under the Indenture during the Suspension Period, and none of the Issuer or any of its Subsidiaries shall bear any liability for any actions taken
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or events occurring during the applicable Suspension Period to the extent such actions were permitted under the Indenture during the Suspension Period, regardless of whether such actions or events would have been permitted if the applicable Suspended Covenants remained in effect during such period. On and after each Reversion Date, the Issuer and its Subsidiaries will be permitted to consummate the transactions contemplated by any contract entered into during any Suspension Period so long as such contract and such consummation would have been permitted during such Suspension Period.
We cannot assure you that the Notes will maintain Investment Grade Ratings.
Limitation on Restricted Payments
The Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of the Issuers or any of its Restricted Subsidiaries Equity Interests, including any dividend, payment or distribution payable in connection with any merger or consolidation, other than:
(A) dividends, payments or distributions payable in Equity Interests (other than Disqualified Stock) of the Issuer; or
(B) dividends, payments or distributions by a Restricted Subsidiary so long as, in the case of any dividend, payment or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly Owned Subsidiary, the Issuer or a Restricted Subsidiary receives at least its pro rata share of such dividend, payment or distribution in accordance with its Equity Interests in such class or series of securities;
(2) purchase, redeem, repurchase, defease or otherwise acquire or retire for value any Equity Interests of the Issuer (including in connection with any merger or consolidation), to the extent held by a Person other than the Issuer or a Restricted Subsidiary;
(3) make any principal payment on, or purchase, redeem, repurchase, defease or otherwise acquire or retire for value, in each case prior to any scheduled repayment, sinking fund payment or maturity, any Subordinated Indebtedness of the Issuer or a Guarantor other than the payment, purchase, redemption, repurchase, defeasance, acquisition or retirement of:
(A) Indebtedness permitted under clause (7) of the covenant described under Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock; or
(B) Subordinated Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of purchase, redemption, repurchase, defeasance, acquisition or retirement; or
(4) make any Restricted Investment
(all such payments and other actions set forth in clauses (1) through (4) above being collectively referred to as Restricted Payments), unless, at the time of such Restricted Payment:
(1) no Default shall have occurred and be continuing or would occur as a consequence thereof;
(2) immediately after giving effect to such transaction on a pro forma basis, the Issuer could incur $1.00 of additional Indebtedness pursuant to the Consolidated Net Leverage Ratio test set forth in the first paragraph of the covenant described under Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock; and
(3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Issuer and its Restricted Subsidiaries (and not rescinded or refunded) after the Issue Date (including
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Restricted Payments permitted by clause (1) of the next paragraph, but excluding all other Restricted Payments permitted by the next paragraph), is less than the sum of (without duplication):
(A) (i) 100% of Consolidated Adjusted EBITDA of the Issuer for the period (taken as one accounting period) beginning on the first day of the fiscal quarter during which the Issue Date occurs to the end of the Issuers most recently completed fiscal quarter for which Required Financial Statements have been delivered at the time of such Restricted Payment, minus (ii) the product of (x) 1.4 and (y) Consolidated Interest Expense of the Issuer for the same period (taken as one accounting period); plus
(B) 100% of the aggregate net cash proceeds and the fair market value (as determined in good faith by the Issuer) of marketable securities or other property received by the Issuer from the issuance or sale of Equity Interests of the Issuer (other than Disqualified Stock or Refunding Capital Stock (as defined below)) or otherwise contributed to the equity (other than through an issuance of Disqualified Stock) of the Issuer after the Issue Date (other than an issuance or sale to a Subsidiary of the Issuer or an issuance or sale to an employee stock ownership plan or other trust established by the Issuer or its Restricted Subsidiaries to the extent funded by the Issuer or its Subsidiaries); plus
(C) 100% of the aggregate net cash proceeds and the fair market value (as determined in good faith by the Issuer) of marketable securities or other property received by the Issuer or any Restricted Subsidiary from the issuance or sale (other than to the Issuer or a Restricted Subsidiary of the Issuer or to an employee stock ownership plan or other trust established by the Issuer or its Restricted Subsidiaries to the extent funded by the Issuer or its Subsidiaries) by the Issuer or any Restricted Subsidiary after the Issue Date of any Indebtedness or Disqualified Stock that has been converted into or exchanged for Equity Interests of the Issuer (other than Disqualified Stock), plus, without duplication, any cash proceeds and the fair market value (as determined in good faith by the Issuer) of marketable securities or other property received by the Issuer or any Restricted subsidiary upon such conversion or exchange; plus
(D) 100% of the aggregate amount received in cash and the fair market value (as determined in good faith by the Issuer) of marketable securities or other property received by the Issuer or any Restricted Subsidiary from: (i) the sale or other disposition (other than to the Issuer or a Restricted Subsidiary) of and the receipt of any dividends or distributions from Restricted Investments made by the Issuer or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Issuer or its Restricted Subsidiaries and repayments of loans or advances, and releases of guarantees, which constituted Restricted Investments by the Issuer or its Restricted Subsidiaries, in each case after the Issue Date; or (ii) the sale (other than to the Issuer or a Restricted Subsidiary) of the stock of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than to the extent of the amount of the Investment in such Unrestricted Subsidiary that constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, in each case after the Issue Date; plus
(E) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Issuer or a Restricted Subsidiary or the transfer of all or substantially all of the assets of an Unrestricted Subsidiary to the Issuer or a Restricted Subsidiary, in each case after the Issue Date, the fair market value (as determined in good faith by the Issuer) or if such fair market value exceeds $200.0 million, the fair market value as specified in writing by an Independent Financial Advisor, of the Investment in such Unrestricted Subsidiary at the time of such redesignation, merger, consolidation or transfer (other than to the extent of the amount of the Investment in such Unrestricted Subsidiary that constituted a Permitted Investment); plus
(F) in the event that the Issuer or any Restricted Subsidiary has made or makes any Investment in a Person subsequent to the Issue Date that, as a result of or in connection with such Investment, becomes a Restricted Subsidiary, an amount equal to the existing Investment of the Issuer or any
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Restricted Subsidiary in such Person to the extent it was previously treated as a Restricted Payment (collectively, the Restricted Payments Builder Basket).
The foregoing provisions will not prohibit any of the following (collectively, Permitted Payments):
(1) the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration thereof or the giving of such irrevocable notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of the Indenture;
(2) the purchase, redemption, defeasance, repurchase, retirement or other acquisition of any Equity Interests of the Issuer or of Subordinated Indebtedness of the Issuer or any Guarantor, in exchange for, or out of the proceeds of the substantially concurrent issuance or sale (other than to a Restricted Subsidiary or to an employee stock ownership plan or other trust established by the Issuer or its Restricted Subsidiaries to the extent funded by the Issuer or its Restricted Subsidiaries) of, Equity Interests (other than Disqualified Stock) of the Issuer (collectively, the Refunding Capital Stock);
(3) the purchase, redemption, defeasance, repurchase, retirement or other acquisition of (i) Subordinated Indebtedness of the Issuer or a Guarantor made by, in exchange for, or out of the proceeds of the substantially concurrent incurrence of, Indebtedness of the Issuer or a Guarantor or (ii) Disqualified Stock of the Issuer or any Guarantor made in exchange for, or out of the proceeds of the substantially concurrent incurrence of Disqualified Stock of the Issuer or any Guarantor, in each case that is incurred in compliance with Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock so long as:
(A) the principal amount (or accreted value, if applicable) of such new Indebtedness or the liquidation preference of such new Disqualified Stock does not exceed the principal amount of (or accreted value, if applicable), plus any accrued and unpaid interest on, the Subordinated Indebtedness or the liquidation preference of, plus any accrued and unpaid dividends on, the Disqualified Stock, as applicable, being so purchased, redeemed, defeased, repurchased, retired or acquired for value, plus the amount of any premium required to be paid under the terms of the instrument governing the Subordinated Indebtedness or Disqualified Stock being so purchased, redeemed, defeased, repurchased, retired or acquired and any fees and expenses incurred in connection with the issuance of such new Indebtedness or Disqualified Stock;
(B) such new Indebtedness is subordinated to the Notes or the applicable Guarantee at least to the same extent as such Subordinated Indebtedness so purchased, redeemed, defeased, repurchased, retired or acquired;
(C) such new Indebtedness or Disqualified Stock has a final scheduled maturity date equal to or later than the final scheduled maturity date of the Subordinated Indebtedness or Disqualified Stock being so purchased, redeemed, defeased, repurchased, retired or acquired; and
(D) such new Indebtedness or Disqualified Stock has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Subordinated Indebtedness or Disqualified Stock being so purchased, redeemed, defeased, repurchased, retired or acquired;
(4) a Restricted Payment to pay for the purchase, repurchase, retirement or other acquisition for value of Equity Interests (other than Disqualified Stock) of the Issuer held by any future, present or former member of management, employee, director or consultant of the Issuer or any of its Subsidiaries pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, or any stock subscription or shareholder agreement or upon the termination of such members, employees, directors or consultants employment or directorship; provided, however, that the aggregate Restricted Payments made under this clause (4) do not exceed in any calendar year $50.0 million (with
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unused amounts in any calendar year being carried over for one additional calendar year); provided further, that such amount in any calendar year may be increased by an amount not to exceed:
(A) the cash proceeds from the sale of Equity Interests (other than Disqualified Stock) of the Issuer to future, present or former members of management, employees, directors or consultants of the Issuer or any of its Subsidiaries that occurs after the Issue Date, to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments by virtue of the Restricted Payments Builder Basket; plus
(B) the cash proceeds of key man life insurance policies received by the Issuer or any of its Restricted Subsidiaries after the Issue Date; less
(C) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (A) and (B) of this clause (4);
and; provided further that cancellation of Indebtedness owing to the Issuer or any Restricted Subsidiary from any future, present or former members of management, employees, directors or consultants of the Issuer or any of the Issuers Restricted Subsidiaries in connection with a repurchase of Equity Interests of the Issuer will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of the Indenture;
(5) purchases, redemptions, defeasances, repurchases or other acquisitions of Equity Interests deemed to occur (i) upon exercise of stock options, stock appreciation rights or warrants if such Equity Interests represent a portion of the exercise price of such options, stock appreciation rights or warrants or (ii) for purposes of satisfying any required tax withholding obligation upon the exercise or vesting of a grant or award that was granted or awarded to an employee;
(6) other Restricted Payments in an aggregate amount taken together with all other outstanding Restricted Payments made pursuant to this clause (6) not to exceed $300.0 million;
(7) distributions or payments of Receivables Fees;
(8) [reserved];
(9) the repurchase, redemption, defeasance or other acquisition or retirement of any Subordinated Indebtedness pursuant to the provisions similar to those described under Change of Control and Asset Sales; provided that prior to any such repurchase, redemption, defeasance or other acquisition or retirement, all Notes tendered by Holders in connection with a Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed, defeased, acquired or retired;
(10) the repurchase, redemption or other acquisition for value of Equity Interests of the Issuer deemed to occur in connection with paying cash in lieu of fractional shares of such Equity Interests in connection with a share dividend, distribution, share split, reverse share split, merger, consolidation, amalgamation or other business combination of the Issuer or its Subsidiaries, in each case permitted under the Indenture;
(11) the distribution, by dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to, the Issuer or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents);
(12) for any taxable period in which the taxable income of the Issuer or any of its Subsidiaries is included in a consolidated, combined or similar income tax group of which a direct or indirect parent of the Issuer is the common parent (a Tax Group), an amount not to exceed the tax liabilities that the Issuer and the applicable Subsidiaries, in the aggregate, would have been required to pay in respect of such taxable income if such entities were a standalone group of corporations separate from such Tax Group (it being understood and agreed that, if the Issuer or any Subsidiary pays any portion of such tax liabilities directly to any taxing authority, a Restricted Payment in duplication of such amount shall not be permitted to be made pursuant to this clause (12));
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(13) the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Issuer or any Restricted Subsidiary or Preferred Stock of any Restricted Subsidiaries issued or incurred in accordance with the covenant described under Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock;
(14) payments of cash, or dividends, distributions or advances by the Issuer or any Restricted Subsidiary to allow the payment of cash in lieu of the issuance of fractional shares upon the exercise of options or warrants or upon the conversion or exchange of Capital Stock of any such Person; and
(15) mandatory redemptions or repurchases of Disqualified Stock the issuance of which itself constituted a Restricted Payment or Permitted Investment otherwise permissible under the Indenture;
provided, however, that at the time of, and after giving effect to, any Restricted Payment permitted under clauses (6) or (11), no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof.
All of our Subsidiaries are Restricted Subsidiaries. The Issuer will not permit any Unrestricted Subsidiary to become a Restricted Subsidiary except pursuant to the last sentence of the definition of Unrestricted Subsidiary. For purposes of designating any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by the Issuer and its Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so designated are deemed to be an Investment in an amount determined as set forth in the definition of Investment. Such designation is permitted only if an Investment in such amount would be permitted at such time, whether as a Restricted Payment or a Permitted Investment, and if such Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. Unrestricted Subsidiaries are not subject to any of the covenants set forth in the Indenture.
For purposes of clauses (2) and (3) of the second paragraph of this covenant, a Restricted Payment shall be deemed to have been made substantially concurrently with the applicable event if made or irrevocably committed to be made within 90 days of such event.
The amount of all Restricted Payments (other than cash) shall be the fair market value (as determined in good faith by the Issuer) on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Issuer or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment.
For purposes of determining compliance with this covenant, in the event that a proposed Restricted Payment or Investment (or a portion thereof) meets the criteria of more than one of the categories of Restricted Payments described in the preceding clauses (1) through (15) above and/or one or more of the clauses contained in the definition of Permitted Investments, or is entitled to be made pursuant to the first paragraph of this covenant, the Issuer will be entitled to divide or classify (or later divide, classify or reclassify in whole or in part in its sole discretion) such Restricted Payment or Investment (or portion thereof) among such clauses (1) through (15) and such first paragraph and/or one or more of the clauses contained in the definition of Permitted Investments, in a manner that otherwise complies with this covenant.
For the avoidance of doubt, this covenant shall not restrict the making of any AHYDO catch-up payment with respect to, and required by the terms of, any Indebtedness of the Issuer or any of its Restricted Subsidiaries permitted to be incurred under the Indenture.
Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock
The Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable for (collectively, incur and collectively, an incurrence) any Indebtedness (including Acquired Indebtedness) and the Issuer will not issue
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any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or Preferred Stock; provided, however, that the Issuer may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness), issue shares of Disqualified Stock and issue shares of Preferred Stock, if the Consolidated Net Leverage Ratio at the time such additional Indebtedness is incurred or such Disqualified Stock or Preferred Stock is issued would have been no greater than 3.50 to 1.00, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom); provided further, however, that Restricted Subsidiaries that are not Guarantors may not incur Indebtedness or issue Disqualified Stock or Preferred Stock if, after giving pro forma effect to such incurrence or issuance, more than an aggregate of $300.0 million at the time of incurrence of such Indebtedness or Disqualified Stock or Preferred Stock of such Restricted Subsidiaries that are not Guarantors is outstanding pursuant to this paragraph, clause (12) of the next succeeding paragraph with respect to Refinancing Indebtedness in respect of the foregoing and clause (17) of the next succeeding paragraph.
The foregoing limitations do not apply to:
(1) the incurrence of Indebtedness under Credit Facilities by the Issuer or any of its Restricted Subsidiaries and the issuance and creation of letters of credit and bankers acceptances thereunder (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof); provided, however, that immediately after giving effect to any such incurrence, the then outstanding aggregate principal amount of all Indebtedness under this clause (1) does not exceed at any one time the sum of (A) $2,150.0 million, plus (B) the greater of (i) $700.0 million and (ii) the maximum amount of Secured Indebtedness that can be incurred, after giving effect to the incurrence of such Indebtedness and the use of proceeds therefrom (and after giving effect to any acquisition, disposition, Investment and other transactions contemplated in connection with such incurrence) and assuming the full draw of any revolving commitments in respect thereof and that all Indebtedness incurred under this clause (1) is Secured Indebtedness, so long as the Consolidated Secured Net Leverage Ratio (calculated excluding any increase in Eligible Cash resulting from the incurrence of such Indebtedness) does not exceed 2.50 to 1.00, plus (C) in connection with the incurrence of Refinancing Indebtedness to Refinance any Indebtedness incurred under this clause (1), any Indebtedness incurred to pay premiums (including tender premiums), accrued interest, defeasance costs and reasonable fees and expenses in connection therewith;
(2) Indebtedness represented by the Notes (other than any Additional Notes) and any related Guarantees (including any Exchange Notes and Guarantees with respect thereto);
(3) Indebtedness of the Issuer and its Restricted Subsidiaries in existence on the Issue Date (other than Indebtedness described in clauses (1) and (2)) after giving effect to the Transactions;
(4) (A) Indebtedness (including Capitalized Lease Obligations and Attributable Debt), Disqualified Stock and Preferred Stock incurred by the Issuer or any of its Restricted Subsidiaries to finance the purchase, lease, construction or improvement of property (real or personal) or equipment, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets, and any Indebtedness incurred to Refinance any such Indebtedness (and successive Refinancings thereof), in an aggregate principal amount or liquidation preference which, when aggregated with the principal amount of all other Indebtedness, Disqualified Stock and Preferred Stock then outstanding under this clause (4)(A), together with the aggregate principal amount of Indebtedness outstanding pursuant to clause (B) of this clause (4), does not exceed the greater of (x) $300.0 million and (y) 25% of Four Quarter EBITDA at the time of incurrence and (B) any Indebtedness incurred to Refinance Indebtedness incurred under clause (A) of this clause (4) (or successive Refinancings of Indebtedness incurred under this clause (B));
(5) Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to letters of credit, bankers acceptances, bank guarantees, warehouse receipts or similar facilities issued or entered into in the ordinary course of business, including letters of credit in respect of workers compensation claims, performance or surety bonds, health, disability or other employee benefits, property, casualty or liability insurance or self-insurance or other Indebtedness with respect to
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reimbursement type obligations regarding workers compensation claims, performance or surety bonds, health, disability or other employee benefits, or property, casualty or liability insurance or self-insurance;
(6) Indebtedness arising from agreements of the Issuer or its Restricted Subsidiaries providing for indemnification, earn-out, holdback, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(7) Indebtedness of the Issuer to a Restricted Subsidiary or a Restricted Subsidiary to the Issuer or another Restricted Subsidiary; provided that any such Indebtedness (other than such as may arise from ordinary course intercompany cash management obligations) owing by the Issuer or a Guarantor to a Non-Guarantor Subsidiary is expressly subordinated in right of payment to the Notes or the applicable Guarantee, as applicable; and provided further that any subsequent issuance or transfer of any Capital Stock or any other event which results in any Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such Indebtedness (except to the Issuer or another Restricted Subsidiary or any pledge of such Indebtedness constituting a Permitted Lien) shall be deemed, in each case, to be an incurrence of such Indebtedness not permitted by this clause (7);
(8) shares of Preferred Stock of a Restricted Subsidiary issued to the Issuer or another Restricted Subsidiary; provided that any subsequent issuance or transfer of any Capital Stock or any other event that results in such Preferred Stock being beneficially owned by a Person other than the Issuer or any Restricted Subsidiary or any other subsequent transfer of any such shares of Preferred Stock (except to the Issuer or another of its Restricted Subsidiaries) shall be deemed in each case to be an issuance of such shares of Preferred Stock not permitted by this clause (8);
(9) Hedging Obligations not entered into for speculative purposes;
(10) obligations in respect of workers compensation claims, self-insurance, performance, bid, appeal and surety bonds and performance or completion guarantees and similar obligations provided by the Issuer or any of its Restricted Subsidiaries or obligations in respect of letters of credit, bankers acceptances, bank guarantees or similar instruments related thereto, in each case in the ordinary course of business;
(11) (A) Indebtedness or Disqualified Stock of the Issuer and Indebtedness, Disqualified Stock or Preferred Stock of any Guarantor not otherwise permitted under the Indenture in an aggregate principal amount or liquidation preference, which when aggregated with the outstanding principal amount and liquidation preference of all other Indebtedness, Disqualified Stock and Preferred Stock then outstanding and incurred pursuant to this clause (11)(A), together with the aggregate principal amount of Indebtedness outstanding pursuant to clause (B) of this clause (11), does not exceed the greater of (x) $500.0 million and (y) 50% of Four Quarter EBITDA at the time of incurrence and (B) any Indebtedness incurred to Refinance Indebtedness incurred under clause (A) of this clause (11) (or successive Refinancings of Indebtedness incurred under this clause (B));
(12) the incurrence by the Issuer or any Restricted Subsidiary of Refinancing Indebtedness that serves to Refinance:
(A) any Indebtedness, Disqualified Stock or Preferred Stock incurred as permitted under any of the first paragraph of this covenant, clause (2) above, clause (3) above and/or clause (13) below, or
(B) any Indebtedness, Disqualified Stock or Preferred Stock incurred to so Refinance the Indebtedness, Disqualified Stock or Preferred Stock described in clause (A) above,
including, in each case, additional Indebtedness, Disqualified Stock or Preferred Stock incurred to pay premiums (including tender premiums), accrued interest, defeasance costs and reasonable fees and expenses in connection therewith;
(13) Indebtedness, Disqualified Stock or Preferred Stock of (x) the Issuer or a Restricted Subsidiary incurred to finance an acquisition of any assets, business or Person or (y) Persons that are acquired by the
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Issuer or any Restricted Subsidiary or merged into or consolidated with the Issuer or a Restricted Subsidiary in accordance with the terms of the Indenture; provided that, after giving effect to such acquisition, merger or consolidation, either:
(A) the Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Net Leverage Ratio test set forth in the first paragraph of this covenant, or
(B) the Consolidated Net Leverage Ratio is less than or equal to the Consolidated Net Leverage Ratio immediately prior to such acquisition, merger or consolidation;
(14) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services in the ordinary course of business; provided that such Indebtedness is extinguished within ten Business Days of notice of its incurrence;
(15) Indebtedness of the Issuer or any of its Restricted Subsidiaries supported by a letter of credit or bank guarantee issued pursuant to the Credit Facilities, in a principal amount not in excess of the stated amount of such letter of credit or bank guarantee;
(16) (A) any guarantee by the Issuer or a Restricted Subsidiary of Indebtedness or other obligations of any Restricted Subsidiary so long as the incurrence of such Indebtedness incurred by such Restricted Subsidiary is permitted under the terms of the Indenture,
(B) any guarantee by a Restricted Subsidiary of Indebtedness of the Issuer; provided that such guarantee is incurred in accordance with the covenant described below under Limitation on Guarantees of Indebtedness by Restricted Subsidiaries, or
(C) any guarantee by the Issuer or a Restricted Subsidiary in the ordinary course of business in respect of obligations to suppliers, customers, franchisees, lessors and licensees of the Issuer or any Restricted Subsidiary;
(17) (A) Indebtedness of Non-Guarantor Subsidiaries in an aggregate principal amount, which when aggregated with the principal amount of all other Indebtedness then outstanding and incurred pursuant to this clause (17)(A) and incurred by Non-Guarantor Subsidiaries pursuant to the first paragraph of this covenant and clause (12) with respect to Refinancing Indebtedness in respect of the foregoing, together with the aggregate principal amount of Indebtedness outstanding pursuant to clause (B) of this clause (17), does not exceed the greater of (x) $300.0 million and (y) 25% of Four Quarter EBITDA at the time of incurrence and (B) any Indebtedness incurred to Refinance Indebtedness incurred under clause (A) of this clause (17) (or successive Refinancings of Indebtedness incurred under this clause (B));
(18) Indebtedness of the Issuer or any of its Restricted Subsidiaries consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements in each case, incurred in the ordinary course of business;
(19) Indebtedness of the Issuer or any of its Restricted Subsidiaries undertaken in connection with cash management, overdraft protection and related activities with respect to any Subsidiary or joint venture in the ordinary course of business; and
(20) Indebtedness consisting of Indebtedness issued by the Issuer or any of its Restricted Subsidiaries to current or former officers, directors and employees thereof, their respective estates, spouses or former spouses, in each case to finance the purchase or redemption of Equity Interests of the Issuer to the extent permitted under clause (4) of the second paragraph under Limitation on Restricted Payments.
For purposes of determining compliance with this covenant, in the event that an item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) meets the criteria of more than one of the categories of permitted Indebtedness, Disqualified Stock or Preferred Stock described in clauses (1) through (20) above or is permitted to be incurred pursuant to the first paragraph of this section under Limitation on
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Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock, the Issuer, in its sole discretion, may divide and/or classify on the date of incurrence such item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) in any manner that complies with this covenant and may later redivide and/or reclassify (based on circumstances existing at the time of such redivision or reclassification) such item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) in any manner that complies with this covenant; provided that all Indebtedness outstanding under the Senior Credit Facilities on the Issue Date was treated as incurred on the Issue Date under clause (1) of the preceding paragraph and will not later be reclassified.
Accrual of interest or dividends, the accretion of accreted value and the payment of interest in the form of additional Indebtedness with the same terms, the payment of dividends in the form of additional shares of Disqualified Stock or Preferred Stock, as applicable, of the same class, and accretion of original issue discount or liquidation preference will not be deemed to be an incurrence of Indebtedness, Disqualified Stock or Preferred Stock for purposes of this covenant. Guarantees of, or obligations in respect of letters of credit relating to, Indebtedness which is otherwise included in the determination of a particular amount of Indebtedness shall not be included in the determination of such amount of Indebtedness; provided that the incurrence of the Indebtedness represented by such guarantee or letter of credit, as the case may be, was in compliance with this covenant.
For purposes of any determination under Certain Covenants expressly requiring the use of a current exchange rate, all amounts incurred, outstanding or proposed to be incurred or outstanding in currencies other than U.S. dollars shall be translated into U.S. dollars at currency exchange rates in effect on the date of such determination; provided, however, that for purposes of determining compliance with the Indenture with respect to the amount of any Permitted Lien, Indebtedness, Asset Sale, Restricted Payment, Affiliate Transaction, Permitted Investment or Permitted Payment in a currency other than U.S. dollars, no Default or Event of Default shall be deemed to have occurred solely as a result of changes in rates of exchange occurring after the time such Permitted Lien or Indebtedness is incurred or Asset Sale, Restricted Payment, Affiliate Transaction, Permitted Investment or Permitted Payment is made; provided that, for the avoidance of doubt, the foregoing provisions of this paragraph shall otherwise apply to such Sections, including with respect to determining whether any Permitted Lien or Indebtedness is incurred or Asset Sale, Restricted Payment, Affiliate Transaction, Permitted Investment or Permitted Payment is made at any time under such Sections. In addition, to the extent that the size of any basket or carve-out set forth under Certain Covenants is determined by reference to a percentage of Four-Quarter EBITDA, a percentage of Consolidated Adjusted EBITDA or the Consolidated Secured Net Leverage Ratio, no Default or Event of Default shall be deemed to occur with respect to any transaction consummated or incurred pursuant to such basket or carve-out as a result of any decrease in the amount of Four-Quarter EBITDA, Consolidated Adjusted EBITDA or the Consolidated Secured Net Leverage Ratio subsequent to such consummation or incurrence which results in such basket or carve-out no longer being sufficient to permit such transaction or incurrence.
The principal amount of any Indebtedness incurred to Refinance other Indebtedness, if incurred in a different currency from the Indebtedness being Refinanced, shall be calculated by the Issuer based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated as in effect on the date of such Refinancing.
The Indenture provides that the Issuer will not, and will not permit any Guarantor to, directly or indirectly, incur Indebtedness (including Acquired Indebtedness) that is contractually subordinated in right of payment to any Indebtedness of the Issuer or such Guarantor, as the case may be, unless such Indebtedness is contractually subordinated in right of payment to the Notes or such Guarantors Guarantee, in all material respects, to the extent and in the manner as such Indebtedness is so subordinated to other Indebtedness of the Issuer or such Guarantor, as the case may be.
The Indenture does not treat (1) Indebtedness that is unsecured as subordinated or junior to Secured Indebtedness merely because it is unsecured or (2) Indebtedness as subordinated or junior to any other Indebtedness merely because it has a junior priority with respect to the same collateral.
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Liens
The Issuer will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist any Lien (except Permitted Liens) that secures obligations under any Indebtedness or any related guarantee, on any asset or property of the Issuer or such Restricted Subsidiary whether now owned or hereafter acquired, unless:
(1) in the case of Liens securing Subordinated Indebtedness, the Notes are (or in the case of a Lien on any asset or property of such Guarantor, its Guarantee is) secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; or
(2) in the case of Liens securing any other Indebtedness, the Notes are (or in the case of a Lien on any asset or property of such Guarantor, its Guarantee is) secured by an equal and ratable (or prior ranking) Lien on such property, assets or proceeds.
Any Lien created for the benefit of the Holders of the Notes pursuant to this covenant shall be deemed automatically and unconditionally released and discharged upon the release and discharge of the applicable Lien described in clauses (1) and (2) above.
For purposes of determining compliance with this covenant, a Lien securing an item of Indebtedness need not be permitted solely by reference to the second preceding paragraph or to one category (or portion thereof) of the Permitted Liens described in clauses (1) through (38) of the definition of Permitted Liens but may be permitted in part under any combination thereof.
With respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the incurrence of such Indebtedness, such Lien shall also be permitted to secure any Increased Amount of such Indebtedness. The Increased Amount of any Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual of interest, the accretion of accreted value, the amortization of original issue discount, the payment of interest in the form of additional Indebtedness with the same terms or in the form of common equity of a Restricted Subsidiary or any direct or indirect parent of a Restricted Subsidiary, the payment of dividends on Preferred Stock in the form of additional shares of Preferred Stock of the same class, accretion of original issue discount or liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies or increases in the value of property securing Indebtedness described in the definition of Indebtedness.
Merger, Consolidation or Sale of All or Substantially All Assets
The Issuer may not consolidate or merge with or into or wind up into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to any Person unless:
(1) the Issuer is the surviving Person or the Person formed by or surviving any such consolidation, merger or wind up (if other than the Issuer) or the Person to whom such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership (including a limited partnership), trust or limited liability company organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof (such Person, as the case may be, being herein called the Successor Company); provided that, if such Person is not a corporation, another Person that is a corporation organized or existing under such laws becomes a co-obligor of the Notes;
(2) the Successor Company, if other than the Issuer, expressly assumes all the obligations of the Issuer under the Indenture, the Notes and the Registration Rights Agreement pursuant to a supplemental indenture;
(3) immediately after such transaction, no Default exists;
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(4) immediately after giving pro forma effect to such transaction and any related financing transactions:
(A) the Successor Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Net Leverage Ratio test set forth in the first paragraph of the covenant described under Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock, or
(B) the Consolidated Net Leverage Ratio for the Successor Company and its Restricted Subsidiaries would be less than or equal to such ratio for the Issuer and its Restricted Subsidiaries immediately prior to such transaction; and
(5) the Issuer shall have delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indentures, if any, comply with the Indenture; provided that in giving an Opinion of Counsel, counsel may rely on an Officers Certificate as to any matters of fact, including as to satisfaction of clauses (3) and (4) above.
The Successor Company will succeed to, and be substituted for, the Issuer under the Indenture and the Notes and the Issuer will automatically be released and discharged from its obligations under the Indenture and the Notes except in the case of a lease. Notwithstanding the foregoing clauses (3), (4) and (5), which do not apply to transactions referred to in this sentence:
(a) any Restricted Subsidiary may consolidate with, merge into or wind up into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, the Issuer or any Restricted Subsidiary, and
(b) the Issuer may merge with an Affiliate of the Issuer solely for the purpose or effect of reorganizing the Issuer in a state or commonwealth of the United States, the District of Columbia or any territory thereof.
No Guarantor will, and the Issuer will not permit any such Guarantor to, consolidate or merge with or into or wind up into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions to any Person unless:
(1) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, merger or wind up (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the laws of the jurisdiction of organization of such Guarantor, as the case may be, or the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof (such Guarantor or such Person, as the case may be, being herein called the Successor Guarantor);
(B) the Successor Guarantor, if other than such Guarantor or another Guarantor, expressly assumes all the obligations of such Guarantor under the Indenture and such Guarantors related Guarantee pursuant to supplemental indentures; and
(C) immediately after such transaction, no Default exists; or
(2) the consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition complies with the covenant described under Asset Sales.
In the case of clause (1) above, the Successor Guarantor will succeed to, and be substituted for, such Guarantor under the Indenture and such Guarantors Guarantee and, except in the case of a lease, such Guarantor will automatically be released and discharged from its obligations under the Indenture and such Guarantors Guarantee. Notwithstanding the foregoing, (A) any Guarantor may merge into or transfer all or substantially all of its properties or assets to another Guarantor or the Issuer and (B) any Guarantor may merge with an Affiliate of the Guarantor solely for the purpose or effect of reorganizing the Guarantor in a state or commonwealth of the United States, the District of Columbia or any territory thereof.
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Transactions with Affiliates
The Issuer will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Issuer (each of the foregoing, an Affiliate Transaction) involving aggregate payments or consideration in excess of $25.0 million, unless:
(1) such Affiliate Transaction is on terms, taken as a whole, that are not materially less favorable to the Issuer or its relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction at the time of such transaction by the Issuer or such Restricted Subsidiary with an unrelated Person on an arms-length basis;
(2) any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $100.0 million is approved by a majority of the Board of Directors of the Issuer; and
(3) the Issuer delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $200.0 million, an opinion as to the fairness to the Issuer or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an Independent Financial Advisor.
The foregoing provisions do not apply to the following:
(1) transactions between or among the Issuer and any of its Restricted Subsidiaries (including transactions between or among the Issuers Restricted Subsidiaries) (or an entity that becomes a Restricted Subsidiary as a result of, or in connection with, such transaction, so long as neither such entity nor the selling entity was an Affiliate of the Issuer or any Restricted Subsidiary prior to such transaction);
(2) Restricted Payments permitted by the provisions of the Indenture described above under the covenant Limitation on Restricted Payments or Permitted Investments;
(3) the payment of reasonable fees and compensation paid to, and indemnities and reimbursements and employment, benefit and severance arrangements and agreements provided on behalf of, or entered into with, officers, directors, employees or consultants of the Issuer or any of its Restricted Subsidiaries;
(4) (A) any agreement or arrangement as in effect as of the Issue Date (or transactions pursuant thereto), (B) any other agreements or arrangements pursuant to or in connection with the Transactions or (C) any amendment, modification or supplement to the agreements referenced in clause (A) or (B) above or any replacement thereof, as long as the terms of such agreement or arrangement, as so amended, modified, supplemented or replaced are not materially more disadvantageous to the Holders when taken as a whole compared to the applicable agreements or arrangements as in effect on the Issue Date or as described in the Offering Memorandum, as applicable, as determined in good faith by the Issuer;
(5) [reserved];
(6) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, or transactions otherwise relating to the purchase or sale of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of the Indenture, which are fair to the Issuer and its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Issuer or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(7) the issuance or transfer of Equity Interests (other than Disqualified Stock) of the Issuer and the granting of registration and other customary rights in connection therewith;
(8) sales of accounts receivable, or participations therein, in connection with any Receivables Facility;
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(9) payments or loans (or cancellation of loans) to employees, directors or consultants of the Issuer or any of its Restricted Subsidiaries and employment agreements, benefit plans, equity plans, stock option and stock ownership plans and other similar arrangements with such employees, directors or consultants which, in each case, are approved by the Issuer in good faith;
(10) transactions with joint ventures for the purchase or sale of goods, equipment and services entered into in the ordinary course of business;
(11) transactions in which the Issuer or any Restricted Subsidiary, as the case may be, has delivered to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (1) of the preceding paragraph;
(12) the issuances of securities or other payments, loans (or cancellation of loans), awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, benefit plans, equity plans, stock option and stock ownership plans or similar employee benefit plans approved by the Board of Directors of the Issuer in good faith;
(13) any transaction with a Person (other than an Unrestricted Subsidiary) that would constitute an Affiliate Transaction solely because the Issuer or any of its Restricted Subsidiaries owns an Equity Interest in or otherwise controls such Person;
(14) any transaction in which the only consideration paid by the Issuer or any of its Restricted Subsidiaries is in the form of Equity Interest (other than Disqualified Stock) of the Issuer to Affiliates of the Issuer or any contribution to the capital of the Issuer or any Restricted Subsidiary (other than in consideration of Disqualified Stock);
(15) the provision to Unrestricted Subsidiaries of cash management, accounting, business and strategic management, legal, human resources, centralized purchasing, leasing and other overhead services (including any necessary or incidental use of equipment, goods or services involving intellectual property that are related to the foregoing) in the ordinary course of business undertaken in good faith and not for the purpose of circumventing any covenant set forth in the Indenture;
(16) intellectual property licenses in the ordinary course of business;
(17) transactions between the Issuer or any of its Restricted Subsidiaries and any Person that would constitute an Affiliate Transaction solely because a director of which is also a director of the Issuer or any other direct or indirect parent of the Issuer; provided, however, that such director abstains from voting as a director of the Issuer or such direct or indirect parent of the Issuer, as the case may be, on any matter involving such other Person;
(18) payments by the Issuer or any of its Restricted Subsidiaries pursuant to tax sharing agreements among the Issuer or any of its Restricted Subsidiaries;
(19) intercompany transactions undertaken in good faith for the purpose of improving the consolidated tax efficiency of the Issuer and its Restricted Subsidiaries and not for the purpose of circumventing any covenant set forth herein; and
(20) (A) the guarantee by the Issuer or any Restricted Subsidiary of the Indebtedness of any parent company of the Issuer that becomes the parent company of the Issuer in a Change of Control transaction consummated in accordance with the Indenture, or of any Indebtedness of Subsidiaries of such parent company; provided that such guarantee was permitted by the terms of the Indenture to be incurred and (B) the granting by the Issuer or any of its Restricted Subsidiaries of any Liens to secure such Indebtedness or such guarantee; provided that such Liens are permitted to be incurred under the Indenture.
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Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
The Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) (A) pay dividends or make any other distributions to the Issuer or any of its Restricted Subsidiaries on its Capital Stock, or with respect to any other interest or participation in, or measured by, its profits, or
(B) pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries;
(2) make loans or advances to the Issuer or any of its Restricted Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries, except (in each case) for such encumbrances or restrictions existing under or by reason of:
(a) contractual encumbrances or restrictions in effect on the Issue Date;
(b) the Indenture, the Notes and the Guarantees and (ii) any agreement governing Indebtedness permitted to be incurred pursuant to the covenant described under Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock; provided that the provisions relating to restrictions of the type described in clauses (1) through (3) above contained in such agreement, taken as a whole, are (in the good faith determination of the Issuer) not materially more restrictive than the provisions contained in the Senior Credit Facilities or in the Indenture, in each case as in effect when initially executed;
(c) purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (3) above on the property so acquired or leased;
(d) applicable law or any applicable rule, regulation or order;
(e) any agreement or other instrument of a Person (including an Unrestricted Subsidiary that becomes a Restricted Subsidiary whether by redesignation or otherwise) acquired by or merged or consolidated with or into the Issuer or any of its Restricted Subsidiaries in existence at the time of such transaction (but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired;
(f) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Issuer that impose restrictions solely on the assets to be sold;
(g) any Hedging Obligations;
(h) Secured Indebtedness otherwise permitted to be incurred pursuant to the covenants described under Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock and Liens that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(i) restrictions on cash or other deposits or net worth imposed by leases, customers under contracts or other contracts or agreements entered into in the ordinary course of business;
(j) other Indebtedness, Disqualified Stock or Preferred Stock of Non-Guarantor Subsidiaries permitted to be incurred subsequent to the Issue Date pursuant to the provisions of the covenant described under Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock;
(k) customary provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating solely to such joint venture;
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(l) customary provisions contained in leases, sub-leases, licenses or sub-licenses, permits, contracts and other agreements, in each case, entered into in the ordinary course of business;
(m) any agreements entered into in the ordinary course of business, not relating to Indebtedness and that do not, individually or in the aggregate, materially impair (in the good faith determination of the Issuer) the ability of the Issuer or the Guarantors to pay the principal and interest on the Notes;
(n) any agreement for the sale or other disposition of all or substantially all the Capital Stock or the assets of a Restricted Subsidiary to the extent it restricts distributions by that Restricted Subsidiary pending such sale or other disposition;
(o) customary provisions imposed on the transfer of copyrighted or patented materials;
(p) encumbrances or restrictions relating to the IPC Media Ltd., pension scheme;
(q) any encumbrances or restrictions of the type referred to in clauses (1), (2) and (3) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (a) through (p) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith determination of the Issuer, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing; and
(r) restrictions created in connection with any Receivables Facility that, in the good faith determination of the Issuer, are necessary or advisable to effect such Receivables Facility; provided that such restrictions apply only to the applicable Receivables Subsidiary.
For purposes of determining compliance with this covenant, (1) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock will not be deemed a restriction on the ability to make distributions on Capital Stock and (2) the subordination of loans or advances made to the Issuer or any Restricted Subsidiary to other Indebtedness Incurred by the Issuer or any Restricted Subsidiary will not be deemed a restriction on the ability to make loans or advances.
Asset Sales
The Issuer will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, unless:
(1) the Issuer or any such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Issuer) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, in the Issuers good faith determination, at least 75% of the consideration therefor received by the Issuer or any such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities (as shown on the Issuers most recent consolidated balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Issuers consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Issuer) of the Issuer or such Restricted Subsidiary (other than Contingent Obligations and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Asset Sale) and for which the Issuer and all such Restricted Subsidiaries have been released,
(B) any notes or other obligations or securities received by the Issuer or such Restricted Subsidiary from such transferee that are converted by the Issuer or such Restricted Subsidiary into cash
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or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within 180 days following the closing of such Asset Sale, and
(C) any Designated Non-cash Consideration received by the Issuer or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value (as determined in good faith by the Issuer) taken together with all other Designated Non-cash Consideration received pursuant to this clause (C) that is at that time outstanding (but, to the extent that any such Designated Non-Cash Consideration is sold or otherwise liquidated for cash, minus the lesser of (i) the amount of the cash received (less the cost of disposition, if any) and (ii) the initial amount of such Designated Non-Cash Consideration) not to exceed $150.0 million at the time of receipt, with the fair market value (as determined in good faith by the Issuer) of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value,
shall be deemed to be cash for purposes of this provision and for no other purpose.
Within 450 days after the receipt of any Net Proceeds of any Asset Sale, the Issuer or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale,
(1) to permanently reduce:
(A) Obligations under the Senior Credit Facilities and to correspondingly reduce commitments with respect thereto,
(B) Obligations under Pari Passu Indebtedness that are secured by a Lien, which Lien is permitted by the Indenture, and to correspondingly reduce commitments with respect thereto,
(C) Obligations under the Notes (provided that such purchases are at or above 100% of the principal amount thereof) or any other Pari Passu Indebtedness of the Issuer or a Guarantor (and to correspondingly reduce commitments with respect thereto, if applicable); provided that if such Net Proceeds are applied to other Pari Passu Indebtedness (other than the Senior Credit Facilities or other Secured Indebtedness) then the Issuer shall (i) equally and ratably reduce Obligations under the Notes (x) as provided under Optional Redemption or (y) through open market purchases (provided that such purchases are at or above 100% of the principal amount thereof) or (ii) make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders of Notes to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the principal amount of Notes that would otherwise be redeemed under clause (i), or
(D) Indebtedness of a Non-Guarantor Subsidiary, other than Indebtedness owed to the Issuer or any of its Restricted Subsidiaries; or
(2) to (A) make an Investment in any one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Issuer or any of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (B) make capital expenditures or (C) acquire, maintain, develop, construct, improve, upgrade or repair businesses, properties and/or assets (other than Equity Interests in a Person that is not, or does not as a result of any such acquisition become, a Restricted Subsidiary) that, in the case of each of (A), (B) and (C) are either (x) used or useful in a Similar Business or (y) replace the businesses, properties and/or assets that are the subject of such Asset Sale;
provided that, in the case of clause (2) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Issuer or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an Acceptable Commitment); and provided further that if any Acceptable Commitment is later cancelled or terminated for
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any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds if not otherwise applied as provided above within 450 days of the receipt of such Net Proceeds; or
(3) any combination of the foregoing.
Any Net Proceeds from an Asset Sale that are not invested or applied as provided and within the time period set forth in the first sentence of the preceding paragraph will be deemed to constitute Excess Proceeds. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Issuer or any of its Restricted Subsidiaries shall make an offer to all Holders of the Notes and, if required by the terms of any Pari Passu Indebtedness, to the holders of such Pari Passu Indebtedness (an Asset Sale Offer) to purchase the maximum aggregate principal amount of the Notes in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof and such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be provided for or permitted by the terms of such Pari Passu Indebtedness), to the date fixed for the closing of such offer, in accordance with the procedures set forth in the Indenture.
The Issuer will commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $50.0 million by mailing (or otherwise delivering in accordance with the applicable procedures of DTC) the notice required pursuant to the terms of the Indenture, with a copy to the Trustee.
To the extent that the aggregate principal amount of Notes and such Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to the other covenants contained in the Indenture. If the aggregate amount (determined as above) of Notes and the Pari Passu Indebtedness surrendered in an Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Issuer or the agent for such Pari Passu Indebtedness shall select such Pari Passu Indebtedness to be purchased on a pro rata basis (or as nearly pro rata as practicable) based on the amount (determined as set forth above) of the Notes and such Pari Passu Indebtedness tendered, unless otherwise required by law or the rules of the principal national securities exchange, if any, on which the Notes or such Pari Passu Indebtedness are listed or by lot or such other similar method in accordance with the procedures of DTC; provided that no Notes of $2,000 or less shall be repurchased in part. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. The Issuer and its Restricted Subsidiaries, at its option in its sole discretion, may make an Asset Sale Offer and satisfy the obligations described under this covenant Asset Sales with respect to any Excess Proceeds prior to the amount of Excess Proceeds exceeding $50.0 million, in which case, upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reduced by the amounts of such Excess Proceeds. If any Excess Proceeds remain after the completion of an Asset Sale Offer, the Issuer and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture.
Pending the final application of any Net Proceeds pursuant to this covenant, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner not prohibited by the Indenture.
The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture, the Issuer will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in the Indenture by virtue thereof.
The provisions under the Indenture relative to the Issuers obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a majority in principal amount of the Notes.
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The Senior Credit Facilities limit or prohibit, and we expect that future credit agreements, indentures or other agreements relating to Indebtedness to which the Issuer becomes a party may limit or prohibit, the Issuer from purchasing any Notes pursuant to this covenant. In the event the Issuer is prohibited from purchasing any Notes pursuant to this covenant, we could seek the consent of our lenders to purchase the Notes or attempt to refinance the borrowings that contain such prohibition. If we do not obtain such consent or repay such borrowings, we will remain prohibited from purchasing the Notes. In this case, our failure to purchase the tendered Notes would constitute a Default under the Indenture.
Our ability to purchase any Notes pursuant to this covenant may be limited by our then-existing financial resources. Therefore, sufficient funds may not be available when necessary to make any required repurchases.
Limitation on Guarantees of Indebtedness by Restricted Subsidiaries
The Issuer will not permit any Subsidiary that is a Restricted Subsidiary other than a Guarantor to guarantee the payment of any Indebtedness of the Issuer or a Guarantor unless (x) the aggregate amount of all such Indebtedness guaranteed by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million or (y):
(1) the aggregate amount of all such Indebtedness guaranteed by Restricted Subsidiaries that are not Guarantors exceeds $50.0 million;
(2) within 45 days after the date that such Indebtedness is guaranteed, such Restricted Subsidiary executes and delivers a supplemental indenture to the Indenture providing for a Guarantee by such Restricted Subsidiary, except that with respect to a guarantee of Indebtedness of the Issuer or any Guarantor:
(A) if the Notes or such Guarantors Guarantee is subordinated in right of payment to such Indebtedness, the Guarantee under the supplemental indenture shall be subordinated to such Restricted Subsidiarys guarantee with respect to such Indebtedness substantially to the same extent as the Notes or such Guarantors Guarantee is subordinated to such Indebtedness; and
(B) if such Indebtedness is by its express terms subordinated in right of payment to the Notes or such Guarantors Guarantee, any such guarantee by such Restricted Subsidiary with respect to such Indebtedness shall be subordinated in right of payment to such Restricted Subsidiarys Guarantee of the Notes substantially to the same extent as such Indebtedness is subordinated to the Notes or such Guarantors Guarantee; and
(C) the Issuer shall within such 45 days deliver to the Trustee an Opinion of Counsel stating that (A) such Guarantee has been duly executed and authorized and (B) such Guarantee constitutes a valid, binding and enforceable obligation of such Restricted Subsidiary, except insofar as enforcement thereof may be limited by bankruptcy, insolvency or similar laws (including all laws relating to fraudulent transfers) and except insofar as enforcement thereof is subject to general principles of equity;
provided that this covenant shall not be applicable to any guarantee of any Restricted Subsidiary that existed at the time such Person became a Restricted Subsidiary and was not incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary. The Issuer may elect, in its sole discretion, to cause any Subsidiary that is not otherwise required to be a Guarantor to become a Guarantor, in which case such Subsidiary shall not be required to comply with the 45 day periods described above.
Limitation on Sale and Lease-Back Transactions
The Issuer will not, and will not permit any Restricted Subsidiary to, directly or indirectly, enter into any Sale and Lease-Back Transaction; provided, that the Issuer or any Restricted Subsidiary may enter into a Sale and Lease-Back Transaction if:
(1) the Issuer or such Restricted Subsidiary, as applicable, could have (a) incurred Indebtedness in an amount equal to the Attributable Debt relating to such Sale and Lease-Back Transaction under the covenant
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described above under Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock and (b) incurred a Lien to secure such Indebtedness without equally and ratably securing the Notes pursuant to the covenant described above under Liens; and
(2) the transfer of assets in such Sale and Lease-Back Transaction is permitted by, and the Issuer or such Restricted Subsidiary applies the proceeds of such transaction in compliance with, the covenant described above under Asset Sales.
Business Activities
The Issuer will not, and will not permit any Restricted Subsidiary to, engage in any business other than Similar Businesses, except as would not be material to the Issuer and its Restricted Subsidiaries, taken as a whole.
Reports and Other Information
If, at any time, the Issuer is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer will file with the SEC, subject to the following sentence, and provide the Trustee (and, upon written request, the Noteholders, to the extent not publicly available on the SECs EDGAR system (or any successor system) or the Issuers website) such annual and other reports as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation subject to such Sections, such reports to be so filed and provided at the times specified for the filings by the Issuer of such reports under such Sections and containing, in all material respects, the information and audit reports required for such reports. If, at any time, the Issuer is not subject to the periodic reporting requirements of the Exchange Act for any reason, the Issuer will provide the Trustee and make available to Noteholders, prospective investors, market makers affiliated with any Initial Purchaser and securities analysts the reports specified in the preceding sentence by posting such reports to its website or on IntraLinks or any comparable password-protected online data system, in each case, within 15 days after the time the Issuer would be required to file such information with the SEC if it were a non-accelerated filer subject to Section 13 or 15(d) of the Exchange Act.
Notwithstanding the foregoing, (1) none of the foregoing reports (A) will be required to comply with Section 302, Section 404 or Section 906 of the Sarbanes-Oxley Act of 2002, or related Items 307 and 308 of Regulation S-K promulgated by the SEC, (B) will be required to comply with Regulation G or Item 10(e) of Regulation S-K promulgated by the SEC (with respect to any non-GAAP financial measures contained therein), (C) will be required to contain the separate financial information for Guarantors and non-guarantor subsidiaries contemplated by Rule 3-10 of Regulation S-X promulgated by the SEC, (D) will be required to present compensation or beneficial ownership information and (E) will be required to contain information required by Item 601 of Regulation S-K and (2) if any parent of the Issuer becomes a guarantor of the Notes, the reports, information and other documents required to be filed and provided as described above may be those of the parent, rather than those of the Issuer, so long as such filings would satisfy the SECs requirements; provided that such reports include a reasonable explanation of the material differences between the assets, liabilities and results of operations of such parent and its consolidated Subsidiaries on the one hand, and the Issuer and its Restricted Subsidiaries on the other hand.
Notwithstanding anything herein to the contrary, the Issuer will not be deemed to have failed to comply with any of its obligations described under this covenant for purposes of clause (3) under Events of Defaults and Remedies until 120 days after the date any report hereunder is due. To the extent any such information is not so filed or provided, as applicable, within the time periods specified above and such information is subsequently filed or provided, as applicable, the Issuer will be deemed to have satisfied its obligations with respect thereto at such time and any Default or Event of Default with respect thereto shall be deemed to have been cured at such time; provided that such cure shall not otherwise affect the rights of the Holders under Events of Default and Remedies if Holders of at least 25% in principal amount of the then total outstanding Notes have declared the principal of accrued but unpaid and interest on all the then outstanding Notes to be due and payable immediately and such declaration shall not have been rescinded or cancelled prior to such cure.
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In addition, at any time when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer will agree that, for so long as any Notes remain outstanding and are restricted securities within the meaning of Rule 144(a)(3) under the Securities Act, it will furnish to the Holders and to prospective investors, upon their written request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
Delivery of reports, information and documents to the Trustee under the Indenture is for informational purposes only and the information and such trustees receipt of the foregoing shall not constitute constructive notice of any information contained therein, or determinable from information contained therein including our compliance with any of its covenants thereunder (as to which such trustee is entitled to rely exclusively on an officers certificate).
Events of Default and Remedies
The Indenture provides that each of the following is an Event of Default with respect to the Notes:
(1) default in payment when due and payable, upon redemption, acceleration or otherwise, of principal of the Notes;
(2) default for 30 days or more in the payment when due of interest on or with respect to the Notes;
(3) failure by the Issuer or any Restricted Subsidiary for 60 days after receipt of written notice given by the Trustee or the Holders of not less than 25% in principal amount of the Notes then outstanding to comply with any of its other obligations, covenants or agreements (other than a default referred to in clause (1) or (2) above) contained in the Indenture or the Notes;
(4) default under any mortgage, indenture or instrument under which there is issued or by which there is secured or evidenced any Indebtedness for money borrowed by the Issuer or any of its Restricted Subsidiaries or the payment of which is guaranteed by the Issuer or any of its Restricted Subsidiaries, other than Indebtedness owed to the Issuer or a Restricted Subsidiary, whether such Indebtedness or guarantee now exists or is created after the issuance of the Notes, if both:
(A) such default either results from the failure to pay any principal of such Indebtedness at its stated final maturity (after giving effect to any applicable grace periods) or relates to an obligation other than the obligation to pay principal of any such Indebtedness at its stated final maturity and results in the holder or holders of such Indebtedness causing such Indebtedness to become due prior to its stated maturity; and
(B) the principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness in default for failure to pay principal at stated final maturity (after giving effect to any applicable grace periods), or the maturity of which has been so accelerated, aggregate $150.0 million or more;
(5) failure by the Issuer or any Significant Subsidiary to pay final judgments aggregating in excess of $150.0 million (other than any judgments covered by indemnities provided by, or insurance policies issued by, reputable and creditworthy companies), which final judgments remain unpaid, undischarged and unstayed for a period of more than 60 days after such judgment becomes final, and in the event such judgment is not covered by an indemnity or insurance, an enforcement proceeding has been commenced by any creditor upon such judgment or decree which is not promptly stayed;
(6) certain events of bankruptcy or insolvency with respect to the Issuer or any Significant Subsidiary; or
(7) the Guarantee of any Significant Subsidiary shall for any reason cease to be in full force and effect (except as otherwise not prohibited by the Indenture) or be declared null and void or any responsible officer of such Guarantor that is a Significant Subsidiary denies that it has any further liability under its Guarantee or gives notice to such effect, in each case other than by reason of the termination of the Indenture or the release of any such Guarantee in accordance with the Indenture.
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If any Event of Default (other than of a type specified in clause (6) above with respect to the Issuer) occurs and is continuing under the Indenture, the Trustee (acting at the direction of the Holders of at least 25% in principal amount of the then total outstanding Notes) or the Holders of at least 25% in principal amount of the then total outstanding Notes may declare the principal of, and accrued but unpaid interest, if any, on, all the then outstanding Notes to be due and payable immediately.
Upon the effectiveness of such declaration, such principal and any accrued and unpaid interest on all the then outstanding Notes will be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising under clause (6) of the first paragraph of this section with respect to the Issuer, the principal of, and accrued but unpaid interest, if any, on, all the then outstanding Notes will become due and payable without further action or notice.
The Indenture provides that the Trustee may withhold from the Holders notice of any continuing Default or Event of Default, except a Default or Event of Default relating to the payment of principal or interest, if it determines that withholding notice is in their interest. In addition, the Trustee shall have no obligation to accelerate the Notes if in the reasonable judgment of the Trustee acceleration is not in the best interest of the Holders of the Notes.
The Indenture provides that the Holders of a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or Event of Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of interest on or the principal of any Note held by a non-consenting Holder and rescind any acceleration and its consequences with respect to the Notes (except if such recession would conflict with any judgment of a court of competent jurisdiction). In the event of any Event of Default specified in clause (4) above, such Event of Default and all consequences thereof (excluding any resulting payment default, other than as a result of acceleration of the Notes) shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if within 20 days after such Event of Default arose:
(1) the Indebtedness or guarantee that is the basis for such Event of Default has been discharged; or
(2) the holders thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default; or
(3) the default that is the basis for such Event of Default has been cured.
Subject to the provisions of the Indenture relating to the duties of the Trustee thereunder, in case an Event of Default occurs and is continuing, the Trustee is under no obligation to exercise any of the rights or powers under the Indenture at the request or direction of any of the Holders of the Notes unless the Holders have offered to the Trustee indemnity or security satisfactory to the Trustee against any loss, liability or expense. Except to enforce the right to receive payment of principal or interest when due, no Holder of a Note may pursue any remedy with respect to the Indenture or the Notes unless:
(1) such Holder has previously given the Trustee written notice that an Event of Default is continuing with respect to the Notes;
(2) Holders of at least 25% in principal amount of the total outstanding Notes have requested the Trustee in writing to pursue the remedy;
(3) Holders of the Notes have offered the Trustee security or indemnity satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee has not complied with such written request within 60 days after the receipt thereof and the offer of security or indemnity against any loss, liability or expense; and
(5) Holders of a majority in principal amount at maturity of the total outstanding Notes have not given the Trustee a direction inconsistent with such request within such 60-day period.
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Subject to certain restrictions, under the Indenture the Holders of a majority in principal amount of the total outstanding Notes will be given the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. The Trustee, however, may refuse to follow any direction that conflicts with law or the Indenture or that the Trustee determines is unduly prejudicial to the rights of any other Holder of a Note or that would involve the Trustee in personal liability.
The Indenture provides that the Issuer is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Issuer is required, within 30 days after becoming aware of any Default, to deliver to the Trustee a statement specifying such Default.
No Personal Liability of Directors, Officers, Employees and Stockholders
No director, officer, employee, incorporator, member or stockholder of the Issuer or any Guarantor, in their capacity as such, shall have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Guarantees or the Indenture or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder by accepting Notes waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws.
Legal Defeasance and Covenant Defeasance
The obligations of the Issuer and the Guarantors under the Indenture and the Notes will terminate (other than certain obligations) and will be released upon payment in full of the Notes. The Issuer may, at its option and at any time, elect to have all of its obligations discharged with respect to the Indenture and the Notes and have the Issuers and each Guarantors obligation discharged with respect to its related Guarantee (Legal Defeasance) and cure all then existing Events of Default except for:
(1) the rights of Holders of the Notes to receive payments in respect of the principal of, premium, if any, and interest on the Notes when such payments are due solely out of the trust created pursuant to the Indenture and the Notes;
(2) the Issuers obligations with respect to the Indenture and the Notes concerning issuing temporary Notes, registration of such Notes, mutilated, destroyed, lost or Notes and the maintenance of an office or agency for payment and money for security payments held in trust;
(3) the rights, powers, trusts, duties and immunities of the Trustee, and the Issuers obligations in connection therewith; and
(4) the Legal Defeasance provisions of the Indenture and the Notes.
In addition, the Issuer may, at its option and at any time, elect to have its obligations and those of each Guarantor released with respect to substantially all of the restrictive covenants in the Indenture and the Notes (Covenant Defeasance) and thereafter any omission to comply with such obligations shall not constitute a Default with respect to the Indenture and the Notes. In the event Covenant Defeasance occurs with respect to the Indenture and the Notes, certain events (not including bankruptcy, receivership, rehabilitation and insolvency events pertaining to the Issuer) described under Events of Default and Remedies will no longer constitute an Event of Default with respect to the Indenture and the Notes.
In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the Indenture and the Notes:
(1) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of Independent Financial Advisors, to pay the
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principal amount of, premium, if any, and interest due on the Notes on the stated maturity date or on the Redemption Date, as the case may be, of such principal amount, premium, if any, or interest on the Notes and the Issuer must specify whether the Notes are being defeased to maturity or to a particular Redemption Date;
(2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions,
(A) the Issuer has received from, or there has been published by, the United States Internal Revenue Service a ruling, or
(B) since the issuance of the Notes, there has been a change in the applicable U.S. federal income tax law,
in either case to the effect that, and based thereon, such Opinion of Counsel shall confirm that, subject to customary assumptions and exclusions, the Holders of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes, as applicable, as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, the Holders of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to such tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit with respect to the Indenture and the Notes;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under the Senior Credit Facilities or any other material agreement or instrument (other than the Indenture) to which, the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor is bound (other than that resulting from borrowing of funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith);
(6) the Issuer shall have delivered to the Trustee an Officers Certificate stating that the deposit was not made by the Issuer with the intent of defeating, hindering, delaying or defrauding any creditors of the Issuer or any Guarantor or others; and
(7) the Issuer shall have delivered to the Trustee an Officers Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions), each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
Satisfaction and Discharge
The Indenture and the Notes will be discharged and will cease to be of further effect (except as to certain surviving rights, as expressly provided for in the Indenture), when either:
(1) all Notes theretofore authenticated and delivered, except mutilated, lost or destroyed Notes which have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust, have been delivered to the Trustee for cancellation; or
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(2) (A) all Notes not theretofore delivered to the Trustee for cancellation have become due and payable by reason of the making of a notice of redemption or otherwise, will become due and payable within one year or are to be called for redemption and redeemed within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer, and the Issuer or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders of the Notes cash in U.S. dollars, Government Securities, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest to pay and discharge the entire indebtedness on the Notes not theretofore delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption;
(B) the Issuer has paid or caused to be paid all sums payable by it under the Indenture and the Notes; and
(C) the Issuer has delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the Notes at maturity or the redemption date, as the case may be.
In addition, the Issuer must deliver an Officers Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.
Amendment, Supplement and Waiver
Except as provided in the next two succeeding paragraphs, the Indenture, any Guarantee and the Notes may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding, other than Notes beneficially owned by the Issuer or its Affiliates (including consents obtained in connection with a purchase of, or tender offer or exchange offer for Notes), and any existing Default or Event of Default or compliance with any provision of the Indenture or the Notes issued thereunder may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes, other than Notes beneficially owned by the Issuer or its Affiliates (including consents obtained in connection with a purchase of or tender offer or exchange offer for the Notes).
The Indenture provides that, without the consent of each affected Holder of Notes, an amendment or waiver may not, with respect to any Notes held by a non-consenting Holder:
(1) reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;
(2) reduce the principal amount of or change the fixed final maturity of any Note or reduce the premium payable upon redemption or change the time at which such Note may be redeemed (excluding any amendment or waiver of any minimum notice period for redemption which may be amended with the consent of the Holders of at least a majority of the Notes then outstanding) as described under Optional Redemption;
(3) reduce the rate of or change the time for payment of interest on any Note;
(4) waive a Default or Event of Default in the payment of principal of or interest on the Notes, except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of Notes and a waiver of the payment default that resulted from such acceleration;
(5) make any Note payable in money other than that stated therein;
(6) make any change in the provisions of the Indenture and the Notes relating to waivers of past Defaults or Events of Default or the rights of Holders to receive payments of principal of or interest on the Notes;
(7) make any change in these amendment and waiver provisions as it relates to the Indenture and the Notes;
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(8) impair the contractual right of any Holder to receive payment of principal of, or interest on such Holders Notes on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holders Notes;
(9) make any change to or modify the ranking as to contractual right of payment of the Notes that would adversely affect the Holders; or
(10) except as expressly permitted by the Indenture, modify the terms of the Guarantees of any Significant Subsidiary in any manner adverse to the Holders of the Notes.
Notwithstanding the foregoing, the Issuer, any Guarantor (with respect to a Guarantee or the Indenture) and the Trustee may amend or supplement the Indenture and any Guarantee or the Notes without the consent of any Holder:
(1) to cure any ambiguity, omission, mistake, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in place of certificated Notes;
(3) to comply with the covenant relating to mergers, consolidations and sales of assets;
(4) to provide the assumption of the Issuers or any Guarantors obligations to the Holders;
(5) to make any change that would provide any additional rights or benefits to the Holders or that in the good faith judgment of the Issuer does not materially adversely affect the legal rights under the Indenture of any such Holder;
(6) to add covenants for the benefit of the Holders or to surrender any right or power conferred upon the Issuer or any Guarantor;
(7) to comply with requirements of the SEC or to comply with the rules of any applicable securities depository;
(8) to evidence and provide for the acceptance and appointment under the Indenture of a successor Trustee thereunder pursuant to the requirements thereof;
(9) to add or release a Guarantor under the Indenture, or to secure the Obligations thereunder;
(10) to make such provisions as necessary for the issuance of Additional Notes otherwise permitted to be issued under the Indenture;
(11) to conform the text of the Indenture, the Guarantees or the Notes to any provision of this Description of Notes, as set forth in an Officers Certificate delivered to the Trustee; or
(12) to add to, change, eliminate or otherwise amend provisions of the Indenture, the Guarantees or the Notes in accordance with the Trust Indenture Act of 1939, as amended, or to comply with the provisions of the DTC, Euroclear or Clearstream or the Trustee with respect to provisions relating to the transfer, exchange or legending of Notes or beneficial interests in the Notes as permitted by the Indenture, including to facilitate the issuance and administration of the Notes; provided, however, that (i) compliance with the Indenture as so amended would not result in Notes being transferred in violation of the Securities Act or any applicable securities law and (ii) such amendment in the good faith judgment of the Issuer does not materially and adversely affect the rights of Holders to transfer Notes.
The consent of the Holders is not necessary under the Indenture to approve the particular form of any proposed amendment. It is sufficient if such consent approves the substance of the proposed amendment.
The Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder of Notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of the Indenture or the Notes unless such consideration is offered to be paid to all Holders of the Notes that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement.
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Notices
Notices given by publication will be deemed given on the first date on which publication is made and notices given by first-class mail, postage prepaid, will be deemed given five calendar days after mailing. Notices given electronically will be deemed given when sent. Any notices required to be given to the holders of Notes represented by global notes will be given to DTC and sent in accordance with its procedures.
Concerning the Trustee
The Indenture provides that the Holders of a majority in principal amount of the outstanding Notes have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee, subject to certain exceptions. Except during the continuance of an Event of Default, the Trustee will perform only such duties as are specifically set forth in the Indenture. The Indenture provides that during the continuance of an Event of Default, the Trustee will exercise such rights and powers vested in it by the Indenture, and use the degree of care of a prudent person in the conduct of his own affairs under the circumstances. Subject to such provisions, the Trustee will be under no obligation to exercise any of its rights or powers under the Indenture at the request of any Holder of the Notes, unless such Holder shall have offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.
Governing Law
The Indenture, the Notes and any Guarantee are governed by, and construed in accordance with, the laws of the State of New York.
Financial Calculations for Limited Condition Acquisitions and Irrevocable Notices
With respect to any (x) acquisition or similar Investment by the Issuer or one or more of its Restricted Subsidiaries whose consummation is not conditioned upon the availability of, or on obtaining, third-party financing (whether by merger, consolidation or other business combination or the acquisition of Capital Stock or otherwise) (any such acquisition or Investment, a Limited Condition Acquisition) or (y) repayment, repurchase or refinancing of Indebtedness with respect to which an irrevocable notice of repayment (or similar irrevocable notice) has been delivered (any such notice, an Irrevocable Notice Transaction), in each case, for purposes of determining:
(1) whether any Indebtedness (including Acquired Indebtedness) that is being incurred in connection with such Limited Condition Acquisition or Irrevocable Notice Transaction is permitted to be incurred in compliance with the covenant described under the caption Certain CovenantsLimitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock;
(2) whether any Lien being incurred in connection with such Limited Condition Acquisition or Irrevocable Notice Transaction or to secure any such Indebtedness is permitted to be incurred in accordance with the covenant described under the caption Certain CovenantsLiens or the definition of Permitted Liens;
(3) whether any other transaction undertaken or proposed to be undertaken in connection with such Limited Condition Acquisition or Irrevocable Notice Transaction complies with the covenants or agreements contained in the Indenture or the Notes; and
(4) any calculation of the Consolidated Net Leverage Ratio, Consolidated Secured Net Leverage Ratio, Net Income, Consolidated Net Income and/or Consolidated Adjusted EBITDA and, whether a Default or Event of Default exists in connection with the foregoing,
at the option of the Issuer, using the date that the definitive agreement for such Limited Condition Acquisition is entered into or the date that an irrevocable notice is given for such Irrevocable Notice Transaction, as the case
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may be (any such date, the LCT Election Date) may be used as the applicable date of determination, as the case may be, in each case with such pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of Consolidated Net Leverage Ratio or Consolidated Adjusted EBITDA. For the avoidance of doubt, if the Issuer elects to use the LCT Election Date as the applicable date of determination in accordance with the foregoing, (a) any fluctuation or change in the Consolidated Net Leverage Ratio, Consolidated Secured Net Leverage Ratio, Net Income, Consolidated Net Income, and/or Consolidated Adjusted EBITDA of the Issuer, the target business or assets to be acquired subsequent to the LCT Election Date and at or prior to the consummation of such acquisition or similar Investment or repayment, repurchase or refinancing of Indebtedness, will not be taken into account for purposes of determining whether any Indebtedness or Lien that is being incurred in connection with such acquisition or similar Investment or repayment, repurchase or refinancing of Indebtedness is permitted to be incurred or in connection with compliance by the Issuer or any of the Restricted Subsidiaries with any other provision of the Indenture or the Notes or any other transaction undertaken in connection with such acquisition or similar Investment or repayment, repurchase or refinancing of Indebtedness and (b) until such acquisition or similar Investment or repayment, repurchase or refinancing of Indebtedness is consummated or such definitive agreements are terminated, such acquisition or similar Investment or repayment, repurchase or refinancing of Indebtedness and all transactions proposed to be undertaken in connection therewith (including the incurrence of Indebtedness and Liens) will be given pro forma effect when determining compliance of other transactions (including the incurrence of Indebtedness and Liens unrelated to such acquisition or similar Investment or repayment, repurchase or refinancing of Indebtedness) that are consummated after the LCT Election Date and on or prior to the consummation of such acquisition or similar Investment or repayment, repurchase or refinancing of Indebtedness and any such transactions (including any incurrence of Indebtedness and the use of proceeds thereof) will be deemed to have occurred on the date the definitive agreements are entered and outstanding thereafter for purposes of calculating any baskets or ratios under the Indenture after the date of such agreement and before the consummation of such acquisition or similar Investment or repayment, repurchase or refinancing of Indebtedness; provided that in connection with the making of Restricted Payments, the calculation of Consolidated Net Income (and any defined term a component of which is Consolidated Net Income) will not, in any case, assume such acquisition or similar Investment has been consummated. In addition, the Indenture provides that compliance with any requirement relating to absence of Default or Event of Default may be determined as of the LCT Election Date and not as of any later date as would otherwise be required under the Indenture. In the event an item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) is incurred or issued, any Lien is incurred or other transaction is undertaken on the same date that any other item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) is incurred or issued, any other Lien is incurred or other transaction is undertaken, then the Consolidated Net Leverage Ratio or Consolidated Secured Net Leverage Ratio will be calculated with respect to such incurrence, issuance or other transaction without regard to any other incurrence, issuance or transaction. Each item of Indebtedness, Disqualified Stock or Preferred Stock that is incurred or issued, each Lien incurred and each other transaction undertaken will be deemed to have been incurred, issued or taken first, to the extent available, pursuant to the relevant Consolidated Net Leverage Ratio or Consolidated Secured Net Leverage Ratio.
Certain Definitions
Set forth below are certain defined terms used in the Indenture. For purposes of the Indenture, unless otherwise specifically indicated, the term consolidated with respect to any Person refers to such Person consolidated with the Issuer and its Restricted Subsidiaries, and excludes from such consolidation any Unrestricted Subsidiary as if such Unrestricted Subsidiary were not an Affiliate of such Person.
Acquired Indebtedness means, with respect to any specified Person, (1) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Restricted Subsidiary of such specified Person, including Indebtedness incurred in connection with, or in contemplation of, such other Person merging with or into or becoming a Restricted Subsidiary of such specified Person, and (2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person. The term Acquired Indebtedness does not
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include Indebtedness of a Person that is redeemed, discharged, defeased, retired or otherwise repaid at the time of, or immediately upon consummation of, the transactions by which such Person became a Restricted Subsidiary or such asset acquisition.
Affiliate of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, control (including, with correlative meanings, the terms controlling, controlled by and under common control with), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
Applicable Premium means, with respect to any Note on any Redemption Date, the greater of:
(1) 1.0% of the principal amount of such Note; and
(2) the excess, if any, of:
(A) the present value at such Redemption Date of (i) the redemption price of such Note at February 1, 2021 (such redemption price being set forth in the table appearing above under Optional Redemption), plus (ii) all required interest payments due on such Note through February 1, 2021 (excluding accrued but unpaid interest to the Redemption Date), computed using a discount rate equal to the Treasury Rate as of such Redemption Date plus 50 basis points; over
(B) the principal amount of such Note,
as calculated by the Issuer or on behalf of the Issuer by such Person as the Issuer may designate.
Asset Sale means:
(1) the sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions, of property or assets (including by way of a Sale and Lease-Back Transaction) of the Issuer or any of its Restricted Subsidiaries (each referred to in this definition as a disposition); or
(2) the issuance or sale of Equity Interests of any Restricted Subsidiary (other than Preferred Stock of Restricted Subsidiaries issued in compliance with the covenant described under Certain CovenantsLimitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock and the issuance or sale of Equity Interests representing directors qualifying shares or shares or interests required to be held by foreign nationals or other third parties to the extent required by applicable law), whether in a single transaction or a series of related transactions;
in each case, other than:
(1) any disposition of cash, Cash Equivalents or Investment Grade Securities, or of damaged, unnecessary, obsolete or worn out equipment or other property or assets in the ordinary course of business, or of property or assets no longer used or useful or economically practicable to maintain in the business of the Issuer and its Restricted Subsidiaries in the reasonable opinion of the Issuer, or of any disposition of inventory or goods (or other property or assets) in the ordinary course of business;
(2) the disposition of all or substantially all of the property or assets of the Issuer or any of its Subsidiaries pursuant to the provisions described above under Certain CovenantsMerger, Consolidation or Sale of All or Substantially All Assets or any disposition that constitutes a Change of Control pursuant to the Indenture;
(3) the making of any Restricted Payment or Permitted Investment that is permitted to be made, and is made, under the covenant described above under Certain CovenantsLimitation on Restricted Payments;
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(4) any disposition of property or assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Issuer) not to exceed $20.0 million;
(5) any disposition of property or assets or issuance of securities by a Restricted Subsidiary to the Issuer or by the Issuer or a Restricted Subsidiary to another Restricted Subsidiary;
(6) to the extent allowable under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(7) the sale, lease, assignment, license, sublicense or sub-lease of any real or personal property, assets or services in the ordinary course of business;
(8) any disposition of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(9) any disposition of property or assets subject to a Lien held by the Issuer or a Restricted Subsidiary in a foreclosure, eminent domain, seizure or similar proceeding or exercises of termination rights under any lease, license, concession or other agreement or dispositions of property or assets required by law, governmental regulation or any order of any court, administrative agency or regulatory body;
(10) sales of accounts receivable, or participations therein, and related assets or rights customarily sold or assigned, in each case in connection with any Receivables Facility;
(11) (A) non-exclusive licenses, sublicenses or cross-licenses of intellectual property or other general intangibles of, and (B) exclusive licenses, sublicenses or cross-licenses of intellectual property or other general intangibles in the ordinary course of business of, the Issuer or its Restricted Subsidiaries;
(12) sales, transfers and other dispositions of Investments or other interests in joint ventures or similar entities to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the parties set forth in joint venture arrangements and similar binding arrangements;
(13) the lapse or abandonment of intellectual property rights in the ordinary course of business, which in the good faith determination of the Issuer is not material to the conduct of the business of the Issuer and its Restricted Subsidiaries, taken as a whole;
(14) the granting of Liens not prohibited by the Indenture;
(15) the unwinding of any Hedging Obligations;
(16) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Issuer in good faith;
(17) any surrender or waiver of obligations of trade creditors or customers or contract rights or the settlement, release or surrender of contractual rights, tort or other claims of any kind;
(18) dispositions or discounts of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(19) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property constructed, acquired, replaced, repaired or improved by the Issuer or any of its Restricted Subsidiaries after the Issue Date;
(20) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
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(21) any swap of assets in the ordinary course of business in exchange for services (including in connection with any outsourcing arrangements) of comparable or greater value or usefulness to the business of the Issuer and its Restricted Subsidiaries, taken as a whole, as determined in good faith by an Issuer; and
(22) any Merger Agreement Dispositions.
Attributable Debt means, in respect of any Sale and Lease-Back Transaction, at the time of determination, the present value of the total obligations of the lessee for net rental payments during the remaining term of the lease included in such Sale and Lease-Back Transaction, including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP.
Board of Directors means (1) with respect to the Issuer or any corporation, the board of directors or managers, as applicable, of the corporation, or any duly authorized committee thereof; (2) with respect to any partnership, the board of directors or other governing body of the general partner of the partnership or any duly authorized committee thereof; and (3) with respect to any other Person, the board or any duly authorized committee of such Person serving a similar function. Whenever any provision requires any action or determination to be made by, or any approval of, a Board of Directors, such action, determination or approval shall be deemed to have been taken or made if approved by a majority of the directors on any such Board of Directors (whether or not such action or approval is taken as part of a formal board meeting or as a formal board approval).
Business Day means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, the State of New York or the place of payment.
Capital Stock means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
Capitalized Lease Obligation means, with respect to any Person, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) in accordance with GAAP (for the avoidance of doubt, as in effect on the Issue Date). The amount of Indebtedness represented by such liability will be the capitalized amount of such liability at the time any determination thereof is to be made as determined on the basis of GAAP.
Cash Equivalents means:
(1) United States dollars;
(2) (A) Euros, Canadian dollars, Sterling or any national currency of any member state of the European Union and (B) any other foreign currency held by the Issuer or any of its Restricted Subsidiaries in the ordinary course of business;
(3) securities issued or directly and fully and unconditionally guaranteed or insured by the U.S. government, Canadian government or any member state of the European Union or, in each case, any agency or instrumentality thereof (provided that full faith and credit obligation of such country or member state is pledged in support thereof), with maturities of 24 months or less from the date of acquisition;
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(4) certificates of deposit, time deposits, eurodollar deposits and dollar time deposits with maturities of one year or less from the date of acquisition thereof, bankers acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any commercial bank having capital and surplus of not less than $500.0 million in the case of U.S. banks and $100.0 million (or the U.S. dollar equivalent as of the date of determination) in the case of non-U.S. banks;
(5) repurchase obligations for underlying securities of the types described in clauses (3) and (4) above and clause (8) below entered into with any financial institution meeting the qualifications specified in clause (4) above;
(6) commercial paper rated at least (A) P-1 by Moodys or at least A-1 by S&P (or if at any time neither Moodys nor S&P shall be rating such obligations, an equivalent rating from another Rating Agency) and in each case maturing within 24 months after the date of creation thereof and (B) P-2 by Moodys or at least A-2 by S&P (or if at any time neither Moodys nor S&P shall be rating such obligations, an equivalent rating from another Rating Agency) and in each case maturing within 12 months after creation thereof;
(7) marketable short-term money market and similar securities having a rating of at least P-2 or A-2 from either Moodys or S&P, respectively (or, if at any time neither Moodys nor S&P shall be rating such obligations, an equivalent rating from another Rating Agency) and in each case maturing within 24 months after the date of creation thereof;
(8) readily marketable direct obligations issued by any state, commonwealth or territory of the United States, any province of Canada, any member state of the European Union or any political subdivision or taxing authority thereof having an Investment Grade Rating from either Moodys or S&P (or if at any time neither Moodys nor S&P shall be rating such obligations, an equivalent rating from another Rating Agency) with maturities of 24 months or less from the date of acquisition;
(9) Investments with average maturities of 24 months or less from the date of acquisition in money market funds rated AAA (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moodys (or reasonably equivalent ratings of another internationally recognized rating agency); and
(10) investment funds investing 95% of their assets in securities of the types described in clauses (1) through (9) above.
Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (1) and (2) above; provided that such amounts are converted into any currency listed in clauses (1) and (2) as promptly as practicable and in any event within ten Business Days following the receipt of such amounts.
Change of Control means the occurrence of any of the following after the Issue Date:
(1) the sale, lease or transfer (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Issuer and its Restricted Subsidiaries, taken as a whole, to any Person other than the Issuer or a Restricted Subsidiary;
(2) the Issuer becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by any Person or group (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act), other than any Person or Persons that are members of the Meredith Family, in a single transaction or in a related series of transactions, of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, except that in calculating the beneficial ownership of any particular Person or group, such Person or group will not be deemed to have beneficial ownership of any securities that such Person or group has the right to acquire or vote only upon the happening of any future event or contingency, including the passage of time, that has not yet occurred) of 50% or more of the total voting power of the Voting Stock of the Issuer (determined on a fully
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diluted basis but without giving effect to contingent voting rights that have not yet vested) (other than a transaction following which holders of securities that represented 100% of the Voting Stock of the Issuer immediately prior to such transaction (or other securities into which such securities are converted as part of such transaction) own, directly or indirectly, at least a majority of the voting power of the Voting Stock of the surviving Person in such transaction immediately after such transaction); or
(3) the adoption of a plan of liquidation and dissolution of the Issuer.
Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control solely as a result of any Parent Entity or the Issuer becoming a direct or indirect wholly-owned subsidiary of a holding company if (A) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Issuers Voting Stock immediately prior to that transaction or (B) immediately following that transaction no person (other than a holding company satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company.
Code means the U.S. Internal Revenue Code of 1986, as amended.
Consolidated Adjusted EBITDA means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period:
(1) increased (without duplication) by (to the extent the same were deducted (and not added back) in computing such Consolidated Net Income (other than clause (J)):
(A) provision for taxes based on income or profits, revenue or capital, including, without limitation, federal, state, provincial, local, foreign, non-U.S. franchise, excise, property, value added and similar taxes, foreign withholding taxes of such Person paid or accrued during such period, including any penalties and interest relating to such taxes or arising from any tax examinations; plus
(B) Consolidated Interest Expense of such Person for such period; plus
(C) Consolidated Depreciation and Amortization Expense of such Person for such period; plus
(D) any fees, premiums, expenses or charges related to the Transactions or any actual, proposed or contemplated Equity Offering, Permitted Investment, acquisition, disposition, recapitalization, the incurrence or repayment of Indebtedness permitted to be incurred by the Indenture (including a Refinancing thereof and the issuance of the Notes and the use of proceeds thereof) or any amendments, consents, waivers or other modifications relating to the Notes, the Transactions or the Credit Facilities (whether or not consummated or successful); plus
(E) the amount of any restructuring charge, accrual or reserve, integration cost or other business optimization expense, including any restructuring costs incurred in connection with the Transactions, acquisitions, mergers or consolidations after the Issue Date and any other restructuring expenses, severance expenses, one-time compensation charges, post-retirement employee benefits plans, any expenses relating to reconstruction, decommissioning or recommissioning fixed assets for alternate use, expenses or charges relating to facility closing costs, acquisition integration costs and signing, retention or completion bonuses or expenses; plus
(F) any other non-cash charges or expenses, including any write-offs or write-downs and non-cash compensation charges or expenses recorded from grants of stock appreciation or similar rights, stock options, restricted stock or other rights (provided that if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated Adjusted EBITDA in such future period to the extent paid, but excluding from this proviso, for the avoidance of doubt, amortization of a prepaid cash item that was paid in a prior period); plus
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(G) the amount of any minority interest expense consisting of Subsidiary income attributable to minority equity interests of third parties in any non-Wholly Owned Subsidiary; plus
(H) the amount of loss on sale of receivables and related assets to any Receivables Subsidiary in connection with a Receivables Facility; plus
(I) any costs or expenses incurred by the Issuer or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of the Issuer or net cash proceeds of an issuance of Equity Interest of the Issuer (other than Disqualified Stock) solely to the extent that such net cash proceeds are excluded from the calculation set forth in the Restricted Payments Builder Basket; plus
(J) other than with respect to the Transactions, the amount of cost savings, operating expense reductions, other operating improvements and initiatives and synergies projected by the Issuer in good faith to result from actions taken or to be taken in connection with any Investment, acquisition, disposition, merger, amalgamation, consolidation, discontinued operations, operational changes or other action being given pro forma effect (which will be added to Consolidated Adjusted EBITDA as so projected until fully realized and calculated on a pro forma basis as though such cost savings, operating expense reductions, other operating improvements and initiatives and synergies had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions; provided that (x) such actions have been taken or are expected to be taken within 18 months after the consummation of the Investment, acquisition, disposition, merger, amalgamation, consolidation, discontinued operations, operational change or other action expected to result in such cost savings or other benefits, (y) such cost savings are reasonably identifiable and factually supportable (in the good faith determination of the Issuer) and (z) the aggregate amount of cost savings, operating expense reductions, other operating improvements and initiatives and synergies added back pursuant to this clause (J) shall not exceed 20% of Consolidated Adjusted EBITDA (prior to giving effect to such addbacks); plus
(K) solely with respect to the Transactions, such add-backs reflected in the definition of pro forma Adjusted EBITDA included in the Offering Memorandum under Summary Unaudited Pro Forma Condensed Combined Financial InformationOther Pro Forma Financial Information, and projected by the Issuer in good faith to result from actions with respect to the Transactions that have been taken or are expected to be taken (in the good faith determination of the Issuer) within 18 months of the Issue Date, in an aggregate amount not to exceed $400 million;
(2) decreased by (without duplication) the amount of non-cash gains increasing such Consolidated Net Income, excluding (A) any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Consolidated Adjusted EBITDA in any prior period and (B) any non-cash gains in respect of which cash was actually received in a prior period so long as such cash did not increase Consolidated Adjusted EBITDA in such prior period; and (C) the accrual of revenue in the ordinary course of business; and
(3) increased or decreased by (without duplication):
(A) any net loss or gain resulting in such period from Hedging Obligations and the application of Financial Accounting Codification No. 815-Derivatives and Hedging; and
(B) any net loss or gain resulting in such period from currency translation gains or losses related to currency remeasurements of Indebtedness (including any net loss or gain resulting from hedge agreements for currency exchange risk).
Consolidated Depreciation and Amortization Expense means, with respect to any Person, for any period, the total amount of depreciation and amortization expense, including the amortization of intangibles and deferred
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financing fees or debt issuance costs, of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.
Consolidated Interest Expense means, with respect to any Person for any period, without duplication, the sum of:
(1) consolidated interest expense of such Person and its Restricted Subsidiaries for such period to the extent such expense was deducted (and not added back) in computing Consolidated Net Income of such Person (including (A) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (B) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (C) non-cash interest expense (but excluding any non-cash interest expense attributable to the movement in the mark to market valuation of Hedging Obligations or other derivative instruments pursuant to GAAP), (D) the interest component of Capitalized Lease Obligations, (E) imputed interest with respect to Attributable Debt and (F) net payments, if any, pursuant to interest rate Hedging Obligations with respect to Indebtedness, and excluding (X) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses, (Y) any expensing of bridge, commitment and other financing fees and (Z) commissions, discounts, yield and other fees and charges (including any interest expense) related to any Receivables Facility); plus
(2) consolidated capitalized interest of such Person and such Subsidiaries for such period, whether paid or accrued; plus
(3) whether or not treated as interest expense in accordance with GAAP, all cash dividends or other distributions accrued (excluding dividends payable solely in Equity Interests (other than Disqualified Stock) of the Issuer) on any series of Disqualified Stock or any series of Preferred Stock (excluding the Series A Preferred Stock) during such period (other than dividends or distributions to the Issuer or a Restricted Subsidiary).
For purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by the Issuer to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.
Consolidated Net Income means, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided, however, that, without duplication:
(1) any after-tax effect of extraordinary, non-recurring or unusual gains or losses or expenses (including fees and expenses relating to (A) the Transactions, (B) severance, relocation and transition costs and (C) any rebranding or corporate name change) shall be excluded;
(2) the cumulative effect of a change in accounting principles during such period shall be excluded;
(3) any after-tax effect of income (or loss) from disposed or discontinued operations and any net after-tax gains (or losses) on disposal of disposed, abandoned or discontinued operations shall be excluded;
(4) any after-tax effect of gains (or losses) (less all fees and expenses relating thereto) attributable to asset dispositions other than in the ordinary course of business, as determined in good faith by the Issuer, shall be excluded;
(5) any impairment charge or asset write-off or write-down, including impairment charges, write-offs or write-downs related to goodwill, intangible assets, long-lived assets, investments in debt and equity securities, in accordance with GAAP or as a result of a change in law or regulation, and the amortization of intangibles arising pursuant to GAAP shall be excluded;
(6) the Net Income for such period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting shall be excluded; provided that
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Consolidated Net Income of the Issuer shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash or Cash Equivalents) to the Issuer or a Restricted Subsidiary in respect of such period;
(7) the Net Income for such period of any Non-Guarantor Subsidiary shall be excluded to the extent of any portion of its Net Income that may not be transferred (including by way of any one or more of the following (A) dividends or similar distributions, (B) returns of capital, (C) loans or advances or the repayment thereof or (D) other conveyances) at the date of determination without any prior governmental approval (which has not been obtained) or without violating, directly or indirectly, the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction has been legally waived; provided that Consolidated Net Income of the Issuer will be increased by the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash or Cash Equivalents) to the Issuer or a Restricted Subsidiary thereof in respect of such period;
(8) any non-cash compensation charge or expense, including any such charge or expense arising from the grants of stock appreciation or similar rights, employee benefit plans or agreements, stock options, restricted stock or other rights, and any non-cash deemed finance charges or expenses in respect of any pension liabilities or other retiree provisions or on the revaluation of any benefit plan obligation and any non-cash charges or expenses in respect of curtailments, discontinuations or modifications to pension plans shall be excluded;
(9) any after-tax effect of income (or loss) from the early extinguishment or cancellation of Indebtedness or Hedging Obligations or other derivative instruments shall be excluded;
(10) any unrealized foreign currency translation or transaction gains or losses (or similar charges) (A) in respect of Indebtedness of any Person denominated in a currency other than the functional currency of such Person, (B) relating to translation of assets and liabilities denominated in foreign currencies and (C) in respect of Indebtedness or other obligations of the Issuer or any Restricted Subsidiary owing to the Issuer or any Restricted Subsidiary shall be excluded;
(11) [reserved];
(12) any fees and expenses incurred during such period, or any amortization thereof for such period, in connection with the Transactions and any acquisition, Investment, Asset Sale, issuance or repayment of Indebtedness (including the issuance of the Notes and the use of proceeds thereof), issuance of Equity Interests, refinancing transaction or amendment or modification of any debt instrument (in each case, including any such transaction consummated prior to the Issue Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction shall be excluded;
(13) losses, charges and expenses that are covered by indemnification or other reimbursement provisions in connection with any Investment, acquisition, sale, conveyance, transfer or other disposition of assets will be excluded to the extent actually reimbursed, or, so long as such Person has made a determination that a reasonable basis exists for indemnification or reimbursement, but only to the extent that such amount is in fact indemnified or reimbursed within 365 days of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so indemnified or reimbursed within such 365 days) shall be excluded;
(14) losses, charges and expenses with respect to liability or casualty events or business interruption, to the extent covered by insurance and actually reimbursed, or, so long as such Person has made a determination that a reasonable basis exists for reimbursement by the insurer and such amount (A) is not denied by the applicable carrier in writing and (B) is in fact reimbursed within 365 days of the date on which such liability was discovered or such casualty event or business interruption occurred (with a deduction in the applicable future period for any amount so added back to the extent not so reimbursed within 365 days) shall be excluded;
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(15) the effects of purchase accounting, fair value accounting or recapitalization accounting adjustments (including the effects of such adjustments pushed down to such Person and its Restricted Subsidiaries) resulting from the application of purchase accounting, fair value accounting or recapitalization accounting in relation to the Transactions or any acquisition consummated before or after the Issue Date, and the amortization, write-down or write-off of any amounts thereof, shall be excluded; and
(16) all non-cash gains, losses, expenses or charges attributable to the movement in the mark-to-market valuation of Hedging Obligations or other derivative instruments shall be excluded.
Consolidated Net Leverage Ratio means, as of any date of determination, the ratio of:
(1) the Consolidated Total Net Debt of the Issuer and its Restricted Subsidiaries on such date, to
(2) Consolidated Adjusted EBITDA of the Issuer and its Restricted Subsidiaries for the most recently ended four full fiscal quarters ending immediately prior to such date for which Required Financial Statements have been delivered.
In the event that the Issuer or any of its Restricted Subsidiaries (i) incurs, assumes, guarantees, redeems, retires or extinguishes any Indebtedness (other than Indebtedness repaid, redeemed, retired or extinguished under any revolving credit facility, except to the extent such revolving credit facility is permanently reduced and has not been replaced) or (ii) issues or redeems Disqualified Stock or Preferred Stock, in each case subsequent to the period for which the Consolidated Net Leverage Ratio is being calculated but prior to or substantially simultaneously with the event for which the calculation of the Consolidated Net Leverage Ratio is made (the Consolidated Net Leverage Ratio Calculation Date), then (x) the Consolidated Total Net Debt shall be calculated giving pro forma effect to such incurrence, assumption, guarantee, redemption, retirement or extinguishment of Indebtedness, or such issuance or redemption of Disqualified Stock or Preferred Stock, as if the same had occurred as of the date of determination of Consolidated Total Net Debt referred to in clause (1) above and (y) the Consolidated Adjusted EBITDA shall be calculated giving pro forma effect to such incurrence, assumption, guarantee, redemption, retirement or extinguishment of Indebtedness, or such issuance or redemption of Disqualified Stock or Preferred Stock, as if the same had occurred as of the beginning of the applicable four fiscal quarter period.
For purposes of making the computation referred to above, Investments, acquisitions, dispositions, mergers, amalgamations, consolidations and discontinued operations in each case with respect to a business (as such term is used in Regulation S-X Rule 11-01), a company, a segment, an operating division or unit or line of business that the Issuer or any of its Restricted Subsidiaries has determined to make and/or made during the four-quarter reference period or subsequent to such reference period and on or prior to or simultaneously with the Consolidated Net Leverage Ratio Calculation Date (each, for purposes of this definition, a pro forma event) shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, amalgamations, consolidations and discontinued operations had occurred on the first day of the four-quarter reference period. If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged with or into the Issuer or any of its Restricted Subsidiaries since the beginning of such period shall have made or effected any Investment, acquisition, disposition, merger, amalgamation, consolidation or discontinued operation, in each case with respect to a business (as such term is used in Regulation S-X Rule 11-01), a company, a segment, an operating division or unit or line of business that would have required adjustment pursuant to this definition, then the Consolidated Net Leverage Ratio shall be calculated giving pro forma effect thereto for such period as if such Investment, acquisition, disposition, merger, amalgamation, consolidation or discontinued operation had occurred at the beginning of the applicable four-quarter period.
For purposes of this definition, whenever pro forma effect is to be given to a transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Issuer. Any such pro forma calculation may include adjustments appropriate, in the good faith determination of the Issuer as set forth in an Officers Certificate, to reflect reasonably identifiable and factually supportable operating expense
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reductions and other operating improvements or synergies reasonably expected to result from any action taken or expected to be taken within 18 months after the date of any pro forma event; provided, that (x) no such amounts shall be included pursuant to this paragraph to the extent duplicative of any amounts that are otherwise added back in computing Consolidated Adjusted EBITDA with respect to such period and (y) such amounts shall be subject to the limitations contained in clause (J) of the definition of Consolidated Adjusted EBITDA.
If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness).
Consolidated Secured Net Leverage Ratio means, as of the date of determination, the ratio of (1) the Consolidated Total Net Debt of the Issuer and its Restricted Subsidiaries that is secured by a Lien on any property or assets of the Issuer or any of its Restricted Subsidiaries as of such date, to (2) Consolidated Adjusted EBITDA of the Issuer and its Restricted Subsidiaries for the most recently ended four full fiscal quarters ending immediately prior to such date for which Required Financial Statements have been delivered, in each case with such pro forma adjustments to the Consolidated Total Net Debt and Consolidated Adjusted EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of Consolidated Net Leverage Ratio as determined in good faith by the Issuer; provided, however, that solely for purposes of the calculation of the Consolidated Secured Net Leverage Ratio, in connection with the incurrence of (x) any Indebtedness pursuant to clause (1)(B)(ii) of the second paragraph of the covenant described under Certain CovenantsLimitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock and any Lien pursuant to clause (36) of the definition of Permitted Liens and (y) any Lien pursuant to clause (37) of the definition of Permitted Liens, the Issuer may elect, pursuant to an Officers Certificate delivered to the Trustee, to treat all or any portion of the commitment under any Indebtedness which is to be incurred and/or secured by such Lien, as the case may be, as being incurred at such time and any subsequent incurrence of Indebtedness under such commitment shall not be deemed, for purposes of this calculation, to be an incurrence at such subsequent time.
Consolidated Total Net Debt means, as of any date of determination, the sum, without duplication, of (1) the total amount of (A) Indebtedness for borrowed money, (B) Indebtedness evidenced by bonds, notes (other than notes in favor of trade creditors evidencing trade payables incurred in the ordinary course of business), debentures or other similar instruments for the payment of which such Person is liable, (C) Capitalized Lease Obligations, (D) the Notes and (E) guarantees of the foregoing, in each case, of the Issuer and its Restricted Subsidiaries (excluding (x) Indebtedness in respect of letters of credit and bankers acceptances (or, without duplication, reimbursement agreements in respect thereof) and for the avoidance of doubt, performance and surety bonds not constituting bonds evidencing indebtedness for borrowed money, except to the extent of unreimbursed amounts drawn thereunder, (y) intercompany Indebtedness and (z) Indebtedness in respect of Hedging Obligations not yet due and owing), outstanding on such date; minus (2) up to $250.0 million of Eligible Cash included in the consolidated balance sheet of the Issuer and its Restricted Subsidiaries, as of the most recently ended fiscal period for which Required Financial Statements have been delivered (with such pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of Consolidated Net Leverage Ratio as determined in good faith by the Issuer); plus (3) the greater of (i) the aggregate liquidation value and (ii) maximum fixed repurchase price without regard to any change of control or redemption premiums of all Disqualified Stock of the Issuer and the Guarantors and all Preferred Stock of Restricted Subsidiaries, in each case determined on a consolidated basis in accordance with GAAP. For purposes of this definition, the maximum fixed repurchase price of any Disqualified Stock or Preferred Stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock or Preferred Stock as if such Disqualified Stock or Preferred Stock were purchased on any date on which Consolidated Total Net Debt shall be required to be determined pursuant to the Indenture, and if such price is based upon, or measured by, the fair market value of such Disqualified Stock or Preferred Stock, such fair market value shall be the fair market value (as determined in good faith by the Issuer).
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Contingent Obligations means, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (primary obligations) of any other Person (the primary obligor) in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent:
(1) to purchase any such primary obligation or any property constituting direct or indirect security therefor;
(2) to advance or supply funds:
(A) for the purchase or payment of any such primary obligation, or
(B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; or
(3) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.
Credit Facilities means, with respect to the Issuer or any of its Restricted Subsidiaries, one or more debt facilities, including the Senior Credit Facilities, or other financing arrangements (including commercial paper facilities, receivables financing or indentures) providing for revolving credit loans, term loans, letters of credit, bankers acceptances or other Indebtedness, including any notes, mortgages, guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements or refundings thereof and any indentures or credit facilities or commercial paper facilities that replace, refund or Refinance any part of the loans, notes, other credit facilities or commitments thereunder, including any such replacement, refunding or refinancing facility or indenture that increases the amount permitted to be borrowed thereunder (provided that such increase in borrowings is permitted under Certain CovenantsLimitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock), alters the maturity thereof, changes any other terms, covenants or other provisions or adds Restricted Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, lender or group of lenders, in each case subsequent to the Issue Date.
Default means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.
Designated Non-cash Consideration means the fair market value (as determined in good faith by the Issuer) of non-cash consideration received by the Issuer or any of its Restricted Subsidiaries in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officers Certificate, setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of or conversion of or collection on such Designated Non-cash Consideration.
Disqualified Stock means, with respect to any Person, any Capital Stock of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event:
(1) matures or is mandatorily redeemable (other than solely as a result of a change of control or asset sale) pursuant to a sinking fund obligation or otherwise, or
(2) is redeemable at the option of the holder thereof (other than solely as a result of a change of control or asset sale), in whole or in part,
in each case prior to the date that is 91 days after the earlier of the maturity date of the Notes or the date the Notes are no longer outstanding; provided, however, that only the portion of Capital Stock which so matures or is mandatorily redeemable, is so putable, convertible or exchangeable or is so redeemable at the option of the
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holder thereof prior to such date shall be deemed to be Disqualified Stock; provided further, however, that if such Capital Stock is issued to any employee or any plan for the benefit of employees of the Issuer or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Issuer or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of any such employees termination, death or disability; provided further, however, that any class of Capital Stock of such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of Capital Stock that is not Disqualified Stock shall not be deemed to be Disqualified Stock. Notwithstanding the foregoing, the Series A Preferred Stock shall not constitute Disqualified Stock.
Domestic Subsidiary means any Restricted Subsidiary that is organized or existing under the laws of the United States, any state thereof or the District of Columbia.
DTC means The Depository Trust Company.
Eligible Cash means any cash and Cash Equivalents held by (a) the Issuer or a Guarantor or (b) any Non-Guarantor Subsidiary, but only to the extent that such cash and Cash Equivalents held by such Non-Guarantor Subsidiary in excess of the amount of Indebtedness of such Non-Guarantor Subsidiary included in Consolidated Total Net Debt (before subtracting Eligible Cash) are reduced by the amount of taxes (if any) that would be incurred (as determined assuming a tax rate of 21% or, if less, the highest U.S. corporate tax rate then in effect at that time) if such cash and Cash Equivalents were to be transferred to (i) the Issuer or a Guarantor or (ii) another Non-Guarantor Subsidiary; provided that, in the case of clause (ii), any such after-tax cash and Cash Equivalents will only qualify as Eligible Cash hereunder to the extent that the amount of cash and Cash Equivalents that would be held by such other Non-Guarantor Subsidiary after giving effect to such deemed transfer is not in excess of the amount of its Indebtedness included in Consolidated Total Net Debt (before subtracting Eligible Cash). In determining any taxes that would be incurred for these purposes, the Issuer may select among the group of eligible transferees (and the manner in which transfers could be effected) so as to minimize any taxes that would be deemed incurred.
EMU means economic and monetary union as contemplated in the Treaty on European Union.
Equity Contribution means the issuance and sale on the Issue Date to Koch Equity Development LLC or an affiliate thereof for gross consideration of $650.0 million of 650,000 shares of Series A Preferred Stock, warrants to purchase up to 1,625,000 shares of the Issuers Class A Common Stock and options to purchase up to 875,000 shares of the Issuers Class A Common Stock.
Equity Interests means Capital Stock and all warrants, options or other rights to acquire Capital Stock, but excluding any debt security that is convertible into, or exchangeable for, Capital Stock.
Equity Offering means any public or private sale of common stock or Preferred Stock of the Issuer (excluding Disqualified Stock and the Equity Contribution), other than (1) public offerings with respect to any of the Issuers common stock registered on Form S-4 or Form S-8 (or any successor form); (2) issuances to any Subsidiary of the Issuer; and (3) Refunding Capital Stock.
Euro means the single currency of participating member states of the EMU.
Event of Default has the meaning set forth under Events of Default and Remedies.
Exchange Act means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
Exchange Notes means the Notes issued pursuant to the Indenture in exchange for, and in an aggregate principal amount equal to or not in excess of, the Initial Notes or any Additional Notes, if applicable, under the Registration Rights Agreement.
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fair market value (as determined in good faith by the Issuer) means the fair market value, as determined in good faith by the Issuer, whose determination will be conclusive for all purposes under the Indenture and the Notes.
Foreign Subsidiary means (1) any Subsidiary which is not a Domestic Subsidiary or (2) any Subsidiary of a Subsidiary described in the preceding clause (1).
Four Quarter EBITDA means, as of any date of determination, Consolidated Adjusted EBITDA of the Issuer and its Restricted Subsidiaries for the most recently ended four fiscal quarters for which Required Financial Statements have been delivered, in each case with such pro forma adjustments to Consolidated Adjusted EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of Consolidated Net Leverage Ratio as determined in good faith by the Issuer.
GAAP means generally accepted accounting principles in the United States which are in effect on the Issue Date.
Government Securities means securities that are:
(1) direct obligations of, or obligations guaranteed by, the United States for the timely payment of which its full faith and credit is pledged; or
(2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States, which, in either case, are not callable or redeemable at the option of the issuers thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such Government Securities or a specific payment of principal of or interest on any such Government Securities held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Securities or the specific payment of principal of or interest on the Government Securities evidenced by such depository receipt.
guarantee means a guarantee (other than by endorsement of negotiable instruments for collection or deposit in the ordinary course of business), direct or indirect, in any manner (including letters of credit and reimbursement agreements in respect thereof), of all or any part of any Indebtedness or other obligations.
Guarantee means the guarantee by any Guarantor of the Issuers Obligations under the Notes and the Indenture.
Guarantor means, collectively, each Restricted Subsidiary that executes the Indenture as a Guarantor on the Issue Date and each other Restricted Subsidiary that incurs a Guarantee of the Notes; provided that upon the release or discharge of such Person from its Guarantee in accordance with the Indenture, such Person automatically ceases to be a Guarantor.
Hedging Obligations means, with respect to any Person, the obligations of such Person under any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, commodity swap agreement, commodity cap agreement, commodity collar agreement, foreign exchange contract, currency swap agreement or similar agreement providing for the transfer or mitigation of interest rate or currency risks or commodity pricing risks either generally or under specific contingencies.
Holder means the Person in whose name a Note is registered on the registrars books.
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Indebtedness means, with respect to any Person on the day of determination, without duplication:
(1) the principal in respect of (A) any indebtedness of such Person for borrowed money and (B) indebtedness evidenced by bonds, notes (other than notes in favor of trade creditors evidencing trade payables incurred in the ordinary course of business), debentures or other similar instruments for the payment of which such Person is liable;
(2) the net obligations under all Hedging Obligations of such Person (the amount of such obligations to be equal at any time to the net payment under such agreements or arrangements giving rise to such obligation that would be payable by such Person at the termination of such agreement or arrangement);
(3) all Attributable Debt in respect of a Sale and Lease-Back Transaction entered into by such Person and all Capitalized Lease Obligations of such Person;
(4) the principal component of all obligations of such Person to pay the deferred and unpaid purchase price of any property (excluding trade payables incurred in the ordinary course of business), to the extent the same would be required to be shown as a long-term liability on a balance sheet prepared in accordance with GAAP;
(5) the principal amount of all reimbursement obligations of such Person in respect of letters of credit, performance or surety bonds, bankers acceptances or other similar instruments (the amount of such obligations being equal at any time to the aggregate then undrawn and unexpired amount of such letters of credit, bonds, acceptances or other similar instruments plus the aggregate amount of drawings thereunder that have not been reimbursed) (except to the extent such reimbursement obligations relate to trade payables incurred in the ordinary course of business);
(6) the principal component of Indebtedness of the type referred to in clause (1) of a third Person secured by a Lien on any asset owned by the Person first referenced in this definition (other than Liens on Equity Interests of Unrestricted Subsidiaries securing Indebtedness of such Unrestricted Subsidiaries), whether or not such Indebtedness is assumed by such first Person; provided, however, that the amount of such Indebtedness will be the lesser of (A) the Indebtedness so secured and (B) the fair market value (as determined in good faith by the Issuer) of the assets of such first Person securing such Indebtedness; and
(7) to the extent not otherwise included, any obligation by the Person first referenced in this definition to be liable for, or to pay, as obligor, guarantor or otherwise, on Indebtedness of the type referred to in clause (1) of a third Person (whether or not such items would appear upon the balance sheet of such obligor or guarantor), other than by endorsement of negotiable instruments for collection in the ordinary course of business;
provided, however, that notwithstanding the foregoing, Indebtedness shall be deemed not to include (A) Contingent Obligations incurred in the ordinary course of business, (B) deferred or prepaid revenues, (C) trade payables, accrued expenses and intercompany liabilities arising in the ordinary course of business, (D) any earn-out obligations until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP, (E) purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy underperformed obligations of the seller of such asset or (F) obligations under or in respect of Receivables Facilities.
Independent Financial Advisor means an accounting, appraisal, investment banking firm or consultant to Persons engaged in Similar Businesses of nationally recognized standing that is, in the good faith determination of the Issuer, qualified to perform the task for which it has been engaged.
Initial Purchasers means Credit Suisse Securities (USA) LLC, RBC Capital Markets, LLC, Barclays Capital Inc., and Citigroup Global Markets Inc.
Investment Grade Rating means a rating equal to or higher than Baa3 (or the equivalent) by Moodys and BBB- (or the equivalent) by S&P, or an equivalent rating by any other Rating Agency, and in each such case with a stable or better outlook.
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Investment Grade Securities means:
(1) securities issued or directly and fully guaranteed or insured by the United States, United Kingdom or Canadian government or any agency or instrumentality thereof (other than Cash Equivalents);
(2) debt securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among the Issuer and its Subsidiaries;
(3) investments in any fund that invests exclusively in investments of the type described in clauses (1) and (2) which fund may also hold immaterial amounts of cash pending investment or distribution; and
(4) corresponding instruments in countries other than the United States, the United Kingdom and Canada customarily utilized for high quality investments.
Investments means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans (including guarantees), advances or capital contributions (excluding accounts receivable, trade credit, deposits, advances to customers, dealers, distributors and suppliers, commission, payroll, travel and similar advances to directors, officers and employees, in each case made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person and investments that are required by GAAP to be classified on the balance sheet (excluding the footnotes) of such Person in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property; provided, however, that endorsements of negotiable instruments and documents in the ordinary course of business will not be deemed to be an Investment. For purposes of the definition of Unrestricted Subsidiary and the covenant described under Certain CovenantsLimitation on Restricted Payments:
(1) Investments shall include the portion (proportionate to the Issuers direct or indirect equity interest in such Subsidiary) of the fair market value (as determined in good faith by the Issuer) of the net assets of a Subsidiary of the Issuer at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Issuer or applicable Restricted Subsidiary shall be deemed to continue to have a permanent Investment in an Unrestricted Subsidiary in an amount (if positive) equal to:
(a) the Issuers direct or indirect Investment in such Subsidiary at the time of such redesignation; less
(b) the portion (proportionate to the Issuers direct or indirect equity interest in such Subsidiary) of the fair market value (as determined in good faith by the Issuer) of the net assets of such Subsidiary at the time of such redesignation; and
(2) any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value (as determined in good faith by the Issuer) at the time of such transfer.
The amount of any Investment outstanding at any time shall be the original cost of such Investment (determined, in the case of any Investment made with assets of the Issuer or any Restricted Subsidiary, based on the fair market value (as determined in good faith by the Issuer) at the time of such Investment of the assets invested), reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash by Issuer or a Restricted Subsidiary in respect of such Investment.
Issue Date means January 31, 2018.
Lien means, with respect to any asset, any mortgage, lien (statutory or otherwise), pledge, hypothecation, charge, security interest, preference, priority or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or similar agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or
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equivalent statutes) of any jurisdiction in respect of a security interest; provided that in no event shall an operating lease be deemed to constitute a Lien.
Meredith Family means, collectively: (a) the lineal descendants by blood or adoption of E.T. Meredith (descendants), and the spouses and surviving spouses of such descendants; (b) any estate, trust, guardianship, custodianship or other fiduciary arrangement for the primary benefit of any one or more individuals described in clause (a) of this definition; and (c) any corporation, partnership, limited liability company or other business organization so long as (i) one or more individuals or entities described in clause (a) or clause (b) of this definition possess, directly or indirectly, the power to direct or cause the direction of the management and policies of such corporation, partnership, limited liability company or other business organization, and (ii) substantially all of the ownership, beneficial or other Equity Interests in such corporation, partnership, limited liability company or other business organization are owned, directly or indirectly, by one or more individuals or entities described in clause (a) or clause (b) of this definition.
Merger means the merger of the Purchaser with and into Time, with Time surviving, pursuant to the Merger Agreement.
Merger Agreement means that certain Agreement and Plan of Merger, dated as of November 26, 2017, by and among Meredith Corporation, the Purchaser, and Time.
Merger Agreement Dispositions means the dispositions contemplated by Section 6.2 of the Merger Agreement to the extent not entered into or consummated on or before the Issue Date.
Moodys means Moodys Investors Service, Inc. and any successor to its rating agency business.
Net Income means, with respect to any Person, the net income (loss) attributable to such Person and its Restricted Subsidiaries, determined in accordance with GAAP and before any reduction in respect of Preferred Stock dividends.
Net Proceeds means the aggregate cash proceeds and the fair market value (as determined in good faith by the Issuer) of any Cash Equivalents received by the Issuer or any of its Restricted Subsidiaries in respect of any Asset Sale, including any cash received upon the sale or other disposition of any Designated Non-cash Consideration received in any Asset Sale, net of the direct costs relating to such Asset Sale and the sale or disposition of such Designated Non-cash Consideration, including legal, accounting and investment banking fees, and brokerage and sales commissions, any relocation expenses incurred as a result thereof, taxes paid or payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements), amounts required to be applied to the repayment of principal, premium, if any, and interest on Indebtedness (other than Subordinated Indebtedness) required (other than required by clause (1) of the second paragraph of Certain CovenantsAsset Sales) to be paid as a result of such transaction, any costs associated with unwinding any related Hedging Obligations in connection with such transaction and any deduction of appropriate amounts to be provided by the Issuer or any of its Restricted Subsidiaries as a reserve in accordance with GAAP against any liabilities associated with the asset disposed of in such transaction and retained by the Issuer or any of its Restricted Subsidiaries after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction.
Non-Guarantor Subsidiary means any Restricted Subsidiary that is not a Guarantor.
Obligations means any principal (including any accretion), interest (including any interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, federal or foreign law), penalties, fees, indemnifications, reimbursements (including reimbursement obligations
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with respect to letters of credit and bankers acceptances), damages and other liabilities, and guarantees of payment of such principal (including any accretion), interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing any Indebtedness.
Offering Memorandum means the offering memorandum, dated January 19, 2018, pursuant to which the Notes were offered to purchasers.
Officer means the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, any Executive Vice President, Senior Vice President or Vice President, the Treasurer, the Controller, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Issuer.
Officers Certificate means a certificate signed on behalf of the Issuer by an Officer of the Issuer who must be (A) the principal executive officer, the principal financial officer or the principal accounting officer of the Issuer or (B) an Executive Vice President, the Treasurer or the Controller.
Opinion of Counsel means a written opinion from legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to the Issuer or any of its Subsidiaries.
Parent Entity means any Person of which the Issuer at any time is or becomes a direct or indirect Subsidiary after the Issue Date.
Pari Passu Indebtedness means Indebtedness of the Issuer or a Guarantor that ranks equally in right of payment with the Notes or such Guarantors Guarantee, as applicable.
Permitted Asset Swap means the substantially concurrent purchase and sale or exchange of Related Business Assets or a combination of Related Business Assets and cash or Cash Equivalents between the Issuer or any of its Restricted Subsidiaries and another Person; provided that any cash or Cash Equivalents received must be applied in accordance with the covenant described under Certain CovenantsAsset Sales.
Permitted Investments means:
(1) any Investment by the Issuer or any of its Restricted Subsidiaries in the Issuer or any of its Restricted Subsidiaries;
(2) any Investment in cash, the Notes, Cash Equivalents or Investment Grade Securities and Investments that were Cash Equivalents or Investment Grade Securities when made;
(3) any Investment by the Issuer or any of its Restricted Subsidiaries in a Person if as a result of such Investment:
(A) such Person becomes a Restricted Subsidiary; or
(B) such Person, in one transaction or a series of related transactions, is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Issuer or a Restricted Subsidiary,
and, in each case, any Investment held by such Person at the time such Person becomes a Restricted Subsidiary; provided, that such Investment was not acquired by such Person in contemplation of such acquisition, merger, consolidation, amalgamation, transfer or conveyance;
(4) any Investment in securities or other assets not constituting cash or Cash Equivalents and received in connection with an Asset Sale made pursuant to the provisions of Certain CovenantsAsset Sales or any other disposition of assets not constituting an Asset Sale;
(5) any Investment (i) existing on the Issue Date or made pursuant to binding commitments in effect on the Issue Date or (ii) consisting of any replacement, refinancing, extension, modification or renewal of any
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Investment existing on the Issue Date; provided that the amount of any such Investment may only be increased (i) as required by the terms of such Investment as in existence on the Issue Date, or (ii) as otherwise permitted under the Indenture;
(6) any Investment acquired by the Issuer or any of its Restricted Subsidiaries:
(a) in exchange for any other Investment or accounts receivable held by the Issuer or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer of such other Investment or accounts receivable;
(b) as a result of a foreclosure by the Issuer or any of its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured Investment in default; or
(c) as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Persons who are not Affiliates of the Issuer;
(7) Hedging Obligations permitted under clause (9) of the second paragraph of the covenant described under Certain CovenantsLimitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock;
(8) Investments the payment for which consists of Equity Interests (exclusive of Disqualified Stock) of the Issuer; provided, however, that such Equity Interests will not increase the amount available for Restricted Payments under the Restricted Payments Builder Basket;
(9) guarantees of Indebtedness permitted under the covenant described under Certain CovenantsLimitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock;
(10) any transaction to the extent it constitutes an Investment that is permitted and made in accordance with the provisions of the second paragraph of the covenant described under Certain CovenantsTransactions with Affiliates (except transactions described in clauses (2), (6), (8), (9), (11), (13) and (17) of such paragraph);
(11) Investments consisting of (A) purchases and acquisitions of inventory, supplies, material, services or equipment, or other similar assets or purchases of contract rights or licenses or leases of intellectual property, in each case in the ordinary course of business or (B) the leasing or licensing of intellectual property in the ordinary course of business or the leasing, licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons;
(12) additional Investments having an aggregate fair market value (as determined in good faith by the Issuer) taken together with all other Investments made pursuant to this clause (12) that are at that time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), not to exceed the greater of (x) $500.0 million and 50% of Four Quarter EBITDA at the time of such Investment (with the fair market value (as determined in good faith by the Issuer) of each Investment being measured at the time made and without giving effect to subsequent changes in value); provided that if such Investment is in Capital Stock of a Person that subsequently becomes a Restricted Subsidiary, such Investment shall thereafter be deemed permitted under clause (1) or (3) above and shall not be included as having been made pursuant to this clause (12);
(13) Investments in a Receivables Subsidiary or any Investment by a Receivables Subsidiary in any Person that, in the good faith determination of the Issuer, are necessary or advisable to effect any Receivables Facility or any repurchases in connection therewith;
(14) advances to, or guarantees of Indebtedness of, officers, directors and employees of the Issuer or its Subsidiaries not in excess of $10.0 million outstanding at any one time, in the aggregate;
(15) loans and advances to officers, directors and employees of the Issuer or its Subsidiaries for business-related travel expenses, moving expenses, payroll expenses and other similar expenses, in each case incurred in the ordinary course of business or consistent with past practice or to fund such Persons direct or indirect purchase of Equity Interests of the Issuer;
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(16) any Investment in any Subsidiary or joint venture in connection with intercompany cash management arrangements or related activities arising in the ordinary course of business;
(17) endorsements for collection or deposit in the ordinary course of business;
(18) Investments resulting from pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business or that are made in connection with Permitted Liens;
(19) advances, prepayments, loans or extensions of credit to customers and suppliers in the ordinary course of business;
(20) Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in the joint venture arrangements and similar binding arrangements;
(21) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers; and
(22) any Investment by the Issuer or any of its Restricted Subsidiaries in an Unrestricted Subsidiary or a joint venture engaged in a Similar Business in an aggregate amount, taken together with all other Investments made pursuant to this clause (22) that are at the time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), not to exceed the greater of (i) $150.0 million and (ii) 12.5% of Four Quarter EBITDA (with the fair market value (as determined in good faith by the Issuer) of each Investment being measured at the time made and without giving effect to subsequent changes in value); provided, however, that if any Investment pursuant to this clause (22) is made in any Person that is not a Restricted Subsidiary at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment will thereafter be deemed to have been made pursuant to clauses (1) or (3) above and shall not be included as having been made pursuant to this clause (22).
Permitted Liens means, with respect to any Person:
(1) pledges, deposits or security by such Person under workmens compensation laws, unemployment insurance, employers health tax, and other social security laws or similar legislation, or other insurance related obligations (including, but not limited to, in respect of deductibles, self-insured retention amounts and premiums and adjustments thereto) or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance, or good faith deposits in connection with bids, tenders, trade contracts or government contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or agreements with utilities, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. government bonds to secure surety, stay, customs or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import duties or for the payment of rent, performance and return of money bonds and other similar obligations (including letters of credit issued in lieu of any such bonds or to support the issuance thereof and including those to secure health, safety and environmental obligations), in each case incurred in the ordinary course of business;
(2) Liens imposed by law or regulation, such as carriers, warehousemens, materialmens, repairmens, mechanics, contractors and other similar Liens, in each case for sums not yet overdue for a period of more than 30 days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP;
(3) Liens for taxes, assessments or other governmental charges not yet overdue for a period of more than 30 days or which are being contested in good faith by appropriate proceedings, if adequate reserves
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with respect thereto are maintained on the books of such Person in accordance with GAAP, or for property taxes on property the Issuer or one of its Subsidiaries has determined to abandon if the sole recourse for such tax, assessment or charge is to such property;
(4) Liens in favor of issuers of performance, surety bonds or bid, indemnity, warranty, release, appeal or similar bonds or with respect to other regulatory requirements or letters of credit issued pursuant to the request of and for the account of such Person in the ordinary course of its business;
(5) survey exceptions, encumbrances, ground leases, servitudes, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph, cable and telephone lines, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of such Person or to the ownership of its properties that were not incurred in connection with Indebtedness or other covenants, conditions, restrictions and minor defects or irregularities in title (Other Encumbrances), in each case which Liens and Other Encumbrances do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;
(6) Liens securing Indebtedness permitted to be incurred pursuant to clause (4), (12) or (17) of the second paragraph under Certain CovenantsLimitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock; provided that (x) Liens securing Indebtedness permitted to be incurred pursuant to clause (4) extend only to the assets and/or Capital Stock, the acquisition, lease, construction, repair, replacement or improvement of which is financed thereby and any replacements, additions and accessions thereto and any income or profits therefrom; provided that individual financings of equipment provided by one lender may be cross-collateralized to other financings of equipment provided by such lender, (y) Liens securing Refinancing Indebtedness permitted to be incurred pursuant to clause (12) only secure Refinancing Indebtedness that serves to Refinance any Indebtedness secured by a Lien; provided that such Liens are limited to all or part of the same property or assets (plus additions, accessions, improvements, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the Indebtedness being refinanced and (z) Liens securing Indebtedness permitted to be incurred pursuant to clause (17) extend only to the assets of Non-Guarantor Subsidiaries;
(7) Liens existing on the Issue Date (other than Liens securing the Senior Credit Facilities);
(8) Liens on property or shares of stock of a Person at the time such Person becomes a Restricted Subsidiary; provided, however, such Liens are not created or incurred in connection with, or in contemplation of, such Person becoming such a Restricted Subsidiary; provided further, however, that such Liens may not extend to any other property owned by the Issuer or any of its Restricted Subsidiaries other than pursuant to customary after-acquired property clauses;
(9) Liens on property at the time the Issuer or a Restricted Subsidiary acquired the property, including any acquisition by means of a merger or consolidation with or into the Issuer or any of its Restricted Subsidiaries; provided, however, that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition, merger or consolidation;
(10) Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing to the Issuer or any Restricted Subsidiary permitted to be incurred in accordance with the covenant described under Certain CovenantsLimitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock;
(11) Liens securing Hedging Obligations permitted under clause (9) of the second paragraph of the covenant described under Certain CovenantsLimitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock;
(12) Liens on specific items of inventory or other goods and proceeds of any Person securing such Persons obligations in respect of bankers acceptances or trade letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
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(13) (A) leases, subleases, licenses or sublicenses (including of real property and intellectual property) granted to others in the ordinary course of business and (B) with respect to any leasehold interest held by the Issuer or any of its Subsidiaries, the terms of the leases granting such leasehold interest and the rights of lessors thereunder, which in the case of each of (A) and (B) do not materially interfere with the ordinary conduct of the business of the Issuer and its Restricted Subsidiaries, taken as a whole, and do not secure any Indebtedness;
(14) Liens arising from Uniform Commercial Code (or equivalent statute) financing statement filings regarding operating leases entered into by the Issuer and its Restricted Subsidiaries in the ordinary course of business;
(15) Liens in favor of the Issuer or any Guarantor;
(16) Liens on equipment of the Issuer or any of its Restricted Subsidiaries granted in the ordinary course of business;
(17) Liens on accounts receivable and related assets incurred in connection with a Receivables Facility;
(18) Liens to secure any Refinancing (or successive Refinancings) as a whole, or in part, of any Indebtedness secured by any Lien referred to in the foregoing clauses (6), (7), (8), (9) and this clause (18); provided, however, that (a) such new Lien shall be limited to all or part of the same property that secured the original Lien (and additions, accessions, improvements, proceeds and replacements and customary deposits in connection therewith and proceeds and products therefrom) and assets that secured or, under the written agreements pursuant to which the original Lien arose, could secure the original Indebtedness, and (b) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (i) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (6), (7), (8), (9) and this clause (18) at the time the original Lien became a Permitted Lien under the Indenture, and (ii) an amount necessary to pay any fees and expenses, including premiums, and accrued and unpaid interest related to such Refinancing;
(19) deposits made in the ordinary course of business to secure liability to insurance carriers;
(20) other Liens securing obligations that do not exceed $200.0 million in aggregate amount at any one time outstanding;
(21) Liens securing judgments for the payment of money not constituting an Event of Default under clause (5) under Events of Default and Remedies so long as such Liens are adequately bonded and any appropriate legal proceedings that may have been duly initiated for the review of such judgment have not been finally terminated or the period within which such proceedings may be initiated has not expired;
(22) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
(23) Liens (A) of a collection bank arising under Section 4-210 of the Uniform Commercial Code or any comparable or successor provision on items in the course of collection, (B) attaching to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business and (B) in favor of banking or other financial institutions arising as a matter of law or pursuant to customary depositary terms encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry;
(24) Liens deemed to exist in connection with Investments in repurchase agreements permitted under Certain CovenantsLimitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock; provided that such Liens do not extend to any assets other than those that are the subject of such repurchase agreement;
(25) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;
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(26) bankers liens, Liens that are statutory, common law or contractual rights of set-off and other similar Liens, in each case (A) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (B) relating to pooled deposit or sweep accounts of the Issuer or any of its Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business or (C) relating to purchase orders and other agreements entered into with customers of the Issuer or any of its Restricted Subsidiaries in the ordinary course of business;
(27) Liens on assets of Non-Guarantor Subsidiaries securing Indebtedness of Non-Guarantor Subsidiaries;
(28) Liens on the Equity Interests of any Unrestricted Subsidiary that secure Indebtedness of such Unrestricted Subsidiary;
(29) Liens deemed to exist by reason of (A) any encumbrance or restriction (including put and call arrangements) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement or (B) any encumbrance or restriction imposed under any contract for the sale by the Issuer or any of its Subsidiaries of the Capital Stock of any Subsidiary of the Issuer, or any business unit or division of the Issuer or any Subsidiary of the Issuer permitted by the Indenture;
(30) Liens on property or assets used to defease or to irrevocably satisfy and discharge Indebtedness; provided that such defeasance or satisfaction and discharge is not prohibited by the Indenture;
(31) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business;
(32) Liens incurred to secure cash management services or to implement cash pooling arrangements in the ordinary course of business;
(33) Liens solely on any cash earnest money deposits made by the Issuer or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement in respect of any Investment permitted under the Indenture;
(34) rights deemed to arise under revenue sharing or similar agreements entered into in the ordinary course of business pursuant to which third parties are granted the right to receive a portion of the revenues, income or profits generated from specific assets or operations of the Issuer or any Restricted Subsidiary;
(35) Liens securing the Notes and the related Guarantees;
(36) Liens securing Indebtedness permitted to be incurred under Credit Facilities, including any letter of credit facility relating thereto, that was permitted by the terms of the Indenture to be incurred pursuant to clause (1) of the second paragraph under Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock;
(37) Liens securing Pari Passu Indebtedness permitted to be incurred pursuant to the covenant described under Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock; provided that at the time of any incurrence of such Pari Passu Indebtedness and after giving pro forma effect thereto, the Consolidated Secured Net Leverage Ratio (calculated excluding any increase in Eligible Cash resulting from the incurrence of such Indebtedness) shall not be greater than 2.50 to 1.00; provided, further that the calculation of the Consolidated Secured Net Leverage Ratio will treat clauses (1)(A) and (1)(B)(i) of the second paragraph under Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock as having been fully utilized to incur Secured Indebtedness; and
(38) Liens on cash collateral, letters of credit or similar security arrangements securing the U.K. Pension Security Obligations in an amount not to exceed at any time £85 million.
For the avoidance of doubt, the inclusion of any specific Lien in the definition of Permitted Liens shall not give rise to any implication that the obligations secured by such Lien constitute Indebtedness.
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Person means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
Preferred Stock means any Equity Interest with preferential rights of payment of dividends or upon liquidation, dissolution, or winding up.
Purchaser means Gotham Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Meredith Corporation.
Rating Agencies means Moodys and S&P or if Moodys or S&P or both shall not make a rating on the Notes publicly available (for reasons outside the control of the Issuer), a nationally recognized statistical rating organization or organizations, as the case may be, selected by the Issuer which shall be substituted for Moodys or S&P or both, as the case may be.
Receivables Facility means any of one or more receivables financing facilities as amended, supplemented, modified, extended, renewed, restated or refunded from time to time, the Obligations of which are non-recourse (except for customary representations, warranties, covenants and indemnities made in connection with such facilities) to the Issuer or any of its Restricted Subsidiaries (other than a Receivables Subsidiary) pursuant to which the Issuer or any of its Restricted Subsidiaries sells its accounts receivable to either (1) a Person that is not a Restricted Subsidiary or (2) a Receivables Subsidiary that in turn sells its accounts receivable to (or finances its accounts receivable with) one or more Persons that are not Restricted Subsidiaries.
Receivables Fees means distributions or payments made directly or by means of discounts with respect to any accounts receivable or participation interest therein issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Receivables Facility.
Receivables Subsidiary means any Subsidiary formed for the purpose of, and that solely engages only in, one or more Receivables Facilities and other activities reasonably related thereto.
Refinance means, in respect of any Indebtedness, Disqualified Stock or Preferred Stock, to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue other Indebtedness, Disqualified Stock or Preferred Stock in exchange or replacement for, such Indebtedness, Disqualified Stock or Preferred Stock. Refinanced and Refinancing shall have correlative meanings.
Refinancing Indebtedness means Indebtedness, Disqualified Stock or Preferred Stock (including any Indebtedness, Disqualified Stock or Preferred Stock incurred to pay premiums (including tender premiums), accrued interest, defeasance costs and reasonable fees and expenses in connection therewith) that Refinances any Indebtedness, Disqualified Stock or Preferred Stock existing on the Issue Date or incurred thereafter in compliance with the Indenture, including Indebtedness, Disqualified Stock or Preferred Stock that Refinances Refinancing Indebtedness; provided that such Refinancing Indebtedness:
(1) either (A) has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is incurred which is not less than the remaining Weighted Average Life to Maturity of the Indebtedness, Disqualified Stock or Preferred Stock being Refinanced or (B) does not require payments of principal (other than any such payment that may arise as a result of an acceleration following default or pursuant to customary change of control or asset sale provisions) prior to the date that is 91 days following the final scheduled maturity of the Notes;
(2) to the extent such Refinancing Indebtedness refinances (i) Indebtedness subordinated in right of payment to the Notes or any Guarantee thereof, such Refinancing Indebtedness is subordinated in right of payment to the Notes or the Guarantee, as applicable, at least to the same extent as the Indebtedness being
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Refinanced or (ii) Disqualified Stock or Preferred Stock, such Refinancing Indebtedness must be Disqualified Stock or Preferred Stock, respectively; and
(3) shall not include:
(A) Indebtedness, Disqualified Stock or Preferred Stock of a Non-Guarantor Subsidiary that refinances Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or a Guarantor; or
(B) Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or a Restricted Subsidiary that refinances Indebtedness, Disqualified Stock or Preferred Stock of an Unrestricted Subsidiary.
Registration Rights Agreement means (a) with respect to the Notes issued on the Issue Date, the Registration Rights Agreement dated the Issue Date, among the Issuer, the Guarantors party thereto and the representative for the Initial Purchasers, as supplemented by the Joinder Agreement thereto dated the Issue Date among the Guarantors party thereto and the representative for the Initial Purchasers, and (b) with respect to each issuance of Additional Notes issued in a transaction exempt from the registration requirements of the Securities Act, the registration rights agreement, if any, among the Issuer, any Guarantors and the Persons purchasing such Additional Notes (or the representative therefor) under the related purchase agreement.
Related Business Assets means assets (other than cash or Cash Equivalents) used or useful in a Similar Business; provided that any assets received by the Issuer or a Restricted Subsidiary in exchange for assets transferred by the Issuer or a Restricted Subsidiary shall not be deemed to be Related Business Assets if they consist of securities of a Person, unless upon receipt of the securities of such Person, such Person would be or become a Restricted Subsidiary.
Required Financial Statements means the financial statements required to be delivered pursuant to the covenant described under Certain CovenantsReports and Other Information.
Restricted Investment means an Investment other than a Permitted Investment.
Restricted Subsidiary means, at any time, each direct and indirect Subsidiary of the Issuer that is not then an Unrestricted Subsidiary; provided, however, that upon the occurrence of an Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary while such entity remains a Subsidiary of the Issuer, such Subsidiary shall be included in the definition of Restricted Subsidiary.
S&P means Standard & Poors Ratings Services, a division of McGraw Hill Financial, Inc., or any successor to its rating agency business.
Sale and Lease-Back Transaction means any direct or indirect arrangement providing for the leasing by the Issuer or any of its Restricted Subsidiaries of any real or tangible personal property (other than a lease for a term not exceeding 12 months), which property has been or is to be sold or transferred for value by the Issuer or such Restricted Subsidiary to a third Person in contemplation of such leasing.
SEC means the U.S. Securities and Exchange Commission.
Series A Preferred Stock means the Series A Preferred Stock, with an initial stated value equal to $1,000 per share, of the Issuer issued on the Issue Date.
Secured Indebtedness means any Indebtedness of the Issuer or any of its Restricted Subsidiaries secured by a Lien. For the avoidance of doubt, Attributable Debt will be considered to be secured by the assets that are the subject of the Sale and Lease-Back Transaction.
Securities Act means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.
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Senior Credit Facilities means the credit facilities under that certain credit agreement, dated as of the Issue Date, by and among the Issuer, the Guarantors, the lenders party thereto in their capacities as lenders thereunder and the Administrative Agent thereunder, including any guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements, refundings or Refinancings thereof subsequent to the Issue Date (and for the avoidance of doubt, after giving effect to the Transactions) and any indentures or credit facilities or commercial paper facilities with banks or other institutional lenders or investors that replace, refund or refinance any part of the loans, notes, other credit facilities or commitments thereunder, including any such replacement, refunding or refinancing facility or indenture that increases the amount borrowable thereunder or alters the maturity thereof (provided that such increase in borrowings is permitted under Certain CovenantsLimitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock above).
Significant Subsidiary means any Restricted Subsidiary that would be a significant subsidiary as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the Issue Date; provided, however, that in the case of a Subsidiary that meets clause (3) of the definition thereof but not clause (1) or (2) thereof, such subsidiary shall be deemed not to be a Significant Subsidiary unless the subsidiarys income (or loss) from continuing operations before income taxes, extraordinary items and cumulative effect of a change in accounting principles exclusive of amounts attributable to any non-controlling interests for the last completed fiscal year prior to the date of such determination exceeds $25.0 million.
Similar Business means any business, services or activities conducted or proposed to be conducted by the Issuer or any of its Subsidiaries (including Time and its Subsidiaries) on the Issue Date or any business, services or activities that are similar, reasonably related, incidental, complementary or ancillary to any of the foregoing or are extensions or developments of any thereof.
Sterling means the lawful currency of the United Kingdom.
Subordinated Indebtedness means:
(1) any Indebtedness of the Issuer which is by its terms subordinated in right of payment to the Notes, and
(2) any Indebtedness of a Guarantor which is by its terms subordinated in right of payment to the Guarantee of such entity.
Subsidiary means, with respect to any Person:
(1) any corporation, association, or other business entity (other than a partnership, limited liability company or similar entity) of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time of determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof; and
(2)any partnership, limited liability company or similar entity of which
(x) more than 50% of the voting interests or general partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof, whether in the form of membership, general, special or limited partnership or otherwise, and
(y) such Person or any Restricted Subsidiary of such Person is a controlling general partner or otherwise controls such entity.
Tender Offer means the tender offer by the Purchaser to purchase for cash all of the outstanding shares of Times common stock at a purchase price of $18.50 per share, as contemplated by the Merger Agreement.
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Time means Time Inc., a Delaware corporation.
Transactions means the issuance of the Notes, the entering into of the Senior Credit Facilities, the Equity Contribution and the use of the proceeds of each of the foregoing, the Tender Offer, the Merger and each other transaction described in the Offering Memorandum under The Transactions and Use of Proceeds.
Treasury Rate means, as of any Redemption Date, the yield to maturity as of such Redemption Date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 that has become publicly available at least two Business Days prior to the Redemption Date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the Redemption Date to February 1, 2021; provided, however, that if the period from the Redemption Date to February 1, 2021 is less than one year, the weekly average yield on actively traded United States Treasury securities adjusted to a constant maturity of one year will be used.
U.K. Pension Security Obligations means amounts posted as security under the deed of guaranty, dated as of October 19, 2015, among Time, Time Inc. (UK) Ltd. and IPC Media Pension Trustee Limited, or any successor or replacement agreement or amendment thereto, such as surety bonds and/or letters of credit issued or acquired in connection therewith.
Unrestricted Subsidiary means:
(1) any Subsidiary of the Issuer which at the time of determination is an Unrestricted Subsidiary (as designated by the Issuer, as provided below); and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Issuer may designate any Subsidiary of the Issuer (including any existing Subsidiary and any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary; provided that:
(1) such designation complies with the covenants described under Certain CovenantsLimitation on Restricted Payments; and
(2) each of:
(A) the Subsidiary to be so designated; and
(B) its Subsidiaries
has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of the Issuer or any Restricted Subsidiary except for Liens described in clause (28) of the definition of Permitted Liens.
The Issuer may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that, immediately after giving effect to such designation, no Default shall have occurred and be continuing and either:
(1) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Net Leverage Ratio test described in the first paragraph under Certain CovenantsLimitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock; or
(2) the Consolidated Net Leverage Ratio for the Issuer and its Restricted Subsidiaries would be less than or equal to such ratio immediately prior to such designation,
in each case on a pro forma basis taking into account such designation.
Any such designation by the Issuer shall be notified by the Issuer to the Trustee by promptly filing with the Trustee a copy of the resolution of the Board of Directors of the Issuer or any committee thereof giving effect to such designation and an Officers Certificate certifying that such designation complied with the foregoing provisions, whereupon such designation shall be immediately effective.
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Voting Stock of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors or other governing body of such Person.
Weighted Average Life to Maturity means, when applied to any Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, at any date, the quotient obtained by dividing:
(1) the sum of the products of the number of years from the date of determination to the date of each successive scheduled principal payment of such Indebtedness or scheduled redemption or similar payment with respect to such Disqualified Stock or Preferred Stock multiplied by the amount of such payment; by
(2) the sum of all such payments.
Wholly Owned Subsidiary of any Person means a Subsidiary of such Person, 100% of the outstanding Equity Interests of which (other than directors qualifying shares or shares or interests required to be held by foreign nationals or other third parties to the extent required by applicable law) shall at the time be owned by such Person or by one or more Wholly Owned Subsidiaries of such Person.
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BOOK-ENTRY, SETTLEMENT AND CLEARANCE
The Global Notes
The exchange notes issued in exchange for outstanding unregistered notes will be represented by global notes in definitive, fully registered form, without interest coupons (collectively, the global notes).
Upon issuance, the global notes will be deposited with the Trustee as custodian for the DTC and registered in the name of Cede & Co., as nominee of DTC.
Ownership of beneficial interests in each global note will be limited to persons who have accounts with DTC (DTC participants) or persons who hold interests through DTC participants. We expect that under procedures established by DTC:
| upon deposit of each global note with DTCs custodian, DTC will credit portions of the principal amount of the global note to the accounts of the DTC participants designated by the initial purchasers; and |
| ownership of beneficial interests in each global note will be shown on, and transfer of ownership of those interests will be effected only through, records maintained by DTC (with respect to interests of DTC participants) and the records of DTC participants (with respect to other owners of beneficial interests in the global note). |
Beneficial interests in the global notes may not be exchanged for notes in physical, certificated form except in the limited circumstances described below.
Book-entry Procedures for the Global Notes
All interests in the global notes will be subject to the operations and procedures of DTC, Euroclear and Clearstream. We provide the following summaries of those operations and procedures solely for the convenience of investors. The operations and procedures of each settlement system are controlled by that settlement system and may be changed at any time. We are not responsible for those operations or procedures.
DTC has advised us that it is:
| a limited purpose trust company organized under the laws of the State of New York; |
| a banking organization within the meaning of the New York State Banking Law; |
| a member of the Federal Reserve System; |
| a clearing corporation within the meaning of the Uniform Commercial Code; and |
| a clearing agency registered under Section 17A of the Exchange Act. |
DTC was created to hold securities for its participants and to facilitate the clearance and settlement of securities transactions between its participants through electronic book-entry changes to the accounts of its participants. DTCs participants include securities brokers and dealers; banks and trust companies; clearing corporations and other organizations. Indirect access to DTCs system is also available to others such as banks, brokers, dealers and trust companies; these indirect participants clear through or maintain a custodial relationship with a DTC participant, either directly or indirectly. Investors who are not DTC participants may beneficially own securities held by or on behalf of DTC only through DTC participants or indirect participants in DTC.
So long as DTCs nominee is the registered owner of a global note, that nominee will be considered the sole owner or holder of the notes represented by that global note for all purposes under the indenture. Except as provided below, owners of beneficial interests in a global note:
| will not be entitled to have notes represented by the global note registered in their names; |
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| will not receive or be entitled to receive physical, certificated notes; and |
| will not be considered the owners or holders of the notes under the indenture for any purpose, including with respect to the giving of any direction, instruction or approval to the Trustee under the indenture. |
As a result, each investor who owns a beneficial interest in a global note must rely on the procedures of DTC to exercise any rights of a holder of notes under the indenture (and, if the investor is not a participant or an indirect participant in DTC, on the procedures of the DTC participant through which the investor owns its interest).
Payments of principal, premium (if any) and interest with respect to the notes represented by a global note will be made by the Trustee to DTCs nominee as the registered holder of the global note. Neither we nor the Trustee will have any responsibility or liability for the payment of amounts to owners of beneficial interests in a global note, for any aspect of the records relating to or payments made on account of those interests by DTC, or for maintaining, supervising or reviewing any records of DTC relating to those interests.
Payments by participants and indirect participants in DTC to the owners of beneficial interests in a global note will be governed by standing instructions and customary industry practice and will be the responsibility of those participants or indirect participants and DTC.
Transfers between participants in DTC will be effected under DTCs procedures and will be settled in same-day funds. Transfers between participants in Euroclear or Clearstream will be effected in the ordinary way under the rules and operating procedures of those systems.
Cross-market transfers between DTC participants, on the one hand, and Euroclear or Clearstream participants, on the other hand, will be effected within DTC through the DTC participants that are acting as depositaries for Euroclear and Clearstream. To deliver or receive an interest in a global note held in a Euroclear or Clearstream account, an investor must send transfer instructions to Euroclear or Clearstream, as the case may be, under the rules and procedures of that system and within the established deadlines of that system. If the transaction meets its settlement requirements, Euroclear or Clearstream, as the case may be, will send instructions to its DTC depositary to take action to effect final settlement by delivering or receiving interests in the relevant global notes in DTC, and making or receiving payment under normal procedures for same-day funds settlement applicable to DTC. Euroclear and Clearstream participants may not deliver instructions directly to the DTC depositaries that are acting for Euroclear or Clearstream.
Because of time zone differences, the securities account of a Euroclear or Clearstream participant that purchases an interest in a global note from a DTC participant will be credited on the business day for Euroclear or Clearstream immediately following the DTC settlement date. Cash received in Euroclear or Clearstream from the sale of an interest in a global note to a DTC participant will be received with value on the DTC settlement date but will be available in the relevant Euroclear or Clearstream cash account as of the business day for Euroclear or Clearstream following the DTC settlement date.
DTC, Euroclear and Clearstream have agreed to the above procedures to facilitate transfers of interests in the global notes among participants in those settlement systems. However, the settlement systems are not obligated to perform these procedures and may discontinue or change these procedures at any time. Neither we, the Exchange Agent nor the Trustee will have any responsibility for the performance by DTC, Euroclear or Clearstream or their participants or indirect participants of their obligations under the rules and procedures governing their operations.
Certificated Notes
Notes in physical, certificated form will be issued and delivered to each person that DTC identifies as a beneficial owner of the related notes only if:
| DTC notifies us at any time that it is unwilling or unable to continue as depositary for the global notes and a successor depositary is not appointed within 90 days; |
101
| DTC ceases to be registered as a clearing agency under the Exchange Act and a successor depositary is not appointed within 90 days; |
| we, at our option, notify the Trustee that we elect to cause the issuance of certificated notes; or |
| certain other events provided in the indenture should occur. |
102
MATERIAL UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The exchange of outstanding unregistered notes for exchange notes in the exchange offer will not constitute a taxable event to holders for United States federal income tax purposes. Consequently, no gain or loss will be recognized by a holder upon receipt of an exchange note, the holding period of the exchange note will include the holding period of the outstanding unregistered note exchanged therefor, and the basis of the exchange note will be the same as the basis of the outstanding unregistered note immediately before the exchange.
Persons considering the exchange of outstanding unregistered notes for exchange notes should consult their own tax advisors concerning the United States federal income tax consequences of the exchange in light of their particular situations as well as any non-United States federal income tax consequences of the exchange, such as United States federal estate, state, local and foreign tax consequences.
103
Each broker-dealer that receives exchange notes for its own account pursuant to the registered exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of such exchange notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of exchange notes received in exchange for unregistered notes where such notes were acquired as a result of market-making activities or other trading activities. We have agreed that, for a period ending on the earlier of (i) 180 days from the date on which the this registration statement is declared effective and (ii) the date on which broker-dealers are no longer required to deliver a prospectus in connection with market-making or other trading activities, we will make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale. In addition, until , 2019, all dealers effecting transactions in the exchange notes may be required to deliver a prospectus.
We will not receive any proceeds from any sale of exchange notes by brokers-dealers. Exchange notes received by broker-dealers for their own account pursuant to the registered exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the exchange notes or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer and/or the purchasers of any such exchange notes. Any broker-dealer that resells exchange notes that were received by it for its own account pursuant to the registered exchange offer and any broker or dealer that participates in a distribution of such exchange notes may be deemed to be an underwriter within the meaning of the Act and any profit of any such resale of exchange notes and any commissions or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that by acknowledging that it will deliver and by delivering a Prospectus, a broker dealer will not be deemed to admit that it is an underwriter within the meaning of the Securities Act.
For a period ending on the earlier of (i) 180 days from the date on which this registration statement is declared effective and (ii) the date on which broker dealers are no longer required to deliver a prospectus in connection with market-making or other trading activities, we will promptly send additional copies of this prospectus and any amendments or supplements to this prospectus to any broker-dealer that requests such documents in the letter of transmittal.
We have agreed to pay all expenses incident to the registered exchange offer (including the reasonable and documented expenses of one counsel for the holder of the Securities) other than commissions or concessions of any brokers or dealers and will indemnify the holders of the notes (including any broker-dealers) against certain liabilities, including liabilities under the Securities Act.
104
The validity of the exchange notes and related guarantees offered hereby will be passed upon for us by Cooley LLP, Washington, D.C. John S. Zieser, Meredith Corporations Chief Development Officer, General Counsel and Secretary addressed certain matters relating to Iowa law, Ballard Spahr LLP addressed certain matters relating to Arizona law, Davis Wright Tremaine LLP addressed certain matters relating to Oregon law and Dickinson Wright PLLC addressed certain matters relating to Nevada law.
The consolidated financial statements of Meredith Corporation and its subsidiaries (the Company) as of June 30, 2018 and 2017, and for each of the years in the three-year period ended June 30, 2018, and managements assessment of the effectiveness of internal control over financial reporting as of June 30, 2018 have been included herein in reliance upon the reports of KPMG LLP, independent registered public accounting firm, appearing elsewhere herein, and upon the authority of said firm as experts in accounting and auditing. The audit report on the effectiveness of internal control over financial reporting as of June 30, 2018, contains an explanatory paragraph that states management has excluded Time Inc. and subsidiaries (Time) from its assessment of the effectiveness of internal control over financial reporting as of June 30, 2018. Time represents 59 percent of the Companys total assets as of June 30, 2018 and 28 percent of revenue for the year ended June 30, 2018.
The consolidated financial statements of Time Inc. at December 31, 2017 and 2016, and for each of the three years in the period ended December 31, 2017, appearing in this Prospectus and Registration Statement have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon appearing elsewhere herein, and are included in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
105
On January 31, 2018, Meredith Corporation completed its acquisition of Time Inc. Meredith Corporations 6.875% Senior Notes due 2026, which are being registered under this registration statement, are guaranteed by Time Inc. and certain of its domestic subsidiaries. As such, Time Inc. and certain of its domestic subsidiaries are considered to be recently acquired subsidiary guarantors under Rule 3-10(g) of Regulation S-X of the Securities and Exchange Commissions rules and regulations (Rule 3-10(g)). Accordingly, Time Inc.s financial statements as of and for the year ended December 31, 2017 are required pursuant to Rule 3-10(g).
F-1
Report of Independent Registered Public Accounting Firm
The Board of Directors and Shareholders
Meredith Corporation:
Opinions on the Consolidated Financial Statements and Internal Control Over Financial Reporting
We have audited the accompanying consolidated balance sheets of Meredith Corporation and subsidiaries (the Company) as of June 30, 2018 and 2017, the related consolidated statements of earnings, comprehensive income, shareholders equity, and cash flows for each of the years in the three-year period ended June 30, 2018, and the related notes and financial statement schedule II-Valuation and Qualifying Accounts (collectively, the consolidated financial statements). We also have audited the Companys internal control over financial reporting as of June 30, 2018, based on criteria established in Internal ControlIntegrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of the Company as of June 30, 2018 and 2017, and the results of its operations and its cash flows for each of the years in the three-year period ended June 30, 2018, in conformity with U.S. generally accepted accounting principles. Also in our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of June 30, 2018, based on criteria established in Internal ControlIntegrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.
The Company acquired Time Inc. and subsidiaries (Time) during fiscal 2018, and management excluded from its assessment of the effectiveness of the Companys internal control over financial reporting as of June 30, 2018, Times internal control over financial reporting associated with 59 percent of the Companys total assets and 28 percent of revenue included in the consolidated financial statements as of and for the year ended June 30, 2018. Our audit of internal control over financial reporting of the Company also excluded an evaluation of the internal control over financial reporting of Time.
Basis for Opinions
The Companys management is responsible for these consolidated financial statements, for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting, included in Managements Report on Internal Control Over Financial Reporting in Item 9A of Form 10-K. Our responsibility is to express an opinion on the Companys consolidated financial statements and an opinion on the Companys internal control over financial reporting based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud, and whether effective internal control over financial reporting was maintained in all material respects.
Our audits of the consolidated financial statements included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. Our audit of internal control over financial reporting included obtaining an
F-2
understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinions.
Definition and Limitations of Internal Control Over Financial Reporting
A companys internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A companys internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the companys assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
/s/ KPMG LLP
We or our predecessor firms have served as the Companys auditor since 1948.
Des Moines, Iowa
August 31, 2018, except for note 19
which is as of January 7, 2019
F-3
Meredith Corporation and Subsidiaries
Consolidated Balance Sheets
Assets |
June 30, | 2018 | 2017 | |||||||||
(In millions) | ||||||||||||
Current assets |
||||||||||||
Cash and cash equivalents |
$ | 437.6 | $ | 22.3 | ||||||||
Accounts receivable (net of allowances of $14.4 in 2018 and $8.0 in 2017) |
542.0 | 289.1 | ||||||||||
Inventories |
44.2 | 21.9 | ||||||||||
Current portion of subscription acquisition costs |
118.1 | 145.0 | ||||||||||
Current portion of broadcast rights |
9.8 | 7.8 | ||||||||||
Assets held-for-sale |
713.1 | | ||||||||||
Other current assets |
114.3 | 19.3 | ||||||||||
|
|
|
|
|||||||||
Total current assets |
1,979.1 | 505.4 | ||||||||||
|
|
|
|
|||||||||
Property, plant, and equipment |
||||||||||||
Land |
24.6 | 24.7 | ||||||||||
Buildings and improvements |
153.5 | 153.7 | ||||||||||
Machinery and equipment |
359.8 | 316.6 | ||||||||||
Leasehold improvements |
177.4 | 14.3 | ||||||||||
Capitalized software |
125.9 | 38.5 | ||||||||||
Construction in progress |
20.2 | 1.7 | ||||||||||
|
|
|
|
|||||||||
Total property, plant, and equipment |
861.4 | 549.5 | ||||||||||
Less accumulated depreciation |
(377.6 | ) | (359.7 | ) | ||||||||
|
|
|
|
|||||||||
Net property, plant, and equipment |
483.8 | 189.8 | ||||||||||
Subscription acquisition costs |
61.1 | 79.7 | ||||||||||
Broadcast rights |
18.9 | 21.8 | ||||||||||
Other assets |
263.3 | 69.6 | ||||||||||
Intangible assets, net |
2,005.2 | 955.9 | ||||||||||
Goodwill |
1,915.8 | 907.5 | ||||||||||
|
|
|
|
|||||||||
Total assets |
$ | 6,727.2 | $ | 2,729.7 | ||||||||
|
|
|
|
See accompanying Notes to Consolidated Financial Statements
F-4
Meredith Corporation and Subsidiaries
Consolidated Balance Sheets (continued)
Liabilities, Redeemable Convertible Preferred Stock, and Shareholders Equity |
June 30, | 2018 | 2017 | |||||||||
(In millions except per share data) | ||||||||||||
Current liabilities |
||||||||||||
Current portion of long-term debt |
$ | 17.7 | $ | 62.5 | ||||||||
Current portion of long-term broadcast rights payable |
8.9 | 9.2 | ||||||||||
Accounts payable |
194.7 | 66.6 | ||||||||||
Accrued expenses |
||||||||||||
Compensation and benefits |
122.3 | 69.0 | ||||||||||
Distribution expenses |
10.0 | 5.3 | ||||||||||
Other taxes and expenses |
277.9 | 28.1 | ||||||||||
|
|
|
|
|||||||||
Total accrued expenses |
410.2 | 102.4 | ||||||||||
Current portion of unearned revenues |
360.4 | 219.0 | ||||||||||
Liabilities associated with assets held-for-sale |
198.4 | | ||||||||||
|
|
|
|
|||||||||
Total current liabilities |
1,190.3 | 459.7 | ||||||||||
Long-term debt |
3,117.9 | 635.7 | ||||||||||
Long-term broadcast rights payable |
20.8 | 22.5 | ||||||||||
Unearned revenues |
124.1 | 106.5 | ||||||||||
Deferred income taxes |
437.0 | 384.7 | ||||||||||
Other noncurrent liabilities |
217.0 | 124.6 | ||||||||||
|
|
|
|
|||||||||
Total liabilities |
5,107.1 | 1,733.7 | ||||||||||
|
|
|
|
|||||||||
Redeemable, convertible Series A preferred stock, par value $1 per share, $1,000 per share liquidation preference, authorized 2.5 shares, issued 0.7 shares |
522.6 | | ||||||||||
Shareholders equity |
||||||||||||
Series preferred stock, par value $1 per share |
||||||||||||
Authorized 2.5 shares; none issued |
| | ||||||||||
Common stock, par value $1 per share |
||||||||||||
Authorized 80.0 shares; issued and outstanding 39.8 shares in 2018 (excluding 24.8 treasury shares) and 39.4 shares in 2017 (excluding 24.8 treasury shares) |
39.8 | 39.4 | ||||||||||
Class B stock, par value $1 per share, convertible to common stock |
||||||||||||
Authorized 15.0 shares; issued and outstanding 5.1 shares in 2018 and 5.1 shares in 2017 |
5.1 | 5.1 | ||||||||||
Additional paid-in capital |
199.5 | 54.8 | ||||||||||
Retained earnings |
889.8 | 915.7 | ||||||||||
Accumulated other comprehensive loss |
(36.7 | ) | (19.0 | ) | ||||||||
|
|
|
|
|||||||||
Total shareholders equity |
1,097.5 | 996.0 | ||||||||||
|
|
|
|
|||||||||
Total liabilities, redeemable convertible preferred stock, and shareholders equity |
$ | 6,727.2 | $ | 2,729.7 | ||||||||
|
|
|
|
See accompanying Notes to Consolidated Financial Statements
F-5
Meredith Corporation and Subsidiaries
Consolidated Statements of Earnings
Years ended June 30, |
2018 | 2017 | 2016 | |||||||||
(In millions except per share data) | ||||||||||||
Revenues |
||||||||||||
Advertising |
$ | 1,116.6 | $ | 934.1 | $ | 914.2 | ||||||
Circulation |
489.3 | 322.0 | 328.6 | |||||||||
All other |
641.5 | 457.2 | 406.8 | |||||||||
|
|
|
|
|
|
|||||||
Total revenues |
2,247.4 | 1,713.3 | 1,649.6 | |||||||||
|
|
|
|
|
|
|||||||
Operating expenses |
||||||||||||
Production, distribution, and editorial |
860.6 | 603.0 | 611.3 | |||||||||
Selling, general, and administrative |
962.7 | 730.9 | 723.5 | |||||||||
Acquisition, disposition, and restructuring related activities |
173.4 | 10.3 | (36.4 | ) | ||||||||
Depreciation and amortization |
129.0 | 53.8 | 59.1 | |||||||||
Impairment of goodwill and other long-lived assets |
22.7 | 6.2 | 161.5 | |||||||||
|
|
|
|
|
|
|||||||
Total operating expenses |
2,148.4 | 1,404.2 | 1,519.0 | |||||||||
|
|
|
|
|
|
|||||||
Income from operations |
99.0 | 309.1 | 130.6 | |||||||||
Non-operating expenses, net |
(11.7 | ) | | | ||||||||
Interest expense, net |
(96.9 | ) | (18.8 | ) | (20.4 | ) | ||||||
|
|
|
|
|
|
|||||||
Earnings (loss) from continuing operations before income taxes |
(9.6 | ) | 290.3 | 110.2 | ||||||||
Income tax benefit (expense) |
123.6 | (101.4 | ) | (76.3 | ) | |||||||
|
|
|
|
|
|
|||||||
Earnings from continuing operations |
114.0 | 188.9 | 33.9 | |||||||||
Loss from discontinued operations, net of income taxes |
(14.6 | ) | | | ||||||||
|
|
|
|
|
|
|||||||
Net earnings |
$ | 99.4 | $ | 188.9 | $ | 33.9 | ||||||
|
|
|
|
|
|
|||||||
Earnings attributable to common shareholders |
$ | 66.4 | $ | 188.9 | $ | 33.9 | ||||||
|
|
|
|
|
|
|||||||
Basic earnings per share attributable to common shareholders |
||||||||||||
Continuing operations |
$ | 1.80 | $ | 4.23 | $ | 0.76 | ||||||
Discontinued operations |
(0.32 | ) | | | ||||||||
|
|
|
|
|
|
|||||||
Basic earnings per share |
$ | 1.48 | $ | 4.23 | $ | 0.76 | ||||||
|
|
|
|
|
|
|||||||
Basic average common shares outstanding |
44.9 | 44.6 | 44.6 | |||||||||
|
|
|
|
|
|
|||||||
Diluted earnings per share attributable to common shareholders |
||||||||||||
Continuing operations |
$ | 1.79 | $ | 4.16 | $ | 0.75 | ||||||
Discontinued operations |
(0.32 | ) | | | ||||||||
|
|
|
|
|
|
|||||||
Diluted earnings per share |
$ | 1.47 | $ | 4.16 | $ | 0.75 | ||||||
|
|
|
|
|
|
|||||||
Diluted average shares outstanding |
45.2 | 45.4 | 45.4 | |||||||||
|
|
|
|
|
|
|||||||
Dividends paid per share |
$ | 2.130 | $ | 2.030 | $ | 1.905 | ||||||
|
|
|
|
|
|
See accompanying Notes to Consolidated Financial Statements
F-6
Meredith Corporation and Subsidiaries
Consolidated Statements of Comprehensive Income
Years ended June 30, |
2018 | 2017 | 2016 | |||||||||
(In millions) | ||||||||||||
Net earnings |
$ | 99.4 | $ | 188.9 | $ | 33.9 | ||||||
|
|
|
|
|
|
|||||||
Other comprehensive income (loss), net of income taxes |
||||||||||||
Pension and other postretirement benefit plans activity |
(0.8 | ) | 5.3 | (12.8 | ) | |||||||
Unrealized foreign currency translation loss, net |
(12.9 | ) | | | ||||||||
Unrealized gain (loss) on interest rate swaps |
| 4.2 | (3.1 | ) | ||||||||
|
|
|
|
|
|
|||||||
Other comprehensive income (loss), net of income taxes |
(13.7 | ) | 9.5 | (15.9 | ) | |||||||
|
|
|
|
|
|
|||||||
Comprehensive income |
$ | 85.7 | $ | 198.4 | $ | 18.0 | ||||||
|
|
|
|
|
|
See accompanying Notes to Consolidated Financial Statements.
F-7
Meredith Corporation and Subsidiaries
Consolidated Statements of Shareholders Equity
(In millions except per share data) |
Common Stock - $1 par value |
Class B Stock - $1 par value |
Additional Paid-in Capital |
Retained Earnings |
Accumulated Other Comprehensive Income (Loss) |
Total | ||||||||||||||||||
Balance at June 30, 2015 |
$ | 37.7 | $ | 6.9 | $ | 49.0 | $ | 870.9 | $ | (12.6 | ) | $ | 951.9 | |||||||||||
Net earnings |
| | | 33.9 | | 33.9 | ||||||||||||||||||
Other comprehensive loss, net of tax |
| | | | (15.9 | ) | (15.9 | ) | ||||||||||||||||
Stock issued under various incentive plans, net of forfeitures |
0.6 | | 20.3 | | | 20.9 | ||||||||||||||||||
Purchases of Company stock |
(0.7 | ) | | (30.4 | ) | | | (31.1 | ) | |||||||||||||||
Share-based compensation |
| | 12.8 | | | 12.8 | ||||||||||||||||||
Conversion of class B to common stock |
1.7 | (1.7 | ) | | | | | |||||||||||||||||
Dividends paid, $1.905 per share |
||||||||||||||||||||||||
Common stock |
| | | (72.9 | ) | | (72.9 | ) | ||||||||||||||||
Class B stock |
| | | (13.2 | ) | | (13.2 | ) | ||||||||||||||||
Tax benefit from incentive plans |
| | 2.6 | | | 2.6 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Balance at June 30, 2016 |
39.3 | 5.2 | 54.3 | 818.7 | (28.5 | ) | 889.0 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net earnings |
| | | 188.9 | | 188.9 | ||||||||||||||||||
Other comprehensive income, net of tax |
| | | | 9.5 | 9.5 | ||||||||||||||||||
Stock issued under various incentive plans, net of forfeitures |
0.9 | | 37.1 | | | 38.0 | ||||||||||||||||||
Purchases of Company stock |
(0.9 | ) | | (52.4 | ) | | | (53.3 | ) | |||||||||||||||
Share-based compensation |
| | 12.8 | | | 12.8 | ||||||||||||||||||
Conversion of class B to common stock |
0.1 | (0.1 | ) | | | | | |||||||||||||||||
Dividends paid, $2.030 per share |
||||||||||||||||||||||||
Common stock |
| | | (81.4 | ) | | (81.4 | ) | ||||||||||||||||
Class B stock |
| | | (10.5 | ) | | (10.5 | ) | ||||||||||||||||
Tax benefit from incentive plans |
| | 3.0 | | | 3.0 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Balance at June 30, 2017 |
39.4 | 5.1 | 54.8 | 915.7 | (19.0 | ) | 996.0 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Net earnings |
| | | 99.4 | | 99.4 | ||||||||||||||||||
Other comprehensive loss, net of tax |
| | | | (13.7 | ) | (13.7 | ) | ||||||||||||||||
Stock issued under various incentive plans, net of forfeitures |
0.9 | | 18.4 | | | 19.3 | ||||||||||||||||||
Issuance of replacement Time share-based compensation awards |
| | 9.8 | | | 9.8 | ||||||||||||||||||
Purchases of Company stock |
(0.5 | ) | | (30.6 | ) | | | (31.1 | ) | |||||||||||||||
Share-based compensation |
| | 30.4 | | | 30.4 | ||||||||||||||||||
Issuance of warrants and options |
| | 115.6 | | | 115.6 | ||||||||||||||||||
Dividends paid, $2.130 per share |
||||||||||||||||||||||||
Common stock |
| | | (87.8 | ) | | (87.8 | ) | ||||||||||||||||
Class B stock |
| | | (10.8 | ) | | (10.8 | ) | ||||||||||||||||
Series A preferred stock |
| | | (22.9 | ) | | (22.9 | ) | ||||||||||||||||
Accretion of Series A preferred stock |
| | | (7.2 | ) | | (7.2 | ) | ||||||||||||||||
Cumulative effect adjustment for adoption of Accounting Standards Update 2016-09 |
| | 1.1 | (0.6 | ) | | 0.5 | |||||||||||||||||
Reclassification adjustment for adoption of Accounting Standards Update 2018-02 |
| | | 4.0 | (4.0 | ) | | |||||||||||||||||
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Balance at June 30, 2018 |
$ | 39.8 | $ | 5.1 | $ | 199.5 | $ | 889.8 | $ | (36.7 | ) | $ | 1,097.5 | |||||||||||
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See accompanying Notes to Consolidated Financial Statements.
F-8
Meredith Corporation and Subsidiaries
Consolidated Statements of Cash Flows
Years ended June 30, |
2018 | 2017 | 2016 | |||||||||
(In millions) | ||||||||||||
Cash flows from operating activities |
||||||||||||
Net earnings |
$ | 99.4 | $ | 188.9 | $ | 33.9 | ||||||
Adjustments to reconcile net earnings to net cash provided by operating activities |
||||||||||||
Depreciation |
54.2 | 34.8 | 39.4 | |||||||||
Amortization |
74.8 | 19.1 | 19.7 | |||||||||
Share-based compensation |
30.4 | 12.8 | 12.8 | |||||||||
Amortization of original issue discount and debt issuance costs |
6.1 | | | |||||||||
Deferred income taxes |
(116.5 | ) | 42.5 | 9.1 | ||||||||
Amortization of broadcast rights |
19.2 | 17.6 | 16.7 | |||||||||
Payments for broadcast rights |
(20.7 | ) | (17.0 | ) | (16.9 | ) | ||||||
Write-down of impaired assets |
23.0 | 9.8 | 162.0 | |||||||||
Fair value adjustment to contingent consideration |
(4.8 | ) | (19.5 | ) | (4.1 | ) | ||||||
Excess tax benefits from share-based payments |
| (6.8 | ) | (4.2 | ) | |||||||
Other operating activities, net |
13.1 | | | |||||||||
Changes in assets and liabilities, net of acquisitions/dispositions |
||||||||||||
Accounts receivable |
12.6 | (15.2 | ) | 10.7 | ||||||||
Inventories |
(0.3 | ) | (1.2 | ) | 3.5 | |||||||
Other current assets |
(4.3 | ) | 4.7 | (0.5 | ) | |||||||
Subscription acquisition costs |
45.4 | 4.7 | (3.1 | ) | ||||||||
Other assets |
(101.1 | ) | (2.1 | ) | 4.9 | |||||||
Assets and liabilities held-for-sale |
28.4 | | | |||||||||
Accounts payable |
(13.0 | ) | (15.5 | ) | (11.9 | ) | ||||||
Accrued expenses and other liabilities |
73.6 | 8.3 | (16.6 | ) | ||||||||
Unearned subscription revenues |
(68.7 | ) | (16.9 | ) | (31.3 | ) | ||||||
Other noncurrent liabilities |
0.6 | (29.7 | ) | 2.5 | ||||||||
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Net cash provided by operating activities |
151.4 | 219.3 | 226.6 | |||||||||
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Cash flows from investing activities |
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Acquisitions of and investments in businesses, net of cash acquired |
(2,786.5 | ) | (84.4 | ) | (8.2 | ) | ||||||
Proceeds from disposition of assets, net of cash sold |
219.2 | 1.5 | 1.8 | |||||||||
Additions to property, plant, and equipment |
(53.2 | ) | (34.8 | ) | (25.0 | ) | ||||||
Other |
3.1 | | | |||||||||
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Net cash used in investing activities |
(2,617.4 | ) | (117.7 | ) | (31.4 | ) | ||||||
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Cash flows from financing activities |
||||||||||||
Proceeds from issuance of long-term debt |
3,260.0 | 380.0 | 167.5 | |||||||||
Repayments of long-term debt |
(765.1 | ) | (374.4 | ) | (267.5 | ) | ||||||
Issued preferred stock, warrants, and options proceeds, net of issuance costs |
631.0 | | | |||||||||
Dividends paid |
(121.5 | ) | (91.9 | ) | (86.1 | ) | ||||||
Purchases of Company stock |
(31.1 | ) | (53.3 | ) | (31.1 | ) | ||||||
Proceeds from common stock issued |
19.3 | 38.0 | 20.9 | |||||||||
Excess tax benefits from share-based payments |
| 6.8 | 4.2 | |||||||||
Payment of acquisition related contingent consideration |
(5.1 | ) | (8.0 | ) | (0.8 | ) | ||||||
Debt acquisition costs |
(70.8 | ) | (1.5 | ) | (0.1 | ) | ||||||
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Net cash provided by (used in) financing activities |
2,916.7 | (104.3 | ) | (193.0 | ) | |||||||
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Effect of exchange rate changes on cash and cash equivalents |
(4.1 | ) | | | ||||||||
Change in cash held-for-sale |
(31.3 | ) | | | ||||||||
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Net increase (decrease) in cash and cash equivalents |
415.3 | (2.7 | ) | 2.2 | ||||||||
Cash and cash equivalents at beginning of year |
22.3 | 25.0 | 22.8 | |||||||||
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Cash and cash equivalents at end of year |
$ | 437.6 | $ | 22.3 | $ | 25.0 | ||||||
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See accompanying Notes to Consolidated Financial Statements
F-9
Meredith Corporation and Subsidiaries
Consolidated Statements of Cash Flows (continued)
Years ended June 30, |
2018 | 2017 | 2016 | |||||||||
(In millions) | ||||||||||||
Supplemental disclosures of cash flow information |
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Cash paid |
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Interest |
$ | 66.3 | $ | 22.0 | $ | 20.2 | ||||||
Income taxes |
24.0 | 73.1 | 73.0 | |||||||||
Non-cash transactions |
||||||||||||
Broadcast rights financed by contracts payable |
18.8 | 15.4 | 19.3 |
See accompanying Notes to Consolidated Financial Statements
F-10
Meredith Corporation and Subsidiaries
Notes to Consolidated Financial Statements
1. | Summary of Significant Accounting Policies |
Nature of OperationsMeredith Corporation (Meredith or the Company) is a diversified media company. The Company has two reporting segments: national media and local media. The Companys national media segment includes print magazines, digital and mobile media, brand licensing activities, affinity marketing, database-related activities, business-to-business marketing products, and other related operations. The local media segment includes 17 television stations and related digital and mobile media operations. Merediths operations are diversified geographically primarily within the United States (U.S.) but also abroad in a limited number of locations in Europe and Asia. The Company has a broad customer base.
Basis of PresentationThe consolidated financial statements include the accounts of Meredith and its wholly-owned and majority-owned subsidiaries, after eliminating all significant intercompany balances and transactions. The results of operations include those of Time Inc. (Time) since the date of acquisition (the Acquisition). See Note 2 for further discussion. Meredith does not have any off-balance sheet arrangements. The Companys use of special-purpose entities was limited to Meredith Funding Corporation, whose activities were fully consolidated in Merediths consolidated financial statements until the termination of its asset lending facility on January 31, 2018.
The financial position and operating results of the Companys foreign operations are consolidated using primarily the local currency as the functional currency. Local currency assets and liabilities are translated at the rates of exchange as of the balance sheet date, and local currency revenues and expenses are translated at average rates of exchange during the period. Translation gains or losses on assets and liabilities are included as a component of accumulated other comprehensive loss.
Use of EstimatesThe preparation of financial statements in conformity with accounting principles generally accepted in the United States of America (U.S. GAAP) requires management to make estimates and assumptions that affect the amounts reported in the consolidated financial statements. The Company bases its estimates on historical experience, management expectations for future performance, and other assumptions as appropriate. Key areas affected by estimates include the allowance for doubtful accounts, which is based on historical experience and managements views on trends in the overall receivable aging, the assessment of the recoverability of long-lived assets, including goodwill and other intangible assets, which is based on such factors as estimated future cash flows; the determination of the net realizable value of broadcast rights, which is based on estimated future revenues; pension and postretirement benefit expenses, which are determined based, in large part, on actuarial assumptions regarding discount rates, expected returns on plan assets, and healthcare costs; and share-based compensation expense, which is based on numerous assumptions including future stock price volatility and employees expected exercise and post-vesting employment termination behavior. While the Company re-evaluates its estimates on an ongoing basis, actual results may vary from those estimates.
ReclassificationsCertain prior years amounts have been reclassified to conform to fiscal 2018 presentation.
Cash and Cash EquivalentsCash and short-term investments with original maturities of 3 months or less are considered to be cash and cash equivalents. Cash and cash equivalents are stated at cost, which approximates fair value.
Concentration of Credit RiskFinancial instruments that potentially subject the Company to concentrations of credit risk are primarily cash and cash equivalent deposits. Cash equivalent balances consist of money market mutual funds with original maturities of 3 months or less. These cash and cash equivalent deposits are maintained with several financial institutions. The deposits held at the various financial institutions may exceed federally insured limits. Exposure to this credit risk is reduced by placing such deposits with major financial institutions and monitoring their credit ratings and, therefore, these deposits bear minimal credit risk. There is also limited
F-11
credit risk with respect to the money market mutual funds in which the Company invests as these funds all have issuers, guarantors, and/or other counterparties of reputable credit.
At June 30, 2018, $411.1 million of cash and cash equivalents were held domestically, of which $370.2 million were held in money market mutual funds. Of the total cash and cash equivalents, $26.5 million were held internationally, primarily in Europe. Cash equivalents at June 30, 2018, were $373.1 million, which approximates fair value due to their short-term nature, and is considered a Level 1 measurement as defined in Note 10.
Accounts ReceivableThe Companys accounts receivable are primarily due from advertisers. Credit is extended to clients based on an evaluation of each clients creditworthiness and financial condition; collateral is not required. The Company maintains allowances for uncollectible accounts, rebates, rate adjustments, returns, and discounts. The allowance for uncollectible accounts is based on the aging of such receivables and any known specific collectability exposures. Accounts are written off when deemed uncollectible. Allowances for rebates, rate adjustments, returns, and discounts are generally based on historical experience and current market conditions. Concentration of credit risk with respect to accounts receivable is generally limited due to the large number of geographically diverse clients and individually small balances.
InventoriesInventories are stated at the lower of cost or net realizable value. Effective January 1, 2018, the Company changed its method of accounting for paper inventory in the national media segment from the last-in, first-out (LIFO) method to the weighted average cost method. The Company believes that the weighted average cost method of accounting for paper inventory is preferable because it provides a better match of production costs with revenues considering the limited volatility in paper prices due to the short production cycle.
The effect of the change was not considered material to the previously issued consolidated financial statements and, as such, was adopted prospectively as of January 1, 2018. The cumulative effect of the change recorded in the third quarter of fiscal 2018 was $1.3 million representing the removal of the LIFO costs reserve. This adjustment was recorded to the production, distribution, and editorial line within the Consolidated Statements of Earnings.
Cost is determined on the first-in first-out or average basis for all other inventories.
Subscription Acquisition CostsSubscription acquisition costs primarily represent magazine agency commissions. These costs are deferred and amortized over the related subscription term, typically one to two years. In addition, direct-response advertising costs that are intended to solicit subscriptions and are expected to result in probable future benefits are capitalized. These costs are amortized over the period during which future benefits are expected to be received. The asset balance of the capitalized direct-response advertising costs is reviewed quarterly to ensure the amount is realizable. Any write-downs resulting from this review are expensed as subscription acquisition advertising costs in the current period. Capitalized direct-response advertising costs were $7.6 million at June 30, 2018 and $6.0 million at June 30, 2017. There were no material write-downs of capitalized direct-response advertising costs in any of the fiscal years in the three-year period ended June 30, 2018.
Property, Plant, and EquipmentProperty, plant, and equipment are stated at cost with the exception of the property, plant, and equipment that was recorded at estimated fair value as of January 31, 2018, as a result of the Acquisition. Additions to that acquired property, plant, and equipment since January 31, 2018, are stated at cost. Costs of replacements and major improvements are capitalized, while costs of maintenance and repairs are charged to operations as incurred. Depreciation expense is determined primarily using the straight-line method over the estimated useful lives of the assets: 5-45 years for buildings and improvements, 3-6 years for capitalized software, and 3-20 years for machinery and equipment. The costs of leasehold improvements are amortized over the lesser of the useful lives of the improvements or the terms of the respective leases. Depreciation and amortization of property, plant, and equipment was $54.2 million in fiscal 2018, $34.8 million in fiscal 2017, and $39.4 million in fiscal 2016.
F-12
In fiscal 2016, management committed to a plan to sell the Companys two corporate airplanes and classified them as held-for-sale at June 30, 2017 and 2016. The airplanes were sold in early fiscal 2018. The estimated fair value of these airplanes of $1.9 million was included in the machinery and equipment line in the Consolidated Balance Sheets at June 30, 2017. Losses resulting from fair value adjustments to these assets of $0.9 million and $5.6 million were recorded in the impairment of goodwill and other long-lived assets line in the Consolidated Statements of Earnings in fiscal 2017 and 2016, respectively.
Broadcast RightsBroadcast rights consist principally of rights to broadcast syndicated programs, sports, and feature films. The total cost of these rights is recorded as an asset and as a liability when programs become available for broadcast. The current portion of broadcast rights represents those rights available for broadcast that are expected to be amortized in the succeeding year. These rights are valued at the lower of unamortized cost or estimated net realizable value, and are generally charged to operations on an accelerated basis over the contract period. Impairments of unamortized costs to net realizable value are included in production, distribution, and editorial expenses in the Consolidated Statements of Earnings. There were no material impairments of unamortized costs in fiscal years 2018, 2017, or 2016. Future write-offs can vary based on changes in consumer viewing trends and the availability and costs of other programming.
Intangible Assets and GoodwillAmortizable intangible assets consist primarily of advertiser relationships, publisher relationships, network affiliation agreements, partner relationships, customer relationships, and retransmission agreements. Intangible assets with finite lives are amortized over their estimated useful lives. The useful life of an intangible asset is the period over which the asset is expected to contribute directly or indirectly to future cash flows. Network affiliation agreements are amortized over the period of time the agreements are expected to remain in place, assuming renewals without material modifications to the original terms and conditions (generally 25 to 40 years from the original acquisition date). Other intangible assets are amortized over their estimated useful lives, ranging from 1 to 10 years.
Intangible assets with indefinite lives include trademarks and Federal Communications Commission (FCC) broadcast licenses. These licenses are granted for a term of up to eight years, but are renewable if the Company provides at least an average level of service to its customers and complies with the applicable FCC rules and policies and the Communications Act of 1934. The Company has been successful in every one of its past license renewal requests and has incurred only minimal costs in the process. The Company expects the television broadcasting business to continue indefinitely; therefore, the cash flows from the broadcast licenses are also expected to continue indefinitely.
The Company has acquired trademark brands that have been determined to have indefinite lives. Those assets are evaluated annually for impairment. The Company evaluates a number of factors to determine whether an indefinite life is appropriate, including the competitive environment, market share, brand history, and operating plans. In addition, when certain events or changes in operating conditions occur, an additional impairment assessment is performed and indefinite-lived assets may be adjusted to a determinable life.
Goodwill and intangible assets which have indefinite lives, are not amortized but are tested for impairment annually or when events occur or circumstances change that indicate the carrying value may exceed the fair value. Goodwill impairment testing is performed at the reporting unit level. The Company has three reporting unitsnational media, local media excluding MNI Targeted Media (MNI), and MNI. The Company also assesses, at least annually, whether assets classified as indefinite-lived intangible assets continue to have indefinite lives.
The Company performs its goodwill impairment analysis annually as of May 31. At May 31, 2018, the date the Company last performed its annual evaluation of impairment of goodwill, management elected to perform qualitative impairment tests for the local media excluding MNI and the MNI reporting units and a quantitative goodwill impairment test for the national media reporting unit. A quantitative impairment test, performed for a goodwill reporting unit or indefinite-lived intangible assets involves determining the fair value of the reporting unit or asset which is then compared to its carrying value.
F-13
Fair value to which carrying value is compared in the quantitative analysis is determined using a discounted cash flow model, which requires us to estimate the future cash flows expected to be generated by the reporting unit or to result from the use of the asset. These estimates include assumptions about future revenues (including projections of overall market growth and share of market), estimated costs, and appropriate discount rates where applicable. These assumptions are based on historical data, various internal estimates, and a variety of external sources and are consistent with the assumptions used in both short-term financial forecasts and long-term strategic plans. Depending on the assumptions and estimates used, future cash flow projections can vary within a range of outcomes. Changes in key assumptions used and their prospects or changes in market conditions could result in an impairment charge.
Additional information regarding intangible assets and goodwill including a discussion of impairment charges taken on goodwill and other long-lived intangible assets is provided in Note 5.
Impairment of Long-lived AssetsLong-lived assets (primarily property, plant, and equipment and amortizable intangible assets) are reviewed for impairment whenever events and circumstances indicate the carrying value of an asset may not be recoverable. Recoverability is measured by comparison of the forecasted undiscounted cash flows of the operation to which the assets relate to the carrying amount of the assets. Tests for impairment or recoverability require significant management judgment, and future events affecting cash flows and market conditions could result in impairment losses.
Derivative Financial InstrumentsMeredith does not engage in derivative or hedging activities, except to hedge interest rate risk on debt. Prior to the Acquisition, Meredith held interest rate swaps designated and accounted for as cash flow hedges in accordance with Accounting Standards Codification (ASC) 815, Derivatives and Hedging. In connection with the repayment of the variable-rate private placement senior notes and bank term loans on January 31, 2018, as further described in Note 7, the Company terminated these swaps. Refer to Note 7 for further discussion on the gain recognized on this termination.
Prior to their termination, the effective portion of the change in the fair value of interest rate swaps was reported in other comprehensive income (loss). The gain or loss included in other comprehensive income (loss) was subsequently reclassified into net earnings on the same line in the Consolidated Statements of Earnings as the hedged item in the same period that the hedge transaction affected net earnings. There were no material gains or losses recognized in earnings for hedge ineffectiveness in fiscal 2018, 2017, or 2016.
Revenue RecognitionThe Companys primary source of revenue is advertising. Other sources include circulation and other revenues.
Advertising revenuesAdvertising revenues are recognized when advertisements are published (defined as an issues on-sale date) or aired by the broadcasting station, net of provisions for estimated rebates, rate adjustments, and discounts. Barter revenues are included in advertising revenue and are also recognized when the advertisements are published or the commercials are broadcast. Barter advertising revenues and the offsetting expense are recognized at the fair value of the advertising surrendered, as determined by similar cash transactions. Barter advertising revenues were not material in any period. Digital advertising revenues are recognized ratably over the contract period or as services are delivered.
Circulation revenuesCirculation revenues include magazine single copy and subscription revenue. Single copy revenue is recognized on the publications on-sale date, net of provisions for estimated returns. The Company bases its estimates for returns on historical experience and current marketplace conditions. Revenues from magazine subscriptions are deferred and recognized proportionately as products are distributed to subscribers.
Other revenuesRevenues from content creation and other custom programs are recognized when the products or services are delivered. In addition, the Company participates in certain arrangements containing multiple deliverables. The guidance for accounting for multiple-deliverable arrangements requires that overall
F-14
arrangement consideration be allocated to each deliverable (unit of accounting) in the revenue arrangement based on the relative selling price as determined by vendor specific objective evidence, third-party evidence, or estimated selling price. The related revenue is recognized when each specific deliverable of the arrangement is delivered. Brand licensing-based revenues are accrued generally monthly or quarterly based on the specific mechanisms of each contract. Payments are generally made by the Companys partners on a quarterly basis. Generally, revenues are accrued based on estimated sales and adjusted as actual sales are reported by partners. These adjustments are typically recorded within three months of the initial estimates and have not been material. Any minimum guarantees are typically earned evenly over the fiscal year. Retransmission consent revenues are recognized over the contract period based on the negotiated fee and generally on a per subscriber basis. Revenues earned for placing magazines with subscribers on behalf of third-party publishers is recognized once the subscribers name is transferred to the publisher, on a net basis, with a reserve for estimated cancellations.
In certain instances, revenues are recorded gross in accordance with U.S. GAAP although the Company receives cash for a lesser amount due to the netting of certain expenses. Amounts received from customers in advance of revenue recognition are deferred as liabilities and recognized as revenue in the period earned.
Contingent ConsiderationThe Company estimates and records the acquisition date estimated fair value of contingent consideration as part of purchase price consideration for acquisitions. Additionally, each reporting period, the Company estimates changes in the fair value of contingent consideration, and any change in fair value is recognized in the Consolidated Statements of Earnings. An increase in the earn-out expected to be paid will result in a charge to operations in the quarter that the anticipated fair value of contingent consideration increases, while a decrease in the earn-out expected to be paid will result in a credit to operations in the quarter that the anticipated fair value of contingent consideration decreases. The estimate of the fair value of contingent consideration requires subjective assumptions to be made regarding future operating results, discount rates, and probabilities assigned to various potential operating result scenarios. Future revisions to these assumptions could materially change the estimate of the fair value of contingent consideration and, therefore, materially affect the Companys future financial results. Additional information regarding contingent consideration is provided in Note 2.
Advertising ExpensesThe majority of the Companys advertising expenses relate to direct-mail costs for magazine subscription acquisition efforts. Advertising costs that are not capitalized are expensed the first time the advertising takes place. Total advertising expenses included in the Consolidated Statements of Earnings were $122.8 million in fiscal 2018, $63.9 million in fiscal 2017, and $72.6 million in fiscal 2016.
Deferred Financing CostsCosts incurred to obtain financing are deferred and amortized to interest expense, net on the Consolidated Statements of Earnings over the related financing period using the effective interest method. The Company records deferred financing costs as a direct reduction of the carrying value of the related debt. Financing costs related to revolving debt instruments or lines of credit are included in other assets on the Consolidated Balance Sheets.
Income TaxesThe income tax provision is calculated under the liability method. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax basis and tax credit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in earnings in the period when such a change is enacted. The Company recognizes the effect of income tax positions only if those positions are more likely than not of being sustained. Recognized income tax positions are measured at the largest amount that is greater than 50 percent likely of being realized. Changes in recognition or measurement are reflected in the period in which the change in judgment occurs.
Self-InsuranceThe Company self-insures for certain medical claims, and its responsibility generally is capped through the use of a stop loss contract with an insurance company at a certain dollar level. The dollar level varies
F-15
based on the insurance plan, and ranges between $350 thousand and $500 thousand. Third-party administrators are used to process claims. The Company uses actual claims data and estimates of claims incurred-but-not-reported to calculate estimated liabilities for unsettled claims on an undiscounted basis. Although management re-evaluates the assumptions and reviews the claims experience on an ongoing basis, actual claims paid could vary significantly from estimated claims.
Pensions and Postretirement Benefits Other Than PensionsRetirement benefits are provided to employees through pension plans sponsored by the Company. Pension benefits are generally based on formulas that reflect interest credits allocated to participants accounts based on years of benefit service and annual pensionable earnings. It is the Companys policy to fund the qualified pension plans to at least the extent required to maintain their fully funded status. In addition, the Company provides health care and life insurance benefits for certain retired employees, the expected costs of which are accrued over the years that the employees render services. It is the Companys policy to fund postretirement benefits as claims are paid. Additional information is provided in Note 11.
Share-based CompensationThe Company establishes fair value for its equity awards to determine their cost and recognizes the related expense over the appropriate vesting period. The Company recognizes expense for stock options, restricted stock, restricted stock units, and shares issued under the Companys employee stock purchase plan. See Note 12 for additional information related to share-based compensation expense.
Redeemable Preferred StockThe Company has outstanding 650,000 shares of perpetual convertible redeemable non-voting preferred stock, par value $1.00 per share, each share having an initial stated value of $1,000 per share (the Series A preferred stock). Proceeds from the issuance were allocated on a relative fair value basis between the preferred stock and other freestanding financial instruments issued with the preferred stock. The preferred stock is classified as mezzanine equity and is accreted to its redemption value. Additional information is provided in Note 13.
Comprehensive IncomeComprehensive income consists of net earnings and other gains and losses affecting shareholders equity that, under U. S. GAAP, are excluded from net earnings. Other comprehensive income (loss) includes changes in prior service costs and net actuarial losses from pension and postretirement benefit plans, net of taxes, unrealized gains or losses resulting from foreign currency translation, and changes in the fair value of interest rate swap agreements, net of taxes, to the extent that they are effective. As of June 30, 2018, there were no amounts in other comprehensive income (loss) related to the interest rate swaps as such were settled in fiscal 2018, and all previously unrealized changes in other comprehensive income (loss) were recognized in earnings. Refer to Note 7 for additional discussion on the swap termination.
Earnings Per ShareBasic earnings per share is calculated by dividing net earnings attributable to common shareholders by the weighted average common and Class B shares outstanding for the period. Diluted earnings per share calculation incorporated the shares utilized in the basic calculation but also included the dilutive effect, if any, of the assumed exercise of securities, including the effect of shares issuable under the Companys share-based incentive plans. In connection with the issuance of the Series A preferred stock and detachable warrants on January 31, 2018, the Company now has a two-class capital structure and applies the two-class method in the calculation of earnings per share. The two-class method adjusts earnings to incorporate dividends declared on common stock, preferred stock, and other securities in distributed earnings. In addition, it also incorporates participating rights in other securities in undistributed earnings. Additional information is provided in Note 15.
Adopted Accounting Pronouncements
ASU 2016-07In March 2016, the Financial Accounting Standards Board (FASB) issued an Accounting Standards Update (ASU) simplifying the transition to the equity method of accounting. The new guidance eliminates the requirement to apply the equity method of accounting retrospectively when a reporting entity obtains significant influence over a previously held investment. The Company adopted this standard effective
F-16
July 1, 2017. This guidance was applied to one investment during the fiscal year, which simplified the transition from the cost method to equity method. The application did not have any other impact on the Companys results of operations, cash flows, or disclosures.
ASU 2016-09In March 2016, as a part of its simplification initiative, the FASB issued guidance on the accounting for employee share-based payments. The new guidance is intended to simplify several aspects of the accounting for share-based payment transactions, including the income tax treatment, classification of awards as either equity or liabilities, and classification on the statement of cash flows. The Company adopted this standard effective July 1, 2017.
The adoption of this guidance resulted in the prospective recognition of realized excess tax benefits related to the exercise or vesting of share-based awards in the Consolidated Statements of Earnings instead of in additional paid-in capital within the Consolidated Balance Sheets. See Note 8 for discussion of the credits to income tax expense recorded in the Consolidated Statements of Earnings. Using a modified retrospective application, the Company has elected to recognize forfeitures as they occur and recorded a $1.1 million increase to additional paid-in capital, a $0.6 million reduction to retained earnings, and a $0.5 million reduction to deferred taxes to reflect the incremental share-based compensation expense, net of the related tax impacts, that would have been recognized in prior years under the modified guidance. Presentation requirements for cash flows related to employee taxes paid using withheld shares had no impact to all periods presented as such cash flows have historically been presented as financing activities. The Company no longer classifies excess tax benefits related to share-based awards as a financing cash inflow and an operating cash outflow. This classification requirement was adopted prospectively and, as such, the Consolidated Statements of Cash Flows have not been retrospectively adjusted.
ASU 2018-02In February 2018, the FASB issued guidance regarding the reclassification of certain tax effects from accumulated other comprehensive loss. This amended guidance allows a reclassification from accumulated other comprehensive loss to retained earnings for stranded tax effects resulting from the Tax Cuts and Jobs Act of 2017 (the Tax Reform Act) which was signed into law on December 22, 2017. The Company early adopted this amended guidance on January 1, 2018, and as a result, elected to reclassify $4.0 million of stranded tax effects from accumulated other comprehensive loss to retained earnings using a specific identification approach. The adoption of this guidance did not have an impact on the Companys results of operations, cash flows, or disclosures.
ASU 2018-05In March 2018, the FASB issued guidance which incorporates into ASC 740 Income Taxes (ASC 740), various United States Securities and Exchange Commission (SEC) guidance pursuant to the issuance of SEC Staff Accounting Bulletin No. 118 (SAB 118), which was effective immediately. In December 2017, the SEC issued SAB 118 to address concerns about reporting entities ability to timely comply with the accounting requirements to recognize all of the effects of the Tax Reform Act in the period of enactment. SAB 118 allows for calculations of the impacts of the Tax Reform Act to be considered provisional and subject to remeasurement upon further collection, preparation, and analysis of relevant data and disclosure regarding the impacts of the Tax Reform Act for which accounting under ASC 740 is incomplete. As the Company accounted for the tax effects of the Tax Reform Act on a provisional basis under the guidance of SAB 118 prior to this update, the adoption of this guidance did not have an impact on the consolidated financial statements.
Pending Accounting Pronouncements
ASU 2014-09In May 2014, the FASB issued an accounting standards update that replaces existing revenue recognition guidance. The new standard requires a company to recognize revenue for the transfer of promised goods or services equal to the amount it expects to receive in exchange for those goods or services. The standard includes a five-step framework to determine the timing and amount of revenue to recognize related to contracts with customers. Additionally, the standard requires new and significantly enhanced disclosures about the nature, amount, timing, and uncertainty of revenue and cash flows from customer contracts as well as judgments made by a company when following the framework.
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The Company will adopt the standard beginning July 1, 2018 (fiscal 2019). The two permitted transition methods are the full retrospective method, in which case the standard would be applied to each prior reporting period presented and the cumulative effect of applying the standard would be recognized in the earliest period shown; or the modified retrospective method, in which case the cumulative effect of applying the standard would be recognized at the date of initial application. The Company will adopt the standard using the modified retrospective method.
The Company is in the process of assessing and documenting the effect of the adoption of this standard on our consolidated financial statements and related disclosures related to advertising, circulation, and other revenues, and completing the design and implementation of related controls. Based on our assessment to date, the Company does not believe the adoption of the standard will change the timing of revenue recognition for most of our revenue contracts, except for those with value-added items or that require combination under the standard. We do not anticipate those impacts will have a material effect on our consolidated revenues subject to completion of our evaluation. While the Company does not expect material changes to the amount or timing of our revenue recognition, the Company will significantly expand our future disclosures on both a quarterly and annual basis as required under the standard.
ASU 2016-01In January 2016, the FASB issued guidance to improve and simplify accounting for financial instruments. The updated guidance includes several provisions that are not applicable to the Companys consolidated financial statements, with the exception of changes to fair value disclosure. Under the new guidance, public entities are no longer required to disclose the methods and significant assumptions used to estimate fair value of financial instruments measured at amortized cost on the consolidated balance sheets. It also requires public entities to use the exit price when measuring the fair value of financial instruments for disclosure purposes. The guidance is effective for the Company in the first quarter of fiscal 2019. The adoption of this guidance requires a change in our disclosures only and it is not expected to have an impact on our results of operations or cash flows.
ASU 2016-02In February 2016, the FASB issued an accounting standards update that replaces existing lease accounting standards. The new standard requires lessees to recognize on the balance sheet a right-of use asset, representing its right to use the underlying asset for the lease term, and a lease liability for all leases with terms greater than 12 months. The guidance also requires qualitative and quantitative disclosures designed to assess the amount, timing, and uncertainty of cash flows arising from leases. Treatment of lease payments in the statement of earnings and statement of cash flows is relatively unchanged from previous guidance. The standard is to be applied under the modified retrospective method, with elective reliefs, which requires application of the new guidance for all periods presented. The FASB continues to issue amendments to further clarify provisions of this guidance. The standard, including the amendments made since initial issuance, is effective for the Company beginning July 1, 2019, with early adoption permitted. The Company is currently in the process of evaluating our existing lease portfolios, including accumulating all of the necessary information required to properly account for the leases under the new standard. As such, the Company is currently evaluating the effect the guidance will have on our consolidated financial statements.
ASU 2016-13In June 2016, the FASB issued a standard that replaces the current incurred loss methodology for recognizing credit losses with a current expected credit loss methodology. Under this standard, the establishment of an allowance for credit losses reflects all relevant information about past events, current conditions, and reasonable supportable forecasts rather than delaying the recognition of the full amount of a credit loss until the loss is probable of occurring. The new standard changes the impairment model for most financial assets and certain other instruments, including trade receivables. A modified retrospective implementation of this standard is effective in the Companys first quarter of fiscal 2021, with early adoption permitted in the first quarter of fiscal 2020. The Company is currently evaluating the impact this guidance will have on our consolidated financial statements.
ASU 2016-15In August 2016, the FASB issued an accounting standards update clarifying the classification of certain cash receipts and payments in the statement of cash flows. The update is intended to reduce the diversity
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in practice around how certain transactions are classified within the statement of cash flows. Retrospective adoption is required in our first quarter of fiscal 2019 with early adoption permitted, including adoption in an interim period. The Company is currently evaluating the impact this update will have on its consolidated financial statements; however, the adoption is not expected to have a material impact in the presentation of our Consolidated Statements of Cash Flows.
ASU 2017-01In January 2017, the FASB issued an accounting standards update that clarifies the definition of a business and adds guidance to assist entities in the determination of whether an acquisition (or disposal) represents assets or a business. The update provides a test to determine whether or not an acquisition is a business. If substantially all of the fair value of the assets acquired is concentrated in a single asset or a group of similar identifiable assets, the acquired assets do not represent a business. If this test is not met, the update provides further guidance to evaluate if the acquisition represents a business. Prospective adoption is required in the first quarter of fiscal 2019. Early adoption is permitted if certain transaction criteria are met. The Company does not believe the adoption of this update will have a material impact prospectively, to the Companys consolidated financial statements.
ASU 2017-04In January 2017, the FASB issued an accounting standards update that simplifies the subsequent measurement of goodwill by eliminating Step 2 of the goodwill impairment test. The Step 2 test requires an entity to calculate the implied fair value of goodwill to measure a goodwill impairment charge. Instead, an entity will record an impairment charge based on the excess of a reporting units carrying value over its fair value determined in Step 1. This update also eliminates the qualitative assessment requirements for a reporting unit with zero or negative carrying value. Prospective adoption is required in the first quarter of fiscal 2021, with early adoption permitted. The Company is currently evaluating the impact this update will have on its consolidated financial statements.
ASU 2017-07In March 2017, the FASB issued an accounting standards update on the presentation of net periodic pension and postretirement benefit costs. This guidance revises how employers that sponsor defined benefit pension and other postretirement plans present the net periodic benefit costs in their income statement and requires that the service cost component of net periodic benefit costs be presented in the same line items as other employee compensation costs for the related employees. Of the components of net periodic benefit costs, only the service cost component will be eligible for asset capitalization. The other components of net periodic benefit costs must be presented separately from the line items that include the service cost and outside of the income from operations subtotal. The update is effective for the first quarter of fiscal 2019, with early adoption permitted. The adoption is expected to require reclassification of expenses in the Consolidated Statements of Earnings; however, it is not expected to have an impact on the Companys operating results or cash flows.
ASU 2017-09In May 2017, the FASB issued guidance to clarify guidance related to changes in terms or conditions of a share-based payment award. The purpose of this update is to provide guidance about which changes to the terms or conditions of a share-based payment award require an entity to apply modification accounting in ASC 718CompensationStock Compensation. The effective date is the first quarter of fiscal 2019 with early adoption permitted. The Company does not expect the adoption of this guidance to have a material impact on our results of operations, cash flows, or disclosures.
ASU 2017-12In August 2017, the FASB issued guidance amending hedge accounting requirements. The purpose of this guidance is to better align a companys risk management activities and financial reporting requirements, and to simplify the application of hedge accounting. The effective date is the first quarter of fiscal 2020, with early adoption permitted. The Company does not expect the adoption of this guidance to have a material impact on our results of operations, cash flows, or disclosures.
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2. | Acquisitions |
Fiscal 2018
On January 31, 2018, Meredith completed its acquisition of all the outstanding shares of Time for $18.50 per share, for a total transaction value of $3.2 billion, including the repayment of Times outstanding debt. As part of the Acquisition, Meredith also repaid its outstanding debt. These transactions were funded through a combination of borrowings under the Companys new $1.8 billion secured term loan facility, the issuance of $1.4 billion of senior unsecured notes, the issuance of preferred equity, and cash on hand (refer to Note 7 for additional information on the long-term debt and Note 13 for additional information on the preferred equity).
In accordance with the merger agreement, certain of Times outstanding restricted stock units, performance stock units, and in-the-money stock options were immediately vested, converted into the right to receive $18.50 per share, and paid in cash. The value of these awards was apportioned between total purchase price consideration and immediate expense. This expense is included in the acquisition, disposition, and restructuring related activities line on the Consolidated Statements of Earnings. Additionally, certain of Times outstanding stock options and restricted stock units were converted into mirror awards exercisable or earned in Meredith common stock. The conversion was based on a ratio of $18.50 to the volume-weighted average per share closing price for Merediths stock on the ten consecutive trading days ended on the complete trading day immediately prior to the acquisition closing date. The value of these awards was apportioned between total purchase price consideration and unearned compensation to be recognized over the remaining original vesting periods of the awards.
The following table summarizes the aggregate purchase price consideration paid to acquire Time:
(In millions) |
||||
Consideration paid to Time shareholders |
$ | 1,860.7 | ||
Repayment of Times outstanding debt, including prepayment penalty |
1,327.9 | |||
Cash consideration issued to settle outstanding share-based equity awards |
37.6 | |||
|
|
|||
Total cash consideration |
3,226.2 | |||
Share-based equity awards issued to settle outstanding share-based equity awards |
33.8 | |||
|
|
|||
Total consideration issued |
3,260.0 | |||
Portion of cash settlement of outstanding share-based equity awards recognized as expense |
(9.2 | ) | ||
Portion of share-based equity awards issued to be recognized as an expense, primarily through fiscal 2021 |
(24.0 | ) | ||
|
|
|||
Total purchase price consideration |
$ | 3,226.8 | ||
|
|
This transaction created a premier media and marketing company serving 175 million American consumers. Merediths brands now have a readership of more than 120 million and paid circulation of more than 40 million. The acquisition also increased Merediths digital position with nearly 135 million monthly unique visitors in the U.S. While the majority of Times operations are reported in Merediths national media segment, one business unit of Time is reported in Merediths local media segment and certain expenses are reported in unallocated corporate.
The Company accounted for this acquisition as a business combination under the acquisition method of accounting. The following table summarizes the preliminary purchase price allocation of fair values of the assets acquired and liabilities assumed at the date of acquisition. The fair values of the assets acquired and liabilities assumed were based on managements preliminary estimates of the fair values of Times net assets. The estimated fair values of net assets and resulting goodwill are subject to the Company finalizing its analysis of the fair value of Times assets and liabilities as of the acquisition date, and are subject to change pending the final valuation of these assets and liabilities. In addition, information unknown at the time of the Time acquisition could result in adjustments to the respective fair values and resulting goodwill. Differences between the
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preliminary and final estimated fair values could be material. As additional information is obtained about these assets and liabilities within the measurement period (not to exceed one year from the date of acquisition), the Company will refine its estimates of fair value and reallocate the purchase price.
(In millions) |
||||
Cash and cash equivalents |
$ | 399.9 | ||
Accounts receivable |
290.9 | |||
Inventory |
22.8 | |||
Assets held-for-sale |
1,006.1 | |||
Other current assets |
60.0 | |||
|
|
|||
Total current assets |
1,779.7 | |||
Property, plant, and equipment |
300.8 | |||
Other assets |
98.0 | |||
Intangible assets |
1,146.8 | |||
|
|
|||
Total identifiable assets acquired |
3,325.3 | |||
|
|
|||
Accounts payable |
140.0 | |||
Accrued liabilities |
195.6 | |||
Current portion of unearned revenues |
192.1 | |||
Liabilities associated with assets held-for-sale |
315.7 | |||
|
|
|||
Total current liabilities |
843.4 | |||
Unearned revenues |
41.7 | |||
Deferred income taxes |
172.2 | |||
Other noncurrent liabilities |
104.4 | |||
|
|
|||
Total liabilities assumed |
1,161.7 | |||
|
|
|||
Total identified net assets |
2,163.6 | |||
Goodwill |
1,063.2 | |||
|
|
|||
Net assets acquired |
$ | 3,226.8 | ||
|
|
The gross contractual amount of trade receivables acquired was $357.4 million and the contractual amount not expected to be collected was $66.5 million at the acquisition date.
Subsequent to the initial purchase price allocation, the Company recorded adjustments that, in the aggregate, increased goodwill by $17.8 million. The net change was due primarily to a decrease in the estimated fair value of assets held-for-sale partially offset by a decrease in deferred tax liabilities and an increase in intangible assets. These adjustments resulted from new information about facts and circumstances that existed at the time of the acquisition.
The following table provides details of the acquired intangible assets (based on the preliminary assessment of the fair value of assets acquired):
(In millions) | ||||
Intangible assets subject to amortization |
||||
Advertiser relationships |
$ | 223.5 | ||
Publisher relationships |
125.0 | |||
Partner relationships |
95.0 | |||
Customer relationships |
63.3 | |||
|
|
|||
Total |
506.8 | |||
|
|
|||
Intangible assets not subject to amortization |
||||
Trademarks |
640.0 | |||
|
|
|||
Intangible assets, net |
$ | 1,146.8 | ||
|
|
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The weighted average useful life of advertiser relationships is 3 years, publisher relationships is 7 years, partner relationships is 6 years, and customer relationships is 2 years. Due to the timing of the acquisition and the complexities involved with determining fair value of the intangible assets acquired, the Company has not yet completed the valuation of the identified intangibles. The preliminary purchase price allocation has been developed based on preliminary estimates of fair values. Therefore, there may be adjustments made to the purchase price allocation that could result in changes to the preliminary fair values allocated, assigned useful lives, and associated amortization recorded.
Goodwill is attributable primarily to expected synergies and the assembled workforces. Of total goodwill recorded of $1.1 billion, $93.6 million is expected to be deductible for income tax purposes.
Transaction and integration costs incurred by Meredith were $59.9 million in fiscal 2018. These costs are included in the acquisition, disposition, and restructuring related activities line in the Consolidated Statements of Earnings.
The following table presents the amounts of Times revenue and earnings included in Merediths Consolidated Statements of Earnings since the date of the acquisition for the years ended June 30, 2018 and 2017. Also presented are the unaudited pro-forma consolidated results of operations revenues, net earnings (loss), and diluted net earnings (loss) per share of the combined entity for the years ended June 30, 2018 and 2017, as if the acquisition had occurred on July 1, 2016, the beginning of fiscal 2017:
Years ended June 30, |
2018 | 2017 | ||||||
(In millions except per share data) | ||||||||
Actual Time total revenues |
$ | 625.3 | $ | | ||||
Actual Time net loss |
(74.4 | ) | | |||||
Pro-forma total revenue |
3,115.5 | 3,669.9 | ||||||
Pro-forma net earnings (loss) |
223.2 | (28.6 | ) | |||||
Pro-forma diluted net earnings (loss) per share |
3.16 | (2.37 | ) |
The unaudited pro-forma consolidated results above are based on the historical financial statements of Meredith and Time and are not necessarily indicative of the results of operations that would have been achieved if the acquisition was completed on July 1, 2016 (the beginning of the 2017 fiscal year), and are not indicative of the future operating results of the combined company. This pro-forma financial information is based upon preliminary purchase price allocations and various assumptions and estimates. The pro-forma consolidated results of operations include the effects of purchase accounting adjustments, including amortization charges related to the finite-lived intangible assets acquired. The pro-forma totals above also reflect the impact of transactions made to finance the acquisition (see Note 7 and Note 13) and exclude historical interest of each entity and the prepayment penalty. The impact of the discontinued operations have been removed from pro-forma revenue for each of the periods presented. Historical intercompany transactions between Meredith and Time have also been removed. Transaction and integration costs related to the acquisition of Time have been excluded from the above pro-forma consolidated results of operations due to their non-recurring nature. The pro-forma net earnings (loss) were also adjusted for the tax effects related to the other pro-forma adjustments.
Included within the pro-forma results above, are $26.4 million and $202.6 million of impairment charges for long-lived assets for the years ended June 30, 2018, and 2017, respectively. The pro-forma results above also include restructuring charges related to the Time transaction of $150.6 million for the year ended June 30, 2018. There were no restructuring charges related to the acquisition recorded in the year ended June 30, 2017.
Fiscal 2017
During fiscal 2017, Meredith paid $84.4 million for the acquisitions of WPCH-TV (Peachtree TV), an independent television station in Atlanta, Georgia, and the assets of a digital lead-generation company in the home services market.
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On December 7, 2016, Meredith acquired the assets of a digital lead-generation company in the home services market, which has been rebranded Meredith Performance Marketing by the Company. The acquisition-date fair value of the consideration was $21.1 million, which consisted of $13.4 million of cash and $7.7 million of contingent consideration. The contingent consideration arrangement requires the Company to pay contingent payments based on the achievement of certain operational targets in fiscal 2017 and on financial performance during fiscal 2017 through fiscal 2021 measured in terms of earnings before interest, taxes, depreciation, and amortization (EBITDA) as defined in the acquisition agreement. The contingent consideration is not dependent on the continued employment of the sellers. The Company estimated the fair value of the contingent consideration using a probability-weighted discounted cash flow model. The fair value is based on significant inputs not observable in the market and thus represents a Level 3 measurement as defined in Note 10. The Company paid no contingent consideration in fiscal 2018, and paid $2.6 million in contingent consideration in 2017. Although operating performance for the brand has been positive, revised projections in revenues resulted in lower projected EBITDA than anticipated at acquisition. Therefore, the Company recognized non-cash credits to operations of $3.8 million and $0.4 million in fiscal 2018 and 2017, respectively, to reduce the estimated contingent consideration payable. These credits are recorded in the selling, general, and administrative expense line on the Consolidated Statements of Earnings. As of June 30, 2018, the Company estimates the future payments will range from $0.9 million to $1.5 million.
Effective April 21, 2017, Meredith acquired Peachtree TV, which was operated by Meredith prior to its acquisition. The results of Peachtree TVs operations have been included in the consolidated financial statements since that date. The cash purchase price was $70.0 million.
The following table summarizes the fair value of total consideration transferred and the recognized amounts of identifiable assets acquired and liabilities assumed by segment during the year ended June 30, 2017:
(In millions) |
National Media Acquisition |
Local Media Acquisition |
Total | |||||||||
Consideration |
||||||||||||
Cash |
$ | 11.8 | $ | 70.0 | $ | 81.8 | ||||||
Payment in escrow |
1.6 | | 1.6 | |||||||||
Contingent consideration arrangements |
7.7 | | 7.7 | |||||||||
|
|
|
|
|
|
|||||||
Fair value of total consideration transferred |
$ | 21.1 | $ | 70.0 | $ | 91.1 | ||||||
|
|
|
|
|
|
|||||||
Recognized amounts of identifiable assets acquired and liabilities assumed |
||||||||||||
Total identifiable assets acquired |
$ | 8.6 | $ | 81.6 | $ | 90.2 | ||||||
Total liabilities assumed |
| (23.4 | ) | (23.4 | ) | |||||||
|
|
|
|
|
|
|||||||
Total identified net assets |
8.6 | 58.2 | 66.8 | |||||||||
Goodwill |
12.5 | 11.8 | 24.3 | |||||||||
|
|
|
|
|
|
|||||||
$ | 21.1 | $ | 70.0 | $ | 91.1 | |||||||
|
|
|
|
|
|
The following table provides details of the acquired intangible assets by acquisition:
(In millions) |
National Media Acquisition |
Local Media Acquisition |
Total | |||||||||
Intangible assets subject to amortization |
||||||||||||
Retransmission agreements |
$ | | $ | 6.7 | $ | 6.7 | ||||||
Customer list |
4.2 | | 4.2 | |||||||||
Other |
4.4 | 0.7 | 5.1 | |||||||||
|
|
|
|
|
|
|||||||
Total |
8.6 | 7.4 | 16.0 | |||||||||
|
|
|
|
|
|
|||||||
Intangible assets not subject to amortization |
||||||||||||
FCC licenses |
| 50.4 | 50.4 | |||||||||
|
|
|
|
|
|
|||||||
Intangible assets |
$ | 8.6 | $ | 57.8 | $ | 66.4 | ||||||
|
|
|
|
|
|
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The useful life of the customer list is 10 years, and other national media intangible assets useful life is 5 years. The useful lives of the retransmission agreements are 10 years and local media other intangible assets useful life is 4 years.
For these acquisitions, goodwill is attributable primarily to expected synergies and the assembled workforces. Goodwill, with an assigned value of $24.3 million, is expected to be fully deductible for tax purposes.
During fiscal 2017, acquisition related costs of $0.3 million were incurred. These costs are included in the acquisition, disposition, and restructuring related activities line in the Consolidated Statements of Earnings.
Prior
On December 30, 2014, Meredith acquired 100 percent of the outstanding stock of Selectable Media. The contingent consideration arrangement requires the Company to pay contingent payments based on certain financial targets over three fiscal years, primarily based on revenue, as defined in the acquisition agreement. The final payment of $4.0 million was paid in fiscal 2018.
In February 2015, Meredith completed its acquisition of Shape. The contingent consideration arrangement requires the Company to pay contingent payments based on certain financial targets over three fiscal years, primarily based on operating profit, as defined in the acquisition agreement. Revised projections in advertising revenue have resulted in lower projected operating profits and therefore lower estimates to contingent consideration payable than originally expected. The Company recognized non-cash credits to operations of $2.0 million in fiscal 2018, $1.3 million in fiscal 2017, and $4.9 million in fiscal 2016, to reduce the estimated contingent consideration payable. These credits were recorded in the selling, general, and administrative expense line on the Consolidated Statements of Earnings. As of June 30, 2018, the Company estimates future payments to be $19.2 million.
3. | Inventories |
Inventories consist mainly of paper stock, editorial content, books, and other merchandise and are stated at the lower of cost or estimated net realizable value. Cost is determined using the first-in, first-out method for books and weighted average cost method for paper and other merchandise.
Effective January 1, 2018, the Company prospectively changed its method of accounting for paper inventory from the last-in, first-out (LIFO) method to the weighted average cost method. Of total net inventory values shown 65 percent at June 30, 2017, were determined using the LIFO method. LIFO inventory income included in the Consolidated Statements of Earnings was $1.3 million in fiscal 2018, $1.7 million in fiscal 2017, and $0.7 million in fiscal 2016.
June 30, |
2018 | 2017 | ||||||
(In millions) | ||||||||
Raw materials |
$ | 32.1 | $ | 13.4 | ||||
Work in process |
9.6 | 8.7 | ||||||
Finished goods |
2.5 | 1.1 | ||||||
|
|
|
|
|||||
44.2 | 23.2 | |||||||
Reserve for LIFO cost valuation |
| (1.3 | ) | |||||
|
|
|
|
|||||
Inventories |
$ | 44.2 | $ | 21.9 | ||||
|
|
|
|
4. | Assets Held-for-Sale, Discontinued Operations, and Dispositions |
Assets Held-for-Sale
The Company classifies assets as being held-for-sale when the following criteria are met: management has committed to a plan to sell the asset; the asset is available for immediate sale in its present condition; an active
F-24
program to locate a buyer and other actions required to complete the plan to sell the asset have been initiated; the sale of the asset is probable, and transfer of the asset is expected to qualify for recognition as a completed sale within one year; the asset is being actively marketed for sale at a price that is reasonable in relation to its current fair value; and actions required to complete the plan indicate that it is unlikely that significant changes to the plan will be made or that the plan will be withdrawn. Long-lived assets that are classified as held-for-sale are recorded at the lower of carrying value or fair value less costs to sell. Fair value is based on current market values or discounted future cash flows using Level 3 inputs determined based on the Companys experience and knowledge of the market, including the use of advisers. Fair value is preliminary and is expected to be finalized upon completion of the sales, which are expected to occur within calendar 2018. The key assumptions used to determine the fair value include discount rates, estimated cash flows, royalty rates, and revenue growth rates. The discount rate used is based on several factors including a weighted average cost of capital analysis, and adjustments for market risk and company specific risk. Estimated cash flows are based upon internally developed estimates of the undiscounted cash flows attributable to the assets and include only future cash flows that are directly associated with and that are expected to arise as a direct result of the use and eventual disposition of the assets. Royalty rates are based on comparable licensing agreements and revenue growth rates are based on industry knowledge and historical performance. Property and equipment are not depreciated, and intangibles assets are not amortized once classified as held-for-sale. The assets and liabilities that are deemed held-for-sale are classified as current based on the anticipated disposal date.
The following table presents the major components which are included in assets held-for-sale and liabilities associated with assets held-for-sale (including TIME, Sports Illustrated, Fortune, Money, and its investment in Viant Technology LLC (Viant)):
(in millions) |
June 30, 2018 |
|||
Current assets |
||||
Cash and cash equivalents |
$ | 2.3 | ||
Accounts receivable, net |
94.6 | |||
Inventories |
1.1 | |||
Other current assets |
9.4 | |||
|
|
|||
Total current assets |
107.4 | |||
Net property, plant, and equipment |
14.1 | |||
Other assets |
1.0 | |||
Intangible assets, net |
113.1 | |||
Goodwill |
477.5 | |||
|
|
|||
Total assets held-for-sale |
$ | 713.1 | ||
|
|
|||
Current liabilities |
||||
Accounts payable |
$ | 45.2 | ||
Accrued expenses and other liabilities |
15.1 | |||
Current portion of unearned revenues |
109.4 | |||
|
|
|||
Total current liabilities |
169.7 | |||
Unearned revenues |
28.0 | |||
Other noncurrent liabilities |
0.7 | |||
|
|
|||
Total liabilities associated with assets held-for-sale |
$ | 198.4 | ||
|
|
Discontinued Operations
A disposal of a component of an entity or a group of components of an entity is required to be reported as discontinued operations if the disposal represents a strategic shift that has (or will have) a major effect on an entitys operations and financial results when the components of an entity meets the criteria to be classified as
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held-for-sale. When all of the criteria to be classified as held-for-sale are met, including management having the authority to approve the action and committing to a plan to sell the entity, the major assets and liabilities are to be reported as components of total assets and liabilities separate from those balances of the continuing operations. The Consolidated Statements of Earnings reported for current and prior periods shall report the results of operations of the discontinued operations, including any gain or loss recognized, in the period in which a discontinued operation either has been disposed of or is classified as held-for-sale. The results of all discontinued operations, less applicable income taxes (benefit), shall be reported as a component of net earnings separate from the net earnings from continuing operations.
The Company announced after the Acquisition that it is exploring the sale of the TIME, Sports Illustrated, Fortune, and Money affiliated brands and its investment in Viant. Management expects these sales to close during calendar 2018. In accordance with accounting guidance, a business that, on acquisition, or within a short period following the acquisition (usually within three months), meets the criteria to be classified as held-for-sale is also considered a discontinued operation. As all of the required criteria for held-for-sale classification were met, the assets and liabilities related to these operations have been included as assets held-for-sale and liabilities associated with assets heldfor-sale in the Consolidated Balance Sheets as of June 30, 2018. The revenue and expenses, along with associated taxes, for these operations were included in the loss from discontinued operations, net of income taxes line on the Consolidated Statements of Earnings. All discontinued operations relate to the national media segment.
Prior to the Acquisition, Time entered into an agreement to sell the Golf brand. This sale closed in February 2018. Revenue and expenses from the date of the acquisition until disposal along with associated taxes for the Golf brand were included in the loss from discontinued operations, net of income taxes line on the Consolidated Statements of Earnings.
In February 2018, the Company entered into an agreement to sell Time Inc. (UK) Ltd (TIUK), a United Kingdom (U.K.) multi-platform publisher with approximately 60 brands. The sale closed in March 2018. Revenue and expenses from the date of acquisition until disposal along with associated taxes for TIUK were included in the loss from discontinued operations, net of income taxes line on the Consolidated Statements of Earnings.
In connection with the sale of TIUK, a liability of $9.2 million was recorded in other liabilities in connection with a lease guarantee by Time. The guarantee is related to a lease of office space by TIUK in the U.K. through December 31, 2025. The carrying value of the lease guarantee was $8.7 million at June 30, 2018. The Company is only obligated to pay for the lease guarantee in the event that TIUK fails to perform under the lease agreement. If TIUK fails to perform under the lease agreement, the maximum lease guarantee obligation for which the Company would be liable is approximately $78.8 million as of June 30, 2018. The Company has assessed that it is unlikely that TIUK will not perform its obligations under the lease.
The Company does not allocate interest to discontinued operations unless the interest is directly attributable to the discontinued operations or is interest on debt that is required to be repaid as a result of the disposal transaction. Interest expense included in discontinued operations reflects an estimate of interest expense related to the debt that will be repaid with the proceeds from the sale of the TIME, Sports Illustrated, Fortune, Money, and affiliated brands and of Viant.
F-26
Amounts applicable to discontinued operations in the Consolidated Statements of Earnings are as follows:
Year ended June 30, |
2018 | |||
(In millions except per share data) | ||||
Revenues |
$ | 262.0 | ||
Costs and expenses |
(250.6 | ) | ||
Interest expense |
(12.2 | ) | ||
Loss on disposal |
(12.3 | ) | ||
|
|
|||
Loss before income taxes |
(13.1 | ) | ||
Income taxes |
(1.5 | ) | ||
|
|
|||
Loss from discontinued operations, net of income taxes |
$ | (14.6 | ) | |
|
|
|||
Loss per share from discontinued operations |
||||
Basic |
$ | (0.32 | ) | |
Diluted |
(0.32 | ) | ||
|
|
The discontinued operations did not have depreciation, amortization, capital expenditures or significant non-cash investing items for the period from acquisition through June 30, 2018. Share-based compensation expense of $3.7 million is included in the net cash provided by operating activities in the Consolidated Statements of Cash Flows.
The Company has announced the closure of Time Customer Service (TCS) in Tampa, Florida. As of June 30, 2018, TCS did not meet the criteria above for held-for-sale or discontinued operations treatment.
Dispositions
In March 2018, the Company announced an agreement to sell Meredith Xcelerated Marketing (MXM). This transaction closed in May 2018. The Company did not report the operations of MXM as discontinued operations as the sale does not represent a strategic shift that will have a major effect on the Companys operations and financial results. The results of MXM, as well as the gain of $11.5 million on the sale, which is included as a credit in the acquisition, disposition, and restructuring related activities line, are included within continuing operations in the Consolidated Statements of Earnings. A loss of $0.8 million and a profit of $11.2 million and $18.5 million were included in earnings (loss) from continuing operations before income taxes related to MXM for the years ended June 30, 2018, 2017, and 2016, respectively.
Effective July 1, 2017, Merediths national media segment sold a 70 percent interest in Charleston Tennis LLC, which operates the Family Circle Tennis Center, to an unrelated third party. In return, Meredith received $0.6 million in cash and a note receivable for $8.5 million. The note receivable is due in annual installments over a period of 8 years. At June 30, 2018, there was $3.2 million in unamortized discount and an allowance of $3.0 million recorded against the note. This transaction generated a gain of $3.3 million, which was recorded in the selling, general, and administrative line of the Consolidated Statements of Earnings. Of this gain, $1.0 million related to the remeasurement of the retained investment. As Meredith retains a 30 percent interest, has a seat on the board, and has approval rights over certain limited matters, Meredith now accounts for this investment under the equity method of accounting.
F-27
5. | Intangible Assets and Goodwill |
Intangible assets consist of the following:
June 30, |
2018 | 2017 | ||||||||||||||||||||||
(In millions) |
Gross Amount |
Accumulated Amortization |
Net Amount |
Gross Amount |
Accumulated Amortization |
Net Amount |
||||||||||||||||||
Intangible assets subject to amortization |
||||||||||||||||||||||||
National media |
||||||||||||||||||||||||
Advertiser relationships |
$ | 212.3 | $ | (41.1 | ) | $ | 171.2 | $ | 18.6 | $ | (15.5 | ) | $ | 3.1 | ||||||||||
Publisher relationships |
125.0 | (7.4 | ) | 117.6 | | | | |||||||||||||||||
Partner relationships |
95.0 | (6.6 | ) | 88.4 | | | | |||||||||||||||||
Customer lists |
67.5 | (14.0 | ) | 53.5 | 7.3 | (3.4 | ) | 3.9 | ||||||||||||||||
Other |
22.0 | (11.9 | ) | 10.1 | 22.3 | (9.8 | ) | 12.5 | ||||||||||||||||
Local media |
||||||||||||||||||||||||
Network |
229.3 | (148.6 | ) | 80.7 | 229.3 | (142.2 | ) | 87.1 | ||||||||||||||||
Advertiser relationships |
25.0 | (3.5 | ) | 21.5 | | | | |||||||||||||||||
Retransmission agreements |
27.9 | (14.9 | ) | 13.0 | 27.9 | (10.7 | ) | 17.2 | ||||||||||||||||
Other |
1.7 | (0.8 | ) | 0.9 | 1.7 | (0.5 | ) | 1.2 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total |
$ | 805.7 | $ | (248.8 | ) | $ | 556.9 | $ | 307.1 | $ | (182.1 | ) | $ | 125.0 | ||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Intangible assets not subject to amortization |
||||||||||||||||||||||||
National media |
||||||||||||||||||||||||
Trademarks |
765.3 | 147.9 | ||||||||||||||||||||||
Internet domain names |
7.8 | 7.8 | ||||||||||||||||||||||
Local media |
||||||||||||||||||||||||
FCC licenses |
675.2 | 675.2 | ||||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||
Total |
1,448.3 | 830.9 | ||||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||
Intangible assets, net |
$ | 2,005.2 | $ | 955.9 | ||||||||||||||||||||
|
|
|
|
Amortization expense was $74.8 million in fiscal 2018, $19.1 million in fiscal 2017, and $19.7 million in fiscal 2016. Future amortization expense for intangible assets is expected to be as follows: $155.0 million in fiscal 2019, $140.3 million in fiscal 2020, $86.9 million in fiscal 2021, $41.0 million in fiscal 2022, and $40.2 million in fiscal 2023. Actual future amortization expense could differ from these estimates as a result of future acquisitions, dispositions, and other factors.
During fiscal 2018, Meredith made the strategic decision to no longer publish Fit Pregnancy and Baby magazine as a standalone title, rather to include it as a feature within Parents magazine and to discontinue FamilyFun as a subscription title and instead publish it only for sale on newsstand. These decisions were determined to be triggering events requiring Meredith to evaluate the trademarks within the Companys Parents Network for impairment. The fair values of the trademarks are determined based on significant inputs not observable in the market. The reduction in advertising revenue caused by the discontinuation of Fit Pregnancy and Baby and the change in FamilyFun to a newsstand only title, as well as updated revenue projections for the Parents Network resulted in an impairment of the trademarks. As such, during fiscal 2018, the national media segment recorded a non-cash impairment charge of $22.7 million to partially impair the trademarks within the Companys Parents Network. This impairment charge is recorded in the impairment of goodwill and other long-lived assets line in the Consolidated Statements of Earnings. No other impairments of indefinite-lived intangible assets were recorded as a result of the Companys annual impairment tests performed as of May 31, 2018.
Due to continued weakness in the Mywedding.com revenue forecasts and a lack of sales growth from brand support efforts, the annual impairment analysis performed as of May 31, 2017, of the Mywedding trademark indicated an impairment. As such, during fiscal 2017, the national media segment recorded a non-cash
F-28
impairment charge of $5.3 million to fully impair the Mywedding trademark. No other impairments of indefinite-lived intangible assets were recorded as a result of the Companys annual impairment tests performed as of May 31, 2017.
During fiscal 2016, the Company recorded a non-cash impairment charge of $38.9 million on the national media segments American Baby trademark. Management determined that this trademark was fully impaired as part of managements decision to discontinue the use of the American Baby brand following its combination with the Fit Pregnancy brand. These impairment charges are recorded in the impairment of goodwill and other long-lived assets line in the Consolidated Statements of Earnings. No other impairments of indefinite-lived intangible assets were recorded as a result of the Companys annual impairment tests performed as of May 31, 2016.
Changes in the carrying amount of goodwill were as follows:
(In millions) |
National Media |
Local Media |
Total | |||||||||
Balance at June 30, 2016 |
||||||||||||
Goodwill |
$ | 931.3 | $ | 68.8 | $ | 1,000.1 | ||||||
Accumulated impairment losses |
(116.9 | ) | | (116.9 | ) | |||||||
|
|
|
|
|
|
|||||||
814.4 | 68.8 | 883.2 | ||||||||||
|
|
|
|
|
|
|||||||
Acquisitions |
12.5 | 11.8 | 24.3 | |||||||||
|
|
|
|
|
|
|||||||
Balance at June 30, 2017 |
||||||||||||
Goodwill |
943.8 | 80.6 | 1,024.4 | |||||||||
Accumulated impairment losses |
(116.9 | ) | | (116.9 | ) | |||||||
|
|
|
|
|
|
|||||||
826.9 | 80.6 | 907.5 | ||||||||||
|
|
|
|
|
|
|||||||
Acquisitions |
1,028.0 | 35.2 | 1,063.2 | |||||||||
Disposals1 |
(54.9 | ) | | (54.9 | ) | |||||||
|
|
|
|
|
|
|||||||
Balance at June 30, 2018 |
||||||||||||
Goodwill |
1,800.0 | 115.8 | 1,915.8 | |||||||||
Accumulated impairment losses |
| | | |||||||||
|
|
|
|
|
|
|||||||
$ | 1,800.0 | $ | 115.8 | $ | 1,915.8 | |||||||
|
|
|
|
|
|
1 | In connection with the sale of MXM, goodwill was reduced by $171.8 million and accumulated impairment losses was reduced by $116.9 million. |
Historically, the Companys goodwill reporting units were magazine brands, MXM, and local media. Due to the sale of MXM and acquisition of Time, management reevaluated its goodwill reporting units. As a result, the Companys reporting units are now national media, local media excluding MNI, and MNI. No reallocation of existing goodwill was required as a result of the change in reporting units as the goodwill attributable to the previous MXM reporting unit was disposed of in the sale of MXM and the goodwill attributable to MNI results from the acquisition of Time.
The national media reporting unit aligns to our national media operating segment. The local media excluding MNI and MNI segments, which have $80.6 million and $35.2 million of goodwill, respectively, at June 30, 2018, are both within our local media operating segment.
During its annual impairment reviews as of May 31, 2018, management performed a quantitative goodwill impairment test for the national media reporting unit. Based on the results of this analysis, the fair value exceeded the carrying value and thus resulted in no indication of impairment.
The Company performed qualitative assessments for the local media excluding MNI reporting unit and the MNI reporting unit during its annual impairment reviews as of May 31, 2018, neither of which indicated impairment.
F-29
Therefore, quantitative goodwill impairment analyses for the local media excluding MNI reporting unit and the MNI reporting unit were not deemed necessary in fiscal 2018.
In fiscal 2017, the Company performed its annual goodwill impairment analysis on the magazine brands, MXM, and local media reporting units as of May 31, 2017. No impairments were recorded as a result of these reviews.
In fiscal 2016, the Company determined that triggering events, including reduced operating and cash flow forecasts, required the Company to perform an evaluation of goodwill for the MXM reporting unit for impairment. Due to the timing of the triggering events, this testing was performed in conjunction with the Companys annual impairment testing as of May 31, 2016. This evaluation indicated that the carrying value of MXMs goodwill exceeded its estimated fair value. As a result, the Company recorded a pre-tax non-cash impairment charge of $116.9 million to reduce the carrying value of MXMs goodwill in fiscal 2016. The Company recorded an income tax benefit of $9.5 million related to this charge. This impairment charge is recorded in the impairment of goodwill and other long-lived assets line in the Consolidated Statements of Earnings.
Meredith performed a goodwill impairment analysis on the magazine brands and local media reporting units as of May 31, 2016. No impairments were recorded as a result of these reviews.
6. | Restructuring Accruals |
During fiscal 2018, management committed to and executed upon several performance improvement plans, including those related to the integration of Time as well as other smaller restructurings.
As part of the Companys plan to realize cost synergies from the Acquisition management committed to a performance improvement plan to reduce headcount. In addition to the Acquisition related plan, smaller performance improvement plans took place during the year that were related to the strategic decisions to no longer publish Fit Pregnancy and Baby magazine as a standalone title, but instead to include it as a feature within Parents magazine, and to no longer publish FamilyFun and Martha Stewart Weddings as subscription titles, but rather to sell them on the newsstand as special interest publications. The fiscal 2018 performance improvement plans affected approximately 1,800 employees, primarily in the national media and unallocated corporate departments. In connection with these plans the Company recorded a pre-tax restructuring charge of $104.9 million for severance and related benefit costs related to the involuntary termination of employees and other write-downs of $0.5 million, which are recorded in the acquisition, disposition, and restructuring related activities line of the Consolidated Statements of Earnings. The headcount reductions are expected to be substantially completed by January 2019.
Details of the severance and related benefit costs by segment for the performance improvement plans are as follows:
Year ended June 30, 2018 |
Amount Accrued |
Total Amount Expected to be Incurred |
||||||
(in millions) | ||||||||
National media |
$ | 51.5 | $ | 52.5 | ||||
Local media |
0.9 | 0.9 | ||||||
Unallocated Corporate |
52.5 | 54.0 | ||||||
|
|
|
|
|||||
$ | 104.9 | $ | 107.4 | |||||
|
|
|
|
During fiscal 2017, management committed to several performance improvement plans related primarily to business realignments. These actions resulted in selected workforce reductions. In connection with these plans, the Company recorded pre-tax restructuring charges totaling $12.4 million including $11.9 million for severance
F-30
and related benefit costs related to the involuntary termination of employees and other accruals of $0.3 million. The majority of severance costs have been paid out. The plans affected approximately 215 employees. The Company also wrote down manuscript and art inventory by $0.2 million. These costs and expenses are recorded in the acquisition, disposition, and restructuring related activities line of the Consolidated Statements of Earnings.
During fiscal 2016, management committed to several performance improvement plans that resulted in selected workforce reductions related primarily to business realignments from recent acquisitions and the closing of MORE magazine effective following the publication of the April 2016 issue. In connection with these plans, the Company recorded pre-tax restructuring charges of $10.3 million. The restructuring charges included severance and related benefit costs of $9.8 million related to the involuntary termination of employees. These plans affected approximately 150 employees. The Company also wrote down related manuscript and art inventory by $0.5 million, These costs and expenses are recorded in the acquisition, disposition, and restructuring related activities of the Consolidated Statements of Earnings.
During the years ended June 30, 2018, 2017, and 2016, the Company recorded reversals of $0.8 million, $1.8 million, and $3.2 million, respectively, of excess restructuring reserves accrued in prior fiscal years. The reversals of excess restructuring reserves are recorded as a credit in the acquisition, disposition, and restructuring related activities line of the Consolidated Statements of Earnings.
Details of changes in the Companys restructuring accrual are as follows:
Years ended June 30, |
2018 | 2017 | ||||||||||||||
(in millions) |
Employee Terminations |
Other Exit Costs |
Total | Employee Terminations |
||||||||||||
Balance at beginning of year |
$ | 8.7 | $ | | $ | 8.7 | $ | 7.4 | ||||||||
Accrual on Times opening balance sheet |
38.5 | 6.6 | 45.1 | | ||||||||||||
Accruals |
104.9 | 1.4 | 106.3 | 11.9 | ||||||||||||
Cash payments |
(49.9 | ) | (1.7 | ) | (51.6 | ) | (8.8 | ) | ||||||||
Other accruals |
(0.1 | ) | | (0.1 | ) | | ||||||||||
Reversal of excess accrual |
(0.8 | ) | | (0.8 | ) | (1.8 | ) | |||||||||
|
|
|
|
|
|
|
|
|||||||||
Balance at end of year |
$ | 101.3 | $ | 6.3 | $ | 107.6 | $ | 8.7 | ||||||||
|
|
|
|
|
|
|
|
As of June 30, 2018, of the $107.6 million liability, $91.6 million was classified as current liabilities on the Consolidated Balance Sheets, with the remaining $16.0 million classified as noncurrent liabilities. Amounts classified as noncurrent liabilities are expected to be paid through 2020 and relate primarily to severance costs.
7. | Long-term Debt |
Long-term debt consists of the following:
June 30, 2018 | ||||||||||||
(In millions) |
Principal Balance |
Unamortized Discount and Debt Issuance Costs |
Carrying Value |
|||||||||
Variable-rate credit facility |
||||||||||||
Senior credit facility term loan, due 1/31/2025 |
$ | 1,795.5 | $ | (33.4 | ) | $ | 1,762.1 | |||||
Revolving credit facility of $350 million, due 1/31/2023 |
| | | |||||||||
Senior Unsecured Notes |
||||||||||||
6.875% senior notes, due 2/1/2026 |
1,400.0 | (26.5 | ) | 1,373.5 | ||||||||
|
|
|
|
|
|
|||||||
Total long-term debt |
3,195.5 | (59.9 | ) | 3,135.6 | ||||||||
Current portion of long-term debt |
(18.0 | ) | 0.3 | (17.7 | ) | |||||||
|
|
|
|
|
|
|||||||
Long-term debt |
$ | 3,177.5 | $ | (59.6 | ) | $ | 3,117.9 | |||||
|
|
|
|
|
|
F-31
June 30, 2017 | ||||||||||||
(In millions) |
Principal Balance |
Unamortized Discount and Debt Issuance Costs |
Carrying Value |
|||||||||
Variable-rate credit facilities |
||||||||||||
Asset-backed bank facility of $100 million, due 10/20/2017 |
$ | 75.0 | $ | | $ | 75.0 | ||||||
Revolving credit facility of $200 million, due 11/30/2021 |
85.0 | | 85.0 | |||||||||
Term loan due 11/30/2021 |
240.6 | (2.0 | ) | 238.6 | ||||||||
Private placement notes |
||||||||||||
3.04% senior notes, due 3/1/2018 |
50.0 | | 50.0 | |||||||||
Floating rate senior notes, due 12/19/2022 |
100.0 | (0.2 | ) | 99.8 | ||||||||
Floating rate senior notes, due 2/28/2024 |
150.0 | (0.2 | ) | 149.8 | ||||||||
|
|
|
|
|
|
|||||||
Total long-term debt |
700.6 | (2.4 | ) | 698.2 | ||||||||
Current portion of long-term debt |
(62.5 | ) | | (62.5 | ) | |||||||
|
|
|
|
|
|
|||||||
Long-term debt |
$ | 638.1 | $ | (2.4 | ) | $ | 635.7 | |||||
|
|
|
|
|
|
The following table shows principal payments on the debt due in succeeding fiscal years:
Years ending June 30, |
||||
(In millions) | ||||
2019 |
$ | 18.0 | ||
2020 |
18.0 | |||
2021 |
18.0 | |||
2022 |
18.0 | |||
2023 |
18.0 | |||
Thereafter |
3,105.5 | |||
|
|
|||
Total long-term debt |
$ | 3,195.5 | ||
|
|
On January 31, 2018, in connection with the Acquisition, the Company repaid and terminated its existing indebtedness. In connection with the payoff of this indebtedness, Meredith recognized a loss on extinguishment of debt of $2.2 million. Also in conjunction with the repayment of debt, the Company settled the associated interest rate swap agreements and recognized a gain on the settlement of $1.6 million. The loss on extinguishment of debt and gain on the settlement of the swaps are both presented in the interest expense, net line in the Consolidated Statements of Earnings.
In connection with the Acquisition, on January 31, 2018, the Company entered into new credit arrangements with a total capacity of $3.6 billion comprised of a variable-rate credit facility and senior unsecured notes. The variable- rate credit facility includes a secured term loan (Term Loan B) with $1.8 billion of aggregate principal and a five-year senior secured revolving credit facility of $350.0 million, of which $175.0 million is available for the issuance of letters of credit and $35.0 million of swingline loans. On June 30, 2018 there were no borrowings outstanding under the revolving credit facility. There were $3.4 million of standby letters of credit issued under the revolving credit facility resulting in availability of $346.6 million at June 30, 2018. The Term Loan B matures in 2025 and amortizes at 1.0 percent per annum in equal quarterly installments until the final maturity date, at which time the remaining principal and interest are due and payable.
The interest rate under the Term Loan B is based on LIBOR plus a spread of 3.0 percent while the revolving credit facility bears interest at LIBOR plus a spread ranging from 2.5 percent to 3.0 percent. The Term Loan B bore interest at a rate of 5.09 percent at June 30, 2018. The revolving credit facility has a commitment fee ranging from 0.375 percent to 0.500 percent of the unused commitment. All interest rates and commitment fees associated with this variable-rate revolving credit facility are derived from a leverage-based pricing grid. The
F-32
senior unsecured notes have an aggregate principal balance of $1.4 billion maturing in 2026 (2026 Senior Notes) with an interest rate of 6.875 percent per annum. Total outstanding principal is due at the final maturity date.
In connection with the issuance of this indebtedness, the Company incurred $14.7 million of deferred financing costs and $56.0 million of discount costs that are being amortized into interest expense over the lives of the respective facilities.
During the third quarter of fiscal 2018, the Company also incurred a $17.5 million bridge loan commitment fee. The fee is presented in the interest expense, net line in the Consolidated Statements of Earnings.
Interest expense related to long-term debt and the amortization of the associated debt issuance costs totaled $92.9 million in fiscal 2018, $18.8 million in fiscal 2017, and $20.3 million in fiscal 2016.
8. | Income Taxes |
On December 22, 2017, the U.S. government enacted comprehensive tax legislation commonly referred to as the Tax Reform Act. The Tax Reform Act makes broad and complex changes to the U.S. tax code that affected our fiscal year ended June 30, 2018, including, but not limited to, (1) reducing the U.S. federal corporate tax rate, (2) bonus depreciation that allows for full expensing of qualified property and (3) limitations on the deductibility of interest expense and certain executive compensation and (4) a one-time transition tax on certain unrepatriated earnings of foreign subsidiaries. The Tax Reform Act reduced the federal corporate tax rate to 21 percent in the fiscal year ended June 30, 2018. Pursuant to Section 15 of the Internal Revenue Code, the Company applied a blended corporate tax rate of 28 percent for fiscal 2018, which was based on the applicable tax rates before and after the Tax Reform Act and the number of days in the year.
The SEC issued SAB 118, which provides guidance on accounting for the tax effects of the Tax Reform Act. SAB 118 provides a measurement period that should not extend beyond one year from the Tax Reform Act enactment date for companies to complete the accounting under ASC 740. In accordance with SAB 118, a company must reflect the income tax effects of those aspects of the Tax Reform Act for which the accounting under ASC 740 is complete. To the extent that a companys accounting for certain income tax effects of the Tax Reform Act is incomplete but it can determine a reasonable estimate, it must record a provisional estimate in the consolidated financial statements. If a company cannot determine a provisional estimate to be included in the consolidated financial statements, it should continue to apply ASC 740 on the basis of the provisions of the tax laws that were in effect immediately before the enactment of the Tax Reform Act.
In connection with our initial analysis of the impact of the Tax Reform Act, we recorded a provisional net tax benefit of $133.0 million in the quarter ended December 31, 2017. This net benefit primarily consists of a benefit for the corporate rate reduction. As the Company was projecting a net operating loss for the fiscal year ended June 30, 2018, deferred tax assets and liabilities expected to be recognized in the fiscal year ended June 30, 2018, were remeasured using the 21 percent U.S. corporate tax rate. Due to our limited international operations, the impact of the transitional tax was immaterial.
During the quarter ended June 30, 2018, we did not make any provisional adjustment to the amount. We continue to assess new guidance issued by tax authorities as well as our ability to change certain methods of accounting and expect to finalize our accounting for the provision of the Tax Reform Act within the measurement period.
Effective July 1, 2017, the Company adopted new accounting guidance related to share-based compensation. Under this new guidance, excess tax benefits and deficiencies are to be recognized as a discrete component of the income tax provision in the period they occur and not as an adjustment to additional paid-in capital. As such, the Company recognized an excess tax benefit of $2.2 million as a credit to income tax expense in the Consolidated Statements of Earnings in fiscal 2018.
F-33
The following table shows income tax expense attributable to earnings from continuing operations before income taxes:
Years ended June 30, |
2018 | 2017 | 2016 | |||||||||
(In millions) | ||||||||||||
Currently payable |
||||||||||||
Federal |
$ | 1.8 | $ | 62.2 | $ | 59.2 | ||||||
State |
1.2 | 0.4 | 7.3 | |||||||||
Foreign |
0.2 | | | |||||||||
|
|
|
|
|
|
|||||||
3.2 | 62.6 | 66.5 | ||||||||||
|
|
|
|
|
|
|||||||
Deferred |
||||||||||||
Federal |
(129.9 | ) | 33.0 | 8.3 | ||||||||
State |
3.2 | 5.8 | 1.5 | |||||||||
Foreign |
(0.1 | ) | | | ||||||||
|
|
|
|
|
|
|||||||
(126.8 | ) | 38.8 | 9.8 | |||||||||
|
|
|
|
|
|
|||||||
Income taxes |
$ | (123.6 | ) | $ | 101.4 | $ | 76.3 | |||||
|
|
|
|
|
|
The differences between the statutory U.S. federal income tax rate and the effective tax rate were as follows:
Years ended June 30, |
2018 | 2017 | 2016 | |||||||||
U.S. statutory tax rate |
28.1 | % | 35.0 | % | 35.0 | % | ||||||
State income taxes, less federal income tax benefits |
27.8 | 3.0 | 3.6 | |||||||||
Foreign operations |
(74.2 | ) | | | ||||||||
Rate change |
1,312.5 | | | |||||||||
Settlementsaudits / tax litigation |
10.4 | (2.3 | ) | (0.4 | ) | |||||||
Impairment of goodwill |
| | 29.3 | |||||||||
Sale of domestic subsidiary |
67.3 | | | |||||||||
Other |
(89.5 | ) | (0.8 | ) | 1.7 | |||||||
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Effective income tax rate |
1,282.4 | % | 34.9 | % | 69.2 | % | ||||||
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The Companys effective tax rate was 1,282.4 percent in fiscal 2018, 34.9 percent in fiscal 2017, and 69.2 percent in fiscal 2016. The fiscal 2018 effective tax rate was primarily impacted by a credit to income taxes of $133.0 million related to tax reform. The fiscal 2017 effective tax rate was primarily impacted by a credit to income taxes of $6.7 million related to the resolution of certain federal and state tax uncertainties recorded in fiscal 2017. In fiscal 2016, the Company recorded an impairment of goodwill of $116.9 million, of which approximately 20 percent was deductible for income tax purposes.
F-34
The tax effects of temporary differences that gave rise to deferred tax assets and deferred tax liabilities were as follows:
June 30, |
2018 | 2017 | ||||||
(In millions) | ||||||||
Deferred tax assets |
||||||||
Accounts receivable allowances and return reserves |
$ | 6.8 | $ | 11.0 | ||||
Compensation and benefits |
44.0 | 47.2 | ||||||
Indirect benefit of uncertain state and foreign tax positions |
6.4 | 5.1 | ||||||
Investment in foreign subsidiary |
62.1 | | ||||||
Tax loss carryforwards |
128.5 | | ||||||
All other assets |
8.0 | 7.7 | ||||||
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Total deferred tax assets |
255.8 | 71.0 | ||||||
Valuation allowance |
(21.1 | ) | | |||||
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Net deferred tax assets |
234.7 | 71.0 | ||||||
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Deferred tax liabilities |
||||||||
Subscription acquisition costs |
43.4 | 86.4 | ||||||
Accumulated depreciation and amortization |
600.9 | 329.8 | ||||||
Deferred gains from dispositions |
15.7 | 29.8 | ||||||
All other liabilities |
7.2 | 9.7 | ||||||
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Total deferred tax liabilities |
667.2 | 455.7 | ||||||
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Net deferred tax liability |
$ | 432.5 | $ | 384.7 | ||||
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The Company has $102.4 million of net operating loss carryforwards for federal purposes and $137.2 million for state purposes, which, if unused, have expiration dates through fiscal 2038. The Company has $251.4 million of capital loss carryforwards. It is expected that all federal net operating loss carryforwards and all capital loss carryforwards will be utilized prior to expiration.
There was an increase in the valuation allowance of approximately $21.1 million during the fiscal 2018, which was recorded in connection with the Acquisition and which related primarily to foreign and state net operating losses.
A reconciliation of the beginning and ending balances of the total amounts of gross unrecognized tax benefits is as follows:
Years ended June 30, |
2018 | 2017 | ||||||
(In millions) | ||||||||
Balance at beginning of year |
$ | 29.5 | $ | 37.9 | ||||
Increase in positions acquired in business combination |
31.9 | | ||||||
Increases in tax positions for prior years |
0.4 | 0.8 | ||||||
Decreases in tax positions for prior years |
| (3.1 | ) | |||||
Increases in tax positions for current year |
5.6 | 2.9 | ||||||
Settlements |
(4.2 | ) | (0.2 | ) | ||||
Lapse in statute of limitations |
(3.0 | ) | (8.8 | ) | ||||
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Balance at end of year |
$ | 60.2 | $ | 29.5 | ||||
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The total amount of unrecognized tax benefits that, if recognized, would impact the effective tax rate was $49.7 million as of June 30, 2018, and $18.2 million as of June 30, 2017. The Company recognizes interest and penalties related to unrecognized tax benefits as a component of income tax expense. The amount of accrued interest and penalties related to unrecognized tax benefits was $8.4 million and $6.0 million as of June 30, 2018 and 2017, respectively.
F-35
The total amount of unrecognized tax benefits at June 30, 2018, may change significantly within the next 12 months, decreasing by an estimated range of $24.5 million to $6.7 million. The change, if any, may result primarily from foreseeable federal and state examinations, ongoing federal and state examinations, anticipated state settlements, expiration of various statutes of limitation, the results of tax cases, or other regulatory developments.
The Companys federal tax returns for fiscal years prior to fiscal 2013 are no longer subject to IRS examination. However, certain items from completed examinations of fiscal 2006 through fiscal 2012 are still pending final resolution as of June 30, 2018. Fiscal 2013 through fiscal 2015 are under IRS examination. In addition, Time is under IRS examination for the period 20082014 (pre-spin). The Company has various state income tax examinations ongoing and at various stages of completion, but generally the state income tax returns have been audited or closed to audit through fiscal 2005.
The complete legal and structural separation of Time Warner Inc.s (Time Warner) magazine publishing and related business from Time Warner (the Spin-Off) was completed by way of a pro rata dividend of Time Inc. shares held by Time Warner to its stockholders as of May 23, 2014, based on a distribution ratio of one share of Time Inc. common stock for every eight shares of Time Warner common stock held (the Distribution). In connection with the acquisition of Time, the Company assumed the Tax Matters Agreement (TMA) entered into with Time Warner that requires Time to indemnify Time Warner for certain tax liabilities for periods prior to the Spin-Off from Time Warner, which was completed on June 6, 2014. With respect to taxes other than those incurred in connection with the Spin-Off, the TMA provides that the Company will indemnify Time Warner for (1) any taxes of Time and its subsidiaries for all periods after the Distribution and (2) any taxes of the Time Warner group for periods prior to the Distribution to the extent attributable to Time or its subsidiaries. For purposes of the indemnification described in clause (2), however, Time will generally be required to indemnify Time Warner only for any such taxes that are paid in connection with a tax return filed after the Distribution or that result from an adjustment made to such taxes after the Distribution. In these cases, Times indemnification obligations generally would be computed based on the amount by which the tax liability of the Time Warner group is greater than it would have been absent Times inclusion in its tax returns (or absent the applicable adjustment). Time and Time Warner will generally have joint control over tax authority audits or other tax proceeding related to Time specific tax matters. As of June 30, 2018, the Company has recorded a liability in connection with the TMA of $26.0 million.
9. | Commitments and Contingent Liabilities |
The Company has commitments under certain firm contractual arrangements (firm commitments) to make future payments. These firm commitments secure the future rights to various assets and services to be used in the normal course of operations. Commitments not recorded on the Consolidated Balance Sheets consist primarily of operating lease arrangements, talent commitments, and purchase obligations for goods and services. Other commitments, which are recorded on the Consolidated Balance Sheets, consist primarily of debt and pension obligations. Commitments expected to be paid over the next five years and thereafter are as follow:
Payments Due In | ||||||||||||||||||||||||||||
Years ending June 30, |
2019 | 2020 | 2021 | 2022 | 2023 | Thereafter | Total | |||||||||||||||||||||
(in millions) | ||||||||||||||||||||||||||||
Operating leases |
$ | 66.8 | $ | 62.2 | $ | 58.9 | $ | 55.2 | $ | 54.6 | $ | 459.5 | $ | 757.2 | ||||||||||||||
Broadcast rights payable |
||||||||||||||||||||||||||||
Recorded commitments |
8.9 | 6.1 | 5.6 | 4.7 | 3.7 | 0.7 | 29.7 | |||||||||||||||||||||
Unavailable rights |
11.3 | 12.8 | 2.3 | | | | 26.4 | |||||||||||||||||||||
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Total commitments |
$ | 87.0 | $ | 81.1 | $ | 66.8 | $ | 59.9 | $ | 58.3 | $ | 460.2 | $ | 813.3 | ||||||||||||||
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The Company occupies certain facilities and uses certain equipment under long-term, non-cancelable operating lease agreements through 2032. Future minimum operating lease payments have been reduced by future
F-36
minimum sublease income of $6.6 million in fiscal 2019, $6.6 million in fiscal 2020, $7.4 million in fiscal 2021, $8.2 million in fiscal 2022, $8.4 million in fiscal 2023, and $32.8 million thereafter. Non-cancellable sublease income is committed through 2026. Rent expense under such leases was $45.9 million in fiscal 2018, $20.1 million in fiscal 2017, and $20.9 million in fiscal 2016.
The Company has recorded commitments for broadcast rights payable in future fiscal years. The Company also is obligated to make payments under contracts for broadcast rights not currently available for use and therefore not included in the consolidated financial statements. Such unavailable rights amounted to $26.4 million at June 30, 2018. The fair value of these commitments for unavailable broadcast rights, determined by the present value of future cash flows discounted at the Companys current borrowing rate, was $24.4 million at June 30, 2018.
Legal Proceedings
In the ordinary course of business, Meredith is a defendant in or party to various legal claims, actions, and proceedings. These claims, actions and proceedings are at varying stages of investigation, arbitration, or adjudication, and involve a variety of areas of law. Time, which is now a wholly-owned subsidiary, previously reported on, and the Company updates below, the following legal proceedings.
On October 26, 2010, the Canadian Minister of National Revenue denied the claims by Time Inc. Retail (formerly Time/Warner Retail Sales & Marketing, Inc.) (TIR) for input tax credits in respect of goods and services tax that TIR had paid on magazines it imported into and had displayed at retail locations in Canada during the years 2006 to 2008, on the basis that TIR did not own those magazines and issued Notices of Reassessment in the amount of approximately C$52 million. On January 21, 2011, TIR filed an objection to the Notices of Reassessment with the Chief of Appeals of the Canada Revenue Agency (CRA), arguing that TIR claimed input tax credits only in respect of goods and services tax it actually paid and, regardless of whether its payment of the goods and services tax was appropriate or in error, it is entitled to a rebate for such payments. On September 13, 2013, TIR received Notices of Reassessment in the amount of C$26.9 million relating to the disallowance of input tax credits claimed by TIR for goods and services tax that TIR had paid on magazines it imported into and had displayed at retail locations in Canada during the years 2009 to 2010. On October 22, 2013, TIR filed an objection to the Notices of Reassessment received on September 13, 2013 with the Chief of Appeals of the CRA, asserting the same arguments made in the objection TIR filed on January 21, 2011. Beginning in 2015, the collections department of the CRA requested payment of both assessments plus accrued interest or the posting of sufficient security. In each instance, TIR responded by stating that collection should remain stayed pending resolution of the issues raised by TIRs objection. Including interest accrued, the total of the reassessments claimed by the CRA for the years 2006 to 2010 was C$91 million as of November 30, 2015. On February 8, 2016, the Company filed an application for a remission order with the International Trade Policy Division of Finance Canada to seek relief from the assessments and the CRAs collection efforts. The matter is currently subject to a proceeding in the Tax Court of Canada to resolve the issue of whether TIR or the publishers are entitled to the input tax credits. On March 31, 2017, the Company and the CRA jointly proposed a timetable for the completion of certain pre-trial steps related to this matter, which was approved by the Tax Court. In accordance with the timetable, on April 28, 2017, TIR filed an Amended Notice of Appeal of the assessments. In June 2017, the CRA filed a Reply to TIRs Amended Notice of Appeal and the Company filed an answer to the CRA reply in July 2017. The parties are currently engaged in discovery. The Company denies liability and intends to vigorously defend itself and pursue all defenses available to eliminate or mitigate liability.
In July 2017 and November 2017, Time received subpoenas from the Enforcement Division of the staff of the SEC requiring Time to provide documents relating to its accounting for goodwill and asset impairments, restructuring and severance costs, and its analysis and reporting of Times segments. The Company is cooperating with the SEC in the investigation. Management cannot at this time predict the eventual scope or outcome of this matter.
The Company establishes an accrued liability for specific matters, such as a legal claim, when the Company determines both that a loss is probable and the amount of the loss can be reasonably estimated. Once established,
F-37
accruals are adjusted from time to time, as appropriate, in light of additional information. The amount of any loss ultimately incurred in relation to matters for which an accrual has been established may be higher or lower than the amounts accrued for such matters. Due to the inherent difficulty of predicting the outcome of litigation, claims and other matters, the Company often cannot predict what the eventual outcome of a pending matter will be, or what the timing or results of the ultimate resolution of a matter will be. Accordingly, for the matters described above, the Company is unable to predict the outcome or reasonably estimate a range of possible loss.
10. | Fair Value Measurements |
Accounting standards define fair value as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. Specifically, it establishes a hierarchy prioritizing the use of inputs in valuation techniques. The defined levels within the hierarchy are as follows:
Level 1 |
Quoted prices (unadjusted) in active markets for identical assets or liabilities; | |
Level 2 |
Inputs other than quoted prices included within Level 1 that are either directly or indirectly observable; and | |
Level 3 |
Assets or liabilities for which fair value is based on valuation models with significant unobservable pricing inputs and which result in the use of management estimates. |
The following table sets forth the carrying value and the estimated fair value of the Companys financial instruments not measured at fair value on a recurring basis:
June 30, 2018 | June 30, 2017 | |||||||||||||||
(In millions) |
Carrying Value |
Fair Value | Carrying Value |
Fair Value | ||||||||||||
Broadcast rights payable |
$ | 29.7 | $ | 27.4 | $ | 31.7 | $ | 30.5 | ||||||||
Long-term debt |
3,135.6 | 3,179.8 | 698.2 | 700.7 |
The fair value of broadcast rights payable was determined using the present value of expected future cash flows discounted at the Companys current borrowing rate with inputs included in Level 3. The fair value of total long-term debt is based on pricing from observable market information in a non-active market, therefore is included in
Level 2.
As of June 30, 2018, the Company had assets related to its qualified pension plans measured at fair value. The required disclosures regarding such assets are presented within Note 11. In addition, the Company has liabilities related to contingent consideration payables that are valued at estimated fair value as discussed in Note 2.
The following table sets forth the assets and liabilities measured at fair value on a recurring basis:
(In millions) |
June 30, 2018 | June 30, 2017 | ||||||
Machinery and equipment |
||||||||
Corporate airplanes, held-for-sale |
$ | | $ | 1.9 | ||||
Other assets |
||||||||
Interest rate swaps |
| 0.2 | ||||||
Accrued expenses and other liabilities |
||||||||
Contingent consideration |
24.6 | 4.0 | ||||||
Interest rate swaps |
| 0.6 | ||||||
Deferred compensation plans |
8.4 | 0.3 | ||||||
Other noncurrent liabilities |
||||||||
Contingent consideration |
0.8 | 30.2 | ||||||
Deferred compensation plans |
21.0 | 2.1 |
F-38
The fair value of interest rate swaps was determined based on discounted cash flows derived using market observable inputs including swap curves that were included in Level 2. The fair value of deferred compensation plans is derived from quotes from observable market information, and thus represent Level 2 measurements. The fair values of the contingent consideration and corporate airplanes are based on significant inputs not observable in the market and thus represent Level 3 measurements.
At June 30, 2018, certain national media trademarks were partially impaired during fiscal 2018 and thus deemed to be measured at fair value on a non-recurring basis which totaled $33.0 million. Those trademarks were not considered to be measured at fair value as of June 30, 2017. The fair values of the trademarks are determined based on significant inputs not observable in the market and thus represents a Level 3 measurement. The key assumptions used to determine the fair value include discount rates, estimated cash flows, royalty rates, and revenue growth rates. The discount rate used is based on several factors including market interest rates, a weighted average cost of capital analysis based on the target capital structure, and includes adjustments for market risk and Company specific risk. Estimated cash flows are based upon internally developed estimates and the revenue growth rates are based on industry knowledge and historical performance. For further discussion, refer to Note 5.
F-39
The following table represents the changes in the fair value of Level 3 contingent consideration, corporate airplanes, trademarks, investment in Next Issue Media, and lease guarantees for the years ended June 30, 2018 and 2017.
Years ended June 30, |
2018 | 2017 | ||||||
(in millions) | ||||||||
Contingent consideration |
||||||||
Balance at beginning of year |
$ | 34.2 | $ | 56.6 | ||||
Accrual on Times opening balance sheet 1 |
1.1 | | ||||||
Additions due to acquisitions |
| 7.7 | ||||||
Payments 1 |
(5.1 | ) | (10.6 | ) | ||||
Fair value adjustment of contingent consideration |
(4.8 | ) | (19.5 | ) | ||||
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Balance at end of year |
$ | 25.4 | $ | 34.2 | ||||
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Corporate airplanes held-for-sale |
||||||||
Balance at beginning of year |
$ | 1.9 | $ | 2.8 | ||||
Fair value adjustment of corporate airplanes |
| (0.9 | ) | |||||
Sale |
(1.9 | ) | | |||||
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Balance at end of year |
$ | | $ | 1.9 | ||||
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Trademarks |
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Balance at beginning of year 2 |
$ | 55.7 | $ | 5.3 | ||||
Impairment |
(22.7 | ) | (5.3 | ) | ||||
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Balance at end of year |
$ | 33.0 | $ | | ||||
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Investment in Next Issue Media |
||||||||
Balance at beginning of year 3 |
$ | 11.0 | $ | | ||||
Additions due to investment and acquisition |
3.3 | | ||||||
Equity method investment losses |
(3.6 | ) | | |||||
Impairment |
(9.3 | ) | | |||||
Sale |
(1.4 | ) | | |||||
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Balance at end of year |
$ | | $ | | ||||
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Lease guarantee |
||||||||
Balance at beginning of year |
$ | | $ | | ||||
Accrual on Times opening balance sheet |
3.6 | | ||||||
Issuance of new guarantees |
9.2 | | ||||||
Fair market value adjustment of lease guarantees |
(0.4 | ) | | |||||
Foreign currency exchange impact |
(0.5 | ) | | |||||
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Balance at end of year |
$ | 11.9 | $ | | ||||
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1 | Of this amount, $0.5 million was classified in liabilities associated with assets held-for-sale on the opening balance sheet, and was subsequently paid in fiscal 2018. |
2 | Book value of trademarks impaired during the year. |
3 | Book value of investment impaired during the year. |
The fair value adjustment of contingent consideration is the change in the estimated earn out payments based on projections of performance and the amortization of the present value discount. The fair value adjustment of contingent consideration is included in selling, general, and administrative line on the Consolidated Statements of Earnings.
F-40
In fiscal 2016, the Company committed to a plan to sell the Companys two corporate airplanes. In conjunction with that plan, the Company classified the airplanes as held-for-sale and wrote the assets down to fair value. The airplanes were recorded at fair value until their sale in fiscal 2018.
The fair value adjustment of corporate airplanes and impairment of trademarks are included in the impairment of goodwill and other long-lived assets in the Consolidated Statement of Earnings. Next Issue Media was reported as a cost method investment as of June 30, 2017, and the impairment of this investment is recorded in non-operating expense, net in the Consolidated Statement of Earnings.
In the Acquisition, the Company assumed lease guarantees related to space leased by various former Time subsidiaries. The fair value of the lease guarantees was derived using a probability weighted present value of expected future payments using the with-and-without approach, for which the Company used unobservable inputs that are classified as Level 3 under the fair value hierarchy. The lease guarantee liabilities are being amortized into earnings on a straight-line basis over the lives of the respective leases, the longest of which extends through November 2030. The lease guarantees are not considered to be measured at fair value at June 30, 2018.
11. | Pension and Postretirement Benefit Plans |
Defined Contribution Plans
The Company sponsors defined contribution saving plans for most of its U.S. based employees. Eligible Company employees may participate in the Meredith Savings and Investment Plan. In connection with the Acquisition, certain employees still participate in the defined contribution savings plan that Time had in place for their employees in the U.S., the Time Inc. Savings Plan. The Companys existing and assumed Time defined contribution plans allow eligible employees to contribute a percentage of their salary, commissions, and bonuses in accordance with plan limitations and provisions of Section 401(k) of the Internal Revenue Code (Section 401(k)) and the Company makes matching contributions to each plan subject to the limits of the respective 401(k) Plans.
For the Meredith Savings and Investment Plan, the Company currently matches 100 percent of the first 4 percent and 50 percent of the next 1 percent of employee contributions. For the Time Inc. Savings Plan, the Company matches 100 percent of the first 4 percent and 50 percent of the next 2 percent of eligible compensation. In addition to the annual employer contribution made to the Time Inc. Savings Plan, following the plan year, the Company makes an employer match contribution of up to 5 percent of each participants compensation less any employer matching contribution made within the plan year to those participants who contributed up to 6 percent of their compensation for the plan year.
Both plans allow employees to choose among various investment options. The Meredith Savings and Investment Plan also includes an investment option in the Companys common stock. Matching contributions are invested in the same manner as the participants pre-tax contributions. Company contribution expense under these plans totaled $19.6 million in fiscal 2018, $10.9 million in fiscal 2017, and $9.6 million in fiscal 2016.
In connection with the Acquisition, the Company assumed responsibility for sponsoring The Time Inc. Supplemental Savings Plan (Supplemental Plan). The Supplemental Plan permits eligible employees who participate in the Time Inc. Savings Plan and are limited in the amount they can contribute under Section 401(k) to defer a percentage of eligible compensation and receive a company matching deferral of up to 5 percent of eligible compensation. The matching contributions vest after two years of Company service pursuant to Section 409A of the Internal Revenue Code and limitations described in the Supplemental Plan.
The Company sponsors the Meredith Corporation Deferred Compensation Plan. In connection with the Acquisition, the Company assumed responsibility for sponsoring The Time Inc. Deferred Compensation Plan,
F-41
which is a frozen plan (collectively the Deferred Compensation Plans). The Deferred Compensation Plans allow participants to defer certain bonuses and salaries. No actual monies are set aside in respect of the Deferred Compensation Plans and participants have no rights to Company assets in respect of plan liabilities in excess of general unsecured creditors. The liabilities associated with the plans fluctuate with hypothetical yields of the underlying investments. Liabilities for the uncollateralized plans, were approximately $29.4 million at June 30, 2018, of which approximately $8.4 million was reflected in accrued compensation and benefits and approximately $21.0 million was reflected within other noncurrent liabilities on the Consolidated Balance Sheets.
Pension and Postretirement Plans
Meredith has U.S. noncontributory pension plans covering substantially all employees who were employed by Meredith prior to the Acquisition. In connection with the Acquisition, the Company assumed the obligations under Times various international pension plans including plans in the U.K., Netherlands, and Germany. These domestic and international plans include qualified (funded) plans as well as nonqualified (unfunded) plans. These plans provide participating employees with retirement benefits in accordance with benefit provision formulas. The nonqualified plans provide retirement benefits only to certain highly compensated employees. The Company also sponsors defined healthcare and life insurance plans that provide benefits to eligible retirees.
Obligations and Funded Status
The following tables present changes in, and components of, the Companys net assets/liabilities for pension and other postretirement benefits:
Pension | Postretirement | |||||||||||||||||||
Domestic | International | Domestic | ||||||||||||||||||
June 30, |
2018 | 2017 | 2018 | 2018 | 2017 | |||||||||||||||
(In millions) | ||||||||||||||||||||
Change in benefit obligation |
||||||||||||||||||||
Benefit obligation, beginning of year |
$ | 170.9 | $ | 161.9 | $ | | $ | 9.3 | $ | 9.7 | ||||||||||
Acquisitions 1 |
| | 836.6 | | | |||||||||||||||
Service cost |
13.0 | 12.5 | | 0.1 | 0.1 | |||||||||||||||
Interest cost |
5.9 | 4.9 | 8.0 | 0.3 | 0.3 | |||||||||||||||
Participant contributions |
| | | 0.8 | 0.8 | |||||||||||||||
Plan amendments |
1.2 | 0.5 | | | | |||||||||||||||
Net actuarial loss (gain) |
2.4 | 3.6 | (21.0 | ) | (0.8 | ) | (0.2 | ) | ||||||||||||
Benefits paid (including lump sums) |
(12.9 | ) | (12.5 | ) | (44.1 | ) | (1.3 | ) | (1.4 | ) | ||||||||||
Curtailments |
(1.1 | ) | | | | | ||||||||||||||
Foreign currency exchange rate impact |
| | (58.0 | ) | | | ||||||||||||||
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Benefit obligation, end of year |
$ | 179.4 | $ | 170.9 | $ | 721.5 | $ | 8.4 | $ | 9.3 | ||||||||||
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Change in plan assets |
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Fair value of plan assets, beginning of year |
$ | 139.2 | $ | 122.6 | $ | | $ | | $ | | ||||||||||
Acquisitions 1 |
| | 867.7 | | | |||||||||||||||
Actual return on plan assets |
12.0 | 18.5 | (6.7 | ) | | | ||||||||||||||
Employer contributions |
0.7 | 10.6 | 88.9 | 0.5 | 0.6 | |||||||||||||||
Participant contributions |
| | | 0.8 | 0.8 | |||||||||||||||
Benefits paid (including lump sums) |
(12.9 | ) | (12.5 | ) | (44.1 | ) | (1.3 | ) | (1.4 | ) | ||||||||||
Foreign currency exchange rate impact |
| | (64.3 | ) | | | ||||||||||||||
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Fair value of plan assets, end of year |
$ | 139.0 | $ | 139.2 | $ | 841.5 | $ | | $ | | ||||||||||
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Over (under) funded status, end of year |
$ | (40.4 | ) | $ | (31.7 | ) | $ | 120.0 | $ | (8.4 | ) | $ | (9.3 | ) | ||||||
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1 | The International pension plans were acquired with the acquisition of Time Inc. on January 31, 2018. |
F-42
Benefits paid directly from Meredith assets are included both in employer contributions and benefits paid.
In connection with the sale of TIUK, the Company contributed £60.0 million to the IPC Media Pension Scheme (IPC Plan) defined benefit pension plan in the U.K. We retained the IPC Plan in the sale of TIUK.
The following amounts are recognized in the Consolidated Balance Sheets:
Pension | Postretirement | |||||||||||||||||||
Domestic | International | Domestic | ||||||||||||||||||
June 30, |
2018 | 2017 | 2018 | 2018 | 2017 | |||||||||||||||
(In millions) | ||||||||||||||||||||
Other assets |
||||||||||||||||||||
Prepaid benefit cost |
$ | 16.9 | $ | 16.9 | $ | 137.4 | $ | | $ | | ||||||||||
Accrued expenses-compensation and benefits |
||||||||||||||||||||
Accrued benefit liability |
(9.9 | ) | (5.8 | ) | (0.2 | ) | (0.6 | ) | (0.7 | ) | ||||||||||
Other noncurrent liabilities |
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Accrued benefit liability |
(47.4 | ) | (42.8 | ) | (17.2 | ) | (7.8 | ) | (8.6 | ) | ||||||||||
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Net amount recognized, end of year |
$ | (40.4 | ) | $ | (31.7 | ) | $ | 120.0 | $ | (8.4 | ) | $ | (9.3 | ) | ||||||
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The accumulated benefit obligation for the domestic defined benefit pension plans was $164.7 million and $154.0 million at June 30, 2018 and 2017, respectively. The accumulated benefit obligation for the international defined benefit pension plans was $721.5 million at June 30, 2018.
The following table provides information about pension plans with projected benefit obligations and accumulated benefit obligations in excess of plan assets:
Domestic | International | |||||||||||
June 30, |
2018 | 2017 | 2018 | |||||||||
(In millions) | ||||||||||||
Projected benefit obligation |
$ | 57.3 | $ | 48.7 | $ | 28.4 | ||||||
Accumulated benefit obligation |
51.6 | 42.6 | 28.4 | |||||||||
Fair value of plan assets |
0.1 | 0.1 | 11.0 |
Costs
The components of net periodic benefit costs recognized in the Consolidated Statements of Earnings were as follows:
Pension | Postretirement | |||||||||||||||||||||||||||
Domestic | International | Domestic | ||||||||||||||||||||||||||
Years ended June 30, |
2018 | 2017 | 2016 | 2018 | 2018 | 2017 | 2016 | |||||||||||||||||||||
(In millions) | ||||||||||||||||||||||||||||
Components of net periodic benefit costs |
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Service cost |
$ | 13.0 | $ | 12.5 | $ | 11.9 | $ | | $ | 0.1 | $ | 0.1 | $ | 0.1 | ||||||||||||||
Interest cost |
5.9 | 4.9 | 5.9 | 8.0 | 0.3 | 0.3 | 0.4 | |||||||||||||||||||||
Expected return on plan assets |
(10.5 | ) | (9.2 | ) | (11.0 | ) | (17.9 | ) | | | | |||||||||||||||||
Prior service cost (credit) amortization |
0.3 | 0.2 | 0.2 | | (0.4 | ) | (0.4 | ) | (0.4 | ) | ||||||||||||||||||
Actuarial loss (gain) amortization |
2.0 | 3.6 | 0.6 | | (0.3 | ) | (0.3 | ) | (0.7 | ) | ||||||||||||||||||
Settlement charge |
| | 5.6 | 0.2 | | | | |||||||||||||||||||||
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Net periodic benefit costs (credit) |
$ | 10.7 | $ | 12.0 | $ | 13.2 | $ | (9.7 | ) | $ | (0.3 | ) | $ | (0.3 | ) | $ | (0.6 | ) | ||||||||||
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The amortization of amounts related to unrecognized prior service costs/credit and net actuarial gain/loss were reclassified out of other comprehensive income as components of net periodic benefit costs.
The pension settlement charge recorded in fiscal 2016 related to cash distributions paid by the pension plan during fiscal 2016 exceeding a prescribed threshold. This required that a portion of pension losses within accumulated other comprehensive loss be realized in the period that the related pension liabilities were settled.
Amounts recognized in the accumulated other comprehensive loss component of shareholders equity for Company-sponsored plans were as follows:
Pension | Postretirement | |||||||||||||||||||
Domestic | International | Domestic | ||||||||||||||||||
June 30, |
2018 | 2017 | 2018 | 2018 | 2017 | |||||||||||||||
(In millions) | ||||||||||||||||||||
Unrecognized net actuarial losses (gains), net of taxes |
$ | 20.7 | $ | 18.5 | $ | 2.6 | $ | (1.8 | ) | $ | (1.2 | ) | ||||||||
Unrecognized prior service cost (credit), net of taxes |
1.5 | 0.7 | | | (0.2 | ) | ||||||||||||||
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Total |
$ | 22.2 | $ | 19.2 | $ | 2.6 | $ | (1.8 | ) | $ | (1.4 | ) | ||||||||
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During fiscal 2019, the Company expects to recognize as part of its net periodic benefit costs $1.9 million of net actuarial losses and $0.5 million of prior service costs for the pension plans, and $0.6 million of net actuarial gains and no prior service costs for the postretirement plan, net of taxes, in the accumulated other comprehensive loss component of shareholders equity at June 30, 2018.
Assumptions
Benefit obligations were determined using the following weighted average assumptions:
Pension | Postretirement | |||||||||||||||||||
Domestic | International | Domestic | ||||||||||||||||||
June 30, |
2018 | 2017 | 2018 | 2018 | 2017 | |||||||||||||||
Weighted average assumptions |
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Discount rate |
4.03 | % | 3.41 | % | 2.57 | % | 4.10 | % | 3.65 | % | ||||||||||
Rate of compensation increase |
3.50 | % | 3.50 | % | n/a | 3.50 | % | 3.50 | % |
n/aNot applicable
Net periodic benefit costs were determined using the following weighted average assumptions:
Pension | Postretirement | |||||||||||||||||||||||||||
Domestic | International | Domestic | ||||||||||||||||||||||||||
Years ended June 30, |
2018 | 2017 | 2016 | 2018 | 2018 | 2017 | 2016 | |||||||||||||||||||||
Weighted average assumptions |
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Discount rate |
3.41 | % | 2.98 | % | 3.75 | % | 2.57 | % | 3.65 | % | 3.40 | % | 4.20 | % | ||||||||||||||
Expected return on plan assets |
8.00 | % | 8.00 | % | 8.00 | % | 4.87 | % | n/a | n/a | n/a | |||||||||||||||||
Rate of compensation increase |
3.50 | % | 3.50 | % | 3.50 | % | 3.50 | % | 3.50 | % | 3.50 | % | 3.50 | % |
n/aNot applicable
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Plan trend rates are the annual rates of increase expected for medical benefits payable from the Plan. The assumed health care trend rates used to measure the expected cost of benefits were as follows:
Postretirement | ||||||||||||
Assumed healthcare cost trend rates as of June 30, |
2018 | 2017 | 2016 | |||||||||
Rate of increase in health care cost levels |
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Initial level |
6.50 | % | 7.00 | % | 7.00 | % | ||||||
Ultimate level |
5.00 | % | 5.00 | % | 5.00 | % | ||||||
Years to ultimate level |
4 years | 5 years | 6 years |
Pension expense is calculated using a number of actuarial assumptions, including an expected long-term rate of return on assets and a discount rate. In developing the expected long-term rate of return on plan assets, the Company considered long-term historical rates of return, plan asset allocations as well as the opinions and outlooks of investment professionals and consulting firms. Returns projected by such consultants and economists are based on broad equity and bond indices. The objective is to select an average rate of earnings expected on existing plan assets and expected contributions to the plan during the year. The Company reviews this long-term assumption on a periodic basis.
The value (market-related value) of plan assets is multiplied by the expected long-term rate of return on assets to compute the expected return on plan assets, a component of net periodic pension cost. The market-related value of plan assets is a calculated value that recognizes changes in fair value over three years.
Assumed rates of increase in healthcare cost have a significant effect on the amounts reported for the healthcare plans. A change of one percentage point in the assumed healthcare cost trend rates would have the following effects:
One Percentage Point Increase |
One Percentage Point Decrease |
|||||||
(In millions) | ||||||||
Effect on service and interest cost components for fiscal 2018 |
$ | | $ | | ||||
Effect on postretirement benefit obligation as of June 30, 2018 |
0.4 | (0.3 | ) |
Plan Assets
The targeted and weighted average asset allocations by asset category for investments held by the Companys pension plans are as follows:
Domestic | International | |||||||||||||||||||||||
2018 Allocation | 2017 Allocation | 2018 Allocation | ||||||||||||||||||||||
June 30, |
Target | Actual | Target | Actual | Target | Actual | ||||||||||||||||||
Equity securities |
70 | % | 70 | % | 70 | % | 71 | % | 32 | % | 18 | % | ||||||||||||
Fixed-income securities |
30 | % | 30 | % | 30 | % | 29 | % | 17 | % | 29 | % | ||||||||||||
Other securities 1 |
| % | | % | | % | | % | 51 | % | 53 | % | ||||||||||||
Total |
100 | % | 100 | % | 100 | % | 100 | % | 100 | % | 100 | % |
1 | Other primarily includes pooled investment funds. |
Merediths investment policy for domestic plans seeks to maximize investment returns while balancing the Companys tolerance for risk. The plan fiduciaries oversee the investment allocation process. This includes selecting investment managers, setting long-term strategic targets, and monitoring asset allocations. Target allocation ranges are guidelines, not limitations, and plan fiduciaries may occasionally approve allocations above or below a target range, or elect to rebalance the portfolio within the targeted range. The investment portfolio
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contains a diversified blend of equity and fixed-income investments. Furthermore, equity investments are diversified across domestic and international stocks and between growth and value stocks and small and large capitalizations. The primary investment strategy currently employed is a dynamic target allocation method that periodically rebalances among various investment categories depending on the current funded position. This program is designed to actively move from return-seeking investments (such as equities) toward liability-hedging investments (such as long-duration fixed-income) as funding levels improve. The reverse effect occurs when funding levels decrease.
The trustees of the IPC Plan have delegated the day-to-day investment decisions of the IPC Plan to a large international fiduciary managerand utilize an investment manager to monitor investment performance and the reporting of the fiduciary manager. The investment objective of the IPC Plan is to invest the assets prudently with the intention that the benefits promised to the members are provided. Funding level based de-risking triggers have been established such that the investment strategy evolves as the funding level moves along an agreed glide path. As the funding level improves, the investment strategy will de-risk. Each trigger level specifies a minimum interest rate and hedge rate ratio and a maximum allocation to growth assetswhich target a diversified portfolio using specialist managers and asset classes.
Equity securities did not include any Meredith Corporation common or class B stock at June 30, 2018 or 2017.
Fair value measurements for domestic pension plan assets were as follows:
June 30, 2018 |
Total Fair Value |
Quoted Prices (Level 1) |
Significant Other Observable Inputs (Level 2) |
Significant Unobservable Inputs (Level 3) |
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(In millions) | ||||||||||||||||
Investments in registered investment companies |
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Equity |
$ | 97.0 | $ | 74.0 | $ | 23.0 | $ | | ||||||||
Fixed Income |
40.4 | | 40.4 | | ||||||||||||
Pooled separate accounts |
1.6 | | 1.6 | | ||||||||||||
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Total assets at fair value |
$ | 139.0 | $ | 74.0 | $ | 65.0 | $ | | ||||||||
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June 30, 2017 |
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Investments in registered investment companies |
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Equity |
$ | 98.2 | $ | 76.8 | $ | 21.4 | $ | | ||||||||
Fixed Income |
40.7 | | 40.7 | | ||||||||||||
Pooled separate accounts |
0.3 | | 0.3 | | ||||||||||||
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Total assets at fair value |
$ | 139.2 | $ | 76.8 | $ | 62.4 | $ | | ||||||||
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Fair value measurements for international pension plan assets, which were acquired in the Time acquisition, were as follows:
June 30, 2018 |
Total Fair Value |
Quoted Prices (Level 1) |
Significant Other Observable Inputs (Level 2) |
Significant Unobservable Inputs (Level 3) |
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(In millions) | ||||||||||||||||
Cash and cash equivalents |
$ | 17.6 | $ | 5.2 | $ | 12.4 | $ | | ||||||||
Pooled investments |
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Equity |
155.1 | | 155.1 | | ||||||||||||
Fixed Income |
242.0 | | 242.0 | | ||||||||||||
Other |
415.8 | | 415.8 | | ||||||||||||
Guaranteed investment contract |
11.0 | | 11.0 | | ||||||||||||
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Total assets at fair value |
$ | 841.5 | $ | 5.2 | $ | 836.3 | $ | | ||||||||
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The international pension plans hold investments in liability matching funds whose objective is to provide leveraged returns equal to that of the liabilities. In order to do so, these funds invest in the respective UK Treasury Gilt bonds, Gilt Total Return Swaps, Repurchase Transactions, and cash or money markets to provide liquidity to meet payment obligations or post as collateral in the derivative transactions they enter into. These liability matching funds are included in Other, in the fair value level table above.
The Company primarily utilizes the market approach for determining recurring fair value. The fair value of the guaranteed investment contract has been determined based on the higher of the surrender value of the contract or the present value of the underlying bonds based on a discounted cash flow model. Refer to Note 10 for a discussion of the three levels in the hierarchy of fair values.
Cash Flows
Although the Company does not have a minimum funding requirement for the pension plans in fiscal 2019, the Company is currently determining what voluntary pension plan contributions, if any, will be made in fiscal 2019 to the domestic plan. Actual contributions will be dependent upon investment returns, changes in pension obligations, and other economic and regulatory factors. Meredith expects to contribute $0.6 million to its postretirement plan in fiscal 2019.
Monthly contributions of £0.9 million are required to be made to the IPC Plan. In the event that on November 25, 2021, the IPC Plan has a funding deficit valuing its liabilities with a gilts plus 50 basis point (bps) discount rate, the Company, as the sponsor of the IPC Plan, will make a contribution equal to that funding deficit. In the event that on November 25, 2025, the IPC Plan has a funding deficit valuing its liabilities with a gilts flat discount rate, the Company will make a contribution equal to 50 percent of that funding deficit. In the event that on November 25, 2026, the IPC Plan has a funding deficit valuing its liabilities with a gilts flat discount rate, the Company will make a contribution equal to 50 percent of that funding deficit. In the event that on November 25, 2027, the IPC Plan has a funding deficit valuing its liabilities with a gilts flat discount rate, the Company will make a contribution equal to that funding deficit. Contributions shall cease to be payable from the date that the IPC Plan is confirmed to be fully funded.
The following benefit payments, which reflect expected future service as appropriate, are expected to be paid:
Years ending June 30, |
Pension Benefits |
Postretirement Benefits |
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(In millions) |
Domestic | International | Domestic | |||||||||
2019 |
$ | 29.8 | $ | 13.3 | $ | 0.6 | ||||||
2020 |
31.6 | 14.4 | 0.7 | |||||||||
2021 |
22.9 | 16.3 | 0.7 | |||||||||
2022 |
15.9 | 17.9 | 0.6 | |||||||||
2023 |
16.4 | 18.3 | 0.6 | |||||||||
2024-2028 |
87.6 | 110.9 | 2.7 |
Other
The Company maintains collateral assignment split-dollar life insurance arrangements on certain key officers and retirees. The net periodic pension cost for fiscal 2018, 2017, and 2016 was $0.6 million, $0.5 million, and $0.4 million, respectively, and the accrued liability at June 30, 2018 and 2017, was $3.1 million and $4.3 million, respectively.
12. | Share-based Compensation |
Meredith has a shareholder-approved stock incentive plan. More detailed descriptions of these plans follow. Compensation expense recognized for these plans was $30.4 million in fiscal 2018, $12.8 million in fiscal 2017,
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and $12.8 million in fiscal 2016. The total income tax benefit recognized in earnings was $6.9 million in fiscal 2018, $4.8 million in fiscal 2017, and $4.6 million in fiscal 2016.
Stock Incentive Plan
Meredith has a stock incentive plan that permits the Company to issue stock options, restricted stock, stock equivalent units, restricted stock units, and performance shares to key employees and directors of the Company. Approximately 8.0 million shares remained available for future awards under the plan as of June 30, 2018. Forfeited awards, shares deemed to be delivered to us on tender of stock in payment for the exercise price of options, and shares reacquired pursuant to tax withholding on option exercises and the vesting of restricted shares and restricted stock units increase shares available for future awards. The plan is designed to provide an incentive to contribute to the achievement of long-range corporate goals; provide flexibility in motivating, attracting, and retaining employees; and to align more closely the employees interests with those of shareholders.
The Company has awarded restricted stock and restricted stock units to eligible key employees and to non-employee directors under the plan. In addition, certain awards are granted based on specified levels of Company stock ownership. All awards have restriction periods tied primarily to employment and/or service. The awards granted to employees generally vest over three or five years and the awards granted to directors vest one-third each year during the three-year period from date of grant. The grant date of awards is the date the Compensation Committee of the Board of Directors approves the granting of the awards. The awards are recorded at the market value of traded shares on the date of the grant as unearned compensation. The initial values of the grants are amortized over the vesting periods.
The Companys restricted stock activity during the year ended June 30, 2018, was as follows:
Restricted Stock |
Shares | Weighted Average Grant Date Fair Value |
Aggregate Intrinsic Value |
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(Shares in thousands and Aggregate Intrinsic Value in millions) | ||||||||||||
Nonvested at June 30, 2017 |
38.4 | $ | 41.85 | |||||||||
Granted |
8.5 | 52.00 | ||||||||||
Vested |
(26.3 | ) | 39.57 | |||||||||
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Nonvested at June 30, 2018 |
20.6 | 48.94 | $ | 1.0 | ||||||||
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As of June 30, 2018, there was no unearned compensation cost related to restricted stock granted under the plan. The weighted average grant date fair value of restricted stock granted during the years ended June 30, 2018, 2017, and 2016 was $52.00, $47.65, and $47.01, respectively. The total fair value of shares vested during the years ended June 30, 2018, 2017, and 2016, was $1.5 million, $7.9 million, and $8.5 million, respectively.
The Companys restricted stock unit activity during the year ended June 30, 2018, was as follows:
Restricted Stock Units |
Units | Weighted Average Grant Date Fair Value |
Aggregate Intrinsic Value |
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(Units in thousands and Aggregate Intrinsic Value in millions) | ||||||||||||
Nonvested at June 30, 2017 |
431.1 | $ | 47.80 | |||||||||
Granted 1 |
555.6 | 47.26 | ||||||||||
Vested |
(370.7 | ) | 43.47 | |||||||||
Forfeited |
(50.3 | ) | 51.43 | |||||||||
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Nonvested at June 30, 2018 |
565.7 | 49.78 | $ | 28.9 | ||||||||
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1 | Includes restricted stock units previously granted under the Time incentive plan and converted into 409 restricted stock units upon acquisition. |
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As of June 30, 2018, there was $9.7 million of unearned compensation cost related to restricted stock units granted under the plan. That cost is expected to be recognized over a weighted average period of 2.0 years. The weighted average grant date fair value of restricted stock units granted during the years ended June 30, 2018, 2017, and 2016 was $47.26, $52.97, and $44.44, respectively. The total fair value of shares vested during the years ended June 30, 2018, 2017, and 2016 was $20.4 million, $0.2 million, and $0.1 million, respectively.
Meredith also has outstanding stock equivalent units resulting from the deferral of compensation of employees and directors under various deferred compensation plans. The period of deferral is specified when the deferral election is made. These stock equivalent units are issued at the market price of the underlying stock on the date of deferral. In addition, shares of restricted stock and restricted stock units may be converted to stock equivalent units upon vesting.
The following table summarizes the activity for stock equivalent units during the year ended June 30, 2018:
Stock Equivalent Units |
Units | Weighted Average Issue Date Fair Value |
Aggregate Intrinsic Value |
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(Units in thousands and Aggregate Intrinsic Value in millions) | ||||||||||||
Balance at June 30, 2017 |
296.1 | $ | 37.81 | |||||||||
Additions |
26.1 | 50.97 | ||||||||||
Converted to common stock |
(3.1 | ) | 35.16 | |||||||||
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Balance at June 30, 2018 |
319.1 | 38.92 | $ | 3.9 | ||||||||
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The total intrinsic value of stock equivalent units converted to common stock was $0.1 million in fiscal 2018, $0.2 million in fiscal 2017, and $0.1 million for fiscal year 2016.
Meredith has granted nonqualified stock options to certain employees and directors under the plan. The grant date of options issued is the date the Compensation Committee of the Board of Directors approves the granting of the options or a date thereafter as specified by the Committee. The exercise price of options granted is set at the fair value of the Companys common stock on the grant date. All options granted under the plan expire at the end of 10 years. Options granted to employees vest three years from the date of grant and options granted to directors vest one-third each year during the three-year period from date of grant.
A summary of stock option activity and weighted average exercise prices follows:
Stock Options |
Options | Weighted Average Exercise Price |
Weighted Average Remaining Contractual Term |
Aggregate Intrinsic Value |
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(Options in thousands and Aggregate Intrinsic Value in millions) | ||||||||||||||||
Outstanding July 1, 2017 |
1,836.7 | $ | 44.34 | |||||||||||||
Granted 1 |
1,237.8 | 55.89 | ||||||||||||||
Exercised |
(485.5 | ) | 39.36 | |||||||||||||
Forfeited |
(167.8 | ) | 54.18 | |||||||||||||
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Outstanding June 30, 2018 |
2,421.2 | 50.56 | 7.7 | $ | 7.6 | |||||||||||
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Exercisable June 30, 2018 |
714.1 | $ | 43.63 | 5.7 | $ | 5.7 | ||||||||||
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1 | Includes options previously granted under the Time incentive plan and converted into 374 options upon acquisition. |
The fair value of each option is estimated as of the date of grant using the Black-Scholes option-pricing model. The expected volatility was based on historical volatility of the Companys common stock, Merediths new
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capital structure (for options granted on or subsequent to January 31, 2018), and other factors. The expected life of options granted incorporates historical employee exercise and termination behavior. Different expected lives are used for separate groups of employees who have similar historical exercise patterns. The risk-free rate for periods that coincide with the expected life of the options is based on the U.S. Treasury yield curve in effect at the time of grant.
The following summarizes the assumptions used in determining the fair value of options granted:
Years ended June 30, |
2018 | 2017 | 2016 | |||||||||
Risk-free interest rate |
1.8-2.6 | % | 1.3-2.1 | % | 1.8-2.0 | % | ||||||
Expected dividend yield |
4 | % | 4 | % | 4 | % | ||||||
Expected option life |
4.9-7 yrs | 7 yrs | 7 yrs | |||||||||
Expected stock price volatility |
28-36 | % | 29 | % | 36 | % |
The weighted average grant date fair value of options granted during the years ended June 30, 2018, 2017, and 2016, was $13.58, $9.35, and $10.80, respectively. The total intrinsic value of options exercised during the years ended June 30, 2018, 2017, and 2016 was $10.9 million, $15.2 million, and $8.0 million, respectively. As of June 30, 2018, there was $7.7 million in unrecognized compensation cost for stock options granted under the plan. This cost is expected to be recognized over a weighted average period of 2.0 years.
Cash received from option exercises under all share-based payment plans for the years ended June 30, 2018, 2017, and 2016 was $19.1 million, $37.9 million, and $18.2 million, respectively. The actual tax benefit realized for the tax deductions from option exercises totaled $2.7 million, $5.9 million, and $3.0 million, respectively, for the years ended June 30, 2018, 2017, and 2016.
Employee Stock Purchase Plan
As of January 1, 2016, the ESPP was suspended indefinitely. The ESPP allowed employees to purchase shares of Meredith common stock through payroll deductions at the lesser of 85 percent of the fair market value of the stock on either the first or last trading day of an offering period. The ESPP had quarterly offering periods. One million five hundred thousand common shares were authorized and approximately 0.2 million shares remained available for issuance under the ESPP. Compensation cost for the ESPP was based on the present value of the cash discount and the fair value of the call option component as of the grant date using the Black-Scholes option-pricing model. The term of the option was 3 months, the term of the offering period, and the expected stock price volatility was 36 percent in fiscal 2016. In fiscal 2016 the Company issued 45,000 ESPP shares that had an average market price of $42.91, an average purchase price of $35.94, and an average fair value of $6.77.
13. | Redeemable Series A Preferred Stock |
Effective January 30, 2018, out of the total authorized 5,000,000 shares of preferred stock, par value $1.00 per share, the Company designated a series of 2,500,000 shares which was issued in and constitute a single series known as Series A Preferred Stock with each share having an initial stated value of $1,000 per share (the Series A preferred stock).
On January 31, 2018, in exchange for a preferred equity investment of $650.0 million, Meredith issued 650,000 shares of perpetual convertible redeemable non-voting Series A preferred stock as well as detachable warrants to purchase up to 1,625,000 shares of Merediths common stock with an exercise price of $1.00 per share and options to purchase up to 875,000 shares of Merediths common stock with an exercise price of $70.50 per share.
The Company has classified the Series A preferred stock as temporary equity in the Consolidated Balance Sheets. The Company allocated the net proceeds of $631.0 million ($650.0 million aggregate gross proceeds received less $19.0 million in transaction costs) based on the relative aggregate fair values on the date of issuance as follows: $103.1 million to the warrants, $12.5 million to the options, and $515.4 million to the Series A preferred
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stock. The discount on the Series A preferred stock is being accreted using the effective interest method to retained earnings as a deemed dividend from the date of issuance through the seventh anniversary of the issuance date (i.e., the date the Series A preferred stock becomes convertible).
The Series A preferred stock is non-callable during the first three years after issuance provided that Meredith may, at its option, subject to the terms of the preferred stock, redeem all or any portion of the Series A preferred stock in cash during such three-year period, if Meredith declares as a dividend and pays a redemption premium in cash an amount equal to 6 percent of the Accrued Stated Value of the Series A preferred stock as of the redemption date plus an amount, if any, equal to dividends to the third year present valued at a discount rate based on U.S. Treasury notes with a maturity closest to the date that is three years after the issuance date, plus 50 basis points. The Accrued Stated Value is an amount equal to: (i) the Stated Value ($1,000 multiplied by the number of shares of Series A preferred stock outstanding); plus (ii) any accrued and unpaid dividends thereof (including any accumulated dividends).
From and after the third anniversary of the issuance date of the Series A preferred stock, Meredith may redeem all or any portion of the Series A preferred stock in cash for an amount equal to (i) the Call Premium (defined below), plus (ii) the Accrued Stated Value of the Series A preferred stock as of the redemption date.
The Call Premium is an amount equal to the difference of (A) (i) the Accrued Stated Value of the Series A preferred stock as of the redemption date, multiplied by (ii) (a) if such redemption occurs during the fourth or fifth year after issuance, 106 percent, (b) if such redemption occurs during the sixth year after issuance, 103 percent, and (c) if such redemption occurs after the sixth year after issuance, 100 percent, minus (B) the Accrued Stated Value as of the redemption date.
In connection with any partial redemption by Meredith, Meredith may not redeem Series A preferred stock in an amount less than $50.0 million of the Accrued Stated Value of the Series A preferred stock nor effect any redemption resulting in less than $100.0 million of the Accrued Stated Value of the Series A preferred stock remaining outstanding.
From and after the seventh anniversary of the issuance date, the holders of the Series A preferred stock may elect to convert some or all of the Series A preferred stock into Meredith common stock at a ratio based on its Accrued Stated Value divided by the volume weighted average price of Meredith common stock for the 30 trading days immediately preceding the written notice of conversion.
The Series A preferred stock accrues an annual dividend at either (a) to the extent paid in cash, an amount equal to the Cash Dividend Annual Rate (as set forth in the table below), multiplied by the Stated Value (equal to the number of shares of Series A preferred stock outstanding multiplied by $1,000) or (b) if dividends are not declared and paid in cash, the Company will deliver additional shares of Series A preferred stock, in kind, by issuing a number of shares equal to (i) the Accrued Dividend Annual Rate (as set forth in the table below), multiplied by the Stated Value for all outstanding shares of Series A preferred stock, divided by (ii) $1,000.
Year |
Cash Dividend Annual Rate |
Accrued Dividend Annual Rate | ||
Years 1 through 3 | 8.5% | 9% | ||
Year 4 | LIBOR plus 850 bps | LIBOR plus 900 bps | ||
Year 5 | LIBOR plus 950 bps | LIBOR plus 1000 bps | ||
Year 6 through redemption | LIBOR plus 1050 bps | LIBOR plus 1100 bps |
The Series A preferred stock ranks senior to any other class or series of equity, including Merediths common stock and class B stock, with respect to dividend rights and rights upon liquidation. Dividends with respect to any quarter may only be paid all in cash or all in additional shares of Series A preferred stock, and may not be paid in a combination of cash and shares of Series A preferred stock. All Series A preferred stock dividends (regardless
F-51
of whether paid in additional shares of Series A preferred stock or cash) are prior to and in preference over any dividend on any common stock or class B stock and will be declared and fully paid before any dividends are declared and paid, or any other distributions or redemptions are made, on any common stock or class B stock.
14. | Common Stock |
The Company has two classes of common stock outstanding: common and class B. Each class receives equal dividends per share. Class B stock, which has 10 votes per share, is not transferable as class B stock except to family members of the holder or certain other related entities. At any time, class B stock is convertible, share for share, into common stock with one vote per share. Class B stock transferred to persons or entities not entitled to receive it as class B stock will automatically be converted and issued as common stock to the transferee. The principal market for trading the Companys common stock is the New York Stock Exchange (trading symbol MDP). No separate public trading market exists for the Companys class B stock.
From time to time, the Companys Board of Directors has authorized the repurchase of shares of the Companys common stock and class B stock. In May 2014, the Board approved the repurchase of $100.0 million of shares. As of June 30, 2018, $56.1 million remained available under the current authorizations for future repurchases.
Repurchases of the Companys common and class B stock are as follows:
Years ended June 30, |
2018 | 2017 | 2016 | |||||||||
(In millions) | ||||||||||||
Number of shares |
0.5 | 0.9 | 0.7 | |||||||||
Cost at market value |
$ | 31.1 | $ | 53.3 | $ | 31.1 |
Shares deemed to be delivered to the Company on tender of stock in payment for the exercise price of options do not reduce the repurchase authority granted by the Board. Shares tendered for the exercise price of stock options were 0.3 million shares at a cost of $19.1 million in fiscal 2018, 0.6 million shares at a cost of $37.5 million in fiscal 2017, and 0.4 million shares at a cost of $18.0 million in fiscal 2016.
15. | Earnings Per Common Share |
The calculation of basic earnings per share for each period is based on the weighted average number of common and class B shares outstanding during the period. The calculation of diluted earnings per share for each period is based on the weighted average number of common and class B shares outstanding during the period plus the effect, if any, of dilutive common stock equivalent shares.
The following table presents the calculations of earnings per share:
Years ended June 30, |
2018 | 2017 | 2016 | |||||||||
(In millions except per share data) | ||||||||||||
Net earnings |
$ | 99.4 | $ | 188.9 | $ | 33.9 | ||||||
Participating warrant dividend |
(1.8 | ) | | | ||||||||
Preferred stock dividend |
(22.9 | ) | | | ||||||||
Accretion of Series A preferred stock |
(7.2 | ) | | | ||||||||
Other securities dividends |
(1.1 | ) | | | ||||||||
|
|
|
|
|
|
|||||||
Basic earnings attributable to common shareholders |
$ | 66.4 | $ | 188.9 | $ | 33.9 | ||||||
|
|
|
|
|
|
|||||||
Basic weighted-average common shares outstanding |
44.9 | 44.6 | 44.6 | |||||||||
Basic earnings per share |
$ | 1.48 | $ | 4.23 | $ | 0.76 |
F-52
Diluted earnings per share reflects the potential dilution that could occur if securities or other contracts to issue common stock were exercised or converted into common stock. The dilutive effects of these share-based awards were computed using the two-class method.
Years ended June 30, |
2018 | 2017 | 2016 | |||||||||
(In millions except per share data) | ||||||||||||
Basic weighted-average common shares outstanding |
44.9 | 44.6 | 44.6 | |||||||||
Dilutive effect of stock options and equivalents |
0.3 | 0.8 | 0.8 | |||||||||
|
|
|
|
|
|
|||||||
Diluted weighted-average shares outstanding |
45.2 | 45.4 | 45.4 | |||||||||
|
|
|
|
|
|
|||||||
Diluted earnings attributable to common shareholders |
$ | 66.4 | $ | 188.9 | $ | 33.9 | ||||||
Diluted earnings per share |
1.47 | 4.16 | 0.75 |
For the year ended June 30, 2018, 0.7 million convertible preferred shares, 0.7 million warrants, 0.3 million common stock equivalents, and 0.2 million shares of restricted stock were not included in the computation of dilutive loss per share. These securities have an antidilutive effect on the earnings per share calculation (the diluted earnings per share becoming higher than basic earnings per share). Therefore, these securities are not taken into account in determining the weighted average number of shares for the calculation of diluted earnings per share for the year ended June 30, 2018.
In addition, antidilutive options excluded from the above calculations totaled 0.8 million options for the year ended June 30, 2018 ($62.71 weighted average exercise price), 0.3 million options for the year ended June 30, 2017 ($54.28 weighted average exercise price), and 1.3 million options for the year ended June 30, 2016 ($49.02 weighted average exercise price).
In the years ended June 30, 2018, 2017 and 2016, options were exercised to purchase 0.5 million, 0.9 million, and 0.5 million common shares, respectively.
16. | Other Comprehensive Income (Loss) |
Comprehensive income (loss) is defined as the change in equity during a period from transactions and other events and circumstances from nonowner sources. Comprehensive income (loss) includes net earnings as well as items of other comprehensive income (loss).
F-53
The following table summarizes the items of other comprehensive income (loss) and the accumulated other comprehensive loss balances:
Minimum Pension/Post Retirement Liability Adjustments |
Foreign Currency Translation |
Interest Rate Swaps |
Accumulated Other Comprehensive Income (Loss) |
|||||||||||||
(In millions) | ||||||||||||||||
Balance at June 30, 2015 |
$ | (11.3 | ) | $ | | $ | (1.3 | ) | $ | (12.6 | ) | |||||
|
|
|
|
|
|
|
|
|||||||||
Current-year adjustments, pre-tax |
(20.8 | ) | | (5.0 | ) | (25.8 | ) | |||||||||
Tax benefit |
8.0 | | 1.9 | 9.9 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Other comprehensive loss |
(12.8 | ) | | (3.1 | ) | (15.9 | ) | |||||||||
|
|
|
|
|
|
|
|
|||||||||
Balance at June 30, 2016 |
(24.1 | ) | | (4.4 | ) | (28.5 | ) | |||||||||
|
|
|
|
|
|
|
|
|||||||||
Current-year adjustments, pre-tax |
8.6 | | 6.8 | 15.4 | ||||||||||||
Tax expense |
(3.3 | ) | | (2.6 | ) | (5.9 | ) | |||||||||
|
|
|
|
|
|
|
|
|||||||||
Other comprehensive income |
5.3 | | 4.2 | 9.5 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Balance at June 30, 2017 |
(18.8 | ) | | (0.2 | ) | (19.0 | ) | |||||||||
|
|
|
|
|
|
|
|
|||||||||
Current-year adjustments, pre-tax |
(0.5 | ) | (12.9 | ) | 0.4 | (13.0 | ) | |||||||||
Tax expense |
(0.3 | ) | | (0.4 | ) | (0.7 | ) | |||||||||
|
|
|
|
|
|
|
|
|||||||||
Other comprehensive loss |
(0.8 | ) | (12.9 | ) | | (13.7 | ) | |||||||||
Reclassification to retained earnings 1 |
(4.2 | ) | | 0.2 | (4.0 | ) | ||||||||||
|
|
|
|
|
|
|
|
|||||||||
Balance at June 30, 2018 |
$ | (23.8 | ) | $ | (12.9 | ) | $ | | $ | (36.7 | ) | |||||
|
|
|
|
|
|
|
|
1 | Reclassification relates to the one-time adjustment for the adoption of ASU 2018-02. |
17. | Financial Information about Industry Segments |
Meredith is a diversified media company focused primarily on service journalism. On the basis of products and services, the Company has established two reportable segments: national media and local media. The national media segment focuses on the distribution of our nationally recognized brands through magazine publishing, digital and mobile media, brand licensing, database-related activities, and other related operations. The local media segment consists primarily of the operations of network-affiliated television stations. Virtually all of the Companys revenues are generated in the U.S. and substantially all of the assets reside within the U.S. Intersegment transactions are eliminated.
There are two principal financial measures reported to the chief executive officer (the chief operating decision maker) for use in assessing segment performance and allocating resources. Those measures are operating profit and EBITDA. Operating profit for segment reporting, disclosed below, is revenues less operating costs and unallocated corporate expenses. Segment operating expenses include allocations of certain centrally incurred costs such as employee benefits, occupancy, information systems, accounting services, internal legal staff, and human resources administration. These costs are allocated based on actual usage or other appropriate methods, primarily number of employees. Unallocated corporate expenses are corporate overhead expenses not attributable to the operating groups. Interest income and expense are not allocated to the segments. In accordance with authoritative guidance on disclosures about segments of an enterprise and related information, EBITDA is not presented below.
Significant non-cash items included in segment operating expenses other than depreciation and amortization of fixed and intangible assets include impairments of national media trademarks and goodwill and the amortization of broadcast rights in the local media segment. Impairments of national media trademarks and goodwill were
F-54
$22.7 million in fiscal 2018, $5.3 million in fiscal 2017, and $155.8 million in fiscal 2016. Broadcast rights amortization totaled $19.2 million in fiscal 2018, $17.6 million in fiscal 2017, and $16.7 million in fiscal 2016.
Segment assets include intangible, fixed, and all other non-cash assets identified with each segment. Jointly used assets such as office buildings and information technology equipment are allocated to the segments by appropriate methods, primarily number of employees. Unallocated corporate assets consist primarily of cash and cash items, assets allocated to or identified with corporate staff departments, and other miscellaneous assets not assigned to a segment.
The following table presents financial information by segment:
Years ended June 30, |
2018 | 2017 | 2016 | |||||||||
(In millions) | ||||||||||||
Revenues |
||||||||||||
National media |
$ | 1,555.8 | $ | 1,083.2 | $ | 1,101.2 | ||||||
Local media |
693.1 | 630.1 | 548.4 | |||||||||
|
|
|
|
|
|
|||||||
Total revenues, gross |
2,248.9 | 1,713.3 | 1,649.6 | |||||||||
Intersegment revenue elimination |
(1.5 | ) | | | ||||||||
|
|
|
|
|
|
|||||||
Total revenue |
$ | 2,247.4 | $ | 1,713.3 | $ | 1,649.6 | ||||||
|
|
|
|
|
|
|||||||
Segment profit (loss) |
||||||||||||
National media |
$ | 97.5 | $ | 146.5 | $ | (17.7 | ) | |||||
Local media |
189.1 | 214.9 | 158.5 | |||||||||
Unallocated corporate |
(187.6 | ) | (52.3 | ) | (10.2 | ) | ||||||
|
|
|
|
|
|
|||||||
Income from operations |
99.0 | 309.1 | 130.6 | |||||||||
Non-operating expenses, net |
(11.7 | ) | | | ||||||||
Interest expense, net |
(96.9 | ) | (18.8 | ) | (20.4 | ) | ||||||
|
|
|
|
|
|
|||||||
Earnings (loss) from continuing operations before income taxes |
$ | (9.6 | ) | $ | 290.3 | $ | 110.2 | |||||
|
|
|
|
|
|
|||||||
Depreciation and amortization |
||||||||||||
National media |
$ | 92.9 | $ | 17.5 | $ | 18.7 | ||||||
Local media |
33.2 | 34.8 | 38.3 | |||||||||
Unallocated corporate |
2.9 | 1.5 | 2.1 | |||||||||
|
|
|
|
|
|
|||||||
Total depreciation and amortization |
$ | 129.0 | $ | 53.8 | $ | 59.1 | ||||||
|
|
|
|
|
|
|||||||
Assets |
||||||||||||
National media |
$ | 5,158.3 | $ | 1,487.1 | $ | 1,478.2 | ||||||
Local media |
1,204.6 | 1,124.9 | 1,054.4 | |||||||||
Unallocated corporate |
364.3 | 117.7 | 94.2 | |||||||||
|
|
|
|
|
|
|||||||
Total assets |
$ | 6,727.2 | $ | 2,729.7 | $ | 2,626.8 | ||||||
|
|
|
|
|
|
|||||||
Capital expenditures |
||||||||||||
National media |
$ | 11.0 | $ | 4.5 | $ | 4.7 | ||||||
Local media |
22.1 | 12.2 | 17.3 | |||||||||
Unallocated corporate |
21.2 | 18.1 | 3.0 | |||||||||
|
|
|
|
|
|
|||||||
Total capital expenditures |
$ | 54.3 | $ | 34.8 | $ | 25.0 | ||||||
|
|
|
|
|
|
F-55
18. | Selected Quarterly Financial Data (unaudited) |
Year ended June 30, 2018 |
First Quarter |
Second Quarter |
Third Quarter |
Fourth Quarter |
Total | |||||||||||||||
(In millions except per share data) | ||||||||||||||||||||
Revenues |
||||||||||||||||||||
National media |
$ | 239.0 | $ | 247.5 | $ | 479.3 | $ | 590.0 | $ | 1,555.8 | ||||||||||
Local media |
153.8 | 170.2 | 170.2 | 198.9 | 693.1 | |||||||||||||||
Intersegment elimination |
| | (0.7 | ) | (0.8 | ) | (1.5 | ) | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total revenues |
$ | 392.8 | $ | 417.7 | $ | 648.8 | $ | 788.1 | $ | 2,247.4 | ||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Operating profit |
||||||||||||||||||||
National media |
$ | 28.3 | $ | 12.2 | $ | 9.0 | $ | 48.0 | $ | 97.5 | ||||||||||
Local media |
40.9 | 50.5 | 38.9 | 58.8 | 189.1 | |||||||||||||||
Unallocated corporate |
(12.4 | ) | (25.4 | ) | (116.0 | ) | (33.8 | ) | (187.6 | ) | ||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Income (loss) from operations |
$ | 56.8 | $ | 37.3 | $ | (68.1 | ) | $ | 73.0 | $ | 99.0 | |||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Earnings (loss) from continuing operations |
$ | 33.4 | $ | 159.3 | $ | (95.4 | ) | $ | 16.7 | $ | 114.0 | |||||||||
Discontinued operations |
| | (14.7 | ) | 0.1 | (14.6 | ) | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net earnings (loss) |
$ | 33.4 | $ | 159.3 | $ | (110.1 | ) | $ | 16.8 | $ | 99.4 | |||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Basic earnings per share attributable to common shareholders |
||||||||||||||||||||
Earnings (loss) from continuing operations |
$ | 0.75 | $ | 3.55 | $ | (2.41 | ) | $ | (0.06 | ) | $ | 1.80 | ||||||||
Net earnings (loss) |
0.75 | 3.55 | (2.74 | ) | (0.06 | ) | 1.48 | |||||||||||||
Diluted earnings per share attributable to common shareholders |
||||||||||||||||||||
Earnings (loss) from continuing operations |
0.73 | 3.49 | (2.41 | ) | (0.06 | ) | 1.79 | |||||||||||||
Net earnings (loss) |
0.73 | 3.49 | (2.74 | ) | (0.06 | ) | 1.47 | |||||||||||||
Dividends per share |
0.520 | 0.520 | 0.545 | 0.545 | 2.130 |
In the second quarter of fiscal 2018, the Company recorded an impairment of a trademark of $19.8 million, transaction expenses associated with the Acquisition of $12.1 million, and a $3.1 million pre-tax restructuring charge.
In the third quarter of fiscal 2018, the Company recorded $153.0 million in costs related to acquisition, disposition, and restructuring related costs associated with the Acquisition, and a $12.9 million loss on an equity method investment. In addition, the quarters results include two-months of contribution from the acquired Time properties.
The fourth quarter was the first full quarter in which the acquired Time properties operations were included in the results. The Company recorded an additional $31.1 million in acquisition, disposition, and restructuring related costs, and a $2.9 million impairment of a trademark. These charges were partially offset by a gain on the sale of MXM of $11.5 million.
F-56
As a result of changes in shares outstanding during the year as well as the issuance of Series A preferred stock on January 31, 2018, the sum of the four quarters earnings per share may not necessarily equal the earnings per share for the year. See Note 13 for additional information on the Series A preferred stock and Note 15 for detail on the calculation of earnings per share.
Year ended June 30, 2017 |
First Quarter |
Second Quarter |
Third Quarter |
Fourth Quarter |
Total | |||||||||||||||
(In millions except per share data) | ||||||||||||||||||||
Revenues |
||||||||||||||||||||
National media |
$ | 247.3 | $ | 259.4 | $ | 283.3 | $ | 293.2 | $ | 1,083.2 | ||||||||||
Local media |
152.6 | 183.2 | 142.1 | 152.2 | 630.1 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total revenues |
$ | 399.9 | $ | 442.6 | $ | 425.4 | $ | 445.4 | $ | 1,713.3 | ||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Operating profit |
||||||||||||||||||||
National media |
$ | 24.1 | $ | 46.8 | $ | 41.3 | $ | 34.3 | $ | 146.5 | ||||||||||
Local media |
50.6 | 76.8 | 41.2 | 46.3 | 214.9 | |||||||||||||||
Unallocated corporate |
(13.9 | ) | (13.8 | ) | (12.5 | ) | (12.1 | ) | (52.3 | ) | ||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Income from operations |
$ | 60.8 | $ | 109.8 | $ | 70.0 | $ | 68.5 | $ | 309.1 | ||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Earnings from continuing operations |
$ | 34.0 | $ | 71.8 | $ | 39.8 | $ | 43.3 | $ | 188.9 | ||||||||||
Discontinued operations |
| | | | | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net earnings |
$ | 34.0 | $ | 71.8 | $ | 39.8 | $ | 43.3 | $ | 188.9 | ||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Basic earnings per share attributable to common shareholders |
||||||||||||||||||||
Earnings from continuing operations |
$ | 0.76 | $ | 1.61 | $ | 0.89 | $ | 0.97 | $ | 4.23 | ||||||||||
Net earnings |
0.76 | 1.61 | 0.89 | 0.97 | 4.23 | |||||||||||||||
Diluted earnings per share attributable to common shareholders |
||||||||||||||||||||
Earnings from continuing operations |
0.75 | 1.58 | 0.87 | 0.95 | 4.16 | |||||||||||||||
Net earnings |
0.75 | 1.58 | 0.87 | 0.95 | 4.16 | |||||||||||||||
Dividends per share |
0.495 | 0.495 | 0.520 | 0.520 | 2.030 |
In the second quarter of fiscal 2017, the Company recorded a reduction in contingent consideration payable of $19.6 million, a pre-tax restructuring charge of $8.1 million, and $1.7 million for the write-down of an investment.
In the third quarter of fiscal 2017, the Company recorded a reduction in contingent consideration payable of $1.1 million.
In the fourth quarter of fiscal 2017, the Company recorded a non-cash impairment charge of $5.3 million to fully impair the Mywedding trademark, a pre-tax restructuring charge of $4.3 million, the write-down of an investment of $1.9 million, and the reversal of excess restructuring reserves accrued in prior fiscal years of $1.8 million.
As a result of changes in shares outstanding during the year, the sum of the four quarters earnings per share may not necessarily equal the earnings per share for the year.
19. | Issuer, Guarantor, and Non-Guarantor Condensed Consolidating Financial Information |
The 2026 Senior Notes are general unsecured senior obligations of Meredith Corporation (Parent Issuer) and are guaranteed on a full, unconditional, joint, and several basis, by the combined Guarantor Subsidiaries. Other subsidiaries (the Non-Guarantor Subsidiaries) largely represent the international operations of the Company and subsidiaries that have been disposed of prior to June 30, 2018, which do not guarantee the Senior Notes. Under
F-57
the terms of the indentures, Meredith Corporation and the Guarantor Subsidiaries each fully and unconditionally, jointly and severally, guarantee the payment of interest, principal and premium, if any, on each of the notes included in the 2026 Senior Notes.
The following condensed consolidating financial information presents the condensed consolidated balance sheets as of June 30, 2018 and 2017, and the related condensed consolidated statements of comprehensive income and cash flows for each of the years in the three-year period ended June 30, 2018, for Meredith Corporation (Parent Issuer), Guarantor Subsidiaries, and Non-Guarantor Subsidiaries. The condensed consolidating financial information is presented using the equity method of accounting for all periods presented. The Guarantor Subsidiaries are presented on a combined basis. Elimination entries relate primarily to elimination of investments in subsidiaries and associated intercompany balances and transactions.
F-58
Meredith Corporation and Subsidiaries
Condensed Consolidated Balance Sheet
As of June 30, 2018
Assets |
Meredith Corporation (Parent Issuer) |
Guarantor Subsidiaries |
Non- Guarantor Subsidiaries |
Eliminations | Consolidated | |||||||||||||||
(In millions) | ||||||||||||||||||||
Current assets |
||||||||||||||||||||
Cash and cash equivalents |
$ | 195.0 | $ | 202.8 | $ | 39.8 | $ | | $ | 437.6 | ||||||||||
Accounts receivable, net |
223.5 | 330.0 | | (11.5 | ) | 542.0 | ||||||||||||||
Inventories |
23.6 | 20.5 | 0.1 | | 44.2 | |||||||||||||||
Current portion of subscription acquisition costs |
107.0 | 11.1 | | | 118.1 | |||||||||||||||
Current portion of broadcast rights |
7.7 | 2.1 | | | 9.8 | |||||||||||||||
Assets held-for-sale |
| 647.9 | 65.2 | | 713.1 | |||||||||||||||
Other current assets |
55.3 | 37.0 | 22.0 | | 114.3 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total current assets |
612.1 | 1,251.4 | 127.1 | (11.5 | ) | 1,979.1 | ||||||||||||||
Net property, plant, and equipment |
162.4 | 318.2 | 3.2 | | 483.8 | |||||||||||||||
Subscription acquisition costs |
57.1 | 4.0 | | | 61.1 | |||||||||||||||
Broadcast rights |
16.9 | 2.0 | | | 18.9 | |||||||||||||||
Deferred income taxes |
| | 6.3 | (6.3 | ) | | ||||||||||||||
Other assets |
60.4 | 5.4 | 197.5 | | 263.3 | |||||||||||||||
Intangible assets, net |
676.2 | 1,328.0 | 1.0 | | 2,005.2 | |||||||||||||||
Goodwill |
614.7 | 1,266.9 | 34.2 | | 1,915.8 | |||||||||||||||
Intercompany receivable |
11.8 | 8,086.1 | 7,773.2 | (15,871.1 | ) | | ||||||||||||||
Intercompany notes receivable |
| 204.7 | | (204.7 | ) | | ||||||||||||||
Investment in subsidiaries |
3,844.5 | 1,050.6 | | (4,895.1 | ) | | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total assets |
$ | 6,056.1 | $ | 13,517.3 | $ | 8,142.5 | $ | (20,988.7 | ) | $ | 6,727.2 | |||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Liabilities, Redeemable Convertible Preferred Stock, and Shareholders Equity |
||||||||||||||||||||
Current liabilities |
||||||||||||||||||||
Current portion of long-term debt |
$ | 17.7 | $ | | $ | | $ | | $ | 17.7 | ||||||||||
Current portion of long-term broadcast rights payable |
6.9 | 2.0 | | | 8.9 | |||||||||||||||
Accounts payable |
67.2 | 95.0 | 44.0 | (11.5 | ) | 194.7 | ||||||||||||||
Accrued expenses |
142.6 | 263.0 | 4.6 | | 410.2 | |||||||||||||||
Current portion of unearned revenues |
171.5 | 180.3 | 7.7 | 0.9 | 360.4 | |||||||||||||||
Liabilities associated with assets held-for-sale |
| 124.2 | 74.2 | | 198.4 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total current liabilities |
405.9 | 664.5 | 130.5 | (10.6 | ) | 1,190.3 | ||||||||||||||
Long-term debt |
3,117.9 | | | | 3,117.9 | |||||||||||||||
Long-term broadcast rights payable |
18.3 | 2.5 | | | 20.8 | |||||||||||||||
Unearned revenues |
82.3 | 42.0 | (0.2 | ) | | 124.1 | ||||||||||||||
Deferred income taxes |
209.5 | 233.8 | | (6.3 | ) | 437.0 | ||||||||||||||
Other noncurrent liabilities |
99.4 | 97.8 | 19.8 | | 217.0 | |||||||||||||||
Investment in subsidiaries |
| | 58.8 | (58.8 | ) | | ||||||||||||||
Intercompany payable |
502.7 | 7,846.4 | 7,522.0 | (15,871.1 | ) | | ||||||||||||||
Intercompany notes payable |
| | 204.7 | (204.7 | ) | | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total liabilities |
4,436.0 | 8,887.0 | 7,935.6 | (16,151.5 | ) | 5,107.1 | ||||||||||||||
Redeemable, convertible Series A preferred stock |
522.6 | | | | 522.6 | |||||||||||||||
Shareholders equity |
1,097.5 | 4,630.3 | 206.9 | (4,837.2 | ) | 1,097.5 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total liabilities, redeemable convertible preferred stock, and shareholders equity |
$ | 6,056.1 | $ | 13,517.3 | $ | 8,142.5 | $ | (20,988.7 | ) | $ | 6,727.2 | |||||||||
|
|
|
|
|
|
|
|
|
|
F-59
Meredith Corporation and Subsidiaries
Condensed Consolidated Balance Sheet
As of June 30, 2017
Assets |
Meredith Corporation (Parent Issuer) |
Guarantor Subsidiaries |
Non- Guarantor Subsidiaries |
Eliminations | Consolidated | |||||||||||||||
(In millions) | ||||||||||||||||||||
Current assets |
||||||||||||||||||||
Cash and cash equivalents |
$ | 21.8 | $ | | $ | 0.5 | $ | | $ | 22.3 | ||||||||||
Accounts receivable, net |
129.0 | 47.5 | 206.8 | (94.2 | ) | 289.1 | ||||||||||||||
Inventories |
20.6 | 0.1 | 1.2 | | 21.9 | |||||||||||||||
Current portion of subscription acquisition costs |
136.9 | 8.1 | | | 145.0 | |||||||||||||||
Current portion of broadcast rights |
5.8 | 2.0 | | | 7.8 | |||||||||||||||
Other current assets |
16.8 | 1.9 | 0.6 | | 19.3 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total current assets |
330.9 | 59.6 | 209.1 | (94.2 | ) | 505.4 | ||||||||||||||
Net property, plant, and equipment |
143.7 | 45.2 | 0.9 | | 189.8 | |||||||||||||||
Subscription acquisition costs |
76.0 | 3.7 | | | 79.7 | |||||||||||||||
Broadcast rights |
19.3 | 2.5 | | | 21.8 | |||||||||||||||
Deferred income taxes |
| | 6.0 | (6.0 | ) | | ||||||||||||||
Other assets |
68.8 | | 0.8 | | 69.6 | |||||||||||||||
Intangible assets, net |
709.7 | 245.2 | 1.0 | | 955.9 | |||||||||||||||
Goodwill |
614.7 | 227.3 | 65.5 | | 907.5 | |||||||||||||||
Intercompany receivable |
83.5 | 185.3 | 6.9 | (275.7 | ) | | ||||||||||||||
Investment in subsidiaries |
676.3 | | | (676.3 | ) | | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total assets |
$ | 2,722.9 | $ | 768.8 | $ | 290.2 | $ | (1,052.2 | ) | $ | 2,729.7 | |||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Liabilities and Shareholders Equity |
||||||||||||||||||||
Current liabilities |
||||||||||||||||||||
Current portion of long-term debt |
$ | 62.5 | $ | | $ | | $ | | $ | 62.5 | ||||||||||
Current portion of long-term broadcast rights payable |
6.8 | 2.4 | | | 9.2 | |||||||||||||||
Accounts payable |
50.3 | 12.1 | 98.4 | (94.2 | ) | 66.6 | ||||||||||||||
Accrued expenses |
88.2 | 10.5 | 3.7 | | 102.4 | |||||||||||||||
Current portion of unearned revenues |
202.1 | 11.3 | 5.6 | | 219.0 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total current liabilities |
409.9 | 36.3 | 107.7 | (94.2 | ) | 459.7 | ||||||||||||||
Long-term debt |
560.3 | | 75.4 | | 635.7 | |||||||||||||||
Long-term broadcast rights payable |
19.7 | 2.8 | | | 22.5 | |||||||||||||||
Unearned revenues |
102.4 | 4.1 | | | 106.5 | |||||||||||||||
Deferred income taxes |
328.7 | 62.0 | | (6.0 | ) | 384.7 | ||||||||||||||
Other noncurrent liabilities |
113.7 | 10.9 | | | 124.6 | |||||||||||||||
Intercompany payable |
192.2 | 40.6 | 42.9 | (275.7 | ) | | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total liabilities |
1,726.9 | 156.7 | 226.0 | (375.9 | ) | 1,733.7 | ||||||||||||||
Shareholders equity |
996.0 | 612.1 | 64.2 | (676.3 | ) | 996.0 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total liabilities and shareholders equity |
$ | 2,722.9 | $ | 768.8 | $ | 290.2 | $ | (1,052.2 | ) | $ | 2,729.7 | |||||||||
|
|
|
|
|
|
|
|
|
|
F-60
Meredith Corporation and Subsidiaries
Condensed Consolidated Statement of Comprehensive Income
For the Year Ended June 30, 2018
Meredith Corporation (Parent Issuer) |
Guarantor Subsidiaries |
Non- Guarantor Subsidiaries |
Eliminations | Consolidated | ||||||||||||||||
(In millions) | ||||||||||||||||||||
Revenues |
||||||||||||||||||||
Advertising |
$ | 623.0 | $ | 489.9 | $ | 3.7 | $ | | $ | 1,116.6 | ||||||||||
Circulation |
288.0 | 197.7 | 3.6 | | 489.3 | |||||||||||||||
All other |
293.8 | 330.4 | 105.1 | (87.8 | ) | 641.5 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total revenues |
1,204.8 | 1,018.0 | 112.4 | (87.8 | ) | 2,247.4 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Operating expenses |
||||||||||||||||||||
Production, distribution, and editorial |
485.5 | 416.2 | 42.1 | (83.2 | ) | 860.6 | ||||||||||||||
Selling, general, and administrative |
510.2 | 416.4 | 39.9 | (3.8 | ) | 962.7 | ||||||||||||||
Acquisition, disposition, and restructuring related activities |
58.4 | 111.8 | 3.2 | | 173.4 | |||||||||||||||
Depreciation and amortization |
33.3 | 94.4 | 1.3 | | 129.0 | |||||||||||||||
Impairment of goodwill and other long-lived assets |
22.7 | | | | 22.7 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total operating expenses |
1,110.1 | 1,038.8 | 86.5 | (87.0 | ) | 2,148.4 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Income (loss) from operations |
94.7 | (20.8 | ) | 25.9 | (0.8 | ) | 99.0 | |||||||||||||
Non-operating income (expense), net |
(11.7 | ) | 0.6 | (0.6 | ) | | (11.7 | ) | ||||||||||||
Interest income (expense), net |
(95.1 | ) | 7.2 | (9.0 | ) | | (96.9 | ) | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Earnings (loss) from continuing operations before income taxes |
(12.1 | ) | (13.0 | ) | 16.3 | (0.8 | ) | (9.6 | ) | |||||||||||
Income tax benefit (expense) |
116.6 | 8.4 | (1.4 | ) | | 123.6 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Earnings (loss) from continuing operations |
104.5 | (4.6 | ) | 14.9 | (0.8 | ) | 114.0 | |||||||||||||
Earnings (loss) from discontinued operations, net of income taxes |
(12.2 | ) | 18.6 | (21.0 | ) | | (14.6 | ) | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Earnings (loss) before equity income (loss) |
92.3 | 14.0 | (6.1 | ) | (0.8 | ) | 99.4 | |||||||||||||
Earnings (loss) from equity in subsidiaries |
7.1 | 6.9 | (10.7 | ) | (3.3 | ) | | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net earnings (loss) |
$ | 99.4 | $ | 20.9 | $ | (16.8 | ) | $ | (4.1 | ) | $ | 99.4 | ||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total comprehensive income (loss) |
$ | 85.7 | $ | 17.9 | $ | (25.4 | ) | $ | 7.5 | $ | 85.7 | |||||||||
|
|
|
|
|
|
|
|
|
|
F-61
Meredith Corporation and Subsidiaries
Condensed Consolidated Statement of Comprehensive Income
For the Year Ended June 30, 2017
Meredith Corporation (Parent Issuer) |
Guarantor Subsidiaries |
Non- Guarantor Subsidiaries |
Eliminations | Consolidated | ||||||||||||||||
(In millions) | ||||||||||||||||||||
Revenues |
||||||||||||||||||||
Advertising |
$ | 671.6 | $ | 260.7 | $ | 1.8 | $ | | $ | 934.1 | ||||||||||
Circulation |
310.4 | 11.6 | | | 322.0 | |||||||||||||||
All other |
257.1 | 68.8 | 131.3 | | 457.2 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total revenues |
1,239.1 | 341.1 | 133.1 | | 1,713.3 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Operating expenses |
||||||||||||||||||||
Production, distribution, and editorial |
471.7 | 100.2 | 31.1 | | 603.0 | |||||||||||||||
Selling, general, and administrative |
543.1 | 105.4 | 82.4 | | 730.9 | |||||||||||||||
Acquisition, disposition, and restructuring related activities |
8.3 | | 2.0 | | 10.3 | |||||||||||||||
Depreciation and amortization |
37.6 | 15.7 | 0.5 | | 53.8 | |||||||||||||||
Impairment of goodwill and other long-lived assets |
0.9 | 5.3 | | | 6.2 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total operating expenses |
1,061.6 | 226.6 | 116.0 | | 1,404.2 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Income from operations |
177.5 | 114.5 | 17.1 | | 309.1 | |||||||||||||||
Interest expense, net |
(14.2 | ) | | (4.6 | ) | | (18.8 | ) | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Earnings before income taxes |
163.3 | 114.5 | 12.5 | | 290.3 | |||||||||||||||
Income tax expense |
(51.7 | ) | (45.5 | ) | (4.2 | ) | | (101.4 | ) | |||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Earnings before equity earnings |
111.6 | 69.0 | 8.3 | | 188.9 | |||||||||||||||
Earnings from equity in subsidiaries |
77.3 | | | (77.3 | ) | | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net earnings |
$ | 188.9 | $ | 69.0 | $ | 8.3 | $ | (77.3 | ) | $ | 188.9 | |||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total comprehensive income |
$ | 198.4 | $ | 69.0 | $ | 8.3 | $ | (77.3 | ) | $ | 198.4 | |||||||||
|
|
|
|
|
|
|
|
|
|
F-62
Meredith Corporation and Subsidiaries
Condensed Consolidated Statement of Comprehensive Income
For the Year Ended June 30, 2016
Meredith Corporation (Parent Issuer) |
Guarantor Subsidiaries |
Non- Guarantor Subsidiaries |
Eliminations | Consolidated | ||||||||||||||||
(In millions) | ||||||||||||||||||||
Revenues |
||||||||||||||||||||
Advertising |
$ | 687.5 | $ | 224.6 | $ | 2.1 | $ | | $ | 914.2 | ||||||||||
Circulation |
318.4 | 10.2 | | | 328.6 | |||||||||||||||
All other |
219.7 | 51.5 | 135.6 | | 406.8 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total revenues |
1,225.6 | 286.3 | 137.7 | | 1,649.6 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Operating expenses |
||||||||||||||||||||
Production, distribution, and editorial |
473.6 | 92.4 | 45.3 | | 611.3 | |||||||||||||||
Selling, general, and administrative |
553.3 | 103.7 | 66.5 | | 723.5 | |||||||||||||||
Acquisition, disposition, and restructuring related activities |
(37.5 | ) | | 1.1 | | (36.4 | ) | |||||||||||||
Depreciation and amortization |
41.8 | 16.6 | 0.7 | | 59.1 | |||||||||||||||
Impairment of goodwill and other long-lived assets |
44.6 | | 116.9 | | 161.5 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total operating expenses |
1,075.8 | 212.7 | 230.5 | | 1,519.0 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Income (loss) from operations |
149.8 | 73.6 | (92.8 | ) | | 130.6 | ||||||||||||||
Interest income (expense), net |
(27.2 | ) | | 6.8 | (20.4 | ) | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Earnings (loss) before income taxes |
122.6 | 73.6 | (86.0 | ) | | 110.2 | ||||||||||||||
Income tax expense |
(45.6 | ) | (28.1 | ) | (2.6 | ) | | (76.3 | ) | |||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Earnings (loss) before equity loss |
77.0 | 45.5 | (88.6 | ) | | 33.9 | ||||||||||||||
Loss from equity in subsidiaries |
(43.1 | ) | | | 43.1 | | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net earnings (loss) |
$ | 33.9 | $ | 45.5 | $ | (88.6 | ) | $ | 43.1 | $ | 33.9 | |||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total comprehensive income (loss) |
$ | 18.0 | $ | 45.5 | $ | (88.6 | ) | $ | 43.1 | $ | 18.0 | |||||||||
|
|
|
|
|
|
|
|
|
|
F-63
Meredith Corporation and Subsidiaries
Condensed Consolidated Statement of Cash Flows
For the Year Ended June 30, 2018
Meredith Corporation (Parent Issuer) |
Guarantor Subsidiaries |
Non- Guarantor Subsidiaries |
Eliminations | Consolidated | ||||||||||||||||
(In millions) | ||||||||||||||||||||
Cash flows from operating activities |
$ | (463.9 | ) | $ | 515.3 | $ | 100.0 | $ | | $ | 151.4 | |||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Cash flows from investing activities |
||||||||||||||||||||
Acquisition of and investments in businesses, net of cash acquired |
(2,786.5 | ) | | | | (2,786.5 | ) | |||||||||||||
Proceeds from disposition of assets, net of cash sold |
86.4 | | 132.8 | | 219.2 | |||||||||||||||
Additions to property, plant, and equipment |
(41.2 | ) | (11.6 | ) | (0.4 | ) | | (53.2 | ) | |||||||||||
Other |
3.1 | | | | 3.1 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net cash provided by (used in) investing activities |
(2,738.2 | ) | (11.6 | ) | 132.4 | | (2,617.4 | ) | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Cash flows from financing activities |
||||||||||||||||||||
Proceeds from issuance of long-term debt |
3,260.0 | | | | 3,260.0 | |||||||||||||||
Repayments of long-term debt |
(689.7 | ) | | (75.4 | ) | | (765.1 | ) | ||||||||||||
Issued preferred stock, warrants, and options proceeds, net of issuance costs |
631.0 | | | | 631.0 | |||||||||||||||
Dividends paid |
(121.5 | ) | | | | (121.5 | ) | |||||||||||||
Purchases of Company stock |
(31.1 | ) | | | | (31.1 | ) | |||||||||||||
Proceeds from common stock issued |
19.3 | | | | 19.3 | |||||||||||||||
Payment of acquisition related contingent consideration |
(4.0 | ) | (1.1 | ) | | | (5.1 | ) | ||||||||||||
Debt acquisition costs |
(70.8 | ) | | | | (70.8 | ) | |||||||||||||
Net increase (decrease) in intercompany obligations |
382.1 | (299.8 | ) | (82.3 | ) | | | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net cash provided by (used in) financing activities |
3,375.3 | (300.9 | ) | (157.7 | ) | | 2,916.7 | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Effect of exchange rate changes on cash and cash equivalents |
| | (4.1 | ) | (4.1 | ) | ||||||||||||||
Change in cash held-for-sale |
| | (31.3 | ) | | (31.3 | ) | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net increase in cash and cash equivalents |
173.2 | 202.8 | 39.3 | | 415.3 | |||||||||||||||
Cash and cash equivalents at beginning of year |
21.8 | | 0.5 | 22.3 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Cash and cash equivalents at end of year |
$ | 195.0 | $ | 202.8 | $ | 39.8 | $ | | $ | 437.6 | ||||||||||
|
|
|
|
|
|
|
|
|
|
F-64
Meredith Corporation and Subsidiaries
Condensed Consolidated Statement of Cash Flows
For the Year Ended June 30, 2017
Meredith Corporation (Parent Issuer) |
Guarantor Subsidiaries |
Non- Guarantor Subsidiaries |
Eliminations | Consolidated | ||||||||||||||||
(In millions) | ||||||||||||||||||||
Cash flows from operating activities |
$ | 240.7 | $ | 22.8 | $ | (44.2 | ) | $ | | $ | 219.3 | |||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Cash flows from investing activities |
||||||||||||||||||||
Acquisition of and investments in businesses, net of cash acquired |
(84.4 | ) | | | | (84.4 | ) | |||||||||||||
Proceeds from disposition of assets, net of cash sold |
1.5 | | | | 1.5 | |||||||||||||||
Additions to property, plant, and equipment |
(28.8 | ) | (6.0 | ) | | | (34.8 | ) | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net cash used in investing activities |
(111.7 | ) | (6.0 | ) | | | (117.7 | ) | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Cash flows from financing activities |
||||||||||||||||||||
Proceeds from issuance of long-term debt |
365.0 | | 15.0 | | 380.0 | |||||||||||||||
Repayments of long-term debt |
(354.4 | ) | | (20.0 | ) | | (374.4 | ) | ||||||||||||
Dividends paid |
(91.9 | ) | | | | (91.9 | ) | |||||||||||||
Purchases of Company stock |
(53.3 | ) | | | | (53.3 | ) | |||||||||||||
Proceeds from common stock issued |
38.0 | | | | 38.0 | |||||||||||||||
Excess tax benefits from share-based payments |
6.8 | | | | 6.8 | |||||||||||||||
Payment of acquisition related contingent consideration |
(8.0 | ) | | | | (8.0 | ) | |||||||||||||
Debt acquisition costs |
(1.5 | ) | | | | (1.5 | ) | |||||||||||||
Net increase (decrease) in intercompany obligations |
(32.1 | ) | (16.8 | ) | 48.9 | | | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net cash provided by (used in) financing activities |
(131.4 | ) | (16.8 | ) | 43.9 | | (104.3 | ) | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net decrease in cash and cash equivalents |
(2.4 | ) | | (0.3 | ) | | (2.7 | ) | ||||||||||||
Cash and cash equivalents at beginning of year |
24.2 | | 0.8 | | 25.0 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Cash and cash equivalents at end of year |
$ | 21.8 | $ | | $ | 0.5 | $ | | $ | 22.3 | ||||||||||
|
|
|
|
|
|
|
|
|
|
F-65
Meredith Corporation and Subsidiaries
Condensed Consolidated Statement of Cash Flows
For the Year Ended June 30, 2016
Meredith Corporation (Parent Issuer) |
Guarantor Subsidiaries |
Non- Guarantor Subsidiaries |
Eliminations | Consolidated | ||||||||||||||||
(In millions) | ||||||||||||||||||||
Cash flows from operating activities |
$ | 270.5 | $ | (31.5 | ) | $ | (12.4 | ) | $ | | $ | 226.6 | ||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Cash flows from investing activities |
||||||||||||||||||||
Acquisition of and investments in businesses, net of cash acquired |
(8.2 | ) | | | | (8.2 | ) | |||||||||||||
Proceeds from disposition of assets, net of cash sold |
| 1.8 | | | 1.8 | |||||||||||||||
Additions to property, plant, and equipment |
(18.2 | ) | (6.4 | ) | (0.4 | ) | | (25.0 | ) | |||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net cash used in investing activities |
(26.4 | ) | (4.6 | ) | (0.4 | ) | | (31.4 | ) | |||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Cash flows from financing activities |
||||||||||||||||||||
Proceeds from issuance of long-term debt |
167.1 | | 0.4 | | 167.5 | |||||||||||||||
Repayments of long-term debt |
(267.5 | ) | | | | (267.5 | ) | |||||||||||||
Dividends paid |
(86.1 | ) | | | | (86.1 | ) | |||||||||||||
Purchases of Company stock |
(31.1 | ) | | | | (31.1 | ) | |||||||||||||
Proceeds from common stock issued |
20.9 | | | | 20.9 | |||||||||||||||
Excess tax benefits from share-based payments |
4.2 | | | | 4.2 | |||||||||||||||
Payment of acquisition related contingent consideration |
(0.8 | ) | | | | (0.8 | ) | |||||||||||||
Debt acquisition costs |
(0.1 | ) | | | | (0.1 | ) | |||||||||||||
Net increase (decrease) in intercompany obligations |
(48.3 | ) | 35.7 | 12.6 | | | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net cash provided by (used in) financing activities |
(241.7 | ) | 35.7 | 13.0 | | (193.0 | ) | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net increase (decrease) in cash and cash equivalents |
2.4 | (0.4 | ) | 0.2 | | 2.2 | ||||||||||||||
Cash and cash equivalents at beginning of year |
21.8 | 0.4 | 0.6 | | 22.8 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Cash and cash equivalents at end of year |
$ | 24.2 | $ | | $ | 0.8 | $ | | $ | 25.0 | ||||||||||
|
|
|
|
|
|
|
|
|
|
F-66
Meredith Corporation and Subsidiaries
Condensed Consolidated Balance Sheets
(Unaudited)
Assets |
September 30, 2018 |
June 30, 2018 |
||||||
(In millions) | ||||||||
Current assets |
||||||||
Cash and cash equivalents |
$ | 144.0 | $ | 437.6 | ||||
Accounts receivable, net |
552.9 | 542.0 | ||||||
Inventories |
50.3 | 44.2 | ||||||
Current portion of subscription acquisition costs |
116.4 | 118.1 | ||||||
Current portion of broadcast rights |
18.0 | 9.8 | ||||||
Assets held-for-sale |
691.8 | 713.1 | ||||||
Other current assets |
105.2 | 114.3 | ||||||
|
|
|
|
|||||
Total current assets |
1,678.6 | 1,979.1 | ||||||
|
|
|
|
|||||
Property, plant, and equipment |
862.1 | 861.4 | ||||||
Less accumulated depreciation |
(398.4 | ) | (377.6 | ) | ||||
|
|
|
|
|||||
Net property, plant, and equipment |
463.7 | 483.8 | ||||||
Subscription acquisition costs |
102.6 | 61.1 | ||||||
Broadcast rights |
9.4 | 18.9 | ||||||
Other assets |
269.8 | 263.3 | ||||||
Intangible assets, net |
1,966.3 | 2,005.2 | ||||||
Goodwill |
1,926.7 | 1,915.8 | ||||||
|
|
|
|
|||||
Total assets |
$ | 6,417.1 | $ | 6,727.2 | ||||
|
|
|
|
See accompanying Notes to Condensed Consolidated Financial Statements.
F-67
Meredith Corporation and Subsidiaries
Condensed Consolidated Balance Sheets (continued)
(Unaudited)
Liabilities, Redeemable Convertible Preferred Stock, and Shareholders Equity |
September 30, 2018 |
June 30, 2018 |
||||||
(In millions except per share data) | ||||||||
Current liabilities |
||||||||
Current portion of long-term debt |
$ | | $ | 17.7 | ||||
Current portion of long-term broadcast rights payable |
17.4 | 8.9 | ||||||
Accounts payable |
161.4 | 194.7 | ||||||
Accrued expenses and other liabilities |
344.0 | 410.2 | ||||||
Current portion of unearned revenues |
360.5 | 360.4 | ||||||
Liabilities associated with assets held-for-sale |
186.5 | 198.4 | ||||||
|
|
|
|
|||||
Total current liabilities |
1,069.8 | 1,190.3 | ||||||
Long-term debt |
2,937.4 | 3,117.9 | ||||||
Long-term broadcast rights payable |
11.5 | 20.8 | ||||||
Unearned revenues |
155.6 | 124.1 | ||||||
Deferred income taxes |
433.6 | 437.0 | ||||||
Other noncurrent liabilities |
203.3 | 217.0 | ||||||
|
|
|
|
|||||
Total liabilities |
4,811.2 | 5,107.1 | ||||||
|
|
|
|
|||||
Redeemable, convertible Series A preferred stock, par value $1 per share, $1,000 per share liquidation preference |
526.9 | 522.6 | ||||||
|
|
|
|
|||||
Shareholders equity |
||||||||
Series preferred stock, par value $1 per share |
| | ||||||
Common stock, par value $1 per share |
39.9 | 39.8 | ||||||
Class B stock, par value $1 per share |
5.1 | 5.1 | ||||||
Additional paid-in capital |
207.5 | 199.5 | ||||||
Retained earnings |
865.1 | 889.8 | ||||||
Accumulated other comprehensive loss |
(38.6 | ) | (36.7 | ) | ||||
|
|
|
|
|||||
Total shareholders equity |
1,079.0 | 1,097.5 | ||||||
|
|
|
|
|||||
Total liabilities, redeemable convertible preferred stock, and shareholders equity |
$ | 6,417.1 | $ | 6,727.2 | ||||
|
|
|
|
See accompanying Notes to Condensed Consolidated Financial Statements.
F-68
Meredith Corporation and Subsidiaries
Condensed Consolidated Statements of Earnings
(Unaudited)
Three months ended September 30, |
2018 | 2017 | ||||||
(In millions except per share data) | ||||||||
Revenues |
||||||||
Advertising related |
$ | 422.7 | $ | 209.2 | ||||
Consumer related |
301.2 | 149.6 | ||||||
Other |
32.8 | 34.0 | ||||||
|
|
|
|
|||||
Total revenues |
756.7 | 392.8 | ||||||
|
|
|
|
|||||
Operating expenses |
||||||||
Production, distribution, and editorial |
286.1 | 156.6 | ||||||
Selling, general, and administrative |
336.1 | 170.7 | ||||||
Acquisition, disposition, and restructuring related activities |
17.1 | (3.3 | ) | |||||
Depreciation and amortization |
63.7 | 12.6 | ||||||
|
|
|
|
|||||
Total operating expenses |
703.0 | 336.6 | ||||||
|
|
|
|
|||||
Income from operations |
53.7 | 56.2 | ||||||
Non-operating income, net |
7.3 | 0.6 | ||||||
Interest expense, net |
(41.4 | ) | (5.1 | ) | ||||
|
|
|
|
|||||
Earnings from continuing operations before income taxes |
19.6 | 51.7 | ||||||
Income tax expense |
(3.6 | ) | (18.3 | ) | ||||
|
|
|
|
|||||
Earnings from continuing operations |
16.0 | 33.4 | ||||||
Income from discontinued operations, net of income taxes |
1.0 | | ||||||
|
|
|
|
|||||
Net earnings |
$ | 17.0 | $ | 33.4 | ||||
|
|
|
|
|||||
Earnings (loss) attributable to common shareholders |
$ | (2.6 | ) | $ | 33.4 | |||
|
|
|
|
|||||
Basic earnings (loss) per share attributable to common shareholders |
||||||||
Continuing operations |
$ | (0.08 | ) | $ | 0.75 | |||
Discontinued operations |
0.02 | | ||||||
|
|
|
|
|||||
Basic earnings (loss) per common share |
$ | (0.06 | ) | $ | 0.75 | |||
|
|
|
|
|||||
Basic average common shares outstanding |
45.1 | 44.8 | ||||||
|
|
|
|
|||||
Diluted earnings (loss) per share attributable to common shareholders |
||||||||
Continuing operations |
$ | (0.08 | ) | $ | 0.73 | |||
Discontinued operations |
0.02 | | ||||||
|
|
|
|
|||||
Diluted earnings (loss) per common share |
$ | (0.06 | ) | $ | 0.73 | |||
|
|
|
|
|||||
Diluted average shares outstanding |
45.1 | 45.6 | ||||||
|
|
|
|
See accompanying Notes to Condensed Consolidated Financial Statements.
F-69
Meredith Corporation and Subsidiaries
Condensed Consolidated Statements of Comprehensive Income
(Unaudited)
Three months ended September 30, |
2018 | 2017 | ||||||
(In millions) | ||||||||
Net earnings |
$ | 17.0 | $ | 33.4 | ||||
|
|
|
|
|||||
Other comprehensive income (loss), net of income taxes |
||||||||
Pension and other postretirement benefit plans activity |
0.4 | 0.3 | ||||||
Unrealized foreign currency translation loss, net |
(2.3 | ) | | |||||
Unrealized gain on interest rate swaps |
| 0.3 | ||||||
|
|
|
|
|||||
Other comprehensive income (loss), net of income taxes |
(1.9 | ) | 0.6 | |||||
|
|
|
|
|||||
Comprehensive income |
$ | 15.1 | $ | 34.0 | ||||
|
|
|
|
See accompanying Notes to Condensed Consolidated Financial Statements.
F-70
Meredith Corporation and Subsidiaries
Condensed Consolidated Statements of Shareholders Equity
(Unaudited)
(In millions except per share data) |
Common Stock - $1 par value |
Class B Stock - $1 par value |
Additional Paid-in Capital |
Retained Earnings |
Accumulated Other Comprehensive Loss |
Total | ||||||||||||||||||
Balance at June 30, 2018 |
$ | 39.8 | $ | 5.1 | $ | 199.5 | $ | 889.8 | $ | (36.7 | ) | $ | 1,097.5 | |||||||||||
Net earnings |
| | | 17.0 | | 17.0 | ||||||||||||||||||
Other comprehensive loss, net of income taxes |
| | | | (1.9 | ) | (1.9 | ) | ||||||||||||||||
Shares issued under incentive plans, net of forfeitures |
0.2 | | 0.9 | | | 1.1 | ||||||||||||||||||
Purchases of Company stock |
(0.1 | ) | (3.1 | ) | | (3.2 | ) | |||||||||||||||||
Share-based compensation |
| | 10.2 | | | 10.2 | ||||||||||||||||||
Dividends paid |
||||||||||||||||||||||||
Common stock ($0.545 dividend per share) |
| | | (23.0 | ) | | (23.0 | ) | ||||||||||||||||
Class B stock ($0.545 dividend per share) |
| | | (2.8 | ) | | (2.8 | ) | ||||||||||||||||
Series A preferred stock ($21.49 dividend per share) |
| | | (14.0 | ) | | (14.0 | ) | ||||||||||||||||
Accretion of Series A preferred stock |
| | | (4.3 | ) | | (4.3 | ) | ||||||||||||||||
Cumulative effect adjustment for adoption of Accounting Standards Update 2014-09 |
| | | 2.4 | | 2.4 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Balance at September 30, 2018 |
$ | 39.9 | $ | 5.1 | $ | 207.5 | $ | 865.1 | $ | (38.6 | ) | $ | 1,079.0 | |||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
(In millions except per share data) |
Common Stock - $1 par value |
Class B Stock - $1 par value |
Additional Paid-in Capital |
Retained Earnings |
Accumulated Other Comprehensive Loss |
Total | ||||||||||||||||||
Balance at June 30, 2017 |
$ | 39.4 | $ | 5.1 | $ | 54.8 | $ | 915.7 | $ | (19.0 | ) | $ | 996.0 | |||||||||||
Net earnings |
| | | 33.4 | | 33.4 | ||||||||||||||||||
Other comprehensive income, net of income taxes |
| | | | 0.6 | 0.6 | ||||||||||||||||||
Stock issued under various incentive plans, net of forfeitures |
0.5 | | 11.5 | | | 12.0 | ||||||||||||||||||
Purchases of Company stock |
(0.3 | ) | | (17.4 | ) | | | (17.7 | ) | |||||||||||||||
Share-based compensation |
| | 6.7 | | | 6.7 | ||||||||||||||||||
Dividends paid |
||||||||||||||||||||||||
Common stock ($0.520 dividend per share) |
| | | (20.9 | ) | | (20.9 | ) | ||||||||||||||||
Class B stock ($0.520 dividend per share) |
| | | (2.7 | ) | | (2.7 | ) | ||||||||||||||||
Cumulative effect adjustment for adoption of Accounting Standards Update 2016-09 |
| | 1.0 | (0.6 | ) | | 0.4 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Balance at September 30, 2017 |
$ | 39.6 | $ | 5.1 | $ | 56.6 | $ | 924.9 | $ | (18.4 | ) | $ | 1,007.8 | |||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying Notes to Condensed Consolidated Financial Statements.
F-71
Meredith Corporation and Subsidiaries
Condensed Consolidated Statements of Cash Flows
(Unaudited)
Three months ended September 30, |
2018 | 2017 | ||||||
(In millions) | ||||||||
Cash flows from operating activities |
||||||||
Net earnings |
$ | 17.0 | $ | 33.4 | ||||
Adjustments to reconcile net earnings to net cash provided by (used in) operating activities |
||||||||
Depreciation |
24.9 | 7.9 | ||||||
Amortization |
38.8 | 4.7 | ||||||
Share-based compensation |
10.2 | 6.7 | ||||||
Deferred income taxes |
(9.6 | ) | 12.7 | |||||
Amortization of original issue discount and debt issuance costs |
2.2 | | ||||||
Amortization of broadcast rights |
5.4 | 4.9 | ||||||
Payments for broadcast rights |
(4.9 | ) | (5.5 | ) | ||||
Net gain on disposition of assets |
(10.2 | ) | (3.3 | ) | ||||
Fair value adjustments to contingent consideration |
(0.1 | ) | (0.2 | ) | ||||
Changes in assets and liabilities |
(109.7 | ) | (10.7 | ) | ||||
|
|
|
|
|||||
Net cash provided by (used in) operating activities |
(36.0 | ) | 50.6 | |||||
|
|
|
|
|||||
Cash flows from investing activities |
||||||||
Acquisitions of and investments in businesses, net of cash acquired |
(1.8 | ) | (1.0 | ) | ||||
Proceeds from disposition of assets, net of cash sold |
13.4 | 2.2 | ||||||
Additions to property, plant, and equipment |
(7.5 | ) | (20.6 | ) | ||||
|
|
|
|
|||||
Net cash provided by (used in) investing activities |
4.1 | (19.4 | ) | |||||
|
|
|
|
|||||
Cash flows from financing activities |
||||||||
Proceeds from issuance of long-term debt |
| 20.0 | ||||||
Repayments of long-term debt |
(200.0 | ) | (13.2 | ) | ||||
Dividends paid |
(39.8 | ) | (23.6 | ) | ||||
Purchases of Company stock |
(3.2 | ) | (17.7 | ) | ||||
Proceeds from common stock issued |
1.1 | 12.0 | ||||||
Payment of acquisition-related contingent consideration |
(19.3 | ) | (3.2 | ) | ||||
|
|
|
|
|||||
Net cash used in financing activities |
(261.2 | ) | (25.7 | ) | ||||
|
|
|
|
|||||
Effect of exchange rate changes on cash and cash equivalents |
(1.7 | ) | | |||||
Change in cash held-for-sale |
1.2 | | ||||||
|
|
|
|
|||||
Net increase (decrease) in cash and cash equivalents |
(293.6 | ) | 5.5 | |||||
Cash and cash equivalents at beginning of period |
437.6 | 22.3 | ||||||
|
|
|
|
|||||
Cash and cash equivalents at end of period |
$ | 144.0 | $ | 27.8 | ||||
|
|
|
|
See accompanying Notes to Condensed Consolidated Financial Statements.
F-72
Meredith Corporation and Subsidiaries
Notes to Condensed Consolidated Financial Statements
(Unaudited)
1. | Summary of Significant Accounting Policies |
Basis of PresentationThe condensed consolidated financial statements include the accounts of Meredith Corporation and its wholly-owned and majority-owned subsidiaries (Meredith or the Company), after eliminating all significant intercompany balances and transactions. Meredith does not have any off-balance sheet arrangements.
The financial position and operating results of our foreign operations are consolidated using primarily the local currency as the functional currency. Local currency assets and liabilities are translated at the rates of exchange as of the balance sheet date, and local currency revenues and expenses are translated at average rates of exchange during the period. Translation gains or losses on assets and liabilities are included as a component of accumulated other comprehensive loss.
The accompanying unaudited condensed consolidated financial statements have been prepared pursuant to the rules and regulations of the United States Securities and Exchange Commission (SEC). Accordingly, they do not include all of the information and notes required by accounting principles generally accepted in the United States of America (U.S. GAAP) for complete financial statements. These condensed consolidated financial statements should be read in conjunction with the Companys audited consolidated financial statements, which are included in Merediths Annual Report on Form 10-K (Form 10-K) for the year ended June 30, 2018, filed with the SEC.
The condensed consolidated financial statements as of September 30, 2018, and for the three months ended September 30, 2018 and 2017, are unaudited but, in managements opinion, include all adjustments necessary for a fair presentation of the results of interim periods. All such adjustments are of a normal recurring nature. The year-end condensed consolidated balance sheet as of June 30, 2018, was derived from audited financial statements, but does not include all disclosures required by U.S. GAAP. The results of operations for interim periods are not necessarily indicative of the results to be expected for the entire fiscal year.
ReclassificationCertain prior year amounts have been reclassified to conform to fiscal 2019 presentation.
Adopted Accounting Pronouncements
ASU 2014-09In May 2014, the FASB issued Accounting Standards Update (ASU) 2014-09, Revenue from Contracts with Customers (Topic 606) (ASC 606) that updated and replaced existing revenue recognition guidance. The guidance includes a five-step framework to determine the timing and amount of revenue to recognize related to contracts with customers. Additionally, the guidance requires new and significantly enhanced disclosures about the nature, amount, timing, and uncertainty of revenue and cash flows from customer contracts as well as judgments made by a company when following the framework.
The Company adopted the standard including all updates made to the standard since original issuance, on July 1, 2018, using the modified retrospective method. We applied the standard to all contracts open as of July 1, 2018. The cumulative prior period effect of applying ASC 606 was $2.4 million, which resulted in an increase to retained earnings upon adoption.
The standard does not change the timing or pattern of revenue recognition for most of our revenue contracts with the exception of contracts with value-added items or those that require combination under the standard. Refer to Note 11 for further discussion on the impacts of the adoption of this accounting standard.
We utilized various practical expedients offered by the guidance in our implementation. For the Companys contracts that have an original duration of twelve months or less, the Company does not impute interest to
F-73
account for a financing element. For all contracts with an original term of twelve months or less and for performance obligations tied to sales-based or usage-based royalties, the Company has not disclosed the transaction price for the remaining performance obligations as of the end of each reporting period or when the Company expects to recognize this revenue. Finally, consistent with historical practice, the Company excludes amounts collected from customers for sales taxes from its transaction prices.
ASU 2016-01In January 2016, the FASB issued guidance to improve and simplify accounting for financial instruments. The updated guidance includes several provisions that are not applicable to the Companys consolidated financial statements, with the exception of changes to fair value disclosure. Under the new guidance, public entities are no longer required to disclose the methods and significant assumptions used to estimate fair value of financial instruments measured at amortized cost on the consolidated balance sheets. It also requires public entities to use the exit price when measuring the fair value of financial instruments for disclosure purposes. The guidance was adopted in the first quarter of fiscal 2019. The adoption of this guidance required a change in our disclosures only and did not have an impact on our financial position, results of operations, or cash flows.
ASU 2016-15In August 2016, the FASB issued an accounting standards update clarifying the classification of certain cash receipts and payments in the statement of cash flows. The update is intended to reduce the diversity in practice regarding how certain transactions are classified within the statement of cash flows. The update was effective beginning in our first quarter of fiscal 2019 and was adopted retrospectively as required by the ASU.
As a result of the update, the Company reclassified a cash outflow of $0.8 million from financing activities to operating activities in the three months ended September 30, 2017, related to contingent considerations paid in excess of that recognized as a liability on the date of acquisition. The update will not have a material impact on the classification of our future cash flows.
ASU 2017-01In January 2017, the FASB issued an accounting standards update that clarifies the definition of a business and adds guidance to assist entities in the determination of whether an acquisition (or disposal) represents assets or a business. The update provides a test to determine whether or not an acquisition is a business. If substantially all of the fair value of the assets acquired is concentrated in a single asset or a group of similar identifiable assets, the acquired assets do not represent a business. If this test is not met, the update provides further guidance to evaluate if the acquisition represents a business. The Company prospectively adopted the guidance in the first quarter of fiscal 2019. The adoption did not have an impact to the Companys condensed consolidated financial statements.
ASU 2017-07In March 2017, the FASB issued an accounting standards update on the presentation of net periodic pension and postretirement benefit costs. This guidance revises how employers that sponsor defined benefit pension and other postretirement plans present the net periodic benefit costs in their income statement and requires that the service cost component of net periodic benefit costs be presented in the same line items as other employee compensation costs. The other components of net periodic benefit costs must be presented separately from the line items that include the service cost and outside of the income from operations subtotal.
As required by the standard, we retrospectively adopted the update on July 1, 2018, which resulted in an increase in Production, distribution, and editorial expense of $0.8 million and a decrease in Selling, general, and administrative expense of $0.2 million. Non-operating income of $0.6 million was established in the three months ended September 30, 2017, as this financial statement line was not previously included. We elected the practical expedient allowed by the update and utilized our previously disclosed components of net periodic benefit costs from the pension and other postretirement benefit plan note in our June 30, 2018, Form 10-K. For the three months ended September 30, 2018, the implementation of this guidance resulted in an increase in Selling, general, and administrative expense and an increase in non-operating income, net of $3.9 million, compared to that which would have been reported under previous guidance.
F-74
ASU 2017-09In May 2017, the FASB issued additional guidance related to changes in terms or conditions of a share-based payment award. This update provides guidance about which changes to the terms or conditions of a share-based payment award require an entity to apply modification accounting in Accounting Standards Codification (ASC) 718CompensationStock Compensation. This guidance was adopted in the first quarter of fiscal 2019. The adoption did not have a material impact on our financial position, results of operations, cash flows, or disclosures.
ASU 2018-15In August 2018, the FASB issued guidance on accounting for costs of implementation activities performed in a cloud computing arrangement that is a service contract. The amendments in the update align the requirements for capitalizing implementation costs incurred in a hosting arrangement that is a service contract with the requirements for capitalizing implementation costs incurred to develop or obtain internal-use software and hosting arrangements that include an internal-use software license. The guidance is effective for the Company beginning in the first quarter of fiscal 2021 with early adoption permitted. The amendments in the update can be applied either retrospectively or prospectively to all implementation costs incurred after the date of adoption. The Company adopted this guidance prospectively, effective July 1, 2018. The adoption did not have a material impact on our consolidated financial statements.
In August 2018, the SEC issued a final rule that amends certain of its disclosure requirements. Specifically, the final rule modifies or eliminates disclosures that are redundant, duplicative, overlapping, outdated, or superseded in light of other SEC or U.S. GAAP disclosure requirements or changes in the information environment. Several aspects of the final rule are applicable to the Company but do not have a material impact on our consolidated financial statements. The amendments were effective November 5, 2018, and were implemented in the first quarter of fiscal 2019.
Pending Accounting Pronouncements
ASU 2018-14In August 2018, the FASB issued an accounting standards update which adds, removes, and modifies disclosure requirements related to defined benefit pension and other postretirement plans. The update amends only annual disclosure requirements. Retrospective adoption of the update is required in fiscal 2022 with early adoption permitted. The adoption of this guidance requires a change in our disclosures only and is not expected to have an impact on our consolidated financial statements.
ASU 2018-13In August 2018, the FASB issued an accounting standards update which changes the fair value measurement disclosure requirements. The update removes, modifies, and adds certain additional disclosures. The effective date is the first quarter of fiscal 2021, with early adoption permitted for any eliminated or modified disclosures. The adoption of this guidance requires a change in our disclosures only and is not expected to have an impact on our consolidated financial statements.
ASU 2016-02In February 2016, the FASB issued an accounting standards update that replaces existing lease accounting standards. The new standard requires lessees to recognize on the balance sheet a right-of use asset, representing its right to use the underlying asset for the lease term, and a lease liability for all leases with terms greater than 12 months. The guidance also requires qualitative and quantitative disclosures designed to assess the amount, timing, and uncertainty of cash flows arising from leases. Treatment of lease payments in the statement of earnings and statement of cash flows is relatively unchanged from previous guidance. This standard is required to be applied using a modified retrospective approach, which gives the option of applying the new guidance as of the effective date with enhanced disclosure requirements for comparative periods presented under prior lease guidance, or applying the new standard at the beginning of the earliest comparative period presented. The FASB continues to issue amendments to further clarify provisions of this guidance. The standard, including the amendments made since initial issuance, is effective for the Company beginning July 1, 2019, with early adoption permitted. The Company is currently in the process of evaluating our existing lease portfolios, including accumulating all of the necessary information required to properly account for the leases under the new standard. As such, the Company is currently evaluating the effect the guidance will have on our consolidated financial statements.
F-75
2. | Acquisition |
On January 31, 2018, Meredith completed the acquisition of all the outstanding shares of Time Inc. (Time). The fair values of the assets acquired and liabilities assumed were based on managements preliminary estimates of the fair values of Times net assets. The estimated fair values of net assets and resulting goodwill are subject to the Company finalizing its analysis of the fair value of Times assets and liabilities as of the acquisition date, and are subject to change pending the final valuation of these assets and liabilities. In addition, information unknown at the time of the Time acquisition could result in adjustments to the respective fair values and resulting goodwill. Differences between the preliminary and final estimated fair values could be material. As additional information is obtained about these assets and liabilities within the measurement period (not to exceed one year from the date of acquisition), the Company will refine its estimates of fair value and reallocate the purchase price.
In the first quarter of fiscal 2019, the Company recorded purchase price allocation adjustments relating to the Time acquisition that increased goodwill by $10.9 million, reduced assets held-for-sale by $6.0 million and increased deferred income taxes by $4.9 million. These adjustments resulted from new information about facts and circumstances that existed at the time of the acquisition. Estimated fair values of assets held-for-sale are preliminary and are expected to be finalized upon completion of the sales, which are expected to occur within fiscal 2019. See additional information for assets held-for-sale in Note 4.
3. | Inventories |
Major components of inventories are summarized below.
(In millions) |
September 30, 2018 |
June 30, 2018 |
||||||
Raw materials |
$ | 32.4 | $ | 32.1 | ||||
Work in process |
15.7 | 9.6 | ||||||
Finished goods |
2.2 | 2.5 | ||||||
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Inventories |
$ | 50.3 | $ | 44.2 | ||||
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4. | Assets Held for Sale, Discontinued Operations, and Dispositions |
Assets Held-for-Sale and Discontinued Operations
The Company announced after the acquisition of Time that it was exploring the sale of the TIME, Sports Illustrated, Fortune, and Money and affiliated brands and its investment in Viant Technology LLC (Viant).
In September 2018, Meredith entered into a definitive agreement to sell the TIME brand to an unrelated third party for $190.0 million in cash. This sale closed on October 31, 2018. In November 2018, Meredith entered into a definitive agreement to sell the Fortune brand to an unrelated third party for $150.0 million in cash. This sale is expected to close in calendar 2018. Management expects sales of the remaining brands and Viant to close during fiscal 2019.
In accordance with accounting guidance, a business that, on acquisition, or within a short period following the acquisition (usually within three months), meets the criteria to be classified as held-for-sale is considered a discontinued operation. As all of the required criteria for held-for-sale classification were met, the assets and liabilities related to these operations have been included as assets held-for-sale and liabilities associated with assets held-for-sale in the Condensed Consolidated Balance Sheets as of June 30, 2018 and September 30, 2018. The associated assets and liabilities that are deemed held-for-sale are classified as current based on the anticipated disposal date. The revenue and expenses, along with associated taxes, for these operations were included in the income from discontinued operations, net of income taxes line on the Condensed Consolidated Statements of Earnings. All discontinued operations relate to the national media segment.
F-76
The following table presents the major components which are included in assets held-for-sale and liabilities associated with assets held-for-sale (including the TIME, Sports Illustrated, Fortune, Money, and affiliated brands, and the investment in Viant):
(in millions) |
September 30, 2018 |
June 30, 2018 |
||||||
Current assets |
||||||||
Cash and cash equivalents |
$ | 3.5 | $ | 2.3 | ||||
Accounts receivable, net |
76.6 | 94.6 | ||||||
Inventories |
1.0 | 1.1 | ||||||
Other current assets |
10.4 | 9.4 | ||||||
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Total current assets |
91.5 | 107.4 | ||||||
Net property, plant, and equipment |
14.1 | 14.1 | ||||||
Other assets |
1.6 | 1.0 | ||||||
Intangible assets, net |
113.1 | 113.1 | ||||||
Goodwill |
471.5 | 477.5 | ||||||
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|
|||||
Total assets held-for-sale |
$ | 691.8 | $ | 713.1 | ||||
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Current liabilities |
||||||||
Accounts payable |
$ | 43.7 | $ | 45.2 | ||||
Accrued expenses and other liabilities |
11.7 | 15.1 | ||||||
Current portion of unearned revenues |
103.9 | 109.4 | ||||||
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Total current liabilities |
159.3 | 169.7 | ||||||
Unearned revenues |
26.6 | 28.0 | ||||||
Other noncurrent liabilities |
0.6 | 0.7 | ||||||
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Total liabilities associated with assets held-for-sale |
$ | 186.5 | $ | 198.4 | ||||
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The Company does not allocate interest to discontinued operations unless the interest is directly attributable to the discontinued operations or is interest on debt that is required to be repaid as a result of the disposal transaction. Interest expense included in discontinued operations reflects an estimate of interest expense related to the debt that will be repaid with the proceeds from the sale of the TIME, Sports Illustrated, Fortune, Money, and affiliated brands and the investment in Viant.
Amounts applicable to discontinued operations in the Condensed Consolidated Statements of Earnings are as follows:
Three months ended September 30, 2018 |
||||
(In millions except per share data) | ||||
Revenues |
$ | 125.5 | ||
Costs and expenses |
(117.6 | ) | ||
Interest expense |
(6.6 | ) | ||
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Earnings before income taxes |
1.3 | |||
Income taxes |
(0.3 | ) | ||
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Income from discontinued operations, net of income taxes |
$ | 1.0 | ||
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Earnings per share from discontinued operations |
||||
Basic |
$ | 0.02 | ||
Diluted |
0.02 |
The discontinued operations did not have depreciation, amortization, or significant non-cash investing items for the three months ended September 30, 2018. Share based compensation expense related to discontinued operations of $0.5 million is included in the calculation of net cash provided by (used in) operating activities and capital expenditures of $2.2 million are included in cash provided by (used in) investing activities in the Condensed Consolidated Statements of Cash Flows for the three months ended September 30, 2018.
F-77
Dispositions
On July 1, 2017, Merediths national media segment sold a 70 percent interest in Charleston Tennis LLC, which operates the Family Circle Tennis Center, to an unrelated third party. In return, Meredith received $0.6 million in cash and a note receivable for $8.5 million. The note receivable was due in annual installments over a period of 8 years. At June 30, 2018, there was $3.2 million in unamortized discount and an allowance of $3.0 million recorded against the note. This transaction generated a gain of $3.3 million, which was recorded in the acquisition, disposition, and restructuring related activities line of the Condensed Consolidated Statements of Earnings. Of this gain, $1.0 million related to the remeasurement of the retained investment. As Meredith retained a 30 percent interest, had a seat on the board, and had approval rights over certain limited matters, Meredith accounted for this investment under the equity method of accounting.
In September 2018, Meredith sold its remaining 30 percent interest in Charleston Tennis LLC to an unrelated third party. In return, Meredith received cash of $13.3 million, of which $5.1 million was for the Companys remaining 30 percent interest and $8.2 million was repayment of the principal and interest accrued on the note receivable received upon the Companys sale of a 70 percent interest in July 2017. The Company recognized a gain on the sale of $10.4 million, of which $4.1 million represented a gain on our 30 percent interest and is recorded in the non-operating income, net line of the Condensed Consolidated Statements of Earnings, while the remainder is recorded in the acquisition, disposition, and restructuring related activities line of the Condensed Consolidated Statement of Earnings, as such represents recovery of a previously impaired note receivable.
5. | Intangible Assets and Goodwill |
Intangible assets consisted of the following:
September 30, 2018 | June 30, 2018 | |||||||||||||||||||||||
(In millions) |
Gross Amount |
Accumulated Amortization |
Net Amount |
Gross Amount |
Accumulated Amortization |
Net Amount |
||||||||||||||||||
Intangible assets subject to amortization |
||||||||||||||||||||||||
National media |
||||||||||||||||||||||||
Advertiser relationships |
$ | 213.4 | $ | (49.0 | ) | $ | 164.4 | $ | 212.3 | $ | (41.1 | ) | $ | 171.2 | ||||||||||
Publisher relationships |
125.0 | (11.9 | ) | 113.1 | 125.0 | (7.4 | ) | 117.6 | ||||||||||||||||
Partner relationships |
95.0 | (10.6 | ) | 84.4 | 95.0 | (6.6 | ) | 88.4 | ||||||||||||||||
Customer relationships |
67.5 | (22.0 | ) | 45.5 | 67.5 | (14.0 | ) | 53.5 | ||||||||||||||||
Other |
22.0 | (12.8 | ) | 9.2 | 22.0 | (11.9 | ) | 10.1 | ||||||||||||||||
Local media |
||||||||||||||||||||||||
Network affiliation agreements |
229.3 | (150.3 | ) | 79.0 | 229.3 | (148.6 | ) | 80.7 | ||||||||||||||||
Advertiser relationships |
12.5 | (2.8 | ) | 9.7 | 25.0 | (3.5 | ) | 21.5 | ||||||||||||||||
Retransmission agreements |
27.9 | (16.0 | ) | 11.9 | 27.9 | (14.9 | ) | 13.0 | ||||||||||||||||
Other |
1.7 | (0.9 | ) | 0.8 | 1.7 | (0.8 | ) | 0.9 | ||||||||||||||||
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Total |
$ | 794.3 | $ | (276.3 | ) | 518.0 | $ | 805.7 | $ | (248.8 | ) | 556.9 | ||||||||||||
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Intangible assets not subject to amortization |
||||||||||||||||||||||||
National media |
||||||||||||||||||||||||
Trademarks |
765.3 | 765.3 | ||||||||||||||||||||||
Internet domain names |
7.8 | 7.8 | ||||||||||||||||||||||
Local media |
||||||||||||||||||||||||
FCC licenses |
675.2 | 675.2 | ||||||||||||||||||||||
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Total |
1,448.3 | 1,448.3 | ||||||||||||||||||||||
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Intangible assets, net |
$ | 1,966.3 | $ | 2,005.2 | ||||||||||||||||||||
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F-78
Amortization expense was $38.8 million and $4.7 million for the three months ended September 30, 2018 and 2017, respectively. Annual amortization expense for intangible assets is expected to be as follows: $155.0 million in fiscal 2019, $140.3 million in fiscal 2020, $86.9 million in fiscal 2021, $41.0 million in fiscal 2022, and $39.0 million in fiscal 2023.
Changes in the carrying amount of goodwill were as follows:
Three months ended September 30, |
2018 | 2017 | ||||||||||||||||||||||
(In millions) |
National Media |
Local Media |
Total | National Media |
Local Media |
Total | ||||||||||||||||||
Balance at beginning of period |
||||||||||||||||||||||||
Goodwill |
$ | 1,800.0 | $ | 115.8 | $ | 1,915.8 | $ | 943.8 | $ | 80.6 | $ | 1,024.4 | ||||||||||||
Accumulated impairment losses |
| | | (116.9 | ) | | (116.9 | ) | ||||||||||||||||
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|
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Total goodwill |
1,800.0 | 115.8 | 1,915.8 | 826.9 | 80.6 | 907.5 | ||||||||||||||||||
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Activity during the period |
||||||||||||||||||||||||
Acquisition adjustments |
10.9 | | 10.9 | 0.1 | | 0.1 | ||||||||||||||||||
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Balance at end of period |
||||||||||||||||||||||||
Goodwill |
1,810.9 | 115.8 | 1,926.7 | 943.9 | 80.6 | 1,024.5 | ||||||||||||||||||
Accumulated impairment losses |
| | | (116.9 | ) | | (116.9 | ) | ||||||||||||||||
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|
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Total goodwill |
$ | 1,810.9 | $ | 115.8 | $ | 1,926.7 | $ | 827.0 | $ | 80.6 | $ | 907.6 | ||||||||||||
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6. | Restructuring Accrual |
During fiscal 2018 and the first quarter of 2019, management committed to and continued to execute upon several performance improvement plans, including those related to the integration of Time as well as other smaller restructurings.
As part of the Companys plan to realize cost synergies from the Time acquisition, management committed to a performance improvement plan to reduce headcount, which is anticipated to be substantially complete by January 2019. In addition to the Time acquisition related plan under which restructuring costs continue to be incurred in fiscal 2019, additional performance improvement plans were made and executed upon in the first quarter of fiscal 2019 related to the strategic decisions to merge Cooking Light magazine with EatingWell, transition Coastal Living from a subscription magazine to a special interest publication, to consolidate much of our local medias digital advertising functions with MNI Targeted Media, and to outsource newsstand sales and marketing operations. The first quarter fiscal 2019 performance improvement plans affected approximately 250 people, approximately 175 in the national media segment, approximately 25 in the local media segment, and the remainder in unallocated corporate. In connection with these plans, in the first quarter of fiscal 2019 the Company recorded pre-tax restructuring charges of $12.5 million for severance and related benefit costs related to the involuntary termination of employees. These costs are recorded in the acquisition, disposition, and restructuring related activities line of the Condensed Consolidated Statements of Earnings.
Details of the severance and related benefit costs by segment for this performance improvement plan are as follows:
For the three months ended September 30, 2018 |
Amount Accrued in the Period |
Total Amount Expected to be Incurred |
||||||
(in millions) | ||||||||
National media |
$ | 6.0 | $ | 7.0 | ||||
Local media |
1.5 | 1.5 | ||||||
Unallocated Corporate |
5.0 | 6.5 | ||||||
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$ | 12.5 | $ | 15.0 | |||||
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F-79
Details of changes in the Companys restructuring accrual are as follows:
Employee Terminations |
Other Exit Costs |
Total | Employee Terminations |
|||||||||||||
Three months ended September 30, |
2018 | 2018 | 2018 | 2017 | ||||||||||||
(In millions) | ||||||||||||||||
Balance at beginning of period |
$ | 101.3 | $ | 6.3 | $ | 107.6 | $ | 8.7 | ||||||||
Accruals |
12.5 | 10.1 | 22.6 | | ||||||||||||
Cash payments |
(20.7 | ) | (9.4 | ) | (30.1 | ) | (3.0 | ) | ||||||||
Other accruals |
(0.5 | ) | | (0.5 | ) | | ||||||||||
Reversal of excess accrual |
(2.9 | ) | (0.7 | ) | (3.6 | ) | | |||||||||
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|
|
|
|
|
|
|
|||||||||
Balance at end of period |
$ | 89.7 | $ | 6.3 | $ | 96.0 | $ | 5.7 | ||||||||
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As of September 30, 2018, of the $96.0 million liability, $91.4 million was classified as current liabilities on the Condensed Consolidated Balance Sheet, with the remaining $4.6 million classified as noncurrent liabilities. Amounts classified as noncurrent liabilities are expected to be paid through 2020 and relate primarily to severance costs.
7. | Long-term Debt |
Long-term debt consisted of the following:
September 30, 2018 | June 30, 2018 | |||||||||||||||||||||||
(In millions) |
Principal Balance |
Unamortized Discount and Debt Issuance Costs |
Carrying Value |
Principal Balance |
Unamortized Discount and Debt Issuance Costs |
Carrying Value |
||||||||||||||||||
Variable-rate credit facility |
||||||||||||||||||||||||
Senior credit facility term loan, due 1/31/2025 |
$ | 1,595.5 | $ | (32.3 | ) | $ | 1,563.2 | $ | 1,795.5 | $ | (33.4 | ) | $ | 1,762.1 | ||||||||||
Revolving credit facility of $350 million, due 1/31/2023 |
| | | | | | ||||||||||||||||||
Senior Unsecured Notes |
||||||||||||||||||||||||
6.875% senior notes, due 2/1/2026 |
1,400.0 | (25.8 | ) | 1,374.2 | 1,400.0 | (26.5 | ) | 1,373.5 | ||||||||||||||||
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|
|||||||||||||
Total long-term debt |
2,995.5 | (58.1 | ) | 2,937.4 | 3,195.5 | (59.9 | ) | 3,135.6 | ||||||||||||||||
Current portion of long-term debt |
| | | (18.0 | ) | 0.3 | (17.7 | ) | ||||||||||||||||
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|
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Long-term debt |
$ | 2,995.5 | $ | (58.1 | ) | $ | 2,937.4 | $ | 3,177.5 | $ | (59.6 | ) | $ | 3,117.9 | ||||||||||
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The variable-rate senior credit facility term loan (Term Loan B) matures in 2025 and was originally scheduled to amortize at 1.0 percent per annum in equal quarterly installments until the final maturity date, at which time the remaining principal and interest are due and payable. However, $200.0 million was paid on the Term Loan B in the first quarter of fiscal 2019, therefore, there are no future amortization requirements under the credit agreement. The original interest rate under the Term Loan B was based on the London Interbank Offered Rate (LIBOR) plus a spread of 3.0 percent. The Company repriced the Term Loan B effective October 26, 2018. The new interest rate under the Term Loan B is based on LIBOR plus a spread of 2.75 percent as of the repricing date until maturity. In addition, when the Companys leverage ratio drops below 2.25 to 1, the spread will decrease to 2.50 percent.
8. | Income Taxes |
For the first quarter of fiscal 2019, Meredith recorded tax expense on earnings from continuing operations of $3.6 million for an effective tax rate of 18.4 percent. In the prior year first quarter, the Company recorded income
F-80
tax expense of $18.3 million for an effective tax rate of 35.4 percent. The effective tax rate for the three months ended September 30, 2018, was lower than the prior-year quarter primarily due to reduction in the statutory federal tax rate resulting from the Tax Cuts and Jobs Act of 2017 (Tax Reform Act).
In December 2017, the SEC staff issued Staff Accounting Bulletin No. 118, which provides guidance regarding how a company is to reflect provisional amounts when necessary information is not yet available, prepared, or analyzed sufficiently to complete its accounting for the effect of the changes in the Tax Reform Act. The Company accounted for the effects of the Tax Reform Act in the its fiscal 2018 second quarter. During the quarter ended September 30, 2018, the Company did not make any adjustments to the provisional estimates previously recorded as a result of the Tax Reform Act. The Company continues to assess new guidance issued by tax authorities as well as the Companys ability to change certain methods of accounting and expects to finalize the accounting for the provision of the Tax Reform Act within the measurement period.
9. | Commitments and Contingencies |
Lease Guarantee
In March 2018, the Company sold Time Inc. (UK) Ltd. (TIUK), a United Kingdom (U.K.) multi-platform publisher. In connection with the sale of TIUK, the Company recognized a liability in other liabilities in connection with a lease of office space in the U.K. through December 31, 2025, which is guaranteed by Time. The lease guarantee liability is being amortized into earnings over the life of the lease. The carrying value of the lease guarantee was $8.5 million at September 30, 2018. The Company is only obligated to pay for the lease guarantee in the event that TIUK fails to perform under the lease agreement. If TIUK fails to perform under the lease agreement, the maximum lease guarantee obligation for which the Company would be liable is approximately $76.0 million as of September 30, 2018. The Company has assessed that it is unlikely that TIUK will not perform its obligations under the lease.
Legal Proceedings
In the ordinary course of business, we are defendants in or parties to various legal claims, actions, and proceedings. These claims, actions and proceedings are at varying stages of investigation, arbitration, or adjudication, and involve a variety of areas of law. Time, which is now a wholly-owned subsidiary, previously reported on, and the Company updates below, the following legal proceedings.
On October 26, 2010, the Canadian Minister of National Revenue denied the claims by Time Inc. Retail (formerly Time/Warner Retail Sales & Marketing, Inc.) (TIR) for input tax credits in respect of goods and services tax that TIR had paid on magazines it imported into and had displayed at retail locations in Canada during the years 2006 to 2008, on the basis that TIR did not own those magazines and issued Notices of Reassessment in the amount of approximately C$52.0 million. On January 21, 2011, TIR filed an objection to the Notices of Reassessment with the Chief of Appeals of the Canada Revenue Agency (CRA), arguing that TIR claimed input tax credits only in respect of goods and services tax it actually paid and, regardless of whether its payment of the goods and services tax was appropriate or in error, it is entitled to a rebate for such payments. On September 13, 2013, TIR received Notices of Reassessment in the amount of C$26.9 million relating to the disallowance of input tax credits claimed by TIR for goods and services tax that TIR had paid on magazines it imported into and had displayed at retail locations in Canada during the years 2009 to 2010. On October 22, 2013, TIR filed an objection to the Notices of Reassessment received on September 13, 2013 with the Chief of Appeals of the CRA, asserting the same arguments made in the objection TIR filed on January 21, 2011. Beginning in 2015, the collections department of the CRA requested payment of both assessments plus accrued interest or the posting of sufficient security. In each instance, TIR responded by stating that collection should remain stayed pending resolution of the issues raised by TIRs objection. On February 8, 2016, the Company filed an application for a remission order with the International Trade Policy Division of Finance Canada to seek relief from the assessments and the CRAs collection efforts. The matter is currently subject to a proceeding in
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the Tax Court of Canada to resolve the issue of whether TIR or the publishers are entitled to the input tax credits. On March 31, 2017, the Company and the CRA jointly proposed a timetable for the completion of certain pre-trial steps related to this matter, which was approved by the Tax Court. In accordance with the timetable, on April 28, 2017, TIR filed an Amended Notice of Appeal of the assessments. In June 2017, the CRA filed a Reply to TIRs Amended Notice of Appeal and the Company filed an answer to the CRA reply in July 2017. The parties are currently engaged in discovery. The Company denies liability and intends to vigorously defend itself and pursue all defenses available to eliminate or mitigate liability.
In July 2017 and November 2017, Time received subpoenas from the Enforcement Division of the staff of the SEC requiring Time to provide documents relating to its accounting for goodwill and asset impairments, restructuring and severance costs, and its analysis and reporting of Times segments. The Company is cooperating with the SEC in the investigation. Management cannot at this time predict the eventual scope or outcome of this matter.
We establish an accrued liability for specific matters, such as a legal claim, when the Company determines that both a loss is probable and the amount of the loss can be reasonably estimated. Once established, accruals are adjusted, as appropriate, in light of additional information. The amount of any loss ultimately incurred in relation to matters for which an accrual has been established may be higher or lower than the amounts accrued for such matters. In view of the inherent difficulty of predicting the outcome of litigation, claims and other matters, we often cannot predict what the eventual outcome of a pending matter will be, or what the timing or results of the ultimate resolution of a matter will be. Accordingly, for the matters described above, we are unable to predict the outcome or reasonably estimate a range of possible loss.
10. | Fair Value Measurements |
We estimated the fair value of our financial instruments using available market information and valuation methodologies we believe to be appropriate for these purposes. Considerable judgment and a high degree of subjectivity are involved in developing these estimates and, accordingly, they are not necessarily indicative of amounts we would realize upon disposition.
The fair value hierarchy consists of three broad levels of inputs that may be used to measure fair value, which are described below:
| Level 1 | Quoted prices (unadjusted) in active markets for identical assets or liabilities; | ||
| Level 2 | Inputs other than quoted prices included within Level 1 that are either directly or indirectly observable; | ||
| Level 3 | Assets or liabilities for which fair value is based on valuation models with significant unobservable pricing inputs and which result in the use of management estimates. |
The following table sets forth the carrying value and the estimated fair value of the Companys financial instruments not measured at fair value on a recurring basis:
September 30, 2018 | June 30, 2018 | |||||||||||||||
(In millions) |
Carrying Value |
Fair Value | Carrying Value |
Fair Value | ||||||||||||
Broadcast rights payable |
$ | 28.9 | $ | 26.5 | $ | 29.7 | $ | 27.4 | ||||||||
Total long-term debt |
2,937.4 | 3,053.0 | 3,135.6 | 3,179.8 | ||||||||||||
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The fair value of broadcast rights payable was determined utilizing Level 3 inputs. The fair value of total long-term debt is based on information obtained from a non-active market, therefore is included as a Level 2 measurement.
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The following table sets forth the assets and liabilities measured at fair value on a recurring basis:
(In millions) |
September 30, 2018 |
June 30, 2018 | ||||||
Accrued expenses and other liabilities |
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Contingent consideration |
$ | 5.1 | $ | 24.6 | ||||
Deferred compensation plans |
9.5 | 8.4 | ||||||
Other noncurrent liabilities |
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Contingent consideration |
0.9 | 0.8 | ||||||
Deferred compensation plans |
18.6 | 21.0 |
The fair value of deferred compensation plans is derived from quotes from observable market information, and thus represents a Level 2 measurement. The fair value of contingent consideration is based on significant inputs not observable in the market and thus represent a Level 3 measurement.
Details of changes in the Level 3 fair value of contingent consideration and corporate airplanes that were held-for-sale are as follows:
Three months ended September 30, |
2018 | 2017 | ||||||
(in millions) | ||||||||
Contingent consideration |
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Balance at beginning of period |
$ | 25.4 | $ | 34.2 | ||||
Payments |
(19.3 | ) | (4.0 | ) | ||||
Change in present value of contingent consideration |
(0.1 | ) | (0.2 | ) | ||||
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Balance at end of period |
$ | 6.0 | $ | 30.0 | ||||
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Corporate airplanes, held-for-sale |
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Balance at beginning of period |
$ | | $ | 1.9 | ||||
Sale of corporate airplanes |
| (1.9 | ) | |||||
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Balance at end of period |
$ | | $ | | ||||
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The fair value adjustment of contingent consideration is the change in the estimated earn out payments based on projections of performance and the amortization of the present value discount. The fair value adjustment of contingent consideration is included in selling, general, and administrative line on the Condensed Consolidated Statements of Earnings.
The Company had two corporate airplanes which were marked to fair value in fiscal 2016 when the Company committed to a plan to sell them. The final sale took place in the first quarter of fiscal 2018.
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11. | Revenue Recognition |
Meredith disaggregates revenue from contracts with customers by types of goods and services. A reconciliation of disaggregated revenue to segment revenue (as provided in Note 15) is as follows.
Three months ended September 30, 2018 |
National Media | Local Media | Intersegment Elimination |
Total | ||||||||||||
(In millions) | ||||||||||||||||
Advertising related |
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|
$ | 182.7 | $ | | $ | | $ | 182.7 | ||||||||
Non-political spot |
| 74.9 | | 74.9 | ||||||||||||
Political spot |
| 36.1 | | 36.1 | ||||||||||||
Digital |
84.6 | 3.9 | | 88.5 | ||||||||||||
Third party sales |
17.1 | 24.0 | (0.6 | ) | 40.5 | |||||||||||
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Total advertising related |
284.4 | 138.9 | (0.6 | ) | 422.7 | |||||||||||
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Consumer related |
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Subscription |
135.9 | | | 135.9 | ||||||||||||
Retransmission |
| 73.3 | | 73.3 | ||||||||||||
Newsstand |
39.0 | | | 39.0 | ||||||||||||
Affinity marketing |
23.3 | | | 23.3 | ||||||||||||
Licensing |
23.7 | | | 23.7 | ||||||||||||
Digital consumer driven |
6.0 | | | 6.0 | ||||||||||||
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Total consumer related |
227.9 | 73.3 | | 301.2 | ||||||||||||
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Other |
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Projects based |
9.4 | | | 9.4 | ||||||||||||
Other |
21.2 | 2.2 | | 23.4 | ||||||||||||
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Total other |
30.6 | 2.2 | | 32.8 | ||||||||||||
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Total revenues |
$ | 542.9 | $ | 214.4 | $ | (0.6 | ) | $ | 756.7 | |||||||
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As a result of the adoption of ASC 606, we have determined that certain barter revenue and expense will no longer be recognized. As a result, $1.9 million of the current portion of broadcast rights and the current portion of broadcast rights payable and $8.2 million of the noncurrent portion of broadcast rights and the noncurrent portion of broadcast rights payable were written off. Other impacts from the adoption of ASC 606 on the condensed consolidated financial statements were immaterial.
CONTRACT BALANCES
The timing of Merediths performance under its various contracts often differs from the timing of the customers payment, which results in the recognition of a contract asset or a contract liability. A contract asset is recognized when a good or service is transferred to a customer and the Company does not have the contractual right to bill for the related performance obligations. A contract liability is recognized when consideration is received from the customer prior to the transfer of goods or services. Current portion of contract liabilities were $360.9 million at July 1, 2018 and $360.5 million at September 30, 2018, and are presented as current portion of unearned revenues on the Condensed Consolidated Balance Sheets. Noncurrent contract liabilities were $124.1 million and $155.6 million at July 1, 2018 and September 30, 2018, respectively, and are reflected as unearned revenues on the Condensed Consolidated Balance Sheets. Substantially all of the $135.9 million of subscription revenue recognized in the three months ended September 30, 2018, was in contract liabilities at the beginning of the period. An additional $1.6 million of revenue recognized in the first quarter of fiscal 2019 was related to the liability balance as of the beginning of the period.
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NATURE OF PERFORMANCE OBLIGATIONS
At contract inception, Meredith assesses the obligations promised in its contracts with customers and identifies a performance obligation for each promise to transfer a good or service or bundle that is distinct. To identify the performance obligations, the Company considers all the promises in the contract, whether explicitly stated or implied based on customary business practices. For a contract that has more than one performance obligation, the Company allocates the total contract consideration to each distinct performance obligation on a relative standalone selling price basis. Revenue is recognized when, or as, the performance obligations are satisfied and control is transferred to the customer.
Print AdvertisingThe Company provides advertisement placements in print media directly to advertisers or through advertising agencies. The Companys performance obligations related to print advertising are satisfied when the magazine in which an advertisement appears is published, which is defined as an issues on-sale date. The customer is invoiced the agreed-upon price when the advertisements are published under normal industry trade terms. The agreed upon price is adjusted for estimated provisions for rebates, rate adjustments, and discounts. As part of the Companys customary business practices, print advertising contracts include guaranteed circulation levels of magazines, referred to as rate base, and a number of sales incentives to its customers including volume discounts, rebates, bonus pages, etc. For all such contracts that include these types of variable consideration, the Company estimates such when determining the transaction price.
Non-political and Political Spot AdvertisingThe Company sells commercial time directly to political and non-political advertisers or through advertising agencies. The Companys performance obligations related to spot advertising are satisfied when the advertisement is aired by the broadcasting station. Rates for spot advertising are influenced primarily by the market size, number and type of competitors, audience share, and audience demographics. The customer is invoiced the agreed-upon price at the end of the month in which the advertisements were aired under normal trade terms. Political spot advertisements require payment in advance of airing. The agreed upon price may be adjusted for estimated provisions for rebates, rate adjustments, and discounts. As part of the Companys customary business practices, broadcast television advertising contracts may include gross rating points goals and/or sales incentives to its customers. For all such contracts that include these types of variable consideration, the Company estimates the variable consideration and factors in such an estimate when determining the transaction price.
Digital AdvertisingThe Company sells digital advertising inventory on its websites directly to advertisers or through advertising agencies. The Companys performance obligations related to digital advertising are generally satisfied when the advertisement is run on owned or operated websites. The price for digital advertising is determined by an agreed-upon pricing model such as CPC (cost per click), CPM (cost per 1,000 impressions), or flat fees. Revenue from sale of digital advertising space is recognized when the advertisements are delivered based on the respective pricing model or ratably over the contract period for flat fee advertisements. The customer is invoiced the agreed-upon price in the month following the month that the advertisements are delivered with normal trade terms. The agreed upon price is adjusted for estimated provisions for rebates, rate adjustments, and discounts. As part of the Companys customary business practices, digital advertising contracts may include a guaranteed number of impressions and sales incentives to its customers including volume discounts, rebates, value added impressions, etc. For all such contracts that include these types of variable consideration, the Company estimates the variable consideration and factors in such an estimate when determining the transaction price.
Third-Party SalesThe Company sells a variety of advertising products to our advertising customers that are placed on third-party platforms. The Companys performance obligations related to these sales are generally satisfied, and revenue is recognized, when the advertisement is run by the third parties, or a print product is placed on-sale, due to our obligation to reach a targeted audience demographic. The transaction price represents the cost of the purchased media plus a mark-up. The customer is invoiced the agreed-upon price shortly after the advertisements appear under normal trade terms. The agreed upon price is adjusted for estimated provisions for
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rebates, rate adjustments, and discounts. As part of the Companys customary business practices, contracts may include guaranteed audience targets and a number of sales incentives to its customers including volume discounts, rebates, value added impressions, etc. For all such contracts that include these types of variable consideration, the Company estimates the variable consideration in determining the transaction price.
SubscriptionMeredith sells magazines, books, and online memberships to consumers through subscriptions. Each copy of a magazine and book is determined to be a distinct performance obligation that is satisfied when the publication is sent to the customer. Each online membership is determined to be a distinct performance obligation that is satisfied over the membership period, not exceeding twelve months. The majority of the Companys subscription sales are prepaid at the time of order. Subscriptions may be canceled at any time for a refund of the price paid for remaining issues. As the contract may be canceled at any time for a full refund of the unserved copies or remaining membership period, the contract term is determined to be on an issue-to-issue basis, for magazines and books, and month-by-month for online memberships, as these contracts do not have substantive termination penalties. Revenues from subscriptions are deferred and recognized proportionately as subscribers are served. Some magazine subscription offers contain more than one magazine title in a bundle. Meredith allocates the total contract consideration to each distinct performance obligation, or magazine title, based on a standalone-selling price basis.
RetransmissionMerediths local media segment has entered into agreements with cable, satellite, and telecommunications service providers for licenses to access Merediths television station signals for retransmission. These licenses are functional licenses under which revenue is recognized at a point-in-time when access to the completed content is granted to the service provider. The transaction price for retransmission agreements generally are on a per subscriber basis. The recognition pattern for retransmission contracts mirrors over-time revenue recognition as Meredith delivers the signal to the service provider, which represents completed content, on an on-going basis during the license period.
NewsstandMeredith sells single copy magazines, or bundles of single copy magazines, to wholesalers for ultimate resale on newsstands primarily at major retailers and grocery/drug stores, and in digital form on tablets and other electronic devices. Publications sold to magazine wholesalers are sold with the right to receive credit from the Company for magazines returned to the wholesaler by retailers. Revenue is recognized on the issues on-sale date as the date aligns most closely with the date that control is transferred to the customer. The Company bases its estimates for returns on historical experience and current marketplace conditions.
Affinity MarketingMeredith partners with third parties to market and place magazine subscriptions for both Meredith titles and third-party publisher magazine titles. Meredith acts as an agent in sales of third-party magazine subscriptions and recognizes revenue in the net amount of consideration retained after paying the third-party publishers. Meredith assumes credit risk related to refunds on these sales, for which a reserve is established. The reserve is based on historical statistics at the time the cash is collected, which is after a risk-free trial period is over. Revenue from the acquisition of a subscriber is recognized when the subscriber name has been provided to the publisher and after any risk-free trial period has expired, if applicable.
LicensingMeredith has entered into various licensing agreements that provide third-party partners the right to utilize the Companys intellectual property. Licensing agreements include both symbolic and functional licenses. Symbolic licenses include direct-to-retail partnerships that create branded products based on our national media brands, a branded real estate program, and international magazine partnerships. Functional licenses in national media consist of content licensing. Revenues from symbolic licenses are in the form of a royalty based on the sale or usage of the branded product, which is recognized over time at the later of when the sale or use occurs, under the sales or usage-based royalty exception. Revenues from functional licenses are recognized at a point-in-time when access to the completed content is granted to the partner.
Digital Consumer DrivenVarious digital consumer products utilize Meredith brands to drive responses from individual customers resulting in the generation of revenue. Digital consumer driven revenue is primarily
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commission-based. It is earned as consumer responses are generated through various programs and delivered to the programs third-party sponsor. Revenue is recognized at the point-in-time Meredith has fully satisfied the obligations to the third-party sponsor.
Projects BasedMerediths national media segment contains several business lines that are business-to-business and project based. Such revenue may relate to any one or combination of the following activities; custom publishing, content strategy and development, email marketing, social media, database marketing, and search engine optimization. The products and services delivered under these contracts are customized to each client and therefore, do not have alternative uses to Meredith or other clients. As a result, revenue under such contracts are generally recognized over time based on project milestones until the delivery of the final product to the customer.
OtherOther revenue primarily includes revenues derived from third-party magazine fulfillment and third-party newsstand sales and marketing support, both of these services are expected to cease by the end of the fiscal year. The remaining revenues within this category are management fees and revenues from other small programs, which are generally recognized at a point-in-time as the performance obligations are transferred to the customer.
SIGNIFICANT JUDGMENTSTIMING OF SATISFACTION OF PERFORMANCE OBLIGATIONS
Point-in-Time Performance ObligationsFor performance obligations related to sales of print, political and non-political spot, and certain digital advertising space, the Company determines that the customer can direct the use of and obtain substantially all the benefits from the advertising products on the issues on-sale date, when aired by the broadcasting station, or as the digital impressions are served. For performance obligations related to sales of magazines through subscriptions, the customer obtains control when each magazine issue is mailed to the customer on or before the issues on-sale date. For sales of single copy magazines on newsstands, revenue is recognized on the issues on-sale date as the date aligns most closely with the date that control is transferred to the customer. Exclusive content licensing is a functional license under which revenue is recognized at a point-in-time when the access is granted to the customer as that is the point at which the customer gains access to completed content. Retransmission agreements also represent a functional license and are recognized at a point-in-time. However, as the content licensed is continuously added, the revenue recognition pattern mimics an over-time recognition.
Finally, revenue from acquisition of subscribers to non-Meredith magazine titles by our affinity marketers is recognized at a point-in-time, once the subscriber name has been provided to the third-party publisher. Similarly, revenue from commission-based digital consumer generated sources is recognized at a point-in-time once Meredith has fulfilled its obligation to connect a consumer to a third-party product or service.
Determining when control transfers requires management to make judgments that affect the timing of revenue recognized. The Company has determined that recognition of revenue at a point-in-time for these products and services provides a faithful depiction of the transfer of control to the customer.
Over-Time Performance ObligationsFor performance obligations related to sales of project based and certain digital advertising space, the Company transfers control and recognizes revenue over time by measuring progress towards complete satisfaction using the most appropriate method, i.e. either the Input Method or the Output Method.
For performance obligations related to digital advertising, the Company satisfies its performance obligations on some flat-fee digital advertising placements over time using a time-elapsed output method.
Determining a measure of progress requires management to make judgments that affect the timing of revenue recognized. The Company has determined that the above method provides a faithful depiction of the transfer of goods or services to the customer. For performance obligations recognized using a time-elapsed output method, the Companys efforts are expended evenly throughout the period.
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We made various judgments that affect the amount and timing of revenue from contracts with customers. Our judgments exercised in determining the transaction price and satisfaction of performance obligations are discussed within this note.
Determining the Transaction PriceCertain advertising contracts contain variable components of the transaction price, such as volume discounts and rebates. Meredith has sufficient historical data and has established processes to reliably estimate these variable components of the transaction price.
Certain spot advertising contracts contain a guarantee of ratings performance that requires Meredith to compensate the advertiser with additional advertising if the guaranteed ratings are not met. Meredith has established a reserve based on the rating points due advertisers at the end of each fiscal quarter valued at the average market cost per point.
The Company typically does not offer any type of variable consideration in standard magazine subscription contracts. For these contracts, the transaction price is fixed upon establishment of the contract that contains the final terms of the sale including description, quantity and price of each subscription purchased. Therefore, the Company does not estimate variable consideration or perform a constraint analysis for these contracts.
A right of return exists for newsstand contracts. Meredith has sufficient historical data to estimate the final amount of returns and reduces the transaction price at contract inception for the expected return reserve.
Revenue from symbolic licenses is based on a percentage of revenue generated through the sale of the branded products representing a sales-or-usage-based royalty. Therefore, revenue is recorded based on actual results at the later of when the sale or usage occurs rather than estimated at contract inception. Revenue under contracts that contain minimum guarantees to be paid by the retailer to Meredith is recognized straight line each month until the royalty exceeds the guarantee at which time the excess is recognized. There is no variable consideration related to functional licenses.
Variable consideration related to project based revenue is limited to discounts for overages and reimbursement of out of pocket costs that are not separable from the performance obligation. Both are evaluated or estimated at contract inception and throughout the contract, based on similar projects and historical experience and are considered in the transaction price.
Merediths contracts for affinity marketing, and digital consumer generated revenue do not contain variable consideration.
Merediths contracts do not have significant financing components.
Estimating Standalone Selling PricesFor contracts that contain multiple performance obligations, the Company allocates the transaction price to each performance obligation on a relative standalone selling price basis. The standalone selling price is the price at which the Company would sell a promised good or service separately to the customer. In situations in which an obligation is bundled with other obligations and the total amount of consideration does not reflect the sum of individual observable prices, the Company allocates the discount to (1) a single obligation if the discount is attributable to that obligation or (2) prorates across all obligations if the discount relates to the bundle. When standalone selling price is not directly observable, the Company estimates and considers all the information that is reasonably available to the Company, including market conditions, entity-specific factors, customer information, etc. The Company maximizes the use of observable inputs and applies estimation methods consistently in similar circumstances.
Measuring Obligations for Returns and RefundsThe Company accepts product returns in some cases. The Company establishes provisions for estimated returns concurrently with the recognition of revenue. The provisions are established based upon consideration of a variety of factors, including, among other things, recent and historical return rates for both specific products and distributors and the impact of any new product releases and projected economic conditions.
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CONTRACT COSTS
Assets Recognized from Contract CostsThe Company recognizes an asset for the incremental costs of obtaining a contract with a customer, paid to external parties, if it expects to recover those costs. The Company has determined that sales commissions paid on all third party agent sales of subscriptions are direct and incremental and therefore meet the capitalization criteria. These capitalized costs are amortized as revenue is recognized or over the term of the agreement. Direct mail costs meet the requirements to be capitalized as assets if they are proven to be recoverable. As of September 30, 2018, the balances recognized from the costs incurred to obtain contracts with customers was $219.0 million, $116.4 million of which was recorded in current portion of subscription acquisition costs and $102.6 million was recorded in subscription acquisition costs on the Condensed Consolidated Balance Sheets. The amount of amortization that the Company recognized for the three-month period ended September 30, 2018, was $37.7 million. There were no impairments of contract assets recognized in the three-month period ended September 30, 2018.
12. | Pension and Postretirement Benefit Plans |
The following table presents the components of net periodic benefit costs for Merediths pension and postretirement benefit plans:
Three months ended September 30, |
2018 | 2017 | ||||||
(In millions) | ||||||||
Domestic Pensions Benefits |
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Service cost |
$ | 2.9 | $ | 3.3 | ||||
Interest cost |
1.6 | 1.5 | ||||||
Expected return on plan assets |
(2.4 | ) | (2.7 | ) | ||||
Prior service cost amortization |
0.1 | 0.1 | ||||||
Actuarial loss amortization |
0.5 | 0.5 | ||||||
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Net periodic benefit costs |
$ | 2.7 | $ | 2.7 | ||||
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International Pensions Benefits |
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Interest cost |
$ | 4.3 | $ | | ||||
Expected return on plan assets |
(8.0 | ) | | |||||
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Net periodic benefit credit |
$ | (3.7 | ) | $ | | |||
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Postretirement Benefits |
||||||||
Interest cost |
$ | 0.1 | $ | 0.1 | ||||
Prior service credit amortization |
| (0.1 | ) | |||||
Actuarial gain amortization |
(0.1 | ) | (0.1 | ) | ||||
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Net periodic benefit credit |
$ | | $ | (0.1 | ) | |||
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The components of net periodic benefit credit, other than the service cost component, are included in Non-operating income, net on the accompanying Condensed Consolidated Statements of Earnings.
The amortization of amounts related to unrecognized prior service costs and net actuarial gain/loss was reclassified out of other comprehensive income as components of net periodic benefit costs.
13. | Redeemable Series A Preferred Stock |
Meredith has outstanding 650,000 shares of perpetual convertible redeemable non-voting Series A preferred stock (the Series A preferred stock). The Series A preferred stock becomes convertible on January 31, 2025, the seventh anniversary of the issuance date. Therefore, no shares were converted in the first quarter of fiscal 2019.
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14. | Earnings (Loss) Per Common Share |
The following table presents the calculations of basic earnings (loss) per common share:
Three months ended September 30, |
2018 | 2017 | ||||||
(In millions except per share data) | ||||||||
Net earnings |
$ | 17.0 | $ | 33.4 | ||||
Participating warrant dividend |
(0.9 | ) | | |||||
Preferred stock dividend |
(14.0 | ) | | |||||
Accretion of redeemable, convertible Series A preferred stock |
(4.3 | ) | | |||||
Other securities dividends |
(0.4 | ) | | |||||
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Basic earnings (loss) attributable to common shareholders |
$ | (2.6 | ) | $ | 33.4 | |||
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Weighted average common shares outstanding |
45.1 | 44.8 | ||||||
Basic earnings (loss) per common share |
$ | (0.06 | ) | $ | 0.75 | |||
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Diluted earnings (loss) per common share reflects the potential dilution that could occur if securities or other contracts to issue common stock were exercised or converted into common stock. The dilutive effects of these share-based awards were computed using the two-class method.
Three months ended September 30, |
2018 | 2017 | ||||||
(In millions except per share data) | ||||||||
Basic weighted-average common shares outstanding |
45.1 | 44.8 | ||||||
Dilutive effect of stock options and equivalents |
| 0.8 | ||||||
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Diluted weighted-average shares outstanding |
45.1 | 45.6 | ||||||
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Diluted earnings (loss) attributable to common shareholders |
$ | (2.6 | ) | $ | 33.4 | |||
Diluted earnings (loss) per common share |
(0.06 | ) | 0.73 |
For the three months ended September 30, 2018, 0.7 million convertible preferred shares, 1.6 million warrants, 0.2 million options, 0.3 million common stock equivalents, and 0.2 million shares of restricted stock were not included in the computation of dilutive loss per share. These securities have an antidilutive effect on the loss per share calculation (the diluted loss per share becoming less negative than the basic loss per share). Therefore, these securities are not taken into account in determining the weighted average number of shares for the calculation of diluted loss per share for the three months ended September 30, 2018.
For the three months ended September 30, 2018 and 2017 antidilutive options excluded from the above calculations totaled 2.7 million (with a weighted average exercise price of $63.24) and 0.5 million (with a weighted average exercise price of $56.14), respectively.
In the three months ended September 30, 2018, a minimal number of options were exercised to purchase common shares while 0.3 million options were exercised to purchase common shares in the three months ended September 30, 2017.
15. | Financial Information about Industry Segments |
Meredith is a diversified media company that utilizes multiple platforms, including broadcast television, print, digital, mobile and video, to deliver the content consumers desire and to deliver the messages of advertising and marketing partners. On the basis of products and services, the Company has established two reportable segments: national media and local media. There have been no changes in the basis of segmentation since June 30, 2018. There have been no material intersegment transactions.
F-90
There are two principal financial measures reported to the chief executive officer (the chief operating decision maker) for use in assessing segment performance and allocating resources. Those measures are operating profit and earnings before interest, taxes, depreciation, and amortization (EBITDA). Operating profit for segment reporting, disclosed below, is revenues less operating costs excluding unallocated corporate expenses. Segment operating expenses include allocations of certain centrally incurred costs such as employee benefits, occupancy, information systems, accounting services, internal legal staff, and human resources administration. These costs are allocated based on actual usage or other appropriate methods, primarily number of employees. Unallocated corporate expenses are corporate overhead expenses not directly attributable to the operating groups. In accordance with authoritative guidance on disclosures about segments of an enterprise and related information, EBITDA is not presented below.
The following table presents financial information by segment:
Three months ended September 30, |
2018 | 2017 | ||||||
(In millions) | ||||||||
Revenues |
||||||||
National media |
$ | 542.9 | $ | 239.0 | ||||
Local media |
214.4 | 153.8 | ||||||
|
|
|
|
|||||
Total revenues, gross |
757.3 | 392.8 | ||||||
Intersegment revenue elimination |
(0.6 | ) | | |||||
|
|
|
|
|||||
Total revenues |
$ | 756.7 | $ | 392.8 | ||||
|
|
|
|
|||||
Segment profit |
||||||||
National media |
$ | 17.6 | $ | 27.5 | ||||
Local media |
67.5 | 40.3 | ||||||
Unallocated corporate |
(31.4 | ) | (11.6 | ) | ||||
|
|
|
|
|||||
Income from operations |
53.7 | 56.2 | ||||||
Non-operating income, net |
7.3 | 0.6 | ||||||
Interest expense, net |
(41.4 | ) | (5.1 | ) | ||||
|
|
|
|
|||||
Earnings from continuing operations before income taxes |
$ | 19.6 | $ | 51.7 | ||||
|
|
|
|
|||||
Depreciation and amortization |
||||||||
National media |
$ | 52.3 | $ | 4.0 | ||||
Local media |
9.1 | 8.0 | ||||||
Unallocated corporate |
2.3 | 0.6 | ||||||
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|
|
|
|||||
Total depreciation and amortization |
$ | 63.7 | $ | 12.6 | ||||
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|
|
16. | Issuer, Guarantor and Non-Guarantor Condensed Consolidating Financial Information |
The 2026 Senior Notes are general unsecured senior obligations of Meredith Corporation (Parent Issuer) and are guaranteed on a full, unconditional, joint, and several basis, by the combined Guarantor Subsidiaries. Other subsidiaries (the Non-Guarantor Subsidiaries) largely represent the international operations of the Company and subsidiaries that have been disposed of prior to September 30, 2018, which do not guarantee the Senior Notes. Under the terms of the indentures, Meredith Corporation and the Guarantor Subsidiaries each fully and unconditionally, jointly and severally, guarantee the payment of interest, principal and premium, if any, on each of the notes included in the 2026 Senior Notes.
F-91
The following condensed consolidating financial information presents the condensed consolidated balance sheets as of September 30, 2018 and June 30, 2018, and the related condensed consolidated statements of comprehensive income and cash flows for the three months ended September 30, 2018 and 2017, for Meredith Corporation (Parent Issuer), Guarantor Subsidiaries, and Non-Guarantor Subsidiaries. The condensed consolidating financial information is presented using the equity method of accounting for all periods presented. The Guarantor Subsidiaries are presented on a combined basis. Elimination entries relate primarily to elimination of investments in subsidiaries and associated intercompany balances and transactions.
F-92
Meredith Corporation and Subsidiaries
Condensed Consolidated Balance Sheet
As of September 30, 2018
Assets |
Meredith Corporation (Parent Issuer) |
Guarantor Subsidiaries |
Non-Guarantor Subsidiaries |
Eliminations | Consolidated | |||||||||||||||
(In millions) | ||||||||||||||||||||
Current assets |
||||||||||||||||||||
Cash and cash equivalents |
$ | 61.8 | $ | 57.5 | $ | 24.7 | $ | | $ | 144.0 | ||||||||||
Accounts receivable, net |
258.9 | 271.9 | 22.7 | (0.6 | ) | 552.9 | ||||||||||||||
Inventories |
31.4 | 18.8 | 0.1 | | 50.3 | |||||||||||||||
Current portion of subscription acquisition costs |
114.9 | 15.8 | | (14.3 | ) | 116.4 | ||||||||||||||
Current portion of broadcast rights |
10.6 | 7.4 | | | 18.0 | |||||||||||||||
Assets held-for-sale |
| 624.8 | 67.0 | | 691.8 | |||||||||||||||
Other current assets |
65.7 | 28.9 | 10.6 | | 105.2 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total current assets |
543.3 | 1,025.1 | 125.1 | (14.9 | ) | 1,678.6 | ||||||||||||||
Net property, plant, and equipment |
159.9 | 300.9 | 2.9 | | 463.7 | |||||||||||||||
Subscription acquisition costs |
82.2 | 20.4 | | | 102.6 | |||||||||||||||
Broadcast rights |
7.6 | 1.8 | | | 9.4 | |||||||||||||||
Deferred income taxes |
| | 6.2 | (6.2 | ) | | ||||||||||||||
Other assets |
62.5 | 7.9 | 199.4 | | 269.8 | |||||||||||||||
Intangible assets, net |
674.0 | 1,291.5 | 0.8 | | 1,966.3 | |||||||||||||||
Goodwill |
614.7 | 1,276.4 | 35.6 | | 1,926.7 | |||||||||||||||
Intercompany receivable |
90.0 | 8,131.8 | 7,849.0 | (16,070.8 | ) | | ||||||||||||||
Intercompany notes receivable |
| 208.6 | | (208.6 | ) | | ||||||||||||||
Investment in subsidiaries |
3,682.6 | 1,051.0 | | (4,733.6 | ) | | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total assets |
$ | 5,916.8 | $ | 13,315.4 | $ | 8,219.0 | $ | (21,034.1 | ) | $ | 6,417.1 | |||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Liabilities, Redeemable Convertible Preferred Stock, and Shareholders Equity |
||||||||||||||||||||
Current liabilities |
||||||||||||||||||||
Current portion of long-term debt |
$ | | $ | | $ | | $ | | $ | | ||||||||||
Current portion of long-term broadcast rights payable |
9.7 | 7.7 | | | 17.4 | |||||||||||||||
Accounts payable |
60.5 | 75.2 | 26.3 | (0.6 | ) | 161.4 | ||||||||||||||
Accrued expenses |
95.8 | 242.3 | 5.9 | | 344.0 | |||||||||||||||
Current portion of unearned revenues |
190.1 | 174.1 | 7.2 | (10.9 | ) | 360.5 | ||||||||||||||
Liabilities associated with assets held-for-sale |
| 115.5 | 71.0 | | 186.5 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total current liabilities |
356.1 | 614.8 | 110.4 | (11.5 | ) | 1,069.8 | ||||||||||||||
Long-term debt |
2,937.4 | | | | 2,937.4 | |||||||||||||||
Long-term broadcast rights payable |
9.2 | 2.3 | | | 11.5 | |||||||||||||||
Unearned revenues |
100.0 | 55.8 | (0.2 | ) | | 155.6 | ||||||||||||||
Deferred income taxes |
215.2 | 224.6 | | (6.2 | ) | 433.6 | ||||||||||||||
Other noncurrent liabilities |
92.8 | 90.8 | 19.7 | | 203.3 | |||||||||||||||
Investment in subsidiaries |
| | 65.6 | (65.6 | ) | | ||||||||||||||
Intercompany payable |
600.2 | 7,745.3 | 7,725.3 | (16,070.8 | ) | | ||||||||||||||
Intercompany notes payable |
| | 208.6 | (208.6 | ) | | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total liabilities |
4,310.9 | 8,733.6 | 8,129.4 | (16,362.7 | ) | 4,811.2 | ||||||||||||||
Redeemable, convertible Series A preferred stock |
526.9 | | | | 526.9 | |||||||||||||||
Shareholders equity |
1,079.0 | 4,581.8 | 89.6 | (4,671.4 | ) | 1,079.0 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total liabilities, redeemable convertible preferred stock, and shareholders equity |
$ | 5,916.8 | $ | 13,315.4 | $ | 8,219.0 | $ | (21,034.1 | ) | $ | 6,417.1 | |||||||||
|
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|
|
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|
|
|
|
F-93
Meredith Corporation and Subsidiaries
Condensed Consolidated Balance Sheet
As of June 30, 2018
Assets |
Meredith Corporation (Parent Issuer) |
Guarantor Subsidiaries |
Non-Guarantor Subsidiaries |
Eliminations | Consolidated | |||||||||||||||
(In millions) | ||||||||||||||||||||
Current assets |
||||||||||||||||||||
Cash and cash equivalents |
$ | 195.0 | $ | 202.8 | $ | 39.8 | $ | | $ | 437.6 | ||||||||||
Accounts receivable, net |
223.5 | 330.0 | | (11.5 | ) | 542.0 | ||||||||||||||
Inventories |
23.6 | 20.5 | 0.1 | | 44.2 | |||||||||||||||
Current portion of subscription acquisition costs |
107.0 | 11.1 | | | 118.1 | |||||||||||||||
Current portion of broadcast rights |
7.7 | 2.1 | | | 9.8 | |||||||||||||||
Assets held-for-sale |
| 647.9 | 65.2 | | 713.1 | |||||||||||||||
Other current assets |
55.3 | 37.0 | 22.0 | | 114.3 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total current assets |
612.1 | 1,251.4 | 127.1 | (11.5 | ) | 1,979.1 | ||||||||||||||
Net property, plant, and equipment |
162.4 | 318.2 | 3.2 | | 483.8 | |||||||||||||||
Subscription acquisition costs |
57.1 | 4.0 | | | 61.1 | |||||||||||||||
Broadcast rights |
16.9 | 2.0 | | | 18.9 | |||||||||||||||
Deferred income taxes |
| | 6.3 | (6.3 | ) | | ||||||||||||||
Other assets |
60.4 | 5.4 | 197.5 | | 263.3 | |||||||||||||||
Intangible assets, net |
676.2 | 1,328.0 | 1.0 | | 2,005.2 | |||||||||||||||
Goodwill |
614.7 | 1,266.9 | 34.2 | | 1,915.8 | |||||||||||||||
Intercompany receivable |
11.8 | 8,086.1 | 7,773.2 | (15,871.1 | ) | | ||||||||||||||
Intercompany notes receivable |
| 204.7 | | (204.7 | ) | | ||||||||||||||
Investment in subsidiaries |
3,844.5 | 1,050.6 | | (4,895.1 | ) | | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total assets |
$ | 6,056.1 | $ | 13,517.3 | $ | 8,142.5 | $ | (20,988.7 | ) | $ | 6,727.2 | |||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Liabilities, Redeemable Convertible Preferred Stock, and Shareholders Equity |
||||||||||||||||||||
Current liabilities |
||||||||||||||||||||
Current portion of long-term debt |
$ | 17.7 | $ | | $ | | $ | | $ | 17.7 | ||||||||||
Current portion of long-term broadcast rights payable |
6.9 | 2.0 | | | 8.9 | |||||||||||||||
Accounts payable |
67.2 | 95.0 | 44.0 | (11.5 | ) | 194.7 | ||||||||||||||
Accrued expenses |
142.6 | 263.0 | 4.6 | | 410.2 | |||||||||||||||
Current portion of unearned revenues |
171.5 | 180.3 | 7.7 | 0.9 | 360.4 | |||||||||||||||
Liabilities associated with assets held-for-sale |
| 124.2 | 74.2 | | 198.4 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total current liabilities |
405.9 | 664.5 | 130.5 | (10.6 | ) | 1,190.3 | ||||||||||||||
Long-term debt |
3,117.9 | | | | 3,117.9 | |||||||||||||||
Long-term broadcast rights payable |
18.3 | 2.5 | | | 20.8 | |||||||||||||||
Unearned revenues |
82.3 | 42.0 | (0.2 | ) | | 124.1 | ||||||||||||||
Deferred income taxes |
209.5 | 233.8 | | (6.3 | ) | 437.0 | ||||||||||||||
Other noncurrent liabilities |
99.4 | 97.8 | 19.8 | | 217.0 | |||||||||||||||
Investment in subsidiaries |
| | 58.8 | (58.8 | ) | | ||||||||||||||
Intercompany payable |
502.7 | 7,846.4 | 7,522.0 | (15,871.1 | ) | | ||||||||||||||
Intercompany notes payable |
| | 204.7 | (204.7 | ) | | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total liabilities |
4,436.0 | 8,887.0 | 7,935.6 | (16,151.5 | ) | 5,107.1 | ||||||||||||||
Redeemable, convertible Series A preferred stock |
522.6 | | | | 522.6 | |||||||||||||||
Shareholders equity |
1,097.5 | 4,630.3 | 206.9 | (4,837.2 | ) | 1,097.5 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total liabilities, redeemable convertible preferred stock, and shareholders equity |
$ | 6,056.1 | $ | 13,517.3 | $ | 8,142.5 | $ | (20,988.7 | ) | $ | 6,727.2 | |||||||||
|
|
|
|
|
|
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|
F-94
Meredith Corporation and Subsidiaries
Condensed Consolidated Statement of Comprehensive Income
For the Three Months Ended September 30, 2018
Meredith Corporation (Parent Issuer) |
Guarantor Subsidiaries |
Non-Guarantor Subsidiaries |
Eliminations | Consolidated | ||||||||||||||||
(In millions) | ||||||||||||||||||||
Revenues |
||||||||||||||||||||
Advertising related |
$ | 160.4 | $ | 261.1 | $ | 1.8 | $ | (0.6 | ) | $ | 422.7 | |||||||||
Consumer related |
125.5 | 174.3 | 9.3 | (7.9 | ) | 301.2 | ||||||||||||||
Other |
8.1 | 64.3 | 6.3 | (45.9 | ) | 32.8 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total revenues |
294.0 | 499.7 | 17.4 | (54.4 | ) | 756.7 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Operating expenses |
||||||||||||||||||||
Production, distribution, and editorial |
121.3 | 206.3 | 5.0 | (46.5 | ) | 286.1 | ||||||||||||||
Selling, general, and administrative |
136.7 | 196.9 | 7.8 | (5.3 | ) | 336.1 | ||||||||||||||
Acquisition, disposition, and restructuring related activities |
(5.8 | ) | 21.6 | 1.3 | | 17.1 | ||||||||||||||
Depreciation and amortization |
7.8 | 55.2 | 0.7 | | 63.7 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total operating expenses |
260.0 | 480.0 | 14.8 | (51.8 | ) | 703.0 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Income from operations |
34.0 | 19.7 | 2.6 | (2.6 | ) | 53.7 | ||||||||||||||
Non-operating income (expense), net |
4.3 | (0.9 | ) | 3.9 | | 7.3 | ||||||||||||||
Interest income (expense), net |
(42.4 | ) | 4.2 | (3.2 | ) | | (41.4 | ) | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Earnings (loss) from continuing operations before income taxes |
(4.1 | ) | 23.0 | 3.3 | (2.6 | ) | 19.6 | |||||||||||||
Income tax benefit (expense) |
2.2 | (6.0 | ) | 0.2 | | (3.6 | ) | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Earnings (loss) from continuing operations |
(1.9 | ) | 17.0 | 3.5 | (2.6 | ) | 16.0 | |||||||||||||
Earnings (loss) from discontinued operations, net of income taxes |
| 2.0 | (1.0 | ) | | 1.0 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Earnings (loss) before equity income |
(1.9 | ) | 19.0 | 2.5 | (2.6 | ) | 17.0 | |||||||||||||
Earnings (loss) from equity in subsidiaries |
18.9 | 1.1 | (6.8 | ) | (13.2 | ) | | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net earnings (loss) |
$ | 17.0 | $ | 20.1 | $ | (4.3 | ) | $ | (15.8 | ) | $ | 17.0 | ||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total comprehensive income (loss) |
$ | 15.1 | $ | 20.1 | $ | (6.6 | ) | $ | (13.5 | ) | $ | 15.1 | ||||||||
|
|
|
|
|
|
|
|
|
|
F-95
Meredith Corporation and Subsidiaries
Condensed Consolidated Statement of Comprehensive Income
For the Three Months Ended September 30, 2017
Meredith Corporation (Parent Issuer) |
Guarantor Subsidiaries |
Non-Guarantor Subsidiaries |
Eliminations | Consolidated | ||||||||||||||||
(In millions) | ||||||||||||||||||||
Revenues |
||||||||||||||||||||
Advertising related |
$ | 157.4 | $ | 51.3 | $ | 0.5 | $ | | $ | 209.2 | ||||||||||
Consumer related |
126.4 | 21.2 | 2.0 | | 149.6 | |||||||||||||||
Other |
8.1 | 0.6 | 25.3 | | 34.0 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total revenues |
291.9 | 73.1 | 27.8 | | 392.8 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Operating expenses |
||||||||||||||||||||
Production, distribution, and editorial |
119.9 | 26.6 | 10.1 | | 156.6 | |||||||||||||||
Selling, general, and administrative |
129.9 | 25.8 | 15.0 | | 170.7 | |||||||||||||||
Acquisition, disposition, and restructuring related activities |
(3.3 | ) | | | | (3.3 | ) | |||||||||||||
Depreciation and amortization |
8.8 | 3.7 | 0.1 | | 12.6 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total operating expenses |
255.3 | 56.1 | 25.2 | | 336.6 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Income from operations |
36.6 | 17.0 | 2.6 | | 56.2 | |||||||||||||||
Non-operating income, net |
0.6 | | | | 0.6 | |||||||||||||||
Interest expense, net |
(4.1 | ) | | (1.0 | ) | | (5.1 | ) | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Earnings before income taxes |
33.1 | 17.0 | 1.6 | | 51.7 | |||||||||||||||
Income tax expense |
(11.3 | ) | (6.4 | ) | (0.6 | ) | | (18.3 | ) | |||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Earnings before equity income |
21.8 | 10.6 | 1.0 | | 33.4 | |||||||||||||||
Earnings from equity in subsidiaries |
11.6 | | | (11.6 | ) | | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net earnings |
$ | 33.4 | $ | 10.6 | $ | 1.0 | $ | (11.6 | ) | $ | 33.4 | |||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total comprehensive income |
$ | 34.0 | $ | 10.6 | $ | 1.0 | $ | (11.6 | ) | $ | 34.0 | |||||||||
|
|
|
|
|
|
|
|
|
|
F-96
Meredith Corporation and Subsidiaries
Condensed Consolidated Statement of Cash Flows
For the Three Months Ended September 30, 2018
Meredith Corporation (Parent Issuer) |
Guarantor Subsidiaries |
Non-Guarantor Subsidiaries |
Eliminations | Consolidated | ||||||||||||||||
(In millions) | ||||||||||||||||||||
Cash flows from operating activities |
$ | 100.2 | $ | 10.0 | $ | (146.2 | ) | $ | | $ | (36.0 | ) | ||||||||
|
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|
|
|
|
|||||||||||
Cash flows from investing activities |
||||||||||||||||||||
Acquisition of and investments in businesses, net of cash acquired |
(1.8 | ) | | | | (1.8 | ) | |||||||||||||
Proceeds from disposition of assets, net of cash sold |
13.1 | | 0.3 | | 13.4 | |||||||||||||||
Additions to property, plant, and equipment |
(2.8 | ) | (4.7 | ) | | | (7.5 | ) | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net cash provided by (used in) investing activities |
8.5 | (4.7 | ) | 0.3 | | 4.1 | ||||||||||||||
|
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|
|
|
|
|
|
|||||||||||
Cash flows from financing activities |
||||||||||||||||||||
Repayments of long-term debt |
(200.0 | ) | | | | (200.0 | ) | |||||||||||||
Dividends paid |
(39.8 | ) | | | | (39.8 | ) | |||||||||||||
Purchases of Company stock |
(3.2 | ) | | | | (3.2 | ) | |||||||||||||
Proceeds from common stock issued |
1.1 | | | | 1.1 | |||||||||||||||
Payment of acquisition related contingent consideration |
(19.3 | ) | | | | (19.3 | ) | |||||||||||||
Net increase (decrease) in intercompany obligations |
19.3 | (150.6 | ) | 131.3 | | | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net cash provided by (used in) financing activities |
(241.9 | ) | (150.6 | ) | 131.3 | | (261.2 | ) | ||||||||||||
|
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|
|
|
|
|
|
|
|
|||||||||||
Effect of exchange rate changes on cash and cash equivalents |
| | (1.7 | ) | | (1.7 | ) | |||||||||||||
Change in cash held-for-sale |
| | 1.2 | | 1.2 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net decrease in cash and cash equivalents |
(133.2 | ) | (145.3 | ) | (15.1 | ) | | (293.6 | ) | |||||||||||
Cash and cash equivalents at beginning of period |
195.0 | 202.8 | 39.8 | | 437.6 | |||||||||||||||
|
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|
|
|
|
|
|
|
|
|||||||||||
Cash and cash equivalents at end of period |
$ | 61.8 | $ | 57.5 | $ | 24.7 | $ | | $ | 144.0 | ||||||||||
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|
F-97
Meredith Corporation and Subsidiaries
Condensed Consolidated Statement of Cash Flows
For the Three Months Ended September 30, 2017
Meredith Corporation (Parent Issuer) |
Guarantor Subsidiaries |
Non-Guarantor Subsidiaries |
Eliminations | Consolidated | ||||||||||||||||
(In millions) | ||||||||||||||||||||
Cash flows from operating activities |
$ | 65.4 | $ | (49.2 | ) | $ | 34.4 | $ | | $ | 50.6 | |||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Cash flows from investing activities |
||||||||||||||||||||
Acquisition of and investments in businesses, net of cash acquired |
(1.0 | ) | | | | (1.0 | ) | |||||||||||||
Proceeds from disposition of assets, net of cash sold |
2.2 | | | | 2.2 | |||||||||||||||
Additions to property, plant, and equipment |
(19.8 | ) | (0.8 | ) | | | (20.6 | ) | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net cash used in investing activities |
(18.6 | ) | (0.8 | ) | | | (19.4 | ) | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Cash flows from financing activities |
||||||||||||||||||||
Proceeds from issuance of long-term debt |
20.0 | | | | 20.0 | |||||||||||||||
Repayments of long-term debt |
(13.2 | ) | | | | (13.2 | ) | |||||||||||||
Dividends paid |
(23.6 | ) | | | | (23.6 | ) | |||||||||||||
Purchases of Company stock |
(17.7 | ) | | | | (17.7 | ) | |||||||||||||
Proceeds from common stock issued |
12.0 | | | | 12.0 | |||||||||||||||
Payment of acquisition related contingent consideration |
(3.2 | ) | | | | (3.2 | ) | |||||||||||||
Net increase (decrease) in intercompany obligations |
(16.0 | ) | 50.0 | (34.0 | ) | | | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net cash provided by (used in) financing activities |
(41.7 | ) | 50.0 | (34.0 | ) | | (25.7 | ) | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net increase in cash and cash equivalents |
5.1 | | 0.4 | | 5.5 | |||||||||||||||
Cash and cash equivalents at beginning of period |
21.8 | | 0.5 | | 22.3 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Cash and cash equivalents at end of period |
$ | 26.9 | $ | | $ | 0.9 | $ | | $ | 27.8 | ||||||||||
|
|
|
|
|
|
|
|
|
|
F-98
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Shareholders and the Board of Directors of Meredith Corporation:
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Time Inc. (the Company) as of December 31, 2017 and 2016, the related consolidated statements of income, comprehensive income, shareholders equity and cash flows for each of the three years in the period ended December 31, 2017, and the related notes (collectively referred to as the consolidated financial statements). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company at December 31, 2017 and 2016, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2017, in conformity with U.S. generally accepted accounting principles.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the Companys internal control over financial reporting as of December 31, 2017, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) and our report dated February 23, 2018 expressed an unqualified opinion thereon.
Basis for Opinion
These financial statements are the responsibility of the Companys management. Our responsibility is to express an opinion on the Companys financial statements based on our audits. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
/s/ Ernst & Young LLP
We have served as the Companys auditor since 2013
New York, New York
February 23, 2018, except for Note 22, as to which the date is January 7, 2019
F-99
CONSOLIDATED BALANCE SHEETS
(In millions, except share amounts)
December 31, 2017 |
December 31, 2016 |
|||||||
ASSETS |
||||||||
Current assets |
||||||||
Cash and cash equivalents |
$ | 496 | $ | 296 | ||||
Short-term investments |
| 40 | ||||||
Receivables, less allowances of $167 and $203 at December 31, 2017 and December 31, 2016, respectively |
429 | 543 | ||||||
Inventories, net of reserves |
22 | 31 | ||||||
Prepaid expenses and other current assets |
84 | 110 | ||||||
Assets held for sale |
326 | | ||||||
|
|
|
|
|||||
Total current assets |
1,357 | 1,020 | ||||||
Property, plant and equipment, net |
283 | 304 | ||||||
Intangible assets, net |
695 | 846 | ||||||
Goodwill |
1,780 | 2,069 | ||||||
Other assets |
70 | 66 | ||||||
|
|
|
|
|||||
Total assets |
$ | 4,185 | $ | 4,305 | ||||
|
|
|
|
|||||
LIABILITIES AND STOCKHOLDERS EQUITY |
||||||||
Current liabilities |
||||||||
Accounts payable and accrued liabilities |
$ | 494 | $ | 598 | ||||
Deferred revenue |
329 | 403 | ||||||
Current portion of long-term debt |
| 7 | ||||||
Liabilities held for sale |
176 | | ||||||
|
|
|
|
|||||
Total current liabilities |
999 | 1,008 | ||||||
Long-term debt |
1,222 | 1,233 | ||||||
Deferred tax liabilities |
151 | 210 | ||||||
Deferred revenue |
71 | 86 | ||||||
Other noncurrent liabilities |
252 | 328 | ||||||
Commitments and contingencies (Note 16) |
||||||||
Redeemable noncontrolling interests |
| | ||||||
Stockholders equity |
||||||||
Common stock, $0.01 par value, 400 million shares authorized; 100.48 million and 98.95 million shares issued and outstanding at December 31, 2017 and December 31, 2016, respectively |
1 | 1 | ||||||
Preferred stock, $0.01 par value, 40 million shares authorized; none issued |
| | ||||||
Additional paid-in capital |
12,546 | 12,548 | ||||||
Accumulated deficit |
(10,720 | ) | (10,732 | ) | ||||
Accumulated other comprehensive loss, net |
(337 | ) | (377 | ) | ||||
|
|
|
|
|||||
Total Time Inc. stockholders equity |
1,490 | 1,440 | ||||||
Equity attributable to noncontrolling interests |
| | ||||||
|
|
|
|
|||||
Total stockholders equity |
1,490 | 1,440 | ||||||
|
|
|
|
|||||
Total liabilities and stockholders equity |
$ | 4,185 | $ | 4,305 | ||||
|
|
|
|
See accompanying notes.
F-100
CONSOLIDATED STATEMENTS OF OPERATIONS
(In millions, except per share amounts)
Year Ended December 31, |
||||||||||||
2017 | 2016 | 2015 | ||||||||||
Revenues |
||||||||||||
Advertising |
$ | 1,512 | $ | 1,712 | $ | 1,655 | ||||||
Circulation |
829 | 944 | 1,043 | |||||||||
Other |
434 | 420 | 405 | |||||||||
|
|
|
|
|
|
|||||||
Total revenues |
2,775 | 3,076 | 3,103 | |||||||||
Costs of revenues |
1,166 | 1,295 | 1,219 | |||||||||
Selling, general and administrative expenses |
1,330 | 1,446 | 1,552 | |||||||||
Amortization of intangible assets |
79 | 83 | 80 | |||||||||
Restructuring and severance costs |
80 | 77 | 191 | |||||||||
Asset impairments |
9 | 192 | | |||||||||
Goodwill impairment |
84 | 1 | 952 | |||||||||
(Gain) loss on operating assets, net |
(24 | ) | (20 | ) | (68 | ) | ||||||
|
|
|
|
|
|
|||||||
Operating income (loss) |
51 | 2 | (823 | ) | ||||||||
Bargain purchase (gain) |
| (3 | ) | | ||||||||
Interest expense, net |
71 | 68 | 77 | |||||||||
Other (income) expense, net |
15 | 18 | 2 | |||||||||
|
|
|
|
|
|
|||||||
Income (loss) before income taxes |
(35 | ) | (81 | ) | (902 | ) | ||||||
Income tax provision (benefit) |
(47 | ) | (33 | ) | (21 | ) | ||||||
|
|
|
|
|
|
|||||||
Net income (loss) |
12 | (48 | ) | (881 | ) | |||||||
Less: Net income (loss) attributable to noncontrolling interests |
| | | |||||||||
|
|
|
|
|
|
|||||||
Net income (loss) attributable to Time Inc. |
$ | 12 | $ | (48 | ) | $ | (881 | ) | ||||
|
|
|
|
|
|
|||||||
Per share information attributable to Time Inc. common stockholders: |
||||||||||||
Basic net income (loss) per common share |
$ | 0.12 | $ | (0.49 | ) | $ | (8.32 | ) | ||||
Weighted average basic common shares outstanding |
99.96 | 99.20 | 105.94 | |||||||||
Diluted net income (loss) per common share |
$ | 0.12 | $ | (0.49 | ) | $ | (8.32 | ) | ||||
Weighted average diluted common shares outstanding |
100.79 | 99.20 | 105.94 | |||||||||
Cash dividends declared per share of common stock |
$ | 0.31 | $ | 0.76 | $ | 0.76 |
See accompanying notes.
F-101
CONSOLIDATED STATEMENTS
OF COMPREHENSIVE INCOME (LOSS)
(In millions)
Year Ended December 31, |
||||||||||||
2017 | 2016 | 2015 | ||||||||||
Net income (loss) |
$ | 12 | $ | (48 | ) | $ | (881 | ) | ||||
Other comprehensive income (loss), net of tax |
||||||||||||
Unrealized foreign currency translation gains (losses) |
39 | (75 | ) | (36 | ) | |||||||
Reclassification adjustment for (gains) losses on foreign currency realized in net income (loss) |
| | 1 | |||||||||
|
|
|
|
|
|
|||||||
Net foreign currency translation gains (losses) |
39 | (75 | ) | (35 | ) | |||||||
|
|
|
|
|
|
|||||||
Benefit obligations |
||||||||||||
Unrealized gains (losses) occurring during the period |
(2 | ) | (79 | ) | (28 | ) | ||||||
Reclassification adjustment for (gains) losses realized in net income (loss) |
3 | 3 | 6 | |||||||||
|
|
|
|
|
|
|||||||
Net benefit obligations |
1 | (76 | ) | (22 | ) | |||||||
|
|
|
|
|
|
|||||||
Other comprehensive income (loss) |
40 | (151 | ) | (57 | ) | |||||||
|
|
|
|
|
|
|||||||
Comprehensive income (loss) |
52 | (199 | ) | (938 | ) | |||||||
Less: Comprehensive income (loss) attributable to noncontrolling interests |
| | | |||||||||
|
|
|
|
|
|
|||||||
Comprehensive income (loss) attributable to Time Inc. |
$ | 52 | $ | (199 | ) | $ | (938 | ) | ||||
|
|
|
|
|
|
See accompanying notes.
F-102
CONSOLIDATED STATEMENTS OF STOCKHOLDERS EQUITY
(In millions)
Common Stock |
Additional Paid-in Capital |
Accumulated Deficit |
Accumulated Other Comprehensive Loss, Net |
Total Stockholders Equity |
||||||||||||||||
Balance as of December 31, 2014 |
$ | 1 | $ | 12,665 | $ | (9,626 | ) | $ | (169 | ) | $ | 2,871 | ||||||||
Net income (loss) |
| | (881 | ) | | (881 | ) | |||||||||||||
Other comprehensive income (loss) |
| | | (57 | ) | (57 | ) | |||||||||||||
Dividends declared |
| (84 | ) | | | (84 | ) | |||||||||||||
Purchase of common stock |
| | (63 | ) | | (63 | ) | |||||||||||||
Equity-based compensation and other |
| 23 | | | 23 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Balance as of December 31, 2015 |
$ | 1 | $ | 12,604 | $ | (10,570 | ) | $ | (226 | ) | $ | 1,809 | ||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net income (loss) |
| | (48 | ) | | (48 | ) | |||||||||||||
Other comprehensive income (loss) |
| | | (151 | ) | (151 | ) | |||||||||||||
Dividends declared |
| (77 | ) | | | (77 | ) | |||||||||||||
Purchase of common stock |
| | (114 | ) | | (114 | ) | |||||||||||||
Equity-based compensation and other |
| 21 | | | 21 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Balance as of December 31, 2016 |
$ | 1 | $ | 12,548 | $ | (10,732 | ) | $ | (377 | ) | $ | 1,440 | ||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net income (loss) |
| | 12 | | 12 | |||||||||||||||
Other comprehensive income (loss) |
| | | 40 | 40 | |||||||||||||||
Dividends declared |
| (31 | ) | | | (31 | ) | |||||||||||||
Equity-based compensation and other |
| 29 | | | 29 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Balance as of December 31, 2017 |
$ | 1 | $ | 12,546 | $ | (10,720 | ) | $ | (337 | ) | $ | 1,490 | ||||||||
|
|
|
|
|
|
|
|
|
|
See accompanying notes.
F-103
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In millions)
Year Ended December 31, |
||||||||||||
2017 | 2016 | 2015 | ||||||||||
OPERATING ACTIVITIES |
||||||||||||
Net income (loss) |
$ | 12 | $ | (48 | ) | $ | (881 | ) | ||||
Adjustments to reconcile Net income (loss) to Cash provided by (used in) operations, net of acquisitions |
||||||||||||
Depreciation and amortization |
134 | 137 | 172 | |||||||||
Amortization of deferred financing costs and discounts on indebtedness |
9 | 6 | 6 | |||||||||
Amortization of deferred gain on sale-leaseback |
(8 | ) | (9 | ) | | |||||||
(Gain) loss on pension settlement and curtailment |
12 | | 6 | |||||||||
Asset impairments |
9 | 192 | | |||||||||
Goodwill impairment |
84 | 1 | 952 | |||||||||
Cost-method investment impairment |
4 | | | |||||||||
(Income) loss on equity-method investments |
4 | 20 | 8 | |||||||||
(Gain) loss on sale of operating assets |
(16 | ) | (11 | ) | (68 | ) | ||||||
(Gain) loss on repurchases of 5.75% Senior Notes |
3 | (4 | ) | (2 | ) | |||||||
Bargain purchase (gain) |
| (3 | ) | | ||||||||
Equity-based compensation expense |
24 | 29 | 35 | |||||||||
Deferred income taxes |
(60 | ) | (37 | ) | 19 | |||||||
Changes in operating assets and liabilities |
||||||||||||
Receivables |
78 | (15 | ) | 18 | ||||||||
Inventories |
7 | 3 | 12 | |||||||||
Prepaid expenses and other assets |
(25 | ) | 135 | (129 | ) | |||||||
Accounts payable and other liabilities |
(90 | ) | (72 | ) | 40 | |||||||
Other, net |
32 | (129 | ) | (34 | ) | |||||||
|
|
|
|
|
|
|||||||
Cash provided by (used in) operations |
213 | 195 | 154 | |||||||||
|
|
|
|
|
|
|||||||
INVESTING ACTIVITIES |
||||||||||||
Capital expenditures |
(69 | ) | (101 | ) | (212 | ) | ||||||
Proceeds from (payments for) dispositions |
125 | 29 | 627 | |||||||||
Acquisitions, net of cash acquired |
(22 | ) | (195 | ) | (141 | ) | ||||||
(Investments in) dispositions of cost and equity-method investments |
(3 | ) | (19 | ) | 2 | |||||||
Maturities of short-term investments |
40 | 80 | 40 | |||||||||
Purchases of short-term investments |
| (60 | ) | (100 | ) | |||||||
Issuances of notes receivable |
(2 | ) | (16 | ) | | |||||||
Repayments of notes receivable |
3 | | | |||||||||
|
|
|
|
|
|
|||||||
Cash provided by (used in) investing activities |
72 | (282 | ) | 216 | ||||||||
|
|
|
|
|
|
|||||||
FINANCING ACTIVITIES |
||||||||||||
Purchase of common stock |
| (116 | ) | (61 | ) | |||||||
Repurchase of 5.75% Senior Notes |
(102 | ) | (45 | ) | (72 | ) | ||||||
Proceeds from the issuance of debt |
297 | | | |||||||||
Principal payments on Term Loan |
(222 | ) | (7 | ) | (7 | ) | ||||||
Dividends paid |
(31 | ) | (77 | ) | (84 | ) | ||||||
Withholding taxes paid on equity-based compensation |
(9 | ) | (9 | ) | (12 | ) | ||||||
Contingent/deferred consideration payments |
(3 | ) | (4 | ) | | |||||||
|
|
|
|
|
|
|||||||
Cash provided by (used in) financing activities |
(70 | ) | (258 | ) | (236 | ) | ||||||
|
|
|
|
|
|
|||||||
Effect of exchange rate changes on Cash and cash equivalents |
1 | (10 | ) | (2 | ) | |||||||
|
|
|
|
|
|
|||||||
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS |
216 | (355 | ) | 132 | ||||||||
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD |
296 | 651 | 519 | |||||||||
CASH CLASSIFIED AS HELD FOR SALE |
(16 | ) | | | ||||||||
|
|
|
|
|
|
|||||||
CASH AND CASH EQUIVALENTS, END OF PERIOD |
$ | 496 | $ | 296 | $ | 651 | ||||||
|
|
|
|
|
|
See accompanying notes.
F-104
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
1. DESCRIPTION OF BUSINESS AND BASIS OF PRESENTATION
Description of Business
Time Inc., together with its subsidiaries (collectively, as referred to herein, the Company, we, us or our), is a leading multi-platform consumer media company that engages over 230 million consumers globally every month. The companys influential brands include PEOPLE, TIME, FORTUNE, SPORTS ILLUSTRATED, INSTYLE, REAL SIMPLE, SOUTHERN LIVING and TRAVEL + LEISURE, as well as approximately 60 diverse international brands. Time Inc. offers marketers a differentiated proposition in the marketplace by combining its powerful brands, trusted content, audience scale, direct relationships with consumers and unique first-party data. The Company is home to growing media and platforms, including digital video, OTT, television, licensing, paid products and services and celebrated live events, such as the TIME 100, FORTUNE Most Powerful Women, PEOPLEs Sexiest Man Alive, SPORTS ILLUSTRATEDs Sportsperson of the Year and the FOOD & WINE Classic in Aspen.
On November 26, 2017, the Company entered into an Agreement and Plan of Merger (the Merger Agreement) with Meredith Corporation, an Iowa corporation (Meredith), and Gotham Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Meredith (Purchaser), providing for the merger of Purchaser with and into the Company, with the Company continuing as the surviving corporation and a wholly owned subsidiary of Meredith (the Merger). Pursuant to the Merger Agreement, on December 12, 2017, Purchaser commenced a tender offer to acquire any and all issued and outstanding shares of common stock of the Company (the Shares) for the right to receive $18.50 in cash, without interest (the Merger Consideration), upon the terms and subject to the conditions set forth in the Offer to Purchase, dated December 12, 2017 (as amended or supplemented from time to time, the Offer to Purchase) filed by Meredith and Purchaser with the Securities and Exchange Commission (SEC) on December 12, 2017. The Merger closed on January 31, 2018.
Basis of Presentation
The consolidated financial statements include the accounts of Time Inc. and all wholly-owned and majority-owned subsidiaries. All significant intercompany balances and transactions have been eliminated. We reflect the noncontrolling interest in net income (loss) of our majority-owned subsidiaries in the consolidated statements of operations in Net income (loss) attributable to noncontrolling interests and the equity in noncontrolling interest in our majority-owned subsidiaries in Equity attributable to noncontrolling interests included in Stockholders equity on the consolidated balance sheets. Redeemable noncontrolling interests are classified within the mezzanine section on our Balance Sheets.
The consolidated financial statements included herein (the Financial Statements) have been prepared in accordance with generally accepted accounting principles in the United States of America (GAAP) for annual financial information and with the instructions to Regulation S-X. In the opinion of management, all adjustments consisting of normal recurring adjustments necessary for a fair presentation have been reflected in these Financial Statements.
The financial position and operating results of our foreign operations are consolidated using primarily the local currency as the functional currency. Local currency assets and liabilities are translated at the rates of exchange as of the balance sheet date, and local currency revenues and expenses are translated at average rates of exchange during the period. Translation gains or losses on assets and liabilities are included as a component of Accumulated other comprehensive loss, net.
The consolidated balance sheets are referred to as the Balance Sheets herein. The consolidated statements of operations are referred to as the Statements of Operations herein. The consolidated statements of
F-105
TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
comprehensive income (loss) are referred to as the Statements of Comprehensive Income (Loss) herein. The consolidated statements of stockholders equity are referred to as the Statements of Stockholders Equity herein. The consolidated statements of cash flows are referred to as the Statements of Cash Flows herein.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation
Our Financial Statements include the accounts of Time Inc. and its wholly-owned and majority-owned subsidiaries after elimination of all significant intercompany transactions.
Use of Estimates
The preparation of the Financial Statements in conformity with GAAP requires management to make estimates and assumptions that affect the amounts that are reported in the Financial Statements and accompanying disclosures. Actual results could differ from those estimates.
Significant estimates and judgments inherent in the preparation of these Financial Statements include accounting for asset impairments, allowances for doubtful accounts, depreciation and amortization, sales returns, pension and other postretirement benefits, equity-based compensation, income taxes, contingencies, litigation matters, reporting revenue for certain transactions on a gross or net basis and the determination of whether certain entities should be consolidated.
Cash and Cash Equivalents
Cash and cash equivalents consists of cash on hand and marketable securities with original maturities of three months or less. Our cash equivalents consist of money market mutual funds. Money market funds with floating net asset value (NAV) are reclassified as Short-term investments if the NAV changes by more than an insignificant amount or a fund imposes a liquidity fee or temporarily suspends redemption.
Short-Term Investments
Term deposits and other investments that have maturities of greater than three months but less than one year are classified as Short-term investments. Our term deposits and other investments are accounted for at amortized cost as held to maturity securities. Interest income is recognized in the Statements of Operations.
Concentration of Credit Risk
Cash and cash equivalents are maintained with several financial institutions. We have deposits held with banks that exceed the amount of insurance provided on such deposits. Generally, these deposits may be redeemed upon demand and are maintained with financial institutions of reputable credit and, therefore, bear minimal credit risk. There is also limited credit risk with respect to the money market mutual funds in which we invest as these funds all have issuers, guarantors and/or other counterparties of reputable credit. At December 31, 2017, approximately $487 million of our Cash and cash equivalents were held domestically of which $452 million were held in money market mutual funds. An additional $9 million of Cash and cash equivalents were held internationally, primarily in the U.K. We manage exposure to counterparty credit risk on our short-term investments through specific minimum credit standards, diversification of counterparties and procedures to monitor credit risk concentrations.
Receivables are presented net of an allowance for returns and doubtful accounts, which is an estimate of amounts that may not be collectible. As of December 31, 2017 and 2016, there were no customers which
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comprised 10% or more of our total receivable balance. We generally do not require collateral or other security to support our financial instruments subject to credit risk.
Sales Returns
Managements estimate of magazine and product sales that will be returned is an area of judgment affecting Revenues and Net income (loss). In estimating magazine and product sales that will be returned, management analyzes vendor sales of our magazines and products, historical return trends, economic conditions, and changes in customer demand. Based on this information, management reserves a percentage of any magazine and product sale that provides the customer with the right of return. The provision for such sales returns is reflected as a reduction in the revenues from the related sale. Total sales returns reserves for magazines and product sales as of December 31, 2017 and 2016 were $102 million and $139 million, respectively. As of December 31, 2017 and 2016, a 10% increase in the level of sales returns reserves would have decreased revenues by approximately $7 million and $10 million, respectively.
Allowance for Doubtful Accounts
We monitor customers accounts receivable aging, and a provision for estimated uncollectible amounts is maintained based on customer payment levels, historical experience and managements views on trends in the overall receivable aging. In addition, for larger accounts, we perform analyses of risks on a customer-specific basis. At December 31, 2017 and 2016, total reserves for doubtful accounts were approximately $65 million and $64 million, respectively. Bad debt expense recognized during the years ended December 31, 2017, 2016 and 2015 totaled $9 million, $12 million and $6 million, respectively.
Investments
Investments in companies in which we have significant influence, but less than a controlling voting interest, are accounted for using the equity-method. Significant influence is generally presumed to exist when we own between 20% and 50% of a voting interest in the investee, hold substantial management rights or hold an interest of less than 20% in an investee that is a limited liability partnership or limited liability corporation that is treated as a flow-through entity. Under the equity-method of accounting, only our investment in and amounts due to and from the equity investee are included on the Balance Sheets; only our share of the investees earnings (losses) is included in the Statements of Operations; and only the dividends, cash distributions, loans or other cash received from the investee, additional cash investments, loan repayments or other cash paid to the investee are included in the Statements of Cash Flows. Additionally, the carrying value of investments accounted for using the equity-method of accounting is adjusted downward to reflect any other-than-temporary declines in value. At December 31, 2017 and 2016, investments accounted for using the equity-method were nil and $9 million, respectively, and were recorded in Other assets on the Balance Sheets.
Investments in companies in which we do not have a controlling interest or over which we are unable to exert significant influence are accounted for at cost. Dividends and other distributions of earnings from investments accounted for at cost are included in Other (income) expense, net, when declared. Interest income and any other than temporary impairments are recognized in the Statements of Operations.
Fair Value Measurements
Our financial instruments that are measured at fair value on a recurring basis, include certain money market funds included in Cash and cash equivalents, certain contingent liabilities, lease guarantee liabilities and a put option liability included in Accounts payable and accrued liabilities and Other noncurrent liabilities on the
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accompanying Balance Sheets. We measure assets and liabilities using inputs from the following three levels of the fair value hierarchy: (i) inputs that are quoted prices in active markets for identical assets or liabilities (Level 1); (ii) inputs other than quoted prices included within Level 1 that are observable, including quoted prices for similar assets or liabilities (Level 2); and (iii) unobservable inputs that require the entity to use its own best estimates about market participant assumptions (Level 3).
We monitor our position with, and the credit quality of, the financial institutions which are counterparties to our financial instruments. We are exposed to credit loss in the event of nonperformance by the counterparties to the agreements. As of December 31, 2017, we did not anticipate nonperformance by any of the counterparties.
Inventories
Inventories, net of reserves mainly consist of paper, books and other merchandise and are stated at the lower of cost or estimated net realizable value. Cost is determined using the first-in, first-out method for books and the average cost method for paper and other merchandise. Returned merchandise included in Inventory is valued at estimated net realizable value, but not in excess of cost.
Property, Plant and Equipment, Net
Property, plant and equipment, net are stated at cost less accumulated depreciation. Leasehold improvements are amortized using the straight-line method over the shorter of their estimated useful lives or the remaining lease term. Depreciation for other Property, plant and equipment, net is provided using the straight-line method over an estimated useful life of three to ten years. Costs associated with the repair and maintenance of property are expensed as incurred. Changes in circumstances, such as technological advances or changes to our business model or capital strategy could result in the actual useful lives differing from the original estimates. In those cases where we determine that the useful life of property, plant and equipment should be shortened, we would depreciate the asset over its revised estimated remaining useful life, thereby increasing depreciation expense.
Operating Leases
For operating leases, minimum lease payments, including minimum scheduled rent increases, are recognized as rent expense on a straight-line basis over the applicable lease terms. The term used for straight-line rent expense is calculated initially from the date we obtain possession of the leased premises through the lease termination date.
Capitalized Software
We capitalize certain costs incurred in connection with developing or obtaining internal use software. Costs incurred in the preliminary project stage are expensed. Direct costs incurred to develop internal use software during the development stage are capitalized and amortized using the straight-line method over the estimated useful lives, generally between three and five years. Costs such as maintenance and training are expensed as incurred.
Foreign Currency Translation
Financial statements of subsidiaries operating outside the United States whose functional currency is not the U.S. dollar are translated at the rates of exchange on the balance sheet date for assets and liabilities and at average rates of exchange for revenues and expenses during the period. Translation gains or losses on assets and liabilities are included as a component of Accumulated other comprehensive loss, net.
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Intangible Assets
We have a significant number of intangible assets. We do not recognize the fair value of internally generated intangible assets. Intangible assets acquired in business combinations, including tradenames, customer relationships, capitalized software and other intangible assets are recorded at the acquisition date fair value on the Balance Sheets.
Asset Impairments
Investments
Our investments consist of (i) Short-term investments including term deposits and certain money market funds with floating NAV (ii) investments accounted for using the cost-method of accounting and (iii) investments accounted for using the equity-method of accounting. We regularly review our investments for impairment, including when the carrying value of an investment exceeds its related market value. If it has been determined that an investment has sustained an other-than-temporary decline in its value, the investment is written down to its fair value through the Statements of Operations. Factors we consider in determining whether an other-than-temporary decline in value has occurred include (i) the market value of the security in relation to its cost basis, (ii) the financial condition of the investee and (iii) our intent and ability to retain the investment for a sufficient period of time to allow for recovery in the market value of the investment.
For investments accounted for using the cost or equity-method of accounting, we evaluate information (e.g., budgets, business plans and financial statements) in addition to quoted market prices, if any, in determining whether an other-than-temporary decline in value exists. Factors indicative of an other-than-temporary decline include recurring operating losses, credit defaults and subsequent rounds of financing at an amount below the cost basis of our investment.
Goodwill
Goodwill is tested annually for impairment at the reporting unit level during the fourth quarter or earlier upon the occurrence of certain events or substantive changes in circumstances. A reporting unit is either the operating segment level or one level below, which is referred to as a component. The level at which the impairment test is performed requires judgment as to whether the operations below the operating segment constitute a self-sustaining business or whether the operations are similar such that they should be aggregated for purposes of the impairment test. For our 2017 annual Goodwill impairment test, after the sales of INVNT LLC (INVNT) and Sports Illustrated Play (SI Play) in July 2017 and December 2017, respectively, management has concluded that we have one reporting unit, (Core Time Inc.).
In assessing Goodwill for impairment, we may elect to use a qualitative assessment to determine whether the existence of events or circumstances leads to a determination that it is more likely than not that the fair value of our reporting unit is less than its carrying amounts. If we determine that it is not more likely than not that the fair value of our reporting unit is less than its carrying amount, we are not required to perform any additional tests in assessing goodwill for impairment. However, if we conclude otherwise or elect not to perform the qualitative assessment, then we are required to perform the quantitative impairment test. In January 2017, guidance was issued which simplifies the test for goodwill impairment by eliminating Step 2, the requirement to calculate the implied fair value of goodwill to measure a goodwill impairment charge. We early adopted this guidance, effective January 1, 2017.
When performing the quantitative impairment test, we determine the fair value of our reporting unit using an income-based discounted cash flow (DCF) analysis or a market-based approach, and compare the estimated
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fair values to its carrying amounts. Determining fair value under an income-based approach requires the exercise of significant judgment, including judgments about appropriate discount rates, terminal growth rates and the amount and timing of expected future cash flows. The cash flows employed in our DCF analyses are based on our most recent budgets and long-range plans and, when applicable, various growth rates are assumed for years beyond the current long-range plan period. Discount rate assumptions are based on an assessment of market rates as well as the risk inherent in the future cash flows included in the budgets and long-range plans. We also considered the selection of appropriate peer group companies, control premiums appropriate for acquisitions in the industry in which we compete, and relative weighting of the DCF and market approaches. Our market-based approach utilizes market multiples of comparable peer companies in the industry in which we compete and a control premium, or actively negotiated sales prices for operations we are looking to sell. If the carrying value of the reporting unit exceeds its fair value, an adjustment for the difference between the two values, up to the carrying value of goodwill allocated to that reporting unit, is recorded in our Statements of Operations to write down the carrying value to the fair value. See Note 6, Assets Held for Sale and Note 8, Goodwill and Intangible Assets.
Long-Lived Assets
Long-lived assets, including definite-lived intangible assets (e.g., tradenames and customer lists) and property, plant and equipment, do not require that an annual impairment test be performed. Instead, long-lived assets are tested for impairment upon the occurrence of a triggering event. Triggering events include the more likely than not disposal of a portion of such assets or the occurrence of an adverse change in the market involving the business employing the related assets. Once a triggering event has occurred, the impairment test is based on whether the intent is to hold the asset for continued use or to hold the asset for sale. The impairment test for assets held for continued use requires a comparison of cash flows expected to be generated over the useful life of an asset or group of assets (asset group) against the carrying value of the asset group. An asset group is established by identifying the lowest level of cash flows generated by the asset or group of assets that are largely independent of the cash flows of other assets. If the intent is to hold the asset group for continued use, the impairment test first requires a comparison of estimated undiscounted future cash flows generated by the asset group against its carrying value. If the carrying value exceeds the estimated undiscounted future cash flows, an impairment would be measured as the difference between the estimated fair value of the asset group and its carrying value. Fair value is generally determined by discounting the future cash flows associated with that asset group. If the intent is to hold the asset group for sale and certain other criteria are met (e.g., the asset can be disposed of currently, appropriate levels of authority have approved the sale and there is an active program to locate a buyer), the impairment test involves comparing the asset groups carrying value to its estimated fair value less costs to sell. To the extent the carrying value is greater than the estimated fair value less costs to sell, an impairment loss is recognized for the difference. Significant judgments in this area involve determining the appropriate asset group level at which to test, determining whether a triggering event has occurred, determining the future cash flows for the assets involved and selecting the appropriate discount rate to be applied in determining estimated fair value. See Note 8, Goodwill and Intangible Assets.
Retirement Benefit Obligations
We offer a defined contribution savings plan and a deferred compensation plan for our employees in the U.S. In addition, we offer a defined benefit pension and defined contribution plans to certain international employees. Our deferred compensation plan was frozen effective January 1, 2018.
Pension benefits are based on formulas that reflect the participating employees years of service and compensation. The expense recognized by us is determined by using certain assumptions, including the expected long-term rate of return on plan assets, the discount rate used to measure the interest cost and rate of
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compensation increases, among others. Our estimate of the service and interest cost components of net periodic benefit cost for our pension benefit plans utilizes a full yield curve approach by applying the specific spot rates along the yield curve used in the determination of the benefit obligation to the relevant projected cash flows. We recognize the funded status of our defined benefit plans as an asset or liability on the Balance Sheets and recognize changes in the funded status in the year in which the changes occur through Accumulated other comprehensive loss, net on the Balance Sheets. We use a December 31 measurement date for our plans.
Net Income (Loss) Per Common Share
Basic net income (loss) per common share of our common stock is calculated by dividing Net income (loss) attributable to Time Inc. common stockholders by the Weighted average basic common shares outstanding. Diluted net income (loss) per common share is similarly calculated, except that the calculation includes the dilutive effect of the assumed issuance of common shares issuable under equity-based compensation plans in accordance with the treasury stock method, except where the inclusion of such common shares would have an anti-dilutive impact.
The determination and reporting of Net income (loss) per common share requires the inclusion of certain of our time-based restricted stock units (RSUs) where such securities have the right to share in dividends, if declared, equally with common stockholders. During periods in which we generate net income, such participating securities have the effect of diluting both basic and diluted earnings per common share. During periods of net loss, no effect is given to participating securities, since they do not share in the losses of the Company.
Performance share units (PSUs) and performance stock units awarded under the long-term incentive outperformance program the Company adopted on February 8, 2016 (the Outperformance Plan), the Outperformance Plan Units (OPPs) and performance stock options are included in the calculation of Diluted net income (loss) per common share prior to the vesting date based on the number of potential shares that would be issuable under the terms of the agreement if the end of the reporting period were the end of the vesting period, assuming the result would be dilutive.
Equity-Based Compensation
We have various equity-based incentive plans that allow us to grant various types of share-based incentives to key employees and directors. The primary types of incentives granted under the plan are restricted stock units, performance share units, and stock options. We record compensation expense based on the equity awards granted to our employees. We measure the cost of employee services received in exchange for an award of equity instruments based on the grant-date fair value of the award. That cost is recognized in Costs of revenues or Selling, general and administrative expenses depending on the job function of the grantee on a straight-line basis (net of estimated forfeitures) over the period during which an employee is required to provide services in exchange for the award. Also, excess tax benefits realized are reported as a financing cash inflow.
The grant-date fair value of an RSU and PSU is determined based on the closing sale price of Time Inc.s common stock on the NYSE Composite Tape on the date of grant discounted to exclude the estimated dividend yield during the vesting period.
The grant-date fair value of a stock option is estimated using the Black-Scholes option-pricing model. Because the Black-Scholes option-pricing model requires the use of subjective assumptions, changes in these assumptions can materially affect the fair value of the options. Time Inc. determines the volatility assumption for these stock options using implied volatility data from a Time Inc. peer group. The expected term, which represents the period of time that options granted are expected to be outstanding, is estimated based on the
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historical exercise behavior of Time Inc.s employees. The risk-free rate assumed in valuing the options is based on the U.S. Treasury yield curve in effect at the time of grant for the expected term of the option. Time Inc. determines the expected dividend yield percentage by dividing the expected annual dividend of Time Inc. by the market price of Time Inc.s common stock at the date of grant.
The grant-date fair value of OPPs is estimated using the Monte-Carlo simulation method, which considers the likelihood of Time Inc.s stock price ending at various levels at the conclusion of the performance period. Simulations of stock price use a volatility assumption based on Time Inc.s stock price for a historic period equal to the remaining term of the performance period as of the grant date. The risk-free rate assumed in valuing the shares is based on the U.S Treasury yield curve in effect at the time of the grant for the performance period of the grant.
Revenues
Revenues are recognized when persuasive evidence of an arrangement exists, the fees are fixed or determinable, the product or service has been delivered and collectability is reasonably assured. We consider the terms of each arrangement to determine the appropriate accounting treatment.
Advertising Revenues
Print advertising revenues are recognized at the magazine cover date, net of agency commissions. Advertising revenues from digital products are recognized as impressions are delivered or as the services are performed. Customer payments received in advance of the performance of advertising services are recorded as Deferred revenue on the Balance Sheets.
Circulation Revenues
Circulation revenues include revenues from subscription sales and revenues generated from single-copy sales of magazines through retail outlets such as newsstands, supermarkets, convenience stores and drugstores and on certain digital devices and platforms, which may or may not result in future subscription sales. Circulation revenues are recognized at the magazine cover date, net of estimated returns. The unearned portion of magazine subscriptions is deferred and included in Deferred revenue on the Balance Sheets until the later of the magazine cover date or when a trial subscription period ends, at which time a proportionate share of the gross subscription price is included in revenues, net of any commissions paid to subscription agents.
In addition, incentive payments are made to wholesalers and retailers primarily related to favorable placement of our magazines. Depending on the incentive program, these payments can vary based on the number of copies sold or be fixed, and are presented in the Financial Statements as a reduction of revenues. For the years ended December 31, 2017, 2016 and 2015 incentive payments made to wholesalers and retailers primarily related to favorable placement of our magazines were $57 million, $65 million and $69 million, respectively.
Other Revenues
Other revenues principally include amounts related to marketing and support services provided to third-party magazine publishers and other branded book and bookazine publishing as well as conferences and events. Other revenues are generally recognized as performance occurs.
Multiple-Element Arrangements
In the normal course of business, we enter into multiple-element arrangements that involve making judgments about allocating the consideration to the various elements of the transactions. While the more common
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type of multiple-element transactions we encounter involve the sale or purchase of multiple products or services, multiple-element transactions can also involve contemporaneous purchase and sales transactions, the settlement of an outstanding dispute contemporaneous with the purchase of a product or service, as well as investing in an investee while at the same time entering into an operating agreement. In accounting for multiple-element transactions, judgment must be exercised in identifying the separate elements in a bundled transaction as well as determining the values of these elements. These judgments can impact the amount of revenues, expenses and net income recognized over the term of the contract, as well as the period in which they are recognized. In determining the value of the respective elements, we refer to market prices (where available), historical and comparable cash transactions or our best estimate of selling price.
Gross versus Net Revenue Recognition
In the normal course of business, we act as or use an intermediary or agent in executing transactions with third parties. In connection with these arrangements, we must determine whether to report revenue based on the gross amount billed to the ultimate customer or on the net amount received from the customer after commissions and other payments to third parties. To the extent revenues are recorded on a gross basis, any commissions or other payments to third parties is recorded as expense so that the net amount (gross revenues less expense) is reflected in Operating income (loss). Accordingly, the impact on Operating income (loss) is the same whether we record revenue on a gross or net basis.
The determination of whether revenue should be reported on a gross or net basis is based on an assessment of whether we are acting as the principal or an agent in the transaction. If we are acting as a principal in a transaction, we report revenue on a gross basis. If we are acting as an agent in a transaction, we report revenue on a net basis. The determination of whether we are acting as a principal or an agent in a transaction involves judgment and is based on an evaluation of the terms of an arrangement. We serve as the principal in transactions in which we have substantial risks and rewards of ownership.
For example, as a way to generate magazine subscribers, we sometimes use third-party marketing partners to secure subscribers and, in exchange, the marketing partners receive a percentage of the Circulation revenues generated. We record revenues from subscriptions generated by the marketing partner, net of the fees paid to the marketing partner, primarily because the marketing partner (i) has the primary contact with the customer including ongoing customer service, (ii) performs all of the billing and collection activities and (iii) passes the proceeds from the subscription to us after deducting its commission.
Barter Transactions
We enter into transactions that involve the exchange of advertising or finished goods inventory, in part, for other products and services, which are recorded at the estimated fair value of the advertising or inventory surrendered if the fair value of the product or service received is less evident. Revenues from barter transactions are recognized when advertising or inventory is provided, and expenses are recognized when services are received. Revenues from barter transactions included in the Statements of Operations were $13 million, $21 million and $19 million in 2017, 2016 and 2015, respectively. Expenses from barter transactions included in the Statements of Operations were $12 million, $21 million and $22 million for 2017, 2016 and 2015, respectively.
Costs of Revenues
Costs of revenues primarily relate to production (e.g., paper, printing and distribution) and editorial costs. Production costs directly related to publications are expensed in the period that revenue is recognized for a
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publication (e.g., on the cover date of a magazine). Staff costs recognized as Costs of revenues are expensed as incurred.
Subscriber Acquisition Costs
Direct subscriber acquisition costs, primarily direct mail costs, for the years ended December 31, 2017, 2016 and 2015 were $137 million, $169 million and $177 million, respectively. These costs are expensed as incurred and recognized within Selling, general and administrative expenses.
Shipping and Handling
Costs incurred for shipping and handling are reflected in Costs of revenues in the Statements of Operations.
Business Combinations
We account for business combinations using the acquisition method of accounting. Under the acquisition method, once control of a business is obtained, 100% of the assets, liabilities, and certain contingent liabilities acquired, including amounts attributed to noncontrolling interests, are recorded at fair value. Any transaction costs are expensed as incurred.
Deferred Financing Costs
Costs incurred in connection with our revolving credit facility are deferred and amortized to interest expense using the effective interest rate method over the term of the related debt. Costs incurred in connection with obtaining other debt are netted against the related debt obligation. Deferred financing costs in connection with debt that is redeemed earlier than its maturity date is written off to interest expense or gain or loss on extinguishment of debt in the corresponding period.
Income Taxes
Income taxes are provided using the asset and liability method, such that income taxes (i.e., deferred tax assets, deferred tax liabilities, taxes currently payable/refunds receivable and tax expense) are recorded based on amounts refundable or payable in the current year and include the results of any difference between GAAP and tax reporting. Deferred income taxes reflect the tax effect of net operating losses, capital losses and tax credit carry-forwards and the net tax effects of temporary differences between the carrying amount of assets and liabilities for financial statement and income tax purposes, as determined under tax laws and rates. Valuation allowances are established when management determines that it is more likely than not that some portion or all of the deferred tax assets will not be realized. Significant judgment is required with respect to the determination of whether or not a valuation allowance is required for certain deferred tax assets. The financial effect of changes in tax laws or rates is accounted for in the period of enactment. The subsequent realization of net operating loss and general business credit carry-forwards acquired in acquisitions accounted for using the acquisition method of accounting is recognized in the Statements of Operations.
From time to time, we engage in transactions in which the tax consequences may be subject to uncertainty. Examples of such transactions include business acquisitions and dispositions, including dispositions designed to be tax free, and certain financing transactions. Significant judgment is required in assessing and estimating the tax consequences of these transactions. We prepare and file tax returns based on our interpretation of tax laws and regulations. In the normal course of business, these tax returns are subject to examination by various taxing authorities. Such examinations may result in future tax and interest assessments by these taxing authorities. In
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determining the tax provision for financial reporting purposes, we establish a reserve for uncertain tax positions unless such positions are determined to be more likely than not to be sustained upon examination based on their technical merits. There is considerable judgment involved in determining whether positions taken on our tax returns are more likely than not to be sustained.
The tax reserve estimates are adjusted periodically because of ongoing examinations by, and settlements with, the various taxing authorities, as well as changes in tax laws, regulations and interpretations. Our policy is to recognize, when applicable, interest and penalties on uncertain tax positions as part of income tax expense. See Note 10, Income Taxes.
Recent Accounting Guidance
Accounting Guidance Adopted in 2017
In January 2017, guidance was issued which simplifies the test for goodwill impairment by eliminating Step 2, the requirement to calculate the implied fair value of goodwill to measure a goodwill impairment charge. Instead, an entity should perform its goodwill impairment test by comparing the fair value of a reporting unit with its carrying amount. An entity should recognize an impairment charge for the amount by which the carrying amount exceeds the reporting units fair value; however, the loss recognized should not exceed the total amount of goodwill allocated to that reporting unit. Additionally, an entity should consider income tax effects from any tax deductible goodwill on the carrying amount of the reporting unit when measuring the goodwill impairment loss, if applicable. The amendments in this guidance are effective for annual or any interim goodwill impairment tests in fiscal years beginning after December 15, 2019, with early adoption permitted. We early adopted this guidance on January 1, 2017. The adoption of this guidance did not have a material impact on our Financial Statements upon adoption, but could have a material impact if an impairment is identified in connection with our goodwill impairment tests. In the second quarter of 2017, we performed an interim test of Goodwill, see Note 8, Goodwill and Intangible Assets to the accompanying Financial Statements.
In March 2016, guidance was issued which simplifies several aspects of the accounting for share-based payment transactions, including the income tax consequences, classification of awards as either equity or liabilities, and classification in the statement of cash flows. The updated guidance requires excess tax benefits and deficiencies from share-based payment awards to be recorded in income tax expense in the income statement. Under the previous guidance, excess tax benefits and deficiencies have been recognized in Additional paid-in capital on the balance sheet. In addition, the updated guidance modifies the classification of certain share-based payment activities within the statement of cash flows and these changes are required to be applied retrospectively to all periods presented. The updated guidance may add volatility to the Companys income tax expense in future periods depending upon, among other things, the level of tax expense and the price of our common stock at the date of vesting for share-based awards. We adopted this guidance on January 1, 2017 and it did not have a material impact on our Financial Statements.
In July 2015, guidance was issued that simplifies the measurement of inventory by requiring certain inventory to be subsequently measured at the lower of cost and net realizable value. We adopted this guidance on January 1, 2017. The adoption of this guidance did not have a material impact on our Financial Statements.
Accounting Guidance Not Yet Adopted
In March 2017, guidance was issued that will change how employers that sponsor defined benefit pension or other postretirement benefit plans present the net periodic benefit cost in the income statement. Employers will present the service cost component of net periodic benefit cost in the same income statement line item(s) as other
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employee compensation costs arising from services rendered during the period. Only the service cost component will be eligible for capitalization in assets. Employers will present the other components of the net periodic benefit cost separately from the line item(s) that includes the service cost and outside of any subtotal of operating income, if one is presented. The standard is effective for annual periods beginning after December 15, 2017, and interim periods therein. Upon adoption, our net periodic benefit cost (income), other than service costs, which has historically been included in Operating income (loss) in our Statements of Operations will be presented below Operating income (loss) in our Statements of Operations. The net periodic benefit cost (income) classified within Operating income (loss) was $9 million, $19 million and $10 million of income for the years ended December 31, 2017, 2016 and 2015, respectively. We will adopt this guidance on a retrospective basis on January 1, 2018.
In January 2017, guidance was issued that changes the definition of a business. The guidance requires an entity to evaluate if substantially all of the fair value of the gross assets acquired is concentrated in a single identifiable asset or a group of similar identifiable assets. If this threshold is met, the set of assets is not deemed to be a business. If the threshold is not met, the entity then evaluates whether the set of assets meets the requirement to be deemed a business, which at a minimum, requires there to be an input and a substantive process that together significantly contribute to the ability to create outputs. This guidance will become effective on a prospective basis for us on January 1, 2018, and it is not expected to have a material impact on our Financial Statements.
In February 2016, guidance was issued which requires that a lessee recognize lease assets and lease liabilities on its balance sheet and disclose key information about its leasing arrangements. We are currently evaluating the effect that this guidance will have on our Financial Statements and related disclosures. We will adopt this guidance on a modified retrospective basis on January 1, 2019.
In January 2016, guidance was issued which requires equity investments, except those accounted for under the equity-method of accounting or those that result in consolidation of the investee, to be measured at fair value with changes in fair value recognized in net income. An entity may elect to measure an equity security without a readily determinable fair value that does not qualify for the practical expedient to estimate fair value in accordance with ASC 820, Fair Value Measurement, at its cost minus impairment, if any, plus or minus changes resulting from observable price changes in orderly transactions for the identical or a similar investment of the same issuer. This guidance is not expected to have a material impact on our Financial Statements upon adoption. The amendments in this guidance are effective for fiscal years beginning after December 15, 2017 and for interim periods therein.
In May 2014, guidance was issued that establishes a new revenue recognition framework in GAAP for all companies and industries. The core principle of the guidance is that an entity should recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration the entity expects to receive for those goods or services. The guidance includes a five-step framework to determine the timing and amount of revenue from contracts with customers. In addition, this guidance requires new or expanded disclosures related to the judgments made by companies when following this framework and additional quantitative disclosures regarding contract balances and remaining performance obligations. We will adopt this guidance on January 1, 2018.
We have assessed the potential impact of the guidance across our revenue streams. Upon adoption, we will recognize revenue from our contracts with customers as each performance obligation is satisfied, either at a point in time or over a period of time, based on when control transfers to our customers. We have determined that the performance obligations within our print advertising, subscription and newsstand contracts are satisfied on an issues on sale date, which will accelerate the timing of revenue recognition compared to our current policy of
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revenue recognition based on an issues cover date. The paper, printing and distribution costs of these revenues will accelerate to match the timing of the revenue recognition. Digital advertising revenue will continue to be recognized as impressions are delivered.
The new standard will also result in us, as the publisher, recording certain Circulation revenues generated by marketing partners on a gross basis because the publisher is in control of delivering the subscription to the customer, and the marketing partners obligation is to arrange for another party to transfer the goods to the customer. Our marketing partner operations, that provide marketing services to third-party publishers, will recognize revenue for these services over time.
For identified impacted revenue streams, we have identified changes to and have modified our systems. We have also modified business processes and controls to support recognition and disclosure under the new standard.
We will adopt the new revenue recognition standard under the modified retrospective transition method by recognizing the cumulative effect of applying the standard as an adjustment to our Balance Sheet. Our transition adjustment is expected to be determined primarily by the change to recognize revenues based on a magazines on sale date and the recognition of revenues generated by marketing partners on a gross basis.
3. ACQUISITIONS AND DISPOSITIONS
Acquisitions
During the year ended December 31, 2017, we completed acquisitions for total cash consideration, net of cash acquired, of $22 million. The excess of the total consideration over the fair value of the net tangible and intangible assets acquired has been recorded as Goodwill, which represents future economic benefits expected to arise from other intangibles acquired that do not qualify for separate recognition. The Goodwill recorded of $13 million will be deductible for tax purposes. Our results of operations include the operations of these additional acquisitions but such activities were not significant for the year ended December 31, 2017.
On September 6, 2016, we acquired Bizrate Insights Inc. (Bizrate Insights), a consumer data company that specializes in developing consumer insights by extending its online and mobile surveys across partner sites. The acquisition of Bizrate Insights is part of our transformation into a data-driven organization that we believe will enable us to generate incremental consumer subscription and other revenues. This acquisition was accounted for under the acquisition method. Consideration transferred of $78 million ($80 million cash, net of settlement of a pre-existing commission relationship) was allocated to the tangible and intangible assets acquired and liabilities assumed based on their estimated fair values.
On March 2, 2016, we acquired certain assets of Viant Technology Inc. (Viant), a business that specializes in data-driven, people-based marketing, headquartered in Irvine, California, for $87 million, net of cash acquired. In connection with the acquisition, during the year ended December 31, 2016, we recorded a $3 million net Bargain purchase (gain), which included a reduction of the Bargain purchase (gain) of $2 million for the three months ended June 30, 2016 on the accompanying Statements of Operations. We realized a gain on the transaction because Viant was in need of capital to continue its operations and was unable to secure sufficient capital in the time frame it required.
For tax purposes, the Bargain purchase gain resulted in the reduction of the tax basis in identifiable intangibles, resulting in a deferred tax liability of $3 million being recorded on the opening balance sheet. This deferred tax liability reduced the Bargain purchase gain, and the Bargain purchase gain is not taxable.
We have granted certain key Viant employees a 40% equity interest (subject to vesting and forfeiture provisions) in the common units of Viant. In conjunction with the issuance of the common units, the Company
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TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
entered into a put and call arrangement whereby such employees have a right to put their shares to us, and we retain rights to call these interests over time, in each case subject to the satisfaction of certain conditions. The fair value of the common units will be recognized as equity-based compensation expense over the vesting period through September 2020.
During the year ended December 31, 2016, we completed additional acquisitions for total cash consideration, net of cash acquired, of $29 million. We may be required to pay additional consideration that relates to earn-outs that are contingent upon the achievement of certain performance objectives by the end of 2017, which are estimated to be $1 million as of December 31, 2017. The excess of the total consideration over the fair value of the net tangible and intangible assets acquired was recorded as Goodwill. In conjunction with one of these acquisitions, we also recognized a loss relating to a write off of an asset of $3 million previously recognized in our financial statements that will not be realized as a result of the acquisition. This loss is reported within transaction costs in Selling, general and administrative expenses in the accompanying Statements of Operations.
During the year ended December 31, 2015, we completed a number of acquisitions for total cash consideration, net of cash acquired, of $141 million. Additional consideration may be required to be paid by us that relates primarily to earn-outs that are contingent upon the achievement of certain performance objectives in the current and future fiscal years. As of December 31, 2017, the fair value of the contingent consideration for these acquisitions was not significant. The excess of the total consideration over the fair value of the net tangible and intangible assets acquired has been recorded as Goodwill. Our results of operations include the operations of these acquisitions from the date of the respective acquisitions but such activities were not significant for the year ended December 31, 2015.
Dispositions
As part of our strategy to rationalize our portfolio, on December 22, 2017, we completed the sale of Essence for $64 million. Upon disposal, assets of $98 million related primarily to Goodwill and intangible assets, and liabilities of $14 million related primarily to Deferred tax liabilities, were derecognized from our Balance Sheet. We recognized a pre-tax loss of approximately $20 million within (Gain) loss on operating assets, net for the year ended December 31, 2017.
On December 20, 2017, we completed the sale of SI Play, our online youth sports league management solution for $65 million. Upon disposal, assets of $35 million related primarily to Goodwill and intangible assets, and liabilities of $5 million related primarily to Deferred revenue and other liabilities, were derecognized from our Balance Sheet. We recognized a pre-tax gain of approximately $35 million within (Gain) loss on operating assets, net for the year ended December 31, 2017, in connection with the sale. We performed an interim goodwill impairment assessment for the SI Play reporting unit as of June 30, 2017, as current operating projections reflected a significant reduction in the revenues and operating cash flows, and recorded a pre-tax non-cash interim impairment charge of $34 million writing down Goodwill for the reporting unit from its carrying value of $56 million to $22 million.
On November 30, 2017, we completed the sale of Sunset, for contingent consideration. Upon disposal, assets of $9 million related primarily to Accounts receivable, net and Property, plant and equipment, net and liabilities of $12 million related primarily to Deferred revenue, were derecognized from our Balance Sheet. We recognized a pre-tax loss of approximately $1 million within (Gain) loss on operating assets, net for the year ended December 31, 2017.
On July 27, 2017, we sold INVNT, a live events and creative services subsidiary, for cash and future royalties net of contributed cash. Upon disposal, assets of $5 million related primarily to Prepaid and other
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NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
current assets, and liabilities of $4 million related primarily to Deferred revenue, were derecognized from our Balance Sheet. We recognized a pre-tax gain of approximately $1 million within (Gain) loss on operating assets, net for the year ended December 31, 2017, in connection with the sale. We performed an interim goodwill impairment assessment for the INVNT reporting unit as of June 30, 2017, as current operating projections reflected a significant reduction in the revenues and operating cash flows, and recorded a pre-tax non-cash interim impairment charge of $16 million writing down Goodwill for the reporting unit from its carrying value of $16 million to nil.
On April 1, 2016, we completed the sale of This Old House Ventures, LLC and This Old House Productions, LLC (together, TOH). Upon disposal, assets of $27 million related primarily to Goodwill, and liabilities of $10 million related primarily to Deferred revenue, were derecognized from our Balance Sheet. We recognized a pre-tax gain of $11 million within (Gain) loss on operating assets, net for the year ended December 31, 2016.
In November 2015, we sold 100% of the capital stock of IPC Magazines Group Limited, a subsidiary of Time Inc. UK, which owned the Blue Fin Building, our principal executive offices in the U.K., for £415 million ($629 million at exchange rates on the date of consummation of the sale). See Note 14, Benefit Plans. Time Inc. UK continues to occupy a portion of the premises under a lease agreement with the buyers which extends through December 31, 2025 with a renewal option for an additional term between five and ten years. Our lease commitments under this agreement are £9 million per annum. See Note 16, Commitments and Contingencies. In connection with these transactions, in the fourth quarter of 2015, we recognized a pre-tax gain of $68 million. Additionally, a pre-tax gain of $97 million was deferred at the time of the sale-leaseback transaction and will be recognized ratably over the lease period through 2025.
4. INVESTMENTS
Our investments included within Short-term investments and Other assets on the accompanying Balance Sheets consist primarily of short-term investments, equity-method investments and cost-method investments. Our investments, by category, consisted of the following (in millions):
December 31, 2017 |
December 31, 2016 |
|||||||
Short-term investments(a) |
$ | | $ | 40 | ||||
Equity-method investments(b), (d) |
| 9 | ||||||
Cost-method investments(c), (d) |
9 | 6 | ||||||
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|
|||||
Total |
$ | 9 | $ | 55 | ||||
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(a) | Our Short-term investments consist of term deposits with original maturities greater than three months and remaining maturities of less than one year. Our term deposits are carried at amortized cost on the accompanying Balance Sheets as held-to-maturity securities. Cost approximates fair value due to the short-term nature of the term deposits. |
(b) | Our Equity-method investments consist primarily of joint ventures. During the year ended December 31, 2017, we recognized equity losses of $4 million. During the year ended December 31, 2016, we recognized equity losses of $20 million related primarily to resuming applying the equity-method after providing additional financial support to certain equity-method investments and an other-than-temporary impairment of an Equity-method investment. |
(c) | During the year ended December 31, 2017, we made a $2 million investment in a privately-held transaction marketing technology company. During the year ended December 31, 2016, we made a $3 million investment in a privately-held e-commerce subscription company. We use available qualitative and quantitative information to evaluate all Cost-method investments for impairment at least quarterly. |
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NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(d) | In 2017, our equity-method investment in a digital content company was acquired in an all-equity transaction and we recognized a gain of approximately $1 million in Other (income) expense, net as a result of the sale transaction. Subsequent to the sale transaction, we held a 1.4% equity interest in the acquiring company, which is recognized under the cost-method. |
We use available qualitative and quantitative information to evaluate all cost-method investments for indications of other-than-temporary impairments at least quarterly and recognize an impairment loss if a decline in value is determined to be other-than-temporary. During the year ended December 31, 2017, we recorded an other-than-temporary impairment of $4 million which was due to the decline in the value of a cost-method investment based on an assessment of its near-term profit prospects.
For the year ended December 31, 2016, we experienced an other-than-temporary decline in an equity-method investment and as a result, we recorded an impairment of $3 million in Other (income) expense, net in the accompanying Statements of Operations. No other-than-temporary losses were incurred in the year ended December 31, 2015. Other-than-temporary impairment losses are included in Other (income) expense, net in the accompanying Statements of Operations.
5. FAIR VALUE MEASUREMENTS
Fair value measurements are determined based on assumptions that a market participant would use in pricing an asset or a liability. A three-tiered hierarchy distinguishes between market participant assumptions based on (i) observable inputs such as quoted prices in active markets (Level 1), (ii) inputs other than quoted prices in active markets that are observable either directly or indirectly (Level 2) and (iii) unobservable inputs that require us to use present value and other valuation techniques in the determination of fair value (Level 3).
The following table presents information about assets and liabilities required to be carried at fair value on a recurring basis as of December 31, 2017 and December 31, 2016, respectively (in millions):
December 31, 2017 | December 31, 2016 | |||||||||||||||||||||||||||||||
Level 1 | Level 2 | Level 3 | Total | Level 1 | Level 2 | Level 3 | Total | |||||||||||||||||||||||||
Assets |
||||||||||||||||||||||||||||||||
Cash and cash equivalentsMoney market funds |
$ | 452 | $ | | $ | | $ | 452 | $ | 102 | $ | | $ | | $ | 102 | ||||||||||||||||
Liabilities |
||||||||||||||||||||||||||||||||
Put option liability(a) |
| | (10 | ) | (10 | ) | | | (10 | ) | (10 | ) | ||||||||||||||||||||
Lease guarantees(b) |
| | (4 | ) | (4 | ) | | | | | ||||||||||||||||||||||
Contingent consideration(c) |
| | (1 | ) | (1 | ) | | | (2 | ) | (2 | ) | ||||||||||||||||||||
Otherliabilities |
| | (1 | ) | (1 | ) | | | (2 | ) | (2 | ) | ||||||||||||||||||||
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|
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Total |
$ | 452 | $ | | $ | (16 | ) | $ | 436 | $ | 102 | $ | | $ | (14 | ) | $ | 88 | ||||||||||||||
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(a) | Our Put option liability, included within Other current liabilities as of December 31, 2017 and Other noncurrent liabilities as of December 31, 2016, relates to an equity-method investment, the fair value of which was derived using a lattice model for which we used unobservable inputs that are classified as Level 3 under the fair value hierarchy. Adjustments to the fair value of this obligation are included as a component of Other (income) expense, net in the Statements of Operations. |
(b) | The fair value of the lease guarantees were derived using a probability weighted present value of expected future payments and with and without approach, for which we used unobservable inputs that are classified as Level 3 under the fair value hierarchy. Our lease guarantees extend through November 2030. |
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TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
Adjustments to the fair value of such obligations are included as a component of Selling, general and administrative expenses in the Statements of Operations. |
(c) | Contingent consideration consists of earn-out liabilities in connection with acquisitions. At December 31, 2017, $1 million is included in Accounts payable and accrued liabilities. At December 31, 2016, $1 million is included in Accounts payable and accrued liabilities and $1 million in Other noncurrent liabilities. Fair values were derived using a Monte Carlo simulation approach or a probability weighted present value of expected future payouts approach, for which we used unobservable inputs that are classified as Level 3 under the fair value hierarchy. Adjustments to the fair value of such obligations are included as a component of Selling, general and administrative expenses in the Statements of Operations. Such contingent considerations are based primarily on financial targets and other operational metrics. |
The following table reconciles the beginning and ending balance of our liabilities classified as Level 3 (in millions):
2017 | 2016 | |||||||
Beginning Balance as of January 1 |
$ | 14 | $ | 19 | ||||
Issuances |
4 | 2 | ||||||
Settlements |
(2 | ) | (2 | ) | ||||
Fair value adjustments |
| (3 | ) | |||||
Other adjustments |
| (2 | ) | |||||
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|
|||||
Ending Balance as of December 31 |
$ | 16 | $ | 14 | ||||
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Other Financial Instruments
Our other financial instruments, including our term loan (the Term Loan), our 5.75% senior notes (the 5.75% Senior Notes) and our 7.50% senior notes (the 7.50% Senior Notes), are not required to be carried on our Balance Sheets at fair value. The following table summarizes the fair value of each of our significant debt instruments based on quoted market prices for similar issues or on the current rates offered to us for instruments of similar remaining maturities (in millions):
December 31, 2017 | December 31, 2016 | |||||||||||||||
Carrying Amount |
Estimated Fair Value |
Carrying Amount |
Estimated Fair Value |
|||||||||||||
Debt instruments |
||||||||||||||||
Term Loan |
$ | 455 | $ | 464 | $ | 672 | $ | 687 | ||||||||
5.75% Senior Notes |
470 | 496 | 568 | 597 | ||||||||||||
7.50% Senior Notes |
297 | 355 | | | ||||||||||||
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$ | 1,222 | $ | 1,315 | $ | 1,240 | $ | 1,284 | |||||||||
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The fair value of the outstanding debt instruments presented above is based on pricing from observable market information in a non-active market. Therefore, these debt instruments are classified as Level 2 under the fair value hierarchy. Unrealized gains or losses on debt do not result in realization or expenditure of cash and generally are not recognized in the Financial Statements unless the debt is retired prior to its maturity.
The carrying value for the majority of our other financial instruments approximates fair value due to the short-term nature of the financial instruments. The fair value of financial instruments is generally determined by reference to the market value of the instrument as quoted on a national securities exchange or an over-the-counter market. When a quoted market value is not available, fair value is based on an estimate using present value or other valuation techniques.
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TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
Non-Financial Instruments
The majority of our non-financial instruments, which include goodwill, intangible assets, inventories and property, plant and equipment, are not required to be carried at fair value on a recurring basis. However, if certain triggering events occur (or at least annually for Goodwill), a non-financial instrument is required to be evaluated for impairment. If we were to determine that a non-financial instrument was impaired, we would be required to write down the non-financial instrument to its fair value. See Note 6, Assets Held for Sale and Note 8, Goodwill and Intangible Assets for discussion of impairments recorded during the years ended December 31, 2017, 2016 and 2015.
Fair value measurements are also used in nonrecurring valuations performed in connection with acquisition accounting. The nonrecurring valuations include primarily the valuations of tradenames, customer and advertiser relationships, technology and database intangible assets and property, plant and equipment. With the exception of certain inputs for our weighted average cost of capital and discount rate calculation that are derived from third-party information, the inputs used in our discounted cash flow analysis, such as forecasts of future cash flows, are based on assumptions. The valuation of customer and advertiser relationships is based primarily on an excess earnings methodology, which is a form of a discounted cash flow analysis. The excess earnings methodology requires us to estimate the specific cash flows expected from the relationships, considering such factors as the estimated life of the relationships and the revenue expected to be generated over the term of such relationships. Tangible assets are valued typically using a replacement or reproduction cost approach, considering such factors as current prices of the same or similar equipment, the age of the equipment and economic obsolescence. All of our nonrecurring valuations use significant unobservable inputs that are classified as Level 3 under the fair value hierarchy.
6. ASSETS HELD FOR SALE
In the fourth quarter of 2017, Time Inc. UK and the Golf brand were classified as assets held for sale. Time Inc. has committed to its portfolio rationalization initiative and met the assets held for sale criteria. Time Inc. and Time Inc. UK have agreed to terms with the pension trustee on certain requirements upon sale and on December 8, 2017, Time Inc. UK met the held for sale criteria. Accordingly, we allocated $162 million and $13 million of Goodwill to Time Inc. UK and Golf brand, respectively, based upon the relative fair value of the operation to be sold compared to the estimated fair value of Time Inc. as determined by the $18.50 per share price contracted in the Merger Agreement excluding the fair value of our SI Play reporting unit that was sold on December 20, 2017. See Note 3, Acquisition and Disposition. For additional information related to the Merger Agreement, see Description of Business. The assets and liabilities attributable to Time Inc. UK and our Golf brand have been classified as held for sale and are presented separately in the Balance Sheets. On February 23, 2018, the Company entered into an agreement to sell Time Inc. UK. The sale is expected to close in March 2018. The sale of the Golf brand closed on February 9, 2018.
A disposal group classified as held for sale shall be measured at the lower of its carrying amount or fair value less costs to sell. A loss shall be recognized for any initial adjustment of the disposal groups carrying amount to its fair value less costs to sell in the period the held for sale criteria are met.
We used a market approach to determine the estimated fair values for Time Inc. UK and the Golf brand, which took into consideration the current negotiations of sale prices, which are classified as Level 3 under the fair value hierarchy. This resulted in Goodwill impairment charges of $33 million and $1 million for Time Inc. UK and the Golf brand, respectively. Time Inc. UK pre-tax loss was $15 million for the year ended December 31, 2017. See Note 8, Goodwill and Intangible Assets for discussion of impairments recorded during the years ended December 31, 2017, 2016 and 2015.
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TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
The major classes of assets and liabilities comprising the disposal groups classified as held for sale as of December 31, 2017 are as follows (in millions):
December 31, 2017 |
||||
Cash |
$ | 16 | ||
Receivables |
52 | |||
Inventories |
2 | |||
Deferred tax assets |
8 | |||
Prepaid expenses and other current assets |
15 | |||
Goodwill |
141 | |||
Intangible assets |
61 | |||
Property, plant and equipment |
16 | |||
Other assets |
15 | |||
|
|
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Total assets classified as held for sale |
$ | 326 | ||
|
|
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Accounts payable and accrued liabilities |
87 | |||
Deferred revenue |
25 | |||
Deferred gain |
62 | |||
Other liabilities |
2 | |||
|
|
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Total liabilities classified as held for sale |
$ | 176 | ||
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|
7. PROPERTY, PLANT AND EQUIPMENT, NET
Property, plant and equipment, net consisted of (in millions):
Useful Lives (in years) |
December 31, | |||||||||||
2017 | 2016 | |||||||||||
Leasehold improvements (a) |
Various | $ | 215 | $ | 227 | |||||||
Capitalized software |
3 - 5 | 274 | 288 | |||||||||
Furniture, fixtures and other equipment (a) |
3 - 10 | 155 | 152 | |||||||||
|
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|
|||||||||
644 | 667 | |||||||||||
Accumulated depreciation (a)(b)(c) |
(371 | ) | (388 | ) | ||||||||
Construction in progress (c) |
26 | 25 | ||||||||||
Assets held for sale (d) |
(16 | ) | | |||||||||
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Total Property, plant and equipment, net |
$ | 283 | $ | 304 | ||||||||
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|
(a) | In 2016, we wrote off approximately $300 million of fully depreciated assets primarily related to Leaseholds improvements and Furniture, fixtures and other equipment upon exercise of our option to surrender with respect to our Time and Life Building lease during the first quarter of 2016. Leasehold improvements are depreciated using the straight-line method over the shorter of their estimated useful lives of the remaining lease term. |
(b) | Includes accumulated amortization of $226 million and $249 million related to capitalized software as of December 31, 2017 and 2016, respectively. |
(c) | Amounts in 2017 and 2016 primarily related to capitalized software. |
(d) | Assets held for sale related to Time Inc. UK and our Golf brand (approximately $68 million of gross carrying value and $52 million of accumulated depreciation). |
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TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2017, 2016 and 2015, depreciation and amortization expense related to Property, plant and equipment, net was $55 million, $54 million and $92 million, respectively, of which $19 million, $17 million and $13 million related to capitalized software, respectively. The estimated amortization expense related to capitalized software within Property, plant and equipment, net for the succeeding five years as of December 31, 2017 is as follows (in millions):
2018 |
$ | 18 | ||
2019 |
15 | |||
2020 |
10 | |||
2021 |
5 | |||
2022 |
1 | |||
|
|
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Total |
$ | 49 | ||
|
|
In 2016, certain internally developed software costs were determined to no longer be used and as a result, we recognized a $4 million impairment. There were no impairments of Property, plant and equipment, net in 2017 and 2015.
8. GOODWILL AND INTANGIBLE ASSETS
Goodwill
Goodwill is tested annually for impairment at the reporting unit level during the fourth quarter or earlier upon the occurrence of certain events or substantive changes in circumstances. A reporting unit is either the operating segment level or one level below, which is referred to as a component. The level at which the impairment test is performed requires judgment as to whether the operations below the operating segment constitute a self-sustaining business or whether the operations are similar such that they should be aggregated for purposes of the impairment test. As of December 31, 2017, after the sales of INVNT and SI Play in July 2017 and December 2017, respectively, management concluded that we have one reporting unit, Core Time Inc.
During the year ended December 31, 2017, we recorded approximately $84 million of goodwill impairment charges, including $50 million of interim goodwill impairment charges in connection with our SI Play and INVNT reporting units as of June 30, 2017, and $33 million and $1 million recorded in connection with Time Inc. UK and the Golf brand meeting the held for sale criteria, respectively, as of December 31, 2017. See Note 6, Assets Held for Sale for discussion of Goodwill impairment charges recorded in connection with Time Inc. UK and the Golf brand meeting the held for sale criteria.
In our 2017 annual Goodwill impairment test, the fair value of our Core Time Inc. reporting unit exceeded its carrying value, and therefore there was no impairment charge recorded in connection with our annual Goodwill impairment test. The results of the quantitative test did not result in any further impairment of Goodwill because the fair value of our reporting unit based upon the $18.50 per share price per the Merger Agreement, excluding the fair values of our SI Play reporting unit that was disposed on December 20, 2017, Essence brand that was disposed of on December 22, 2017, as well as the fair values estimated for Time Inc. UK and the Golf brand, which were classified as held for sale as of December 31, 2017, exceeded its carrying value. Had the fair value of our reporting unit been hypothetically lower by 10% as of December 31, 2017, the carrying value of our reporting unit would have continued to exceed its fair value.
We performed an interim impairment test for Goodwill relating to our SI Play and INVNT reporting units as of June 30, 2017. For SI Play, industry consolidation resulted in stronger competition than expected and slower revenue growth which resulted in a significant reduction in revenues and operating cash flows as compared to the
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TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
high historical financial projections expected in the youth sports market. INVNT significantly underperformed expectations due to an unexpected deterioration of its customer base, resulting in significantly reduced revenues and operating cash flows. We determined that the estimated fair value of both reporting units was lower than their carrying amounts. As a result, we recorded a pre-tax non-cash impairment charge to impair the Goodwill associated with both reporting units totaling $50 million ($34 million related to SI Play and $16 million related to INVNT). Goodwill for SI Play was written down from its carrying value of $56 million to $22 million and Goodwill for INVNT was written down from its carrying value of $16 million to nil.
For SI Play, we used a DCF approach to determine the estimated fair value. The cash flows employed in our DCF analyses were based on updated forecasts of operating results. Terminal growth rates were assumed for years beyond the current long-range plan period. Discount rate assumptions were based on an assessment of market rates as well as the risk inherent in the future cash flows included in our updated forecasts of future operating results. The significant assumptions utilized in the DCF analysis for SI Play were a discount rate of 25.0% and a terminal growth rate of 3.0%. For INVNT, we used a market approach to determine the estimated fair value, which took into consideration the terms of the transaction finalized on July 27, 2017 to sell INVNT.
In 2016, we did not elect to perform a qualitative assessment of Goodwill and instead performed quantitative impairment tests. We completed step one of our annual Goodwill impairment test and determined that the fair value of our INVNT reporting unit was approximately $24 million, which was lower than its carrying value. We were then required to perform the second step of the two-step process for the INVNT reporting unit. The second step of the analysis included allocating the calculated fair value of the reporting unit to its assets and liabilities to determine an implied fair value of goodwill. Based on our analysis, the implied fair value of the goodwill was lower than the carrying value for the INVNT reporting unit. Accordingly, we recorded a non-cash Goodwill impairment charge of $1 million as of December 31, 2016. The tax impact of this impairment was not significant. If the determined fair value of the INVNT reporting unit had been 10% lower, the Goodwill impairment charge would have been approximately $2 million higher. The significant assumptions utilized in the 2016 discounted cash flow analysis for the INVNT reporting unit was a discount rate of 14.0%, a terminal growth rate of 3.0%, a market revenue multiple selected from a range 0.4x to 1.5x and a control premium of 20.0%.
The results of the quantitative test did not result in any impairments of Goodwill for the Core Time Inc. and SI Play reporting units as the fair values of each of these reporting units exceeded their respective carrying values by more than 30% as of December 31, 2016. The valuation of the assets and liabilities of the Core Time Inc. and SI Play reporting units were based on our long-range plans and assumptions of discount rates and terminal growth rates. Market multiples used to value the Core Time Inc. reporting unit were consistent with multiples of comparable companies.
We continue to experience declines in our print advertising and circulation revenues as a result of the continuing shift in consumer preference from print media to digital media and how consumers engage with digital media. If print media market conditions worsen, if the price of our publicly traded stock declines, or if our performance fails to meet current expectations, it is possible that the carrying value of our reporting units will exceed their fair values, which could result in recognition of additional non-cash impairments of Goodwill that could be material.
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TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
The following summary sets forth the changes in the carrying amount of Goodwill during the years ended December 31, 2017 and 2016 (in millions):
Balance, December 31, 2015 (a) |
$ | 2,038 | ||
Acquisitions (b) |
81 | |||
Dispositions (c) |
(18 | ) | ||
Foreign exchange movements |
(31 | ) | ||
Impairments (d) |
(1 | ) | ||
|
|
|||
Balance, December 31, 2016 (a) |
2,069 | |||
|
|
|||
Acquisitions (b) |
13 | |||
Dispositions (c) |
(95 | ) | ||
Impairments (d) |
(84 | ) | ||
Foreign exchange movements |
18 | |||
Held for sale (e) |
(141 | ) | ||
|
|
|||
Balance, December 31, 2017 (a) |
$ | 1,780 | ||
|
|
(a) | Accumulated impairments were approximately $16.4 billion as of December 31, 2017 and $16.3 billion as of December 31, 2016 and 2015. |
(b) | Relates to 2017 and 2016 acquisitions. See Note 3, Acquisitions and Dispositions. |
(c) | In 2017, we disposed of approximately $95 million of goodwill in connection with the dispositions of Essence and SI Play ($72 million of allocated Goodwill related to Essence and $23 million related to SI Play). We disposed of $18 million of allocated Goodwill in connection with the sale of TOH on April 1, 2016. |
(d) | Goodwill impairment of approximately $84 million during the year ended December 31, 2017 included $50 million of interim impairment charges in connection with SI Play and INVNT reporting units as of June 30, 2017, and $34 million resulting from the classification of Time Inc. UK and the Golf brand as held for sale as of December 31, 2017. Goodwill impairment of $1 million during the year ended December 31, 2016 related to our INVNT reporting unit. |
(e) | Goodwill classified as Held for Sale related to Time Inc. UK and the Golf brand. |
Intangible Assets
We recognized pre-tax non-cash Asset impairment charges of approximately $9 million for the year ended December 31, 2017 primarily related to a $5 million charge recognized at INVNT in the second quarter of 2017, resulting from writing off the full value of a definite-lived tradename and a customer relationship intangible asset from their total carrying value of $5 million to nil. Additionally, due to niche brands facing challenges in the centralized sales organization, we evaluated certain definite-lived intangible assets for impairment as of December 31, 2017. As a result of our evaluation, we wrote down the value of the intangible assets from their carrying values totaling $12 million to their fair values totaling $8 million, resulting in a pre-tax non-cash impairment charge of approximately $4 million. We determined the fair value of these intangible assets based on an income approach. Key unobservable inputs utilized in the valuation for the intangible assets include the estimated cash flows, a royalty rate of 2.0%, a long-term growth rate of 0.9% to 3.0%, useful life of 9 months to 10 years and a discount rate of 10.5%. For INVNT, this took into consideration the terms of the transaction finalized on July 27, 2017 to sell INVNT. The market approach has inputs that are classified as Level 3 under the fair value hierarchy.
We recorded Asset impairments of $192 million during the year ended December 31, 2016, primarily related to an impairment of a domestic tradename intangible.
F-126
TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
In conjunction with our 2016 annual Goodwill impairment test, we recognized an Asset impairment of $3 million, related to a definite-lived intangible asset for our INVNT reporting unit, writing down the value of the definite-lived intangible asset from its carrying value of $5 million to its fair value of $2 million. During the third quarter of 2016, a definite-lived tradename intangible experienced a triggering event and was evaluated for impairment. Brand leadership changes during the year beyond the announced Company reorganizations, as well as market conditions particularly in print advertising, have resulted in a sustained decline in the brands financial results. As a result of our evaluation, we wrote down the value of a domestic tradename intangible from its carrying value of $250 million to its fair value of $65 million, resulting in a pre-tax non-cash impairment charge of $185 million.
Intangible assets, net as of December 31, 2017 and December 31, 2016 consisted of the following (in millions):
December 31, 2017 | ||||||||||||||||
Weighted Average Useful Life (in years) |
Gross | Accumulated Amortization |
Net | |||||||||||||
Tradenames (a) |
18 | $ | 932 | $ | (299 | ) | $ | 633 | ||||||||
Customer lists and other intangible assets (b) |
6 | 611 | (549 | ) | 62 | |||||||||||
|
|
|
|
|
|
|||||||||||
$ | 1,543 | $ | (848 | ) | $ | 695 | ||||||||||
|
|
|
|
|
|
December 31, 2016 | ||||||||||||||||
Weighted Average Useful Life (in years) |
Gross | Accumulated Amortization |
Net | |||||||||||||
Tradenames (a) |
18 | $ | 1,084 | $ | (324 | ) | $ | 760 | ||||||||
Customer lists and other intangible assets (a) |
6 | 659 | (573 | ) | 86 | |||||||||||
|
|
|
|
|
|
|||||||||||
$ | 1,743 | $ | (897 | ) | $ | 846 | ||||||||||
|
|
|
|
|
|
(a) | Tradenames decreased primarily due to classifying tradenames intangibles for Time Inc. UK as a held for sale and the dispositions of Essence and SI Play. See Note 3, Acquisitions and Dispositions and Note 6, Assets Held for Sale. |
(b) | As of December 31, 2017, other intangible assets included capitalized software of $47 million with accumulated amortization of $19 million. As of December 31, 2016 other intangible assets included capitalized software of $48 million, with accumulated amortization of $15 million. These other intangible assets are amortized over their useful lives of three to seven years. |
Based on the Intangible assets, net balance as of December 31, 2017, the estimated amortization expense for each of the succeeding five years and thereafter is as follows (in millions):
2018 |
$ | 67 | ||
2019 |
66 | |||
2020 |
60 | |||
2021 |
57 | |||
2022 |
57 | |||
Thereafter |
388 | |||
|
|
|||
Total |
$ | 695 | ||
|
|
F-127
TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
9. DEBT
Our debt obligations consisted of the following (in millions):
December 31, 2017 |
December 31, 2016 |
|||||||
5.75% Senior Notes |
$ | 475 | $ | 575 | ||||
7.50% Senior Notes |
300 | | ||||||
Senior Credit Facilities: |
||||||||
Term Loan |
462 | 682 | ||||||
Unamortized discount and deferred financing costs |
(15 | ) | (17 | ) | ||||
|
|
|
|
|||||
Total debt obligations |
1,222 | 1,240 | ||||||
Less: Current portion of long-term debt |
| 7 | ||||||
|
|
|
|
|||||
Long-term debt |
$ | 1,222 | $ | 1,233 | ||||
|
|
|
|
Future maturities of debt as of December 31, 2017 are as follows (in millions):
2018 |
$ | | ||
2019 |
| |||
2020 |
| |||
2021 |
| |||
2022 |
475 | |||
Thereafter |
762 | |||
|
|
|||
Total future maturities |
1,237 | |||
Unamortized discount and deferred financing costs |
(15 | ) | ||
|
|
|||
Total debt obligations |
$ | 1,222 | ||
|
|
Senior Credit Facilities
On April 24, 2014, we entered into senior secured credit facilities (the Senior Credit Facilities). The Senior Credit Facilities provided for a term loan in an aggregate principal amount of $700 million with a seven-year maturity (the Term Loan) and a $500 million revolving credit facility with a five-year maturity (the Revolving Credit Facility), of which up to $100 million was available for the issuance of letters of credit. The Revolving Credit Facility may be used for working capital and other general corporate purposes. The Revolving Credit Facility remained undrawn as of December 31, 2017 except for utilization for letters of credit in the face amount of $3 million.
On October 11, 2017, the Company entered into Amendment No. 1 (the Amendment) to the credit agreement that governed the Senior Credit Facilities, dated as of April 24, 2014 (the Existing Credit Agreement and as so amended by the Amendment, the Amended and Restated Credit Agreement). Among other things, the Amendment (i) extended the maturity of the Revolving Credit Facility from June 2019 to October 2022 and the Term Loan from April 2021 to October 2024, or, in each case, if more than $100 million of the Companys 5.75% Senior Notes due 2022 are outstanding on January 14, 2022 (the Springing Maturity Date), to the Springing Maturity Date, (ii) reduced the revolving credit commitments under the Revolving Credit Facility from $500 million (of which $100 million was available for the issuance of letters of credit) to $300 million (of which $185 million is available for the issuance of letters of credit) and (iii) amended certain other provisions.
F-128
TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
The interest rates applicable to the Term Loan under the Amended and Restated Credit Agreement are, at the Companys option, equal to either a Eurocurrency rate or a base rate, plus an applicable margin equal to 3.50% for Eurocurrency rate loans and 2.50% for base rate loans, subject to a 1.00% interest rate floor for Eurocurrency rate loans. Loans under the Revolving Credit Facility remain subject to an interest rate ranging from 2.25% to 2.00% for Eurocurrency rate loans or from 1.25% to 1.00% for base rate loans, depending on the Companys consolidated secured net leverage ratio, and a fee of 0.375% on the unused portion of commitments under the Revolving Credit Facility. Prior to the Amendment, borrowings under the Senior Credit Facilities bore interest at a rate equal to an applicable margin plus, at our option, either a base rate calculated in a customary manner or a eurocurrency rate calculated in a customary manner (subject to a eurocurrency floor in the case of the Term Loan). With respect to the Term Loan, the applicable margin was 2.25% for base rate loans and 3.25% for eurocurrency rate loans. With respect to the Revolving Credit Facility, the applicable margin was either 1.25% or 1.00% for base rate loans and 2.25% or 2.00% for eurocurrency rate loans, with the rate determined based on our consolidated secured net leverage ratio (as defined in the credit agreement that governs the Senior Credit Facilities) for the relevant fiscal quarter. The Company was required to pay a quarterly commitment fee under the Revolving Credit Facility equal to 0.375% of the actual daily unused portion of the commitments during the applicable quarter, as well as a letter of credit fee equal to the spread over adjusted LIBOR on the aggregate face amount of outstanding letters of credit under the Revolving Credit Facility, payable in arrears at the end of each quarter. In addition, we were required to pay a fronting fee in respect of letters of credit issued under our Revolving Credit Facility at a rate of 0.125% per annum of the undrawn face amount of each issued letter of credit, payable in arrears at the end of each quarter. We incurred commitment fees of approximately $2 million on our Revolving Credit Facility in the years ended December 31, 2017, 2016 and 2015, respectively. The commitment fees incurred under the unused portion of the Revolving credit facility and the fronting fee incurred with respect to the letters of credit issued were not significant for any of the periods in the Statements of Operations presented.
The Senior Credit Facilities remain secured by the same collateral and guaranteed by the same guarantors as under the Existing Credit Agreement. All obligations under the Senior Credit Facilities are fully and unconditionally guaranteed by substantially all of our existing and future direct and indirect wholly-owned domestic subsidiaries (subject to certain exceptions). All obligations under the Senior Credit Facilities, and the guarantees of those obligations, are secured, subject to certain exceptions, by substantially all of Time Inc.s assets and the assets of our guarantor subsidiaries under the Senior Credit Facilities, including a first-priority pledge of the capital stock of our subsidiaries directly held by Time Inc. or the guarantors under the Senior Credit Facilities.
The Amended and Restated Credit Agreement permits us to incur incremental senior secured term loan borrowings under the Senior Credit Facilities, subject to the satisfaction of certain conditions, in an aggregate principal amount up to the sum of (a) $350 million plus (b) additional amounts so long as, on a pro forma basis at the time of incurrence, our consolidated secured net leverage ratio (as defined in the Amended and Restated Credit Agreement) does not exceed 2.50x to 1.00x. The Existing Credit Agreement permitted us to incur incremental senior secured term loan borrowings at certain levels as defined in the agreement, subject to the satisfaction of certain conditions. No lender was under any obligation to make any such incremental senior secured term loans to us.
We are permitted to prepay amounts outstanding under the Senior Credit Facilities at any time. Subject to certain exceptions, the Term Loan required us before or after debt refinancing to prepay amounts outstanding thereunder with the net cash proceeds from certain transactions as defined in the agreement, if such proceeds were not used for ordinary business purposes. We were required to make quarterly repayments of the Term Loan equal to 0.25% of the aggregate original principal amount. The Amended and Restated Credit Agreement does not require principal repayments prior to maturity date. During the year ended December 31, 2017, we made a
F-129
TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
voluntary prepayment on our Term Loan of $15 million in addition to the repayment made in connection with the offering of the 7.50% Senior Notes, as described below.
We repaid the Term Loan under our Amended and Restated Credit Agreement in connection with the closing of the Merger.
5.75% Senior Notes
On April 29, 2014, we issued $700 million aggregate principal amount of 5.75% Senior Notes due April 15, 2022 in a private offering. The 5.75% Senior Notes are fully and unconditionally guaranteed by substantially all of our wholly-owned domestic subsidiaries and, under certain circumstances, may become guaranteed by other existing or future subsidiaries.
In November 2015, our Board of Directors authorized discretionary principal debt repayments and repurchases of up to $200 million in the aggregate on our Term Loan and our 5.75% Senior Notes. During the year ended December 31, 2017, we repurchased $100 million aggregate principal amount of our 5.75% Senior Notes in privately negotiated repurchases and recorded a $3 million pre-tax loss on debt extinguishment in the Statements of Operations. During the year ended December 31, 2016, we repurchased $50 million of the aggregate principal amount of our 5.75% Senior Notes at a discount with accrued interest for a total of $46 million and recognized a pre-tax gain from extinguishment of $4 million. The authorization expired on December 31, 2017.
We redeemed the 5.75% Senior Notes in connection with the closing of the Merger.
7.50% Senior Notes
On October 11, 2017, we completed the private offering of $300 million aggregate principal amount of 7.50% Senior Notes.
The 7.50% Senior Notes bear interest at a rate of 7.50% per year payable on April 15 and October 15 of each year, commencing April 15, 2018. The 7.50% Senior Notes mature on October 15, 2025. The 7.50% Senior Notes are senior unsecured obligations of the Company and rank equally with all of the Companys existing and future unsecured senior indebtedness. The Companys obligations under the 7.50% Senior Notes are guaranteed on a senior unsecured basis by the same guarantors that guarantee the Senior Credit Facilities and the 5.75% Senior Notes.
The Company used the net proceeds from the offering of 7.50% Senior Notes, together with cash on hand, to (i) repay $200 million of the outstanding borrowings under the Term Loan, (ii) repurchase $100 million aggregate principal amount of the 5.75% Senior Notes in privately negotiated repurchases, and (iii) pay fees and expenses of the transactions described above.
We redeemed the 7.50% Senior Notes in connection with the closing of the Merger.
The indenture governing the 5.75% Senior Notes, the 7.50% Senior Notes and the credit agreement governing the Senior Credit Facilities contain certain restrictive covenants. With respect to the Revolving Credit Facility only, we were required, under the Existing Credit Agreement, to maintain a consolidated secured net leverage ratio (as defined in the credit agreement governing the Senior Credit Facilities) not to exceed 2.75x to 1.00x, as tested at the end of each fiscal quarter. The Amended and Restated Credit Agreement requires us to maintain a maximum consolidated secured net leverage ratio of 2.75x to 1.00x initially, which will be reduced to 2.50x to 1.00x for fiscal quarters ending on and after June 30, 2019.
F-130
TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
In connection with the issuance of the 5.75% Senior Notes and Senior Credit Facilities, we initially incurred deferred financing costs of $13 million. The Term Loan was initially issued at a discount of $13 million and the 5.75% Senior Notes were initially issued at a discount of $10 million. During the fourth quarter of 2017, unamortized deferred financing costs and deferred discounts of approximately $3 million were written off to interest expense, in connection with the Amendment. In addition we recorded approximately $6 million of other costs within Selling, general and administrative expenses in the Statements of Operations. In connection with the issuance of the 7.50% Senior Notes and the Amendment, we incurred deferred financing costs of $7 million, of which $2 million related to the Term Loan, $2 million to the Revolving Credit Facility and $3 million related to the 7.50% Senior Notes. The 7.50% Senior Notes were issued at par. Debt discount and deferred financing fees are being amortized using the effective interest method over the terms of the Term Loan, the 5.75% Senior Notes, the 7.50% Senior Notes and the Revolving Credit Facility.
10. INCOME TAXES
Domestic and foreign income (loss) before income taxes were as follows (in millions):
Year Ended December 31, | ||||||||||||
2017 | 2016 | 2015 | ||||||||||
Domestic |
$ | (23 | ) | $ | (104 | ) | $ | (855 | ) | |||
Foreign |
(12 | ) | 23 | (47 | ) | |||||||
|
|
|
|
|
|
|||||||
Total |
$ | (35 | ) | $ | (81 | ) | $ | (902 | ) | |||
|
|
|
|
|
|
The significant components of our Income tax provision (benefit) were as follows (in millions):
Year Ended December 31, | ||||||||||||
2017 | 2016 | 2015 | ||||||||||
Federal |
||||||||||||
Current |
$ | 11 | $ | | $ | (38 | ) | |||||
Deferred |
(68 | ) | (30 | ) | 17 | |||||||
Foreign |
||||||||||||
Current (a) |
2 | 2 | 2 | |||||||||
Deferred |
2 | (1 | ) | (2 | ) | |||||||
State and Local |
||||||||||||
Current |
| 3 | (3 | ) | ||||||||
Deferred |
6 | (7 | ) | 3 | ||||||||
|
|
|
|
|
|
|||||||
Total (b) |
$ | (47 | ) | $ | (33 | ) | $ | (21 | ) | |||
|
|
|
|
|
|
(a) | Foreign withholding taxes were insignificant for the years ended December 31, 2017, 2016 and 2015. |
(b) | Excludes excess tax benefits from equity awards allocated directly to contributed capital which were insignificant in 2017, 2016 and 2015. |
F-131
TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
The differences between our actual effective tax rate and the statutory U.S. Federal income tax rate of 35% were as set forth below (in millions):
Year Ended December 31, | ||||||||||||
2017 | 2016 | 2015 | ||||||||||
Taxes on income at U.S. federal statutory rate |
$ | (12 | ) | $ | (28 | ) | $ | (316 | ) | |||
State and local taxes, net of federal tax effects |
4 | (3 | ) | (1 | ) | |||||||
Sale of subsidiaries |
(44 | ) | | (14 | ) | |||||||
Goodwill impairment |
6 | | 306 | |||||||||
Tax law change |
(75 | ) | | (1 | ) | |||||||
Change in valuation allowance (excluding impact of rate change) |
54 | 6 | 1 | |||||||||
Effect of foreign operations |
1 | (12 | ) | 6 | ||||||||
Tax reserves and interest |
10 | 2 | (2 | ) | ||||||||
Non-deductible transaction costs |
7 | | | |||||||||
Non-deductible meals and entertainment |
2 | 2 | 2 | |||||||||
Equity-based compensation |
| 3 | | |||||||||
Other |
| (3 | ) | (2 | ) | |||||||
|
|
|
|
|
|
|||||||
Total |
$ | (47 | ) | $ | (33 | ) | $ | (21 | ) | |||
|
|
|
|
|
|
In the fourth quarter of 2017, the United States Federal government enacted the Tax Cut and Jobs Act (The Act), which represents the most significant change to the Internal Revenue Code in more than 30 years. From a corporate tax perspective, it provides a significant reduction in the corporate tax rate from 35% to 21%, reforms the U.S. taxation of international transactions and businesses, and eliminates certain business tax deductions. Additionally, the SEC issued Staff Accounting Bulletin 118 (SAB 118), which addresses the considerations of a registrant related to the enactment of the Act in applying ASC 740 to this legislative change. Specifically, SAB 118 was issued to address situations where the accounting under ASC 740 is incomplete for certain income tax effects of The Act upon issuance of an entitys financial statements for the reporting period in which The Act was enacted.
Our accounting for the following elements of The Act is incomplete. However, we were able to make reasonable estimates of certain effects and, therefore, recorded provision adjustments as follows:
Reduction of the US Federal Corporate Tax Rate: The Act reduces the corporate tax rate to 21%, effective January 1, 2018. Consequently, we have recorded a provisional reduction in our net deferred tax liability balance of $75 million, with a corresponding credit to income tax expense for the year ended December 31, 2017. While we are able to make a reasonable estimate of the impact of the reduction in corporate tax rate, it may be affected by other factors related to The Act.
Deemed Repatriation Transition Tax: The Deemed Repatriation Transition Tax (Transition Tax) is a tax on previously untaxed accumulated and current earnings and profits (E&P) of certain of our foreign subsidiaries. To determine the amount of Transition Tax, we must determine, in addition to other factors, the amount of post-1986 E&P of the relevant subsidiaries, as well as the amount of non-U.S. income taxes paid on such earnings. Due to the fact that we have a negative E&P balance at both measurement dates, the company will not have a Transition Tax liability.
Executive Compensation: Given the uncertainty and lack of guidance related to certain changes to the rules in determining whether certain executive compensation is deductible, the company has recorded provisional amounts related to the changes in the Act.
F-132
TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
Application of the Global Intangible Low Taxed Income (GILTI) rules. Because of the complexity of the new GILTI rules, we are continuing to evaluate this provision of The Act and the application of ASC 740. Under U.S. GAAP, we are allowed to make an accounting policy election of either (1) treating taxes due on future US inclusions in taxable income related to GILTI as a current period expense when incurred (the period cost method) or (2) factor such amounts into a companys measurement of its deferred taxes (the deferred method). Our selection of an accounting policy with respect to the new GILTI tax rules will depend, in part, on analyzing our global income to determine whether we expect to have future U.S. inclusions in taxable income related to GILTI and, if so, what the impact is expected to be. Given this complexity, we have not made any adjustments related to a potential GILTI tax in our financial statements and have not made a policy decision regarding whether to record deferred taxes on GILTI.
On October 13, 2016, the Treasury Department and Internal Revenue Service issued final and temporary regulations addressing whether certain instruments between related parties are treated as debt or equity, as well as, required documentation. The Company completed its evaluation of the impact of these new regulations and has concluded that they will not have a material impact on our operations or tax positions.
In the fourth quarter of 2015, the United Kingdom enacted changes to its corporation tax rate, reducing it to 19% beginning April 1, 2017 and to 18% beginning April 1, 2018. While this does not have an impact on our current tax rate, the application of these new rates to existing deferred tax balances resulted in a tax benefit of $2 million recorded in the fourth quarter of 2015. In the third quarter of 2016, the United Kingdom enacted changes to its corporation tax rate, further reducing it to 17% beginning April 1, 2020. This did not have a material impact to our existing deferred tax balances.
Significant components of our deferred tax assets and liabilities were as follows (in millions):
December 31, | ||||||||
2017 | 2016 | |||||||
Deferred tax assets |
||||||||
Tax attribute carryforwards |
$ | 77 | $ | 31 | ||||
Accruals and reserves |
19 | 37 | ||||||
Employee compensation |
17 | 38 | ||||||
Deferred rent |
40 | 56 | ||||||
Other |
12 | 17 | ||||||
Valuation allowances |
(57 | ) | (19 | ) | ||||
|
|
|
|
|||||
Total deferred tax assets |
$ | 108 | $ | 160 | ||||
|
|
|
|
|||||
Deferred tax liabilities |
||||||||
Intangibles and goodwill |
$ | 177 | $ | 286 | ||||
Depreciation |
43 | 65 | ||||||
Unbilled revenue |
16 | | ||||||
|
|
|
|
|||||
Total deferred tax liabilities |
236 | 351 | ||||||
|
|
|
|
|||||
Net deferred tax liabilities |
$ | 128 | $ | 191 | ||||
|
|
|
|
We have recorded valuation allowances for certain tax attribute carryforwards and other deferred tax assets due to uncertainty that exists regarding future realizability. The tax attribute carryforwards at December 31, 2017 consist of $4 million of tax credits, $156 million of capital losses, and $292 million of net operating losses that expire in varying amounts from 2018 to 2036. The tax attribute carryforwards at December 31, 2016 consist of $1 million of tax credits and $238 million of net operating losses that expire in varying amounts from 2017
F-133
TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
through 2035. If, in the future, we believe that it is more likely than not that these deferred tax benefits will be realized, the reversal of the valuation allowances will be recognized in the Statements of Operations.
U.S. income and foreign withholding taxes have not been recorded on permanently reinvested earnings of foreign subsidiaries aggregating approximately $8 million and $395 million at December 31, 2017 and 2016, respectively. Generally, such amounts become subject to U.S. taxation upon the remittance of dividends and under certain other circumstances. Determination of the amount of unrecognized deferred U.S. federal income tax liability with respect to such earnings is not practicable.
Accounting for Uncertainty in Income Taxes
We recognize income tax benefits for tax positions determined more likely than not to be sustained upon examination, based on the technical merits of the positions.
Changes in our uncertain income tax positions, excluding the related accrual for interest and penalties, from January 1 through December 31 are set forth below (in millions):
Year Ended December 31, | ||||||||||||
2017 | 2016 | 2015 | ||||||||||
Balance, beginning of the period |
$ | 32 | $ | 35 | $ | 37 | ||||||
Additions for prior year tax positions |
5 | 3 | | |||||||||
Additions for current year tax positions |
1 | 1 | 1 | |||||||||
Reductions for prior year tax positions |
(3 | ) | (7 | ) | (3 | ) | ||||||
|
|
|
|
|
|
|||||||
Balance, end of the period |
$ | 35 | $ | 32 | $ | 35 | ||||||
|
|
|
|
|
|
Should our position with respect to these uncertain tax positions be upheld, the significant majority of the effect would be recorded in the Statements of Operations as part of the Income tax provision (benefit).
During the year ended December 31, 2017, we recorded an increase to interest reserves through the Statements of Operations of approximately $4 million. During the year ended December 31, 2016, we recorded an increase to interest reserves through the Statements of Operations of approximately $2 million. During the year ended December 31, 2015, we recorded a decrease to interest reserves through the Statements of Operations of approximately $2 million. The amount accrued for interest and penalties as of December 31, 2017, 2016 and 2015 was $12 million, $9 million and $7 million, respectively. Our policy is to recognize interest and penalties accrued on uncertain tax positions as part of income tax expense.
Net reserves for uncertain tax positions, including applicable accrued interest, are included within Other noncurrent liabilities on the accompanying Balance Sheets.
In our judgment, uncertainties related to certain tax matters are reasonably possible of being resolved during the next 12 months. The effect of the resolutions of these matters, a portion of which could vary based on the final terms and timing of actual settlements with taxing authorities, is estimated to be a reduction of recorded unrecognized tax benefits ranging from nil to $12 million, which would lower our effective tax rate.
For periods prior to the Spin-Off, Time Warner has filed income tax returns in the United States and various state and local and foreign jurisdictions on our behalf. The Internal Revenue Service (IRS) is currently conducting an examination of Time Warners U.S. income tax returns for the 2008 through 2014 period.
F-134
TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
As of December 31, 2017, our tax years that remain subject to examination by significant jurisdiction are as follows:
U.S. Federal | 2008 through the current period | |
United Kingdom | 2016 through the current period | |
New York State | 2014 Post-Spin through the current period | |
New York City | 2012 through the current period | |
California | 2014 Post-Spin through the current period |
Tax Matters Agreement
In connection with the Spin-Off, we entered into a Tax Matters Agreement with Time Warner that governs the rights, responsibilities and obligations of Time Warner and us after the Spin-Off with respect to all tax matters (including tax liabilities, tax attributes, tax returns and tax contests). As a member of Time Warners consolidated U.S. federal income tax group, we have (and will continue to have following the Spin-Off) joint and several liability with Time Warner to the IRS for the consolidated U.S. federal income taxes of the Time Warner group relating to taxable periods in which we were part of the group.
With respect to taxes other than those incurred in connection with the Spin-Off , the Tax Matters Agreement provides that we will indemnify Time Warner for (1) any taxes of Time Inc. and its subsidiaries for all periods after the Distribution and (2) any taxes of the Time Warner group for periods prior to the Distribution to the extent attributable to Time Inc. or its subsidiaries. For purposes of the indemnification described in clause (2), however, we will generally be required to indemnify Time Warner only for any such taxes that are paid in connection with a tax return filed after the Distribution or that result from an adjustment made to such taxes after the Distribution. In these cases, our indemnification obligations generally would be computed based on the amount by which the tax liability of the Time Warner group is greater than it would have been absent our inclusion in its tax returns (or absent the applicable adjustment). We and Time Warner will generally have joint control over tax authority audits or other tax proceeding related to Time Inc. specific tax matters.
11. STOCKHOLDERS EQUITY AND NONCONTROLLING INTERESTS
Authorized Capital Stock
Our authorized capital stock consists of 400 million shares of common stock, par value $0.01 per share, and 40 million shares of preferred stock, par value $0.01 per share. The Merger closed on January 31, 2018. As a result of the closing of the Merger, the Purchaser acquired any and all issued and outstanding shares of common stock of the Company in exchange for the right to receive $18.50 in cash, without interest, upon the terms and subject to the conditions set forth in the Offer to Purchase and in the related Letter of Transmittal.
Common Stock
Shares Outstanding: On the Distribution Date, Time Warner completed the Spin-Off by way of a pro rata dividend of Time Inc. shares held by Time Warner to its stockholders as of May 23, 2014 based on a distribution ratio of one share of Time Inc. common stock for every eight shares of Time Warner common stock held (the Distribution). Immediately following the Distribution, we had approximately 108.94 million shares of common stock issued and outstanding.
Dividends: Holders of shares of our common stock are entitled to receive dividends when, as and if declared by our Board of Directors at its discretion out of funds legally available for that purpose, subject to the
F-135
TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
preferential rights of any preferred stock that may be outstanding. The timing, declaration, amount and payment of future dividends are dependent on our financial condition, earnings, the capital requirements of our business, covenants associated with debt obligations and debt service obligations, as well as legal requirements, regulatory constraints, industry practice and other factors deemed relevant by our Board of Directors. Our Board of Directors will make all decisions regarding our payment of dividends from time to time in accordance with applicable law. For the year ended December 31, 2017, we made dividend payments of $31 million.
Voting Rights: The holders of our common stock are entitled to vote only in the circumstances set forth in our Amended and Restated Certificate of Incorporation. The holders of our common stock will be entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders.
Other Rights: Subject to the preferential liquidation rights of any preferred stock that may be outstanding, upon our liquidation, dissolution or winding-up, the holders of our common stock will be entitled to share ratably in those assets legally available for distribution to our stockholders.
The holders of our common stock do not have preemptive rights or preferential rights to subscribe for shares of our capital stock.
Preferred Stock
Without any further vote or action by the stockholders, our Board of Directors may designate and issue from time to time up to 40 million shares of preferred stock in one or more series. Our Board of Directors may determine and fix the number of shares constituting the series and the designation of the series, the voting powers (if any) of the shares of the series, and the preferences and relative, participating, optional and other rights, if any, and any qualification, limitation or restriction, applicable to the shares of such series.
Stock Repurchases
In November 2015, our Board of Directors authorized share repurchases of our common stock of up to $300 million. There were no share repurchases of our common stock during the year ended December 31, 2017. During the year ended December 31, 2016, we repurchased 7.72 million shares of our common stock for a weighted average price of $14.76 per common share.
On November 9, 2017, our Board of Directors declared a dividend of $0.04 per common share to stockholders of record as of the close of business on November 30, 2017. A total of $4 million was paid on December 15, 2017 with respect to the dividend declared on November 9, 2017. On August 8, 2017, our Board of Directors declared a dividend of $0.04 per common share to stockholders of record as of the close of business on August 31, 2017, payable on September 15, 2017. A total of $4 million was paid on September 15, 2017 with respect to the dividend declared on August 8, 2017. On May 10, 2017, following a comprehensive review of Time Inc.s capital allocation, capital structure and operating plan, the Time Inc. Board of Directors declared a quarterly dividend of $0.04 per common share to stockholders of record as of the close of business on May 31, 2017. A total of $4 million was paid on June 15, 2017 with respect to the dividend declared on May 10, 2017. On February 16, 2017, our Board of Directors declared a quarterly dividend of $0.19 per common share to stockholders of record as of the close of business on February 28, 2017. A total of $19 million was paid on March 15, 2017 with respect to the dividend declared on February 16, 2017.
Redeemable Noncontrolling Interests
Redeemable noncontrolling interests on our Balance Sheets relate to noncontrolling interests of certain consolidated entities whereby equity interests, in the form of common units, have been granted to key employees
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TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
of these entities, subject to vesting and forfeiture provisions. In conjunction with the issuance of these common units, the Company entered into put and call arrangements whereby such employees have a right to put their shares to us and require us to buy their interests at their fair values, per the provisions of the operating agreements. The put and call arrangements are accounted for as equity instruments, as the employees are subject to the risks and rewards associated with share ownership for a reasonable period of time. We retain rights to call these interests over time, in each case subject to the satisfaction of certain conditions. The fair value of the common units is being recognized as equity-based compensation expense over the vesting period of 4 years from the date of grant.
Upon vesting, the portion of the redemption value associated with the completed service period was recorded to redeemable noncontrolling interests. As these common units are redeemable at the option of the holder and are not contingent upon an event not in control of the holder, redemption is determined to be probable. If the common units are not redeemed, the redemption value will be remeasured through Redeemable noncontrolling interest at each reporting date. Redeemable noncontrolling interests are classified within the mezzanine section on our Balance Sheets. Net income or loss of the noncontrolling interest entity is attributed to the parent and the noncontrolling interest entity on the Statement of Operations in accordance with the terms of the operating agreements.
Comprehensive Income (Loss)
Comprehensive income (loss) is reported in the Statements of Comprehensive Income (Loss) and consists of Net income (loss) and other gains and losses affecting Stockholders equity that, under GAAP, are excluded from Net income (loss). Such items consist primarily of foreign currency translation gains (losses) and changes in pension benefit plan obligations.
The following summary sets forth the activity within Other comprehensive income (loss) for the years ended December 31, 2017, 2016 and 2015 (in millions):
Year Ended December 31, 2017 |
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Pre-tax | Tax (Provision) Benefit |
Net of Tax | ||||||||||
Unrealized foreign currency translation gains (losses) |
$ | 39 | $ | | $ | 39 | ||||||
Unrealized gains (losses) on pension benefit obligations |
(3 | ) | 1 | (2 | ) | |||||||
Reclassification adjustment for (gains) losses on pension benefit obligations realized in Net income (loss) attributable to Time Inc. (b) |
4 | (1 | ) | 3 | ||||||||
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Other comprehensive income (loss) |
$ | 40 | $ | | $ | 40 | ||||||
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Year Ended December 31, 2016 |
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Pre-tax | Tax (Provision) Benefit |
Net of Tax | ||||||||||
Unrealized foreign currency translation gains (losses) |
$ | (75 | ) | $ | | $ | (75 | ) | ||||
Unrealized gains (losses) on pension benefit obligations |
(94 | ) | 15 | (79 | ) | |||||||
Reclassification adjustment for (gains) losses on pension benefit obligations realized in Net income (loss) attributable to Time Inc. (b) |
4 | (1 | ) | 3 | ||||||||
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Other comprehensive income (loss) |
$ | (165 | ) | $ | 14 | $ | (151 | ) | ||||
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TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
Year Ended December 31, 2015 |
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Pre-tax | Tax (Provision) Benefit |
Net of Tax | ||||||||||
Unrealized foreign currency translation gains (losses) |
$ | (36 | ) | $ | | $ | (36 | ) | ||||
Reclassification adjustment for (gains) losses on foreign currency realized in Net income (loss) (a) |
1 | | 1 | |||||||||
Unrealized gains (losses) on pension benefit obligations |
(33 | ) | 5 | (28 | ) | |||||||
Reclassification adjustment for (gains) losses on pension benefit obligations realized in Net income (loss) attributable to Time Inc. (b) |
9 | (3 | ) | 6 | ||||||||
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Other comprehensive income (loss) |
$ | (59 | ) | $ | 2 | $ | (57 | ) | ||||
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(a) | Foreign currency reclassification adjustments were the result of the sale of our UK based joint venture in 2015. |
(b) | Included within Selling, general and administrative expenses on the accompanying Statements of Operations. |
The following summary sets forth the components of Accumulated other comprehensive loss, net of tax (in millions):
December 31, | ||||||||
2017 | 2016 | |||||||
Foreign currency translation gains (losses) |
$ | (96 | ) | $ | (135 | ) | ||
Net benefit obligation |
(241 | ) | (242 | ) | ||||
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Accumulated other comprehensive loss, net |
$ | (337 | ) | $ | (377 | ) | ||
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12. NET INCOME (LOSS) PER COMMON SHARE
Basic net income (loss) per common share is calculated by dividing Net income (loss) attributable to Time Inc. common stockholders by the Weighted average basic common shares outstanding. Diluted net income (loss) per common share is similarly calculated, except that the calculation includes the dilutive effect of the assumed issuance of common shares issuable under equity-based compensation plans in accordance with the treasury stock method, except where the inclusion of such common shares would have an anti-dilutive impact. The determination and reporting of net income (loss) per common share requires the inclusion of certain of our time-based restricted stock units (RSUs) where such securities have the right to share in dividends, if declared, equally with common stockholders.
The determination and reporting of net income (loss) per common share requires the inclusion of certain of our time-based RSUs where such securities have the right to share in dividends, if declared, equally with common stockholders. During periods in which we generate net income, such participating securities have the effect of diluting both basic and diluted net income (loss) per share. During periods of net loss, no effect is given to participating securities, since they do not share in the losses of the Company. For each of the years ended December 31, 2016 and 2015, such participating securities had no impact on our basic and diluted net income (loss) per common share calculation as we were in a net loss position.
Performance share units (PSUs), outperformance plan units (OPPs) and performance stock options are included in the calculation of diluted net income (loss) per common share prior to the vesting date based on the number of potential shares that would be issuable under the terms of the agreement if the end of the reporting period were the end of the vesting period, assuming the result would be dilutive.
F-138
TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2017, 2016 and 2015, Basic and Diluted net income (loss) per common share were as follows (in millions, except per share amounts):
Year Ended December 31, | ||||||||||||||||||||||||||||||||||||
2017 | 2016 | 2015 | ||||||||||||||||||||||||||||||||||
Net income (loss) |
Shares | Per Share Amount |
Net income (loss) |
Shares | Per Share Amount |
Net income (loss) |
Shares | Per Share Amount |
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Basic net income (loss) per common share |
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Net income (loss) |
$ | 12.45 | $ | (48.19 | ) | $ | (881.00 | ) | ||||||||||||||||||||||||||||
Less net income associated with participating securities |
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Basic net income (loss) per common share |
$ | 12.45 | 99.96 | $ | 0.12 | $ | (48.19 | ) | 99.20 | $ | (0.49 | ) | $ | (881.00 | ) | 105.94 | $ | (8.32 | ) | |||||||||||||||||
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Diluted net income (loss) per common share |
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Net income (loss) |
$ | 12.45 | $ | (48.19 | ) | $ | (881.00 | ) | ||||||||||||||||||||||||||||
Less net income associated with participating securities |
(0.02 | ) | | | ||||||||||||||||||||||||||||||||
Effect of dilutive securities |
| 0.83 | | | | | ||||||||||||||||||||||||||||||
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Diluted net income (loss) per common share |
$ | 12.43 | 100.79 | $ | 0.12 | $ | (48.19 | ) | 99.20 | $ | (0.49 | ) | $ | (881.00 | ) | 105.94 | $ | (8.32 | ) | |||||||||||||||||
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In periods of income, the computation of Diluted net income (loss) per common share excludes certain equity awards because they are anti-dilutive. However, in periods of loss, all equity awards are excluded, as the inclusion of any equity awards would be anti-dilutive. Such equity awards are as set forth below (in millions):
Year Ended December 31, |
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2017 | 2016 | 2015 | ||||||||||
Anti-dilutive equity awards |
7 | 8 | 6 |
13. EQUITY-BASED COMPENSATION
The Company adopted the 2016 Omnibus Incentive Compensation Plan (the 2016 Omnibus Plan) in June 2016, which replaced and superseded its 2014 Omnibus Incentive Compensation Plan (the 2014 Omnibus Plan). The Company grants stock options, RSUs and performance stock units (PSUs) under its 2016 Omnibus Plan. Awards granted under the 2014 Omnibus Plan remain in effect pursuant to their terms. Approximately 1 million Time Inc. stock options were exercised during the year ended December 31, 2017. There were no Time Inc. stock options exercised during the years ended December 31, 2016 and 2015. Approximately 1 million RSUs vested into common shares during the years ended December 31, 2017, 2016 and 2015.
As a result of the Merger, the effect of a change in control on RSUs thereunder caused outstanding and unvested units to be converted into a restricted stock unit settled in Meredith common stock, on the same terms
F-139
TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
and conditions (including applicable vesting requirements) as applied to each RSU immediately prior to the change in control. The effect of a change in control on stock options caused vested but unexercised options to be canceled and converted into the right to receive an amount of cash equal to the product of the total number of stock options multiplied by the excess, if any, of the Merger Consideration (as defined in the Merger Agreement) over the exercise price of the stock options. Each stock option that was unvested immediately prior to the change in control was assumed by Meredith on the same terms and conditions (including applicable vesting requirements) as applied to each stock option immediately prior to the Change in Control. Out-of-the money options were canceled and not replaced.
On July 24, 2017, the Company awarded performance stock options (Performance options) under the 2016 Omnibus Plan to each of its executive officers, with the exception of our President and CEO. The number of Performance options eligible to vest is determined based upon the Companys achievement, by December 31, 2017, of four operational performance goals, weighted 25% each, based on milestones related to (1) cost re-engineering, (2) digital growth acceleration through content partnerships, (3) digital growth acceleration through direct sales, and (4) portfolio rationalization. To the extent a milestone has not been achieved by December 31, 2017 (which determination shall be made in the quarter ended March 31, 2018), 25% of the Performance options granted are forfeited. Thereafter, 50% of the Performance options that remain outstanding will vest on the first anniversary of the grant date and the remaining 50% on the second anniversary of the grant date. The Performance options have an exercise price equal to the fair market value of our common stock on the grant date. The expense related to Performance options is recognized on a straight-line basis over the requisite service period for each separately vesting portion of the award. The grant-date fair value of each Performance option is determined on the date of grant using the Black-Scholes option-pricing model. Performance options expire on the third anniversary of the grant date. On January 8, 2018, the Compensation Committee certified achievement of performance of the milestones and also approved the acceleration of the time vesting of the Performance options subject to the closing of the Merger.
On February 13, 2017, the Company adopted a long-term incentive compensation plan (2017 Performance Stock Unit Plan) pursuant to which PSUs were awarded under the 2016 Omnibus Plan.
The 2017 Performance Stock Unit Plan is designed to incentivize and reward executive officers for effecting the successful transformation of our business, as measured by two performance-based vesting conditions, weighted 50% each. The number of units that will vest into common shares is determined based on the Companys 2018 financial performance. Achievement of the financial performance and payouts are interpolated between 50% and 200% with the target performance established at a 100% payout.
Each PSU represents the unfunded, unsecured right to receive one share of our common stock on the vesting date but carries no voting or dividend rights. The number of PSUs eligible to vest is determined by evaluation of the two performance-based vesting conditions on or before the second anniversary of the grant. Vesting occurs on a graded-vesting schedule, with 50% of the units vesting on the date the compensation committee of the Company certifies the vesting conditions and the remaining 50% vesting one year later. The expense related to these PSUs is recognized on a straight-line basis over the requisite service period for each separately vesting portion of the award. The fair value and compensation expense of each PSU is determined based on the closing market price of Time Inc.s common stock on the NYSE Composite Tape on the date of grant discounted to exclude the estimated dividend yield during the vesting period.
As a result of the Merger, the PSUs will be deemed earned assuming achievement of performance at target and converted to a time-vested restricted stock unit settled in Meredith common stock, on the same terms and conditions. Under the terms of the PSUs, 50% of the award would vest on the second anniversary of the grant date (February 13, 2019) and the remaining 50% would vest on the third anniversary of the grant date
F-140
TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(February 13, 2020). On January 8, 2018, the Compensation Committee approved the acceleration of the time vesting of the PSUs subject to the closing of the Merger.
On February 8, 2016, the Company adopted the Outperformance Plan pursuant to which OPPs were awarded under the 2014 Omnibus Incentive Compensation Plan.
The Outperformance Plan is designed to incentivize and reward executive officers and a small number of key senior executives for effecting the successful transformation of our business, as measured by the growth in our stock price over the performance period. Stock price performance under the Outperformance Plan is measured as the average closing price of our common stock between February 15, 2018 and March 15, 2018. Threshold performance level was established at $17 per share, representing a stock price increase of approximately 18% from the February 8, 2016 grant date stock price of $14.38, and target performance level was established at $20 per share. There is no payout at $17, but achievement and payouts are interpolated between 0% and 100% for performance between $17 and $20. The maximum performance level was established at $26 per share. Threshold for performance for the December 12, 2016 grant (which was issued under the 2016 Omnibus Incentive Compensation Plan) was increased to $18.50 but the payouts, target and maximum shares earned remain the same.
Each OPP represents the unfunded, unsecured right to receive one share of our common stock on the vesting date but carries no voting or dividend rights. The number of OPPs eligible to vest is determined by evaluation of the average closing share price of each trading day between February 15 and March 15, 2018. Vesting occurs on the date the Compensation Committee of the Company certifies the stock price performance. OPPs generally are eligible to vest (based on the stock price certified at the end of the performance period) on a pro rata basis if an employee terminates before the end of the performance period due to death or disability. Non-vested OPPs are generally forfeited upon termination for any other reason. The expense related to these OPPs is recognized on a straight-line basis over the performance period based on the grant date fair value. The fair value and compensation expense of each OPP is determined on date of grant by using the Monte Carlo valuation model. Total unrecognized compensation cost related to unvested Time Inc. OPPs as of December 31, 2017, without taking into account expected forfeitures, was $1 million and was expected to be recognized over a weighted-average period of approximately 0.25 years.
As a result of the Merger, the effect of a change in control on OPPs thereunder caused outstanding and unvested OPPs to be deemed earned based on the Merger Consideration as contemplated by the terms of the Outperformance Plan and become fully vested and converted into the right to receive an amount of cash equal to the total number of OPPs multiplied by the Merger Consideration. Each OPP that remained unvested at the time of the change in control was canceled.
The table below summarizes the weighted-average assumptions used to value Time Inc. stock options at their grant date:
Year Ended December 31, | ||||||||||||
2017 | 2016 | 2015 | ||||||||||
Expected volatility |
N/A | 27.89 | % | 27.64 | % | |||||||
Expected term to exercise from grant date (in years) |
N/A | 5.16 | 5.24 | |||||||||
Risk-free rate |
N/A | 1.33 | % | 1.67 | % | |||||||
Expected dividend yield |
N/A | 5.16 | % | 3.21 | % | |||||||
Weighted average grant date fair value per option |
N/A | $ | 2.06 | $ | 4.49 |
F-141
TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
The following tables summarize stock option activity for 2017 and 2016:
Year Ended December 31, 2017 | ||||||||||||||||
Number of options (in thousands) |
Weighted- Average Exercise Price |
Weighted- Average Remaining Contractual Life (in years) |
Aggregate Intrinsic Value (in thousands) |
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Outstanding as of December 31, 2016 |
6,273 | $ | 17.50 | |||||||||||||
Exercised |
(928 | ) | 14.38 | |||||||||||||
Forfeited or expired |
(499 | ) | 19.98 | |||||||||||||
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Outstanding as of December 31, 2017 |
4,846 | $ | 17.85 | 7.43 | $ | 11,785 | ||||||||||
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Exercisable as of December 31, 2017 |
2,413 | $ | 20.26 | 6.48 | $ | 3,274 | ||||||||||
Expected to vest as of December 31, 2017 |
2,013 | $ | 15.46 | 8.36 | $ | 7,019 |
Year Ended December 31, 2016 | ||||||||||||||||
Number of options (in thousands) |
Weighted- Average Exercise Price |
Weighted- Average Remaining Contractual Life (in years) |
Aggregate Intrinsic Value (in thousands) |
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Outstanding as of December 31, 2015 |
2,794 | $ | 23.37 | |||||||||||||
Granted |
4,447 | 14.41 | ||||||||||||||
Forfeited or expired |
(968 | ) | 20.23 | |||||||||||||
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Outstanding as of December 31, 2016 |
6,273 | $ | 17.50 | 8.80 | $ | 13,974 | ||||||||||
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Exercisable as of December 31, 2016 |
978 | $ | 23.00 | 7.36 | $ | | ||||||||||
Expected to vest as of December 31, 2016 |
4,366 | $ | 16.54 | 9.04 | $ | 11,435 |
Total unrecognized compensation cost related to unvested Time Inc. stock options as of December 31, 2017, without taking into account expected forfeitures, was $3 million and is expected to be recognized over a weighted-average period between one and two years.
We received $12 million related to the exercise of stock options and realized a related tax benefit of $1 million.
F-142
TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
The following tables summarize RSU activity for 2017 and 2016:
Year Ended December 31, 2017 | ||||||||||||
Number of Shares/Units (in thousands) |
Weighted- Average Grant Date Fair Value |
Aggregate Intrinsic Value (in thousands) |
||||||||||
Unvested as of December 31, 2016 |
3,136 | $ | 16.46 | |||||||||
Granted |
1,267 | 17.15 | ||||||||||
Vested |
(1,044 | ) | 16.94 | |||||||||
Forfeited |
(687 | ) | 16.70 | |||||||||
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Unvested as of December 31, 2017 (a) |
2,672 | $ | 16.54 | $ | 49,289 | |||||||
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Expected to vest as of December 31, 2017 |
1,935 | $ | 16.36 | $ | 35,707 |
Year Ended December 31, 2016 | ||||||||||||
Number of Shares/Units (in thousands) |
Weighted- Average Grant Date Fair Value |
Aggregate Intrinsic Value (in thousands) |
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Unvested as of December 31, 2015 |
3,057 | $ | 22.25 | |||||||||
Granted |
2,432 | 12.90 | ||||||||||
Vested |
(1,355 | ) | 22.50 | |||||||||
Forfeited |
(998 | ) | 17.28 | |||||||||
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Unvested as of December 31, 2016 (a) |
3,136 | $ | 16.46 | $ | 55,977 | |||||||
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Expected to vest as of December 31, 2016 |
2,567 | $ | 16.47 | $ | 45,820 |
(a) | The weighted average contractual life of unvested RSUs at both December 31, 2017 and 2016 was one year. |
Total unrecognized compensation cost related to unvested Time Inc. RSUs as of December 31, 2017, without taking into account expected forfeitures, was $26 million and is expected to be recognized over a weighted-average period between one and two years.
The following table sets forth the total intrinsic value of Time Inc. RSUs that vested during the years ended December 31, 2017, 2016 and 2015 (in millions):
Year ended December 31, | ||||||||||||
2017 | 2016 | 2015 | ||||||||||
RSUs |
$ | 18 | $ | 20 | $ | 31 |
F-143
TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
The following table summarizes OPP activity for 2017 and 2016:
Year Ended December 31, 2017 | ||||||||||||
Number of Shares/Units (in thousands) |
Weighted- Average Grant Date Fair Value |
Aggregate Intrinsic Value (in thousands) |
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Unvested as of December 31, 2016 |
739 | $ | 8.84 | |||||||||
Forfeited |
(125 | ) | 8.12 | |||||||||
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Unvested as of December 31, 2017 (a) |
614 | $ | 8.98 | $ | 11,322 | |||||||
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Expected to vest as of December 31, 2017 |
602 | $ | 8.98 | $ | 11,106 |
Year Ended December 31, 2016 | ||||||||||||
Number of Shares/Units (in thousands) |
Weighted- Average Grant Date Fair Value |
Aggregate Intrinsic Value (in thousands) |
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Unvested as of December 31, 2015 |
| $ | | |||||||||
Granted |
921 | 8.70 | ||||||||||
Forfeited |
(182 | ) | 8.12 | |||||||||
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Unvested as of December 31, 2016 (a) |
739 | $ | 8.84 | $ | 13,185 | |||||||
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Expected to vest as of December 31, 2016 |
606 | $ | 8.88 | $ | 10,823 |
(a) | The weighted average contractual life of unvested OPPs as of December 31, 2017 was less than one year and as of December 31, 2016 was one year. |
Compensation expense recognized for our equity-based awards for the years ended December 31, 2017, 2016 and 2015 was as follows (in millions):
Year Ended December 31, |
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2017 | 2016 | 2015 | ||||||||||
RSUs |
$ | 16 | $ | 19 | $ | 30 | ||||||
Outperformance Plan |
3 | | | |||||||||
Stock options |
3 | 5 | 4 | |||||||||
Other |
2 | | | |||||||||
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Total expense included in Operating income (loss) |
$ | 24 | $ | 24 | $ | 34 | ||||||
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Income tax benefit recognized |
$ | 4 | $ | 9 | $ | 7 | ||||||
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(a) | Compensation expense recognized within Costs of revenues were $4 million, $3 million, and $4 million for the years ended December 31, 2017, 2016 and 2015, respectively. Compensation expense recognized within Selling, general and administrative expenses were $20 million , $21 million and $30 million for the years ended December 31, 2017, 2016 and 2015, respectively. |
14. BENEFIT PLANS
Defined Benefit Pension Plans
We participate in various funded and unfunded defined benefit plans, including international plans in the United Kingdom, Netherlands and Germany. Pension benefits under these plans are based on formulas that reflect the employees years of service and compensation during their employment period.
F-144
TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
On October 19, 2015, we entered into a deed of guarantee (the 2015 Pension Support Agreement) with IPC Media Pension Trustee Limited, the trustee of the IPC Media Pension Scheme, a defined benefit pension plan for certain of our current and former U.K. employees that is closed to new participants (the IPC Plan) effective upon the closing of the sale of the Blue Fin Building (or of IPC Magazines Group Limited, the subsidiary that owned the building) (the Sale Closing). The 2015 Pension Support Agreement replaced Time Inc. UKs and IPC Magazines Group Limiteds then-existing agreement with the trustee of the IPC Media Pension Scheme (the 2014 Pension Support Agreement), which was entered into in connection with the Spin-Off and, among other things, included certain restrictions on the use of the proceeds of any sale of the Blue Fin Building and required ongoing funding of the IPC Plan at the rate of £11 million per year. Pursuant to the 2015 Pension Support Agreement, we were no longer subject to any restrictions on such use of proceeds but agreed to make the following cash contributions to the IPC Plan: (1) £50 million ($75 million on payment date in November 2015) to be contributed within 30 days of a Sale Closing; (2) £11 million to be contributed annually until the sixth anniversary of the Sale Closing; (3) contributions on the sixth, seventh and eighth anniversaries of the Sale Closing calculated so as to eliminate the self-sufficiency deficit, if any, of the IPC Plan as of the eighth anniversary of the Sale Closing, determined assuming that the discount rate on the IPC Plans liabilities would be equivalent to 0.5% in excess of the then-prevailing rate on bonds issued by the U.K. Government (gilts); and (4) contributions between the eighth and fifteenth anniversaries of the Sale Closing calculated so as to eliminate the risk-free self-sufficiency deficit, if any, of the IPC Plan as of the fifteenth anniversary of the Sale Closing, determined assuming that the discount rate on the plans liabilities would be equivalent to the then-prevailing gilts rate. The self-sufficiency deficit is an estimate based on agreed-upon actuarial assumptions of the amount of a hypothetical one-time contribution that would provide high levels of assurance that the IPC Plan could fund all future benefit obligations as they come due with no further contributions using a discount rate that is 50 basis points higher than the expected return on gilts. The risk-free self-sufficiency basis uses a discount rate that is the same as the expected return on gilts. The self-sufficiency deficit and the risk-free self-sufficiency basis are subject to significant variation over time based on changes in actuarial assumptions such as interest rates, investment returns and other factors.
The 2015 Pension Support Agreement provides that Time Inc. will guarantee all of Time Inc. UKs obligations under the IPC Plan and the 2015 Pension Support Agreement, including the above-described payment obligations, as well as the obligation to fund the IPC Plans buyout deficit (i.e., the amount that would be needed to purchase annuities to discharge the benefits under the plan) under certain circumstances. Specifically, Time Inc. would be required to deposit the buyout deficit into escrow or provide a surety bond or other suitable credit support if we were to experience a drop in our credit ratings to certain stipulated levels or if our debt in excess of $50 million were not to be paid when due or were to come due prior to its stated maturity as a result of a default (a Major Debt Acceleration), which could have a material adverse effect on our business, financial condition and results of operations. We would be permitted to recoup the escrowed funds under certain circumstances after a recovery in our credit ratings. However, if the Company or Time Inc. UK were to become insolvent, or if a Major Debt Acceleration were to occur (without being promptly cured and accompanied by a recovery in the Companys credit ratings), any escrowed funds would be immediately contributed into the IPC Plan and we would be obligated to immediately contribute into the IPC Plan any shortfall in the buyout deficit amount.
On February 23, 2018, the Company entered into an agreement to sell Time Inc. UK. The sale is expected to close in March 2018. In connection with the sale of Time Inc. UK , a new agreement was reached among the IPC Plan Trustee, Time Inc., Time Inc. UK and IPC.
Our Board of Directors adopted the Time Inc. Excess Benefit Pension Plan for the accrued benefits of any employee who was actively employed by us on or after January 1, 2014 or who was receiving salary continuation or separation pay benefits from us on or after December 31, 2013. The Time Inc. Excess Benefit Pension Plan
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NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
was terminated and $22 million was paid in 2015 in respect of the settlement of our obligations under the plan. Accordingly, benefit obligations decreased with a corresponding decrease in unrecognized actuarial loss included within Accumulated other comprehensive loss, net on the Balance Sheets for the year ended December 31, 2015. A pre-tax loss of $6 million related to the settlement of these obligations was recognized within the Statements of Operations during the year ended December 31, 2015.
A summary of activity for substantially all of Time Inc.s defined benefit pension plans utilizing a measurement date of December 31, 2017 and 2016 is as follows (in millions):
Benefit Obligation
International | ||||||||
December 31, | ||||||||
2017 | 2016 | |||||||
Change in benefit obligation: |
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Projected benefit obligation, beginning of year |
$ | 773 | $ | 693 | ||||
Service cost |
1 | | ||||||
Interest cost |
19 | 21 | ||||||
Actuarial (gain) loss |
15 | 214 | ||||||
Benefits paid |
(15 | ) | (22 | ) | ||||
Settlements and curtailments |
(34 | ) | | |||||
Plan amendments |
(4 | ) | | |||||
Foreign currency exchange rates |
79 | (133 | ) | |||||
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Projected benefit obligation, end of year |
$ | 834 | $ | 773 | ||||
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Accumulated benefit obligation, end of year |
$ | 820 | $ | 761 | ||||
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Plan Assets
International | ||||||||
December 31, | ||||||||
2017 | 2016 | |||||||
Change in plan assets: |
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Fair value of plan assets, beginning of year |
$ | 729 | $ | 757 | ||||
Actual return on plan assets |
70 | 115 | ||||||
Employer contributions |
15 | 15 | ||||||
Benefits paid |
(15 | ) | (22 | ) | ||||
Settlements |
(33 | ) | | |||||
Foreign currency exchange rates |
78 | (136 | ) | |||||
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Fair value of plan assets, end of year |
$ | 844 | $ | 729 | ||||
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Decreases in high quality corporate bond yields during 2017 caused decreases in the discount rates used to measure the projected benefit obligations of our pension plans, and together with slight increases in UK inflationary expectations led to actuarial losses in 2017. These losses were partially offset by actuarial gains from adopting the latest mortality tables in the UK. Strong asset returns during 2017 combined with employer funding led to a significant improvement in the financial position of our plans, moving them from a net underfunded position at the start of the year to a net overfunded position at December 31, 2017.
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NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
Funded Status
International | ||||||||
December 31, | ||||||||
2017 | 2016 | |||||||
Funded status |
$ | 10 | $ | (44 | ) |
Accumulated Benefit Obligation
International Pension Benefits | ||||||||||||||||||||||||
Funded Plans | Unfunded Plans | Total Plans | ||||||||||||||||||||||
December 31, | December 31, | December 31, | ||||||||||||||||||||||
2017 | 2016 | 2017 | 2016 | 2017 | 2016 | |||||||||||||||||||
Accumulated benefit obligation |
$ | 809 | $ | 750 | $ | 11 | $ | 11 | $ | 820 | $ | 761 | ||||||||||||
Projected benefit obligation |
$ | 823 | $ | 762 | $ | 11 | $ | 11 | $ | 834 | $ | 773 | ||||||||||||
Fair value of plan assets |
844 | 729 | | | 844 | 729 | ||||||||||||||||||
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Funded Status |
$ | 21 | $ | (33 | ) | $ | (11 | ) | $ | (11 | ) | $ | 10 | $ | (44 | ) | ||||||||
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As of December 31, 2017 and 2016, amounts included in Accumulated other comprehensive loss, net relating to benefit obligations were $310 million and $311 million, respectively, ($241 million and $242 million net of tax, respectively) consisting primarily of net actuarial losses.
Certain defined benefit pension plans have projected benefit obligations and accumulated benefit obligations in excess of their plan assets. As of December 31, 2017 and 2016, the projected benefit obligations for unfunded plans were $11 million, and the accumulated benefit obligations for unfunded plans were $11 million.
Components of Net Periodic Benefit Cost (Income)
Components of net periodic benefit cost (income) for the years ended December 31, 2017, 2016 and 2015 were as follows (in millions):
Domestic | International | Total | ||||||||||||||||||||||||||||||||||
December 31, | December 31, | December 31, | ||||||||||||||||||||||||||||||||||
2017 | 2016 | 2015 | 2017 | 2016 | 2015 | 2017 | 2016 | 2015 | ||||||||||||||||||||||||||||
Service cost |
N/A | N/A | $ | | $ | 1 | $ | | $ | | $ | 1 | $ | | $ | | ||||||||||||||||||||
Interest cost |
N/A | N/A | | 19 | 21 | 26 | 19 | 21 | 26 | |||||||||||||||||||||||||||
Expected return on plan assets |
N/A | N/A | | (48 | ) | (44 | ) | (45 | ) | (48 | ) | (44 | ) | (45 | ) | |||||||||||||||||||||
Amortization of net loss |
N/A | N/A | | 7 | 4 | 3 | 7 | 4 | 3 | |||||||||||||||||||||||||||
Settlement and curtailment (a) |
N/A | N/A | 6 | 12 | | | 12 | | 6 | |||||||||||||||||||||||||||
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Net periodic benefit cost (income) |
N/A | N/A | $ | 6 | $ | (9 | ) | $ | (19 | ) | $ | (16 | ) | $ | (9 | ) | $ | (19 | ) | $ | (10 | ) | ||||||||||||||
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(a) | Settlement loss relates to the enhanced transfer value exercise for the IPC Plan for the year ended December 31, 2017. |
N/A | - Not applicable as the Time Inc. Excess Benefit Pension Plan was terminated in 2015. |
We are in the midst of a liability management exercise for the IPC Plan. The first tranche is an enhanced transfer value exercise, where pensioners were offered an one-time lump sum transfer payment to extinguish
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TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
their liability from the pension plan. The enhanced transfer value exercise was carried out in the last quarter of 2017, with the majority of payments made in 2017. With this settlement event, previously unrecognized losses of approximately $12 million were recognized and reduced the net period benefit income for the year ended December 31, 2017.
Unrecognized Benefit Cost
The items reflected in Accumulated other comprehensive loss, net on the Balance Sheets and not yet recognized as a component of net periodic benefit cost are (in millions):
International | ||||||||
Year Ended December 31, | ||||||||
2017 | 2016 | |||||||
Unrecognized actuarial loss |
$ | 314 | $ | 311 | ||||
Unrecognized prior service credit |
(4 | ) | | |||||
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Total (a) |
$ | 310 | $ | 311 | ||||
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(a) | The amount expected to be recognized in net periodic benefit cost (credit) in 2018 is approximately a $17 million provision. |
During the year ended December 31, 2017, the Company carried out a pension increase exchange for the IPC Plan, where pensioners are given the choice to swap some or all of their pension increases for a one-time increase to their pension payment. This resulted in the recognition of a prior service credit of $4 million.
Other Comprehensive Income (Loss)
The pre-tax amounts recognized in Other comprehensive income (loss) during the years ended December 31, 2017, 2016 and 2015 are (in millions):
Year Ended December 31, | ||||||||||||||||||||||||
2017 | 2016 | 2015 | ||||||||||||||||||||||
Domestic | International | Domestic | International | Domestic | International | |||||||||||||||||||
Current year actuarial (gain) loss |
N/A | $ | (9 | ) | N/A | $ | 144 | $ | | $ | 45 | |||||||||||||
Amortization of actuarial loss |
N/A | (7 | ) | N/A | (4 | ) | | (3 | ) | |||||||||||||||
Settlement and curtailment loss |
N/A | (12 | ) | N/A | | (6 | ) | | ||||||||||||||||
Prior service credit |
N/A | (4 | ) | N/A | | | | |||||||||||||||||
Effects of changes in foreign currency exchange rates |
N/A | 31 | N/A | (50 | ) | | (12 | ) | ||||||||||||||||
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Total recognized in other comprehensive income (loss) |
N/A | $ | (1 | ) | N/A | $ | 90 | $ | (6 | ) | $ | 30 | ||||||||||||
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N/A | - Not applicable as the Time Inc. Excess Benefit Pension Plan was terminated in 2015. |
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TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
Assumptions
Weighted-average assumptions used to determine benefit obligations for the years ended December 31, 2017 and 2016, and net periodic benefit costs for the years ended December 31, 2017, 2016 and 2015 were as follows:
International | ||||||||||||||||||||
Benefit Obligations | Net Periodic Benefit Costs | |||||||||||||||||||
2017 | 2016 | 2017 | 2016 | 2015 | ||||||||||||||||
Discount rate |
2.46 | % | 2.61 | % | 2.61 | % | 3.80 | % | 3.66 | % | ||||||||||
Rate of compensation increase |
3.50 | % | 3.36 | % | 3.36 | % | 3.07 | % | 2.97 | % | ||||||||||
Expected long-term return on plan assets (a) |
N/A | N/A | 6.21 | % | 6.53 | % | 6.42 | % |
N/A | - Not applicable. |
(a) | Expected long-term return on plan assets is not applicable as to unfunded pension plans. |
Pension expense is calculated using a number of actuarial assumptions, including an expected long-term rate of return on assets and a discount rate. In developing the expected long-term rate of return on plan assets, we considered long-term historical rates of return, our plan asset allocations as well as the opinions and outlooks of investment professionals and consulting firms. Projected returns by such consultants and economists are based on broad equity and bond indices. Our objective is to select an average rate of earnings expected on existing plan assets and expected contributions to the plan during the year. The expected long-term rate of return determined on this basis was 6.21% at the beginning of 2017. Our plan assets had a rate of return of approximately 9.32% in 2017 and an average annual return of approximately 9.02% over the three-year period 2015 through 2017. We regularly review our actual asset allocation and periodically re-balance our investments to meet our investment strategy.
The value (market-related value) of plan assets is multiplied by the expected long-term rate of return on assets to compute the expected return on plan assets, a component of net periodic pension cost. The market-related value of plan assets is a calculated value that recognizes changes in fair value over three years.
Based on the composition of our assets at the end of the year, we estimated our 2018 expected long-term rate of return to be 5.07%, a decrease from 6.21% in 2017. If the expected long-term rate of return on our plan assets were decreased by 25 basis points to 5.96% in 2017, pension expense would have increased by approximately $2 million in 2017 for our pension plans. Our funding requirements would not have been materially affected.
Historically, we estimated service and interest costs utilizing a single weighted-average discount rate derived from the yield curve used to measure the benefit obligation at the beginning of the period. The discount rates on our international plans were determined by matching the plans liability cash flows to rates derived from high-quality corporate bonds available at the measurement date. To determine our discount rate used to measure our benefit obligations, we projected cash flows based on annual accrued benefits. For active participants, the benefits under the respective pension plans were projected to the date of expected termination. The projected plan cash flows were discounted to the measurement date, which was the last day of our fiscal year, using the annual spot rates derived from high-quality corporate bonds available at the measurement date. A single discount rate was then computed so that the present value of the benefit cash flow equaled the present value computed using the rate curves. This single discount rate was then used to compute the service and interest cost components of net periodic pension benefit cost.
Effective December 31, 2015, we changed our estimate of the service and interest cost components of net periodic benefit cost for our pension benefit plans. Previously, we estimated service and interest costs utilizing a
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TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
single weighted-average discount rate derived from the yield curve used to measure the benefit obligation at the beginning of the period. The new estimate utilizes a full yield curve approach in the estimation of these components by applying the specific spot rates along the yield curve used in the determination of the benefit obligation to the relevant projected cash flows. The new estimate provides a more precise measurement of future service and interest costs by improving the correlation between projected benefit cash flows and the corresponding spot yield curve rates. The change does not affect the measurement of our pension benefit obligations and it is accounted for as a change in accounting estimate, which is applied prospectively.
The weighted average discount rate was 2.46% for our international plans as of December 31, 2017. If the expected discount rate decreased by 25 basis points for our international plans, pension expense would have increased by less than $1 million as of December 31, 2017 and our pension obligation would have increased by approximately $46 million.
We will continue to evaluate all of our actuarial assumptions, generally on an annual basis, and will adjust as necessary. Actual pension expense will depend on future investment performance, changes in future discount rates, the level of contributions we make and various other factors.
The percentage of asset allocations of our funded pension plans at December 31, 2017 and 2016, by asset category, were as follows:
December 31, | ||||||||
2017 | 2016 | |||||||
Asset Allocations of Funded Pension Plans |
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Equity securities |
30 | % | 57 | % | ||||
Debt securities |
17 | % | 29 | % | ||||
Other (a) |
53 | % | 14 | % | ||||
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Total |
100 | % | 100 | % | ||||
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(a) | Other primarily includes pooled investment funds. |
Fair Value of Plan Assets
The following table sets forth by level, within the fair value hierarchy described in Note 5, Fair Value Measurements, the assets held by our defined benefit pension plans, as of December 31, 2017 and 2016 (in millions):
December 31, 2017 | December 31, 2016 | |||||||||||||||||||||||||||||||
Level 1 | Level 2 | Level 3 | Total | Level 1 | Level 2 | Level 3 | Total | |||||||||||||||||||||||||
Pooled Investments: |
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Equity securities |
$ | | $ | 252 | $ | | $ | 252 | $ | | $ | 413 | $ | | $ | 413 | ||||||||||||||||
Fixed income securities |
| 465 | | 465 | | 215 | | 215 | ||||||||||||||||||||||||
Other |
10 | 103 | | 113 | | 86 | | 86 | ||||||||||||||||||||||||
Guaranteed Investment Contract |
| 14 | | 14 | | 15 | | 15 | ||||||||||||||||||||||||
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Total |
$ | 10 | $ | 834 | $ | | $ | 844 | $ | | $ | 729 | $ | | $ | 729 | ||||||||||||||||
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We utilize primarily the market approach for determining recurring fair value measurements. Our pension plan investments are held primarily in pooled investment funds where fair value has been determined using net
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TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
asset values at period end. The remainder of our pension assets are held through a guaranteed investment contract where fair value has been determined based on the higher of the surrender value of the contract or the present value of the underlying bonds based on a discounted cash flow model. For investments held at the end of the reporting period that are measured at fair value on a recurring basis, there were no transfers between levels from 2016 to 2017. Our funded pension plans have no investments classified within Level 3 of the valuation hierarchy.
Target asset allocations for our defined benefit pension plans as of December 31, 2017 and 2016 were approximately 30% and 64% equity investments, respectively, 17% and 34% fixed income investments, respectively, and 53% and 2% other investments, respectively. In 2017, the IPC Plan changed its investment strategy and as a result, the strategic allocation changed.
At both December 31, 2017 and December 31, 2016, the defined benefit pension plans assets did not include any securities issued by Time Inc.
Expected Cash Flows
After considering the funded status of our defined benefit pension plans, movements in the discount rate, investment performance and related tax consequences, we may choose to make contributions to our pension plans in any given year. We made cash contributions of $15 million and $15 million to our funded defined benefit pension plans during the years ended December 31, 2017 and 2016, respectively. For our unfunded plans, contributions will continue to be made to the extent benefits are paid. We currently anticipate we will make contributions to certain international defined benefit pension plans of $15 million in 2018, pursuant principally to U.K. regulatory funding requirements plus any additional contributions which may be agreed upon as part of any funding agreement with the IPC Plan trustees if Time Inc. UK is sold.
Information about the expected benefit payments for our defined benefit plans is as follows (in millions):
2018 | 2019 | 2020 | 2021 | 2022 | 2022-2026 | |||||||||||||||||||
Expected benefit payments |
$ | 15 | $ | 15 | $ | 17 | $ | 19 | $ | 20 | $ | 120 |
Defined Contribution Plans
We have certain domestic and international defined contribution plans for which the expense amounted to $26 million, $29 million and $29 million in 2017, 2016 and 2015, respectively. Our contributions to the savings plans are based primarily on a percentage of the employees elected contributions and are subject to plan provisions.
Compensation Plans
We have unfunded, non-qualified deferred compensation plans providing for the deferral compensation of certain highly compensated employees. The Time Inc. Supplemental Saving Plan permits eligible employees who participate in the Time Inc. Savings Plan, our 401(k) plan, to defer compensation in excess of the qualified plan deferral limits. Deferrals in excess of the IRS tax qualified plan limit, but less than $500,000, receive a company matching deferral of up to 5% of eligible compensation that vests with two years of company service. The Time Inc. Deferred Compensation Plan is a frozen plan under which participants were permitted to defer certain bonuses. No actual monies are set aside in respect of the deferred compensation plans and participants have no rights to company assets in respect of plan liabilities in excess of a general unsecured creditor. Deferrals are recorded and credited with the returns on deemed investments on hypothetical investments in the Time Inc. Savings Plan funds designated by each participant. Accordingly the liabilities associated with the plan fluctuate
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TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
with hypothetical yields of the underlying investments. Liabilities for the uncollateralized plan balances that remain a contractual obligation of the Company, were approximately $32 million and $34 million at December 31, 2017 and 2016, respectively, of which approximately $6 million and $6 million, respectively, were reflected within Accounts payable and accrued liabilities and approximately $26 million and $28 million, respectively, were reflected within Other noncurrent liabilities on the accompanying Balance Sheets.
Deed of Guarantee
We are party to a deed of guarantee with the trustees of a defined benefit pension plan for certain of our current and former U.K. employees (which is closed to new participants). Under the deed of guarantee, we would be obligated to fund the pension plans buyout deficit (i.e., the amount that would be needed to purchase annuities to discharge the benefits under the plan) under certain circumstances. Specifically, we would be required to deposit the buyout deficit into escrow or provide a surety bond or other suitable credit support if we were to experience a drop in our long-term unsecured senior debt credit ratings to Caa1 or below from Moodys and to CCC+ or below from Standard & Poors, or if our debt in excess of $50 million were not to be paid when due or were to come due prior to its stated maturity as a result of a default. As of December 31, 2017, our long-term unsecured senior debt credit rating was B2 from Moodys and B from Standard & Poors and we have not defaulted on any payments of our debt. Therefore we were not required to fund the pension plans buyout deficit. If we had been required to fund the buyout deficit on December 31, 2017, the amount would have been approximately £277 million. The amount of the buyout deficit is determined by many factors, including but not limited to the fair value of plan assets, actuarial assumptions, interest rates and inflation rates.
15. | RESTRUCTURING AND SEVERANCE COSTS |
Our Restructuring and severance costs relate primarily to employee termination costs and other exit costs. On August 8, 2017, the Company announced a strategic transformation program with the majority of initiatives expected to be implemented within the first 18 months after the program launch. We anticipate additional Restructuring and severance costs related to the strategic transformation program, but are currently unable to estimate the total amount expected to be incurred. The status and scope of the strategic transformation program is under review by Meredith.
For the year ended December 31, 2017, Restructuring and severance costs were a total of $80 million primarily due to previously announced cost savings initiatives, the strategic transformation program and other exit costs related to vacating certain real estate leases. Restructuring and severance costs for the years ended December 31, 2016 and 2015 were $77 million and $191 million, respectively.
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NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
Selected information relating to Restructuring and severance costs is as follows (in millions):
Employee Terminations |
Other Exit Costs |
Total | ||||||||||
Remaining liability as of December 31, 2014 |
$ | 95 | $ | 7 | $ | 102 | ||||||
Net accruals |
49 | 142 | 191 | |||||||||
Non-cash adjustments(a) |
(2 | ) | 8 | 6 | ||||||||
Cash paid |
(76 | ) | (15 | ) | (91 | ) | ||||||
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Remaining liability as of December 31, 2015 |
$ | 66 | $ | 142 | $ | 208 | ||||||
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Net accruals |
76 | 1 | 77 | |||||||||
Non-cash adjustments(a) |
(7 | ) | 1 | (6 | ) | |||||||
Cash paid |
(65 | ) | (116 | ) | (181 | ) | ||||||
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Remaining liability as of December 31, 2016 |
$ | 70 | $ | 28 | $ | 98 | ||||||
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Net accruals |
79 | 1 | 80 | |||||||||
Non-cash adjustments(a) |
2 | 1 | 3 | |||||||||
Cash paid |
(92 | ) | (23 | ) | (115 | ) | ||||||
Liabilities held for sale(b) |
(3 | ) | (1 | ) | (4 | ) | ||||||
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Remaining liability as of December 31, 2017 |
$ | 56 | $ | 6 | $ | 62 | ||||||
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(a) | Non-cash adjustments relate primarily to the effect of foreign exchange rate changes and the settlement of certain employee-related equity instruments. |
(b) | Liabilities held for sale related to Time Inc. UK and the Golf brand. |
The liability balance for employee terminations relates primarily to our cost re-engineering initiatives announced in June 2017 and the realignment program announced in July 2016 to unify and centralize the editorial, advertising sales and brand development organizations. As of December 31, 2017, the liability balance for other exit costs relates primarily to costs estimated to be incurred in connection with our restructuring activities and exit of our previous headquarters.
As of December 31, 2017, of the $62 million liability, $56 million was classified as current liabilities on the Balance Sheet, with the remaining $6 million classified as noncurrent liabilities. Amounts classified as noncurrent liabilities are expected to be paid through 2020 and relate primarily to severance costs. During the year ended December 31, 2017, we reversed $11 million of Restructuring and severance costs primarily due to a bankruptcy claim distribution, securing a tenant for a vacant floor in the UK, the termination of leases at the Time and Life Building and another leased property and modifications of certain employee termination agreements. During the year ended December 31, 2016, we reversed $14 million of Restructuring and severance costs primarily due to changes in estimates related to and settlement of certain lease obligations and, to a lesser extent, due to modifications to certain employee termination agreements. During the year ended December 31, 2015, we reversed $10 million of Restructuring and severance costs due to both modifications to certain employee termination agreements and settlement of certain lease obligations.
In March 2016, we negotiated a settlement and made the related payment to our landlord to settle our obligations for certain floors of another leased property for $9 million and reversed $3 million of restructuring expense. In connection with our exit from the Time and Life Building in November 2015, we entered into an agreement with the landlord which gave us an option to surrender certain floors for $86 million. We exercised this option and made the related payment in January 2016. Additionally, as a result of these agreements, our minimum rental obligations were reduced by $77 million. These rental obligations were payable through 2017.
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NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
In July 2016, we announced an extensive realignment program that is intended to unify and centralize the editorial, advertising sales and brand development organizations. For the year ended December 31, 2016, the $77 million net Restructuring and severance costs related primarily to the July 2016 realignment.
Restructuring charges in 2015 related to both severance costs and exit costs. Severance costs related to various employee terminations. Exit costs related primarily to the remaining rent obligations at the Time and Life Building, our former corporate headquarters at 1271 Avenue of the Americas, when we ceased use of the premises in the fourth quarter of 2015.
16. | COMMITMENTS AND CONTINGENCIES |
Commitments
We have commitments under certain firm contractual arrangements (firm commitments) to make future payments. These firm commitments secure the future rights to various assets and services to be used in the normal course of operations. Our commitments not recorded on the Balance Sheets consist primarily of operating lease arrangements, talent commitments and purchase obligations for goods and services. Our other commitments, which are recorded on our Balance Sheets, consist primarily of debt and pension obligations. Our commitments expected to be paid over the next five years and thereafter are as follow (in millions):
Payments Due In | ||||||||||||||||||||||||||||
2018 | 2019 | 2020 | 2021 | 2022 | Thereafter | Total | ||||||||||||||||||||||
Operating leases(a) |
$ | 63 | $ | 60 | $ | 57 | $ | 59 | $ | 54 | $ | 482 | $ | 775 | ||||||||||||||
Administrative and other(b) |
72 | 18 | 14 | 10 | | 3 | 117 | |||||||||||||||||||||
Debt obligations(c) |
73 | 73 | 73 | 73 | 534 | 870 | 1,696 | |||||||||||||||||||||
Benefit plans(d) |
15 | 15 | 17 | 19 | 20 | 120 | 206 | |||||||||||||||||||||
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|
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Total commitments(e) |
$ | 223 | $ | 166 | $ | 161 | $ | 161 | $ | 608 | $ | 1,475 | $ | 2,794 | ||||||||||||||
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|
(a) | We have long-term, non-cancelable operating lease commitments for office space, studio facilities and equipment through 2032. Future minimum operating lease payments have been reduced by future minimum sublease income of $10 million in 2018, $11 million in 2019, $10 million in 2020, $6 million in 2021, $11 million in 2022 and $30 million thereafter. Noncancellable sublease income is committed through 2025. Rent expense was $57 million, $71 million and $103 million for the years ended December 31, 2017, 2016 and 2015, respectively. We began paying rent for our 225 Liberty Street lease in New York, NY in 2018. |
(b) | Administrative and other relate primarily to (1) minimum guarantee revenue share payments to our advertising and content partners and (2) information technology and licensed services obligations. |
(c) | Includes future payments of principal and interest due on our Term Loan and the 5.75% Senior Notes and 7.50% Senior Notes. Interest on variable rate debt is calculated based on the prevailing interest rate as of December 31, 2017. In connection with the closing of the Merger, we redeemed the 5.75% Senior Notes and the 7.50% Senior Notes and repaid the Term Loan under our Amended and Restated Credit Agreement. |
(d) | Accrued benefit liability for pension and other postretirement benefit plans is affected by, among other items, statutory funding levels, changes in plan demographics, discount rates and assumptions and investment returns on plan assets. A portion of the payments under our Company-sponsored qualified pension plans will be made out of existing assets of the pension plans and not Company cash. |
(e) | The contractual obligations table above does not include any liabilities for uncertain income tax positions as we are unable to reasonably predict the ultimate amount or timing of settlement of these liabilities. At December 31, 2017, the liability for uncertain tax positions was $35 million, excluding the related accrued interest liability of $12 million and deferred tax assets of $6 million. See Note 10, Income Taxes, to the accompanying financial statements. Additionally, the contractual obligations table above does not include |
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any liabilities under our Revolving Credit Facility except for customary unused fees. The Revolving Credit Facility was undrawn as of December 31, 2017, except for the $3 million in letters of credit issued thereunder and we cannot reasonably predict any potential draw downs on the Revolving Credit Facility. In addition to the letters of credit under the Revolving Credit Facility we maintain letters of credit under various financial institutions which were insignificant as of December 31, 2017. Certain of our foreign subsidiaries have access to lines of credit, of which $9 million was outstanding as of December 31, 2017. |
Legal Proceedings
In the ordinary course of business, we are defendants in or parties to various legal claims, actions and proceedings. These claims, actions and proceedings are at varying stages of investigation, arbitration or adjudication, and involve a variety of areas of law.
On March 10, 2009, Anderson News L.L.C. and Anderson Services L.L.C. (collectively, Anderson News) filed an antitrust lawsuit in the U.S. District Court for the Southern District of New York (the District Court) against several magazine publishers, distributors and wholesalers, including Time Inc. and one of its subsidiaries, Time Inc. Retail (formerly Time/Warner Retail Sales & Marketing, Inc.) (TIR). Plaintiffs allege that defendants violated Section 1 of the Sherman Antitrust Act by engaging in an antitrust conspiracy against Anderson News, as well as other related state law claims. Specifically, plaintiffs allege that defendants conspired to reduce competition in the wholesale market for single-copy magazines by rejecting the magazine distribution surcharge proposed by Anderson News and another magazine wholesaler and refusing to distribute magazines to them. Plaintiffs are seeking (among other things) an unspecified award of treble monetary damages against defendants, jointly and severally. On August 2, 2010, the District Court granted defendants motions to dismiss the complaint with prejudice and, on October 25, 2010, the District Court denied Anderson News motion for reconsideration of that dismissal. On November 8, 2010, Anderson News appealed and, on April 3, 2012, the U.S. Court of Appeals for the Second Circuit (the Circuit Court) vacated the District Courts dismissal of the complaint and remanded the case to the District Court. On January 7, 2013, the U.S. Supreme Court denied defendants petition for writ of certiorari to review the judgment of the Circuit Court vacating the District Courts dismissal of the complaint. In February 2014, Time Inc. and several other defendants amended their answers to assert antitrust counterclaims against plaintiffs. On December 19, 2014, the defendants filed a motion for summary judgment on Anderson News claims and Anderson News filed a motion for summary judgment on the antitrust counterclaim. On August 20, 2015, the District Court granted the defendants motion for summary judgment on Anderson News claims and granted Anderson News motion for summary judgment on the defendants antitrust counterclaim. On August 25, 2015, Anderson News filed a notice with the Circuit Court appealing the District Courts dismissal of Anderson News claims, and on September 14, 2015, the defendants filed a notice with the Circuit Court appealing the District Courts dismissal of the defendants antitrust counterclaim. On December 8, 2015, Anderson News filed its appellate brief with the Circuit Court and on March 8, 2016, the defendants filed their appellate briefs with the Circuit Court. Andersons reply brief was filed on May 9, 2016 and the defendants sur-reply brief was filed on May 23, 2016. Oral argument on the appeal was held on December 2, 2016. We are awaiting the courts decision.
On November 14, 2011, our retail distribution operations, TIR and several other magazine publishers and distributors filed a complaint in the U.S. Bankruptcy Court for the District of Delaware against Anderson Media Corporation, the parent company of Anderson News L.L.C. and Anderson Services L.L.C., collectively, Anderson News, and several Anderson News affiliates. Plaintiffs, acting on behalf of the Anderson News bankruptcy estate, seek to avoid and recover in excess of $70 million that they allege Anderson News transferred to the Anderson News-affiliated insider defendants in violation of the United States Bankruptcy Code and Delaware state law prior to the involuntary bankruptcy petition filed against Anderson News by certain of its creditors. On December 28, 2011, the defendants moved to dismiss the complaint. On June 5, 2012, the court
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denied defendants motion. On November 6, 2013, the bankruptcy court lifted the automatic stay barring claims against the debtor, allowing Time Inc. and others to pursue an antitrust counterclaim against Anderson News in the antitrust action brought by Anderson News in the U.S. District Court for the Southern District of New York (described above).
On October 26, 2010, the Canadian Minister of National Revenue denied the claims by TIR for input tax credits in respect of goods and services tax that TIR had paid on magazines it imported into and had displayed at retail locations in Canada during the years 2006 to 2008, on the basis that TIR did not own those magazines and issued Notices of Reassessment in the amount of approximately C$52 million. On January 21, 2011, TIR filed an objection to the Notices of Reassessment with the Chief of Appeals of the Canada Revenue Agency (CRA), arguing that TIR claimed input tax credits only in respect of goods and services tax it actually paid and, regardless of whether its payment of the goods and services tax was appropriate or in error, it is entitled to a rebate for such payments. On September 13, 2013, TIR received Notices of Reassessment in the amount of C$26.9 million relating to the disallowance of input tax credits claimed by TIR for goods and services tax that TIR had paid on magazines it imported into and had displayed at retail locations in Canada during the years 2009 to 2010. On October 22, 2013, TIR filed an objection to the Notices of Reassessment received on September 13, 2013 with the Chief of Appeals of the CRA, asserting the same arguments made in the objection TIR filed on January 21, 2011. Beginning in 2015, the collections department of the CRA requested payment of both assessments plus accrued interest or the posting of sufficient security. In each instance, TIR responded by stating that collection should remain stayed pending resolution of the issues raised by TIRs objection. On February 8, 2016, the Company filed an application for a remission order with the International Trade Policy Division of Finance Canada to seek relief from the assessments and the CRAs collection efforts. On February 12, 2016, TIR filed a complaint with the Office of the Taxpayers Ombudsman about the CRAs failure for more than five years to rule on TIRs objections to the reassessments. TIR requested that the Ombudsman Office recommend to the CRA that the reassessments be vacated or the CRA support TIRs application for a remission order. On March 2, 2016, the CRA proposed that the Tax Court of Canada resolve the issue of whether TIR or the publishers are entitled to the input tax credits. On March 9, 2016, TIR agreed to the proposal. On May 6, 2016, TIR filed a Notice of Appeal with the Tax Court of Canada of the assessments issued by the CRA and on July 25, 2016, the CRA filed a Reply to TIRs Notice of Appeal. On March 31, 2017, the Company and the CRA jointly proposed a timetable for the completion of certain pre-trial steps related to this matter, which was approved by the Tax Court. In accordance with the timetable, on April 28, 2017, TIR filed an Amended Notice of Appeal of the assessments. On June 30, 2017, the CRA filed a Reply to TIRs Amended Notice of Appeal and the Company filed an answer to the CRA reply on July 10, 2017. The parties are currently engaged in discovery. Including interest accrued on both reassessments, the total reassessment by the CRA for the years 2006 to 2010 was C$91 million as of November 30, 2015.
On October 3, 2012, Susan Fox filed a class action complaint (the Complaint) against Time Inc. in the United States District Court for the Eastern District of Michigan alleging violations of Michigans Video Rental Privacy Act (VRPA) as well as claims for breach of contract and unjust enrichment. The VRPA limits the ability of entities engaged in the business of selling, renting or lending retail books or other written materials from disclosing to third parties certain information about customers purchase, lease or rental of those materials. The Complaint alleges that Time Inc. violated the VRPA by renting to third parties lists of subscribers to various Time Inc. magazines. The Complaint sought injunctive relief and the greater of statutory damages of $5,000 per class member or actual damages. On December 3, 2012, Time Inc. moved to dismiss the Complaint on the grounds that it failed to state claims for relief and because the named plaintiff lacked standing because she suffered no injury from the alleged conduct. On August 6, 2013, the court granted, in part, and denied, in part, Time Inc.s motion, dismissing the breach of contract claim but allowing the VRPA and unjust enrichment claims to proceed. On November 11, 2013, Rose Coulter-Owens replaced Susan Fox as the named plaintiff. On March 13, 2015, the plaintiff filed a motion seeking to certify a class consisting of all Michigan residents who
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NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
between March 31, 2009 and November 15, 2013 purchased a subscription to Time, Fortune or Real Simple magazines through any website other than Time.com, Fortune.com and RealSimple.com. On July 27, 2015, the court granted plaintiffs motion to certify the class, which we estimate to comprise approximately 40,000 consumers. On August 31, 2015, Time Inc. and the plaintiff moved for summary judgment and on October 1, 2015 both parties filed briefs in opposition to their adversaries motions. On February 16, 2016, the court granted Time Inc.s motion for summary judgment and dismissed the case. On March 16, 2016, the plaintiff filed a notice with the Circuit Court appealing the District Courts dismissal of plaintiffs claims. On May 26, 2016, Time Inc. filed a motion to dismiss the appeal on the ground that plaintiff lacked standing to pursue her claims. On September 22, 2016, the Motions Part of the Circuit Court issued an order directing that Time Inc.s motion to dismiss the appeal should be decided by the appellate panel that was assigned the plaintiffs appeal on the merits. On November 4, 2016, plaintiff filed her appellate brief and on December 21, 2016, Time Inc. filed its opposition to plaintiffs appeal and a cross-appeal to the District Courts order certifying the class. Plaintiff filed a reply and opposition to Time Inc.s class certification appeal on February 6, 2017 and Time Inc. filed a sur-reply on February 20, 2017. Oral argument on the appeal was heard on April 26, 2017. On June 26, 2017, the Circuit Court affirmed the District Courts decision granting Time Inc. summary judgment. On February 19, 2016, the same law firm representing Coulter-Owens filed another class action, entitled Perlin v. Time Inc., in the United States District Court for the Eastern District of Michigan alleging violations of the VRPA as well as a claim for unjust enrichment. This lawsuit was filed on behalf of Michigan residents who purchased subscriptions directly from Time Inc. On May 6, 2016 and May 31, 2016, Time Inc. moved to dismiss the Complaint. Perlin filed an opposition brief on June 27, 2016 and Time Inc. filed its reply brief on July 11, 2016. On February 15, 2017, the Court denied Time Inc.s motion to dismiss and on March 1, 2017, Time Inc. answered the Complaint. Discovery is currently ongoing and is currently scheduled to be completed in March 2018.
We intend to vigorously defend against or prosecute the matters described above.
In July 2017 and November 2017, the Company received subpoenas from the Enforcement Division of the staff of the SEC requiring us to provide documents relating to our accounting for goodwill and asset impairments, restructuring and severance costs, and our analysis and reporting of our segments. The Company is cooperating with the SEC in the investigation. Management cannot at this time predict the eventual scope or outcome of this matter.
We establish an accrued liability for specific matters, such as a legal claim, when we determine both that a loss is probable and the amount of the loss can be reasonably estimated. Once established, accruals are adjusted from time to time, as appropriate, in light of additional information. The amount of any loss ultimately incurred in relation to matters for which an accrual has been established may be higher or lower than the amounts accrued for such matters. In view of the inherent difficulty of predicting the outcome of litigation, claims and other matters, we often cannot predict what the eventual outcome of a pending matter will be, or what the timing or results of the ultimate resolution of a matter will be. Accordingly, for the matters described above, we are unable to predict the outcome or reasonably estimate a range of possible loss.
Income Tax Uncertainties
Our operations are subject to tax in various domestic and international jurisdictions and are regularly audited by federal, state, local and foreign tax authorities. We believe we have appropriately accrued for the expected outcome of all pending tax matters and do not currently anticipate that the ultimate resolution of pending tax matters will have a material adverse effect on our financial condition, future results of operations or liquidity. In connection with the Spin-Off, we entered into a Tax Matters Agreement with Time Warner that may require us to indemnify Time Warner for certain tax liabilities for periods prior to the Spin-Off.
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Merger Fees
In evaluating expressions of interest for the sale of the Company, we engaged certain financial advisers and will pay them a fee for their services, a portion of which is contingent upon consummation of a transaction. Upon the closing of the Merger, we paid $34 million to these advisers.
17. | RELATED PARTY TRANSACTIONS |
We have entered into certain transactions in the ordinary course of business with unconsolidated investees accounted for under the equity-method of accounting. Receivables due from related parties were $1 million and $2 million at December 31, 2017 and 2016, respectively. Payables due to related parties were $1 million at December 31, 2017 and 2016.
Revenues and expenses resulting from transactions with related parties consisted of the following (in millions):
Year Ended December 31, | ||||||||||||
2017 | 2016 | 2015 | ||||||||||
Revenues |
$ | 10 | $ | 6 | $ | 6 | ||||||
Expenses |
3 | 1 | |
Relationship with Time Warner
Through the date of the Spin-Off, we had certain related party relationships with Time Warner and its subsidiaries. In conjunction with the Spin-Off, we entered into the Separation and Distribution Agreement, Transition Services Agreement (TSA), Tax Matters and Employee Matters Agreement with Time Warner to effect the Spin-Off and to provide a framework for our relationship with Time Warner subsequent to the Spin-Off. We do not consider Time Warner to be a related party subsequent to the Spin-Off. The most significant related party relationships and subsequent relationships with Time Warner are discussed further below.
We entered into a Tax Matters Agreement with Time Warner that governs the parties rights, responsibilities and obligations with respect to tax liabilities and benefits, tax attributes, tax contests and other matters regarding income taxes, non-income taxes and related tax returns. Under the Tax Matters Agreement, we will indemnify Time Warner for (1) all taxes of Time Inc. and its subsidiaries for all periods after the Spin-Off and (2) all taxes of the Time Warner group for periods prior to the Spin-Off to the extent attributable to Time Inc. or its subsidiaries.
We entered into an Employee Matters Agreement that governs ours and Time Warners obligations with respect to employment, compensation and benefit matters for certain employees. The Employee Matters Agreement addresses the allocation and treatment of assets and liabilities relating to employees and compensation and benefit plans and programs in which our employees participated prior to the Spin-Off. The Employee Matters Agreement also governs the transfer of employees between Time Warner and us in connection with the Spin-Off, and also sets forth certain obligations for reimbursements and indemnities between Time Warner and us.
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18. | ADDITIONAL FINANCIAL INFORMATION |
Additional financial information with respect to certain balances included in the Financial Statements herein is as follows (in millions):
December 31, | ||||||||
2017 | 2016 | |||||||
Inventories, net of reserves: |
||||||||
Raw materialspaper |
$ | 21 | $ | 30 | ||||
Finished goods |
1 | 1 | ||||||
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Total inventories, net of reserves |
$ | 22 | $ | 31 | ||||
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December 31, | ||||||||
2017 | 2016 | |||||||
Prepaid expenses and other current assets: |
||||||||
Prepaid commissions |
$ | 18 | $ | 18 | ||||
Prepaid production costs |
16 | 20 | ||||||
Postage deposits |
10 | 12 | ||||||
Prepaid income taxes |
8 | 6 | ||||||
Notes receivables |
2 | 1 | ||||||
Barter assets |
3 | 4 | ||||||
Other prepaid expenses and other current assets |
27 | 49 | ||||||
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Total prepaid expenses and other current assets |
$ | 84 | $ | 110 | ||||
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December 31, | ||||||||
2017 | 2016 | |||||||
Other assets: |
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Deferred tax assets |
$ | 13 | $ | 19 | ||||
Pension assets(a) |
25 | | ||||||
Cost-method investments |
9 | 6 | ||||||
Notes receivables(b) |
| 10 | ||||||
Other tax assets |
6 | 6 | ||||||
Display racks |
4 | 4 | ||||||
Equity-method investments |
| 9 | ||||||
Other noncurrent assets |
13 | 12 | ||||||
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Total other assets |
$ | 70 | $ | 66 | ||||
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|
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NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
December 31, | ||||||||
2017 | 2016 | |||||||
Accounts payable and accrued liabilities: |
||||||||
Accounts payable |
$ | 199 | $ | 232 | ||||
Accrued compensation |
112 | 126 | ||||||
Restructuring and severance |
56 | 89 | ||||||
Rebates and allowances |
32 | 43 | ||||||
Distribution expenses payable |
5 | 28 | ||||||
Liability to Time Warner |
25 | 24 | ||||||
Accrued other taxes |
15 | 18 | ||||||
Accrued interest |
11 | 7 | ||||||
Deferred gain (c) |
| 8 | ||||||
Barter liabilities |
4 | 4 | ||||||
Put option liability (d) |
10 | | ||||||
Other current liabilities |
25 | 19 | ||||||
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Total accounts payable and accrued liabilities |
$ | 494 | $ | 598 | ||||
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|
December 31, | ||||||||
2017 | 2016 | |||||||
Other noncurrent liabilities: |
||||||||
Deferred rent |
$ | 138 | $ | 112 | ||||
Deferred gain (c) |
| 64 | ||||||
Noncurrent tax reserves and interest |
44 | 38 | ||||||
Noncurrent deferred compensation |
26 | 28 | ||||||
Noncurrent pension and postretirement liabilities (a) |
16 | 44 | ||||||
Restructuring and severance |
6 | 9 | ||||||
Put option liability (d) |
| 10 | ||||||
Other noncurrent liabilities |
22 | 23 | ||||||
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Total other noncurrent liabilities |
$ | 252 | $ | 328 | ||||
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Year Ended December 31, | ||||||||||||
2017 | 2016 | 2015 | ||||||||||
Interest expense, net: |
||||||||||||
Interest expense |
$ | 74 | $ | 70 | $ | 77 | ||||||
Interest income |
(3 | ) | (2 | ) | | |||||||
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Total interest expense, net |
$ | 71 | $ | 68 | $ | 77 | ||||||
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Year Ended December 31, |
||||||||||||
2017 | 2016 | 2015 | ||||||||||
Other (income) expense, net: |
||||||||||||
(Income) loss on equity-method investments |
$ | 4 | $ | 20 | $ | 8 | ||||||
(Gain) loss on extinguishment of debt |
3 | (4 | ) | (2 | ) | |||||||
Investment (gains) losses, net |
4 | 3 | (4 | ) | ||||||||
Cost method investment impairment |
4 | | | |||||||||
Other (income) expense |
| (1 | ) | | ||||||||
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Total other (income) expense, net |
$ | 15 | $ | 18 | $ | 2 | ||||||
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Year Ended December 31, |
||||||||||||
2017 | 2016 | 2015 | ||||||||||
Cash Flows: |
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Cash payments made for income taxes |
$ | 10 | $ | 5 | $ | 36 | ||||||
Income tax refund received |
(5 | ) | (62 | ) | (1 | ) | ||||||
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Cash tax (receipts) payments, net |
$ | 5 | $ | (57 | ) | $ | 35 | |||||
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Cash payments made for interest |
$ | 63 | $ | 66 | $ | 75 | ||||||
Interest income received |
(3 | ) | (2 | ) | | |||||||
|
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|
|
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|
|||||||
Cash interest (receipts) payments, net |
$ | 60 | $ | 64 | $ | 75 | ||||||
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(a) | See Note 14, Benefit Plans, for more information on Pension asset and Noncurrent pension and postretirement liabilities. |
(b) | Notes receivable relates primarily to a loan we provided of £10 million to a printing vendor for our U.K. operations to assist in financing its purchase of the printing facilities of our former printing vendor in June 2016. The loan was provided in order to maintain continuity in printing operations for our U.K. business. The interest rate on the loan is 8% per annum and has a term of five years with principal repayments of £0.3 million per quarter and £5 million at the end of the five year term. As of December 31, 2017, for the UK printer vendor Notes receivable, $1 million within Prepaid expenses and other current assets and $10 million within Other assets were reclassed to Assets held for sale as of December 31, 2017. |
(c) | The Deferred gain related to the sale-leaseback of the Blue Fin Building that was completed in the fourth quarter of 2015 and will be recognized ratably over the lease term through 2025. The deferred gain was classified within Liabilities held for sale at December 31, 2017. |
(d) | The put option liability is payable in November 2018 and therefore classified as current at December 31, 2017. |
19. | SEGMENT INFORMATION |
An operating segment is defined as a component of an enterprise that engages in business activities from which it may earn revenues and incur expenses, and that has discrete financial information that is regularly reviewed by the chief operating decision maker in deciding how to allocate resources and assess performance. Our chief operating decision maker is our President and Chief Executive Officer. The chief operating decision maker evaluates performance and makes operating decisions about allocating resources based on consolidated financial data. Accordingly, our management has determined that we have one operating segment and therefore one reportable segment.
Revenues in different geographical areas are as follows (in millions):
Year Ended December 31, | ||||||||||||
2017 | 2016 | 2015 | ||||||||||
Revenues (a) |
||||||||||||
United States |
$ | 2,419 | $ | 2,674 | $ | 2,640 | ||||||
United Kingdom |
270 | 313 | 370 | |||||||||
Other international |
86 | 89 | 93 | |||||||||
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Total revenues |
$ | 2,775 | $ | 3,076 | $ | 3,103 | ||||||
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(a) | Revenues are attributed to countries based on location of customer. |
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Long-lived tangible assets in different geographical areas are as follows (in millions):
December 31, | ||||||||
2017 | 2016 | |||||||
Long-lived assets (a) |
||||||||
United States |
$ | 314 | $ | 305 | ||||
United Kingdom |
25 | 28 | ||||||
Other international |
5 | 3 | ||||||
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|
|
|
|||||
Total long-lived assets |
$ | 344 | $ | 336 | ||||
|
|
|
|
(a) | Reflects total assets less current assets, Goodwill, Intangible assets, net, investments and non-current deferred tax assets. |
Net assets in different geographical areas are as follows (in millions):
December 31, | ||||||||
2017 | 2016 | |||||||
Net assets |
||||||||
United States |
$ | 1,344 | $ | 1,316 | ||||
United Kingdom |
151 | 125 | ||||||
Other international |
(5 | ) | (1 | ) | ||||
|
|
|
|
|||||
Total net assets |
$ | 1,490 | $ | 1,440 | ||||
|
|
|
|
20. | SUBSEQUENT EVENTS |
The Company has evaluated subsequent events through February 23, 2018, which is the date the Financial Statements were available to be issued.
Merger
On November 26, 2017, the Company entered into the Merger Agreement with Meredith, and Gotham Merger Sub, Inc., a wholly owned subsidiary of Meredith, providing for the merger with the Company continuing as the surviving corporation and a wholly owned subsidiary of Meredith. Pursuant to the Merger Agreement, on December 12, 2017, Purchaser commenced a tender offer to acquire any and all issued and outstanding shares of common stock of the Company for the right to receive $18.50 in cash, without interest, upon the terms and subject to the conditions set forth in the Offer to Purchase and in the related Letter of Transmittal, filed as exhibits to the Tender Offer statement on Schedule TO (as amended or supplemented from time to time) filed by Meredith with the SEC on December 12, 2017. The Merger closed on January 31, 2018.
In connection with the closing of the Merger, we redeemed the 5.75% Senior Notes and the 7.50% Senior Notes and repaid the Term Loan under our Amended and Restated Credit Agreement. In addition, as a result of the Merger, (i) the effect of the change in control on RSUs caused outstanding and unvested units to be converted into a restricted stock units settled in Meredith common stock, on the same terms and conditions (including applicable vesting requirements) as applied to each RSU immediately prior to the change in control, (ii) the PSUs were deemed earned assuming achievement of performance at target and converted to a time-vested restricted stock unit settled in Meredith common stock, on the same terms and conditions and (iii) the effect of a change in control on OPPs thereunder caused outstanding and unvested OPPs to be deemed earned based on the Merger Consideration as contemplated by the terms of the Outperformance Plan and become fully vested and converted
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into the right to receive an amount of cash equal to the total number of OPPs multiplied by the Merger Consideration. See Note 13, Equity-Based Compensation to the accompanying Financial Statements.
On February 6, 2018, Meredith entered into a long-term agreement with CDS Global to provide magazine fulfillment and related services for all of its brands, including those acquired as part of the merger with Time Inc. As a result, all Time Inc. brands fulfilled by Time Customer Service (TCS), Time Inc.s existing fulfillment operations, are planned to be transitioned in phases to CDS Global. The transition will be ongoing at least over the course of the year and is scheduled to begin in the spring of 2018. Meredith is moving forward with a plan to close down the TCS operations within one year.
On February 9, 2018, we completed the sale of Golf for approximately $12 million.
On February 23, 2018, the Company entered into an agreement to sell Time Inc. UK. The sale is expected to close in March 2018.
21. | QUARTERLY FINANCIAL INFORMATION (UNAUDITED) |
Three Months Ended | ||||||||||||||||
March 31, | June 30, | September 30, | December 31, | |||||||||||||
(in millions, except per share amounts) | ||||||||||||||||
2017 |
||||||||||||||||
Revenues |
$ | 636 | $ | 694 | $ | 679 | $ | 766 | ||||||||
Net income (loss) |
(28 | ) | (44 | ) | 13 | 71 | ||||||||||
Basic net income (loss) per common share |
(0.29 | ) | (0.44 | ) | 0.14 | 0.71 | ||||||||||
Diluted net income (loss) per common share |
(0.29 | ) | (0.44 | ) | 0.14 | 0.70 | ||||||||||
2016 |
||||||||||||||||
Revenues |
$ | 690 | $ | 769 | $ | 750 | $ | 867 | ||||||||
Net income (loss) |
(10 | ) | 18 | (112 | ) | 56 | ||||||||||
Basic net income (loss) per common share |
(0.10 | ) | 0.18 | (1.13 | ) | 0.57 | ||||||||||
Diluted net income (loss) per common share |
(0.10 | ) | 0.18 | (1.13 | ) | 0.56 |
The results for the three months ended March 31, 2017 included: Restructuring and severance costs of $16 million primarily related to headcount reductions and other costs of $2 million related to mergers, acquisitions, investments and dispositions, integration and transformation costs and other nonrecurring costs.
The results for the three months ended June 30, 2017 included: Goodwill impairments of $50 million related to INVNT and SI Play; Restructuring and severance costs of $31 million due to cost re-engineering initiatives undertaken in June 2017 related to headcount reductions; other costs of $8 million related to mergers, acquisitions, investments and dispositions, integration and transformation costs and other nonrecurring costs; and Assets impairments of $5 million related to a definite-lived tradename and a customer relationship intangible asset.
The results for the three months ended September 30, 2017 included: Restructuring and severance costs of $26 million primarily due to previously announced cost savings initiatives, the strategic transformation program and other exit costs related to vacating certain real estate leases and other costs of $8 million related to mergers, acquisitions, investments and dispositions, integration and transformation costs and other nonrecurring costs.
The results for the three months ended December 31, 2017 included: the favorable impact of a tax law change of $75 million; Goodwill impairments of $34 million related to the classification of Time Inc. UK and the
F-163
TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
Golf brand as held for sale; gain on operating assets of $16 million related primarily to the sale of SI Play and the recognition of the deferred gain from the sale-leaseback of the Blue Fin Building that was completed in the fourth quarter of 2015, partially offset by losses incurred related to the sale of Essence; pension settlement and curtailment of $12 million; Restructuring and severance costs of $7 million primarily related to headcount reductions; other costs of $40 million related to mergers, acquisitions, investments and dispositions, integration and transformation costs and other nonrecurring costs; and Asset impairments of $4 million related to impairments of certain definite-lived intangible assets.
22. | GUARANTOR AND NON-GUARANTOR CONDENSED CONSOLIDATING FINANCIAL INFORMATION |
As noted in Note 20, on January 31, 2018, Meredith acquired 100% of the outstanding shares of the Company. The acquisition was partially financed by $1.4 billion of 6.875% senior unsecured notes due in 2026 (6.875% Senior Notes). The 6.875% Senior Notes issued by Meredith were guaranteed by Meredith and certain of its wholly-owned domestic subsidiaries, including Time Inc. and certain of its domestic subsidiaries.
All of the Time Inc. guarantor subsidiaries are 100% owned by the Company. Each guarantee by a guarantor subsidiary is full, unconditional, joint and several. The non-domestic subsidiaries of Time Inc. have not guaranteed the 6.875% Senior Notes.
The accompanying supplemental condensed, consolidating financial information as of and for the year ended December 31, 2017, is presented using the equity method of accounting. Under this method, Investments in subsidiaries are recorded at cost and adjusted for the Companys share in the subsidiaries cumulative results of operations, capital contributions and distributions and other changes in equity. Investments in subsidiaries are accounted for using the equity method for purposes of the consolidating presentation. The guarantor and non-guarantor subsidiaries are presented on a combined basis. Elimination entries relate primarily to the elimination of Investments in subsidiaries and associate intercompany balances and transactions.
Management believes that the allocations and adjustments noted above are reasonable. However, such allocations and adjustments may not be indicative of the actual amounts that would have been incurred had the Parent Company, Guarantor Subsidiaries and Non-Guarantor Subsidiaries operated independently.
F-164
TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
Condensed Consolidating Balance Sheet
December 31, 2017
(in millions)
Parent | Guarantor | Non-Guarantor | Eliminations | Consolidated Total |
||||||||||||||||
ASSETS |
||||||||||||||||||||
Current assets |
||||||||||||||||||||
Cash and cash equivalents |
$ | 453 | $ | 9 | $ | 34 | $ | | $ | 496 | ||||||||||
Receivables, less allowances of $167 |
213 | 162 | 54 | | 429 | |||||||||||||||
Inventories, net of reserves |
| 21 | 1 | | 22 | |||||||||||||||
Prepaid expenses and other current assets |
25 | 42 | 17 | | 84 | |||||||||||||||
Assets held for sale |
| | 326 | | 326 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total current assets |
691 | 234 | 432 | | 1,357 | |||||||||||||||
Property, plant and equipment, net |
226 | 36 | 21 | | 283 | |||||||||||||||
Intangible assets, net |
625 | 26 | 44 | | 695 | |||||||||||||||
Goodwill |
1,059 | 699 | 22 | | 1,780 | |||||||||||||||
Intercompany receivables |
5,020 | 6,651 | 6,393 | (18,064 | ) | | ||||||||||||||
Intercompany notes receivable |
180 | 63 | | (243 | ) | | ||||||||||||||
Investment in subsidiaries |
3,523 | 102 | | (3,625 | ) | | ||||||||||||||
Other assets |
13 | 7 | 50 | | 70 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total assets |
$ | 11,337 | $ | 7,818 | $ | 6,962 | $ | (21,932 | ) | $ | 4,185 | |||||||||
|
|
|
|
|
|
|
|
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|
|||||||||||
LIABILITIES AND STOCKHOLDERS EQUITY |
||||||||||||||||||||
Current liabilities |
||||||||||||||||||||
Accounts payable and accrued liabilities |
$ | 266 | $ | 134 | $ | 94 | $ | | $ | 494 | ||||||||||
Deferred revenue |
4 | 298 | 27 | | 329 | |||||||||||||||
Liabilities held for sale |
| | 176 | | 176 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total current liabilities |
270 | 432 | 297 | | 999 | |||||||||||||||
Long-term debt |
1,222 | | | | 1,222 | |||||||||||||||
Deferred tax liabilities |
116 | 25 | 10 | | 151 | |||||||||||||||
Deferred revenue |
| 65 | 6 | | 71 | |||||||||||||||
Investment in subsidiaries |
| | 44 | (44 | ) | | ||||||||||||||
Intercompany payables |
6,411 | 5,339 | 6,314 | (18,064 | ) | | ||||||||||||||
Intercompany notes payable |
| | 243 | (243 | ) | | ||||||||||||||
Other noncurrent liabilities |
198 | 15 | 39 | | 252 | |||||||||||||||
Commitments and contingencies |
||||||||||||||||||||
Stockholders equity |
||||||||||||||||||||
Total stockholders equity |
3,120 | 1,942 | 9 | (3,581 | ) | 1,490 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total liabilities and stockholders equity |
$ | 11,337 | $ | 7,818 | $ | 6,962 | $ | (21,932 | ) | $ | 4,185 | |||||||||
|
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|
|
|
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|
|
F-165
TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
Condensed Consolidating Statement of Operations
Year Ended December 31, 2017
(in millions)
Parent | Guarantor | Non-Guarantor | Eliminations | Consolidated Total |
||||||||||||||||
Revenues |
$ | 834 | $ | 1,484 | $ | 685 | $ | (228 | ) | $ | 2,775 | |||||||||
Costs of revenues |
343 | 730 | 321 | (228 | ) | 1,166 | ||||||||||||||
Selling, general and administrative expenses |
566 | 446 | 318 | | 1,330 | |||||||||||||||
Amortization of intangible assets |
48 | 8 | 23 | | 79 | |||||||||||||||
Restructuring and severance costs |
45 | 18 | 17 | | 80 | |||||||||||||||
Asset impairments |
3 | 1 | 5 | | 9 | |||||||||||||||
Goodwill impairment |
1 | | 83 | | 84 | |||||||||||||||
(Gain) loss on operating assets, net |
| 21 | (45 | ) | | (24 | ) | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Operating income (loss) |
(172 | ) | 260 | (37 | ) | | 51 | |||||||||||||
Interest expense, net |
72 | | (1 | ) | | 71 | ||||||||||||||
Intercompany interest expense, net |
(9 | ) | (5 | ) | 14 | | | |||||||||||||
Other expense, net |
9 | 4 | 2 | | 15 | |||||||||||||||
|
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|
|
|
|
|
|
|
|
|||||||||||
Income (loss) before income taxes |
(244 | ) | 261 | (52 | ) | | (35 | ) | ||||||||||||
Income tax provision (benefit) |
(120 | ) | 90 | (17 | ) | | (47 | ) | ||||||||||||
|
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|
|
|
|
|
|
|
|
|||||||||||
Income (loss) before equity income |
(124 | ) | 171 | (35 | ) | | 12 | |||||||||||||
Earnings (loss) from equity in subsidiaries |
204 | (62 | ) | (20 | ) | (122 | ) | | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net income (loss) |
$ | 80 | $ | 109 | $ | (55 | ) | $ | (122 | ) | $ | 12 | ||||||||
|
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|
|
|
|
|
|
|
|||||||||||
Comprehensive income (loss) |
$ | 80 | $ | 109 | $ | (15 | ) | $ | (122 | ) | $ | 52 | ||||||||
|
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F-166
TIME INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
Condensed Consolidating Statement of Cash Flows
Year Ended December 31, 2017
(in millions)
Parent | Guarantor | Non-Guarantor | Eliminations | Consolidated Total |
||||||||||||||||
OPERATING ACTIVITIES |
||||||||||||||||||||
Cash provided by (used in) operations |
$ | 31 | $ | (81 | ) | $ | 263 | $ | | $ | 213 | |||||||||
|
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INVESTING ACTIVITIES |
||||||||||||||||||||
Capital expenditures |
(38 | ) | (4 | ) | (27 | ) | | (69 | ) | |||||||||||
Proceeds from (payments for) dispositions |
| 129 | (4 | ) | | 125 | ||||||||||||||
Acquisitions, net of cash acquired |
| (24 | ) | 2 | | (22 | ) | |||||||||||||
(Investments in) dispositions of cost and equity-method investments |
| (2 | ) | (1 | ) | | (3 | ) | ||||||||||||
Maturities of short-term investments |
40 | | | | 40 | |||||||||||||||
Intercompany activities |
(554 | ) | (493 | ) | (665 | ) | 1,712 | | ||||||||||||
Issuances of notes receivable |
| (2 | ) | | | (2 | ) | |||||||||||||
Repayments of notes receivable |
| 2 | 1 | | 3 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Cash provided by (used in) investing activities |
(552 | ) | (394 | ) | (694 | ) | 1,712 | 72 | ||||||||||||
|
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|
|||||||||||
FINANCING ACTIVITIES |
||||||||||||||||||||
Repurchase of 5.75% Senior Notes |
(102 | ) | | | | (102 | ) | |||||||||||||
Proceeds from the issuance of debt |
297 | | | | 297 | |||||||||||||||
Principal payments on Term Loan |
(222 | ) | | | | (222 | ) | |||||||||||||
Intercompany activities |
843 | 462 | 407 | (1,712 | ) | | ||||||||||||||
Dividends paid |
(31 | ) | | | | (31 | ) | |||||||||||||
Withholding taxes paid on equity-based compensation |
(6 | ) | (2 | ) | (1 | ) | | (9 | ) | |||||||||||
Contingent/deferred consideration payments |
| (1 | ) | (2 | ) | | (3 | ) | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Cash provided by (used in) financing activities |
779 | 459 | 404 | (1,712 | ) | (70 | ) | |||||||||||||
|
|
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|
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|
|
|
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|
|||||||||||
Effect of exchange rate changes on Cash and cash equivalents |
| | 1 | | 1 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS |
258 | (16 | ) | (26 | ) | | 216 | |||||||||||||
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD |
195 | 25 | 76 | | 296 | |||||||||||||||
CASH CLASSIFIED AS HELD FOR SALE |
| | (16 | ) | | (16 | ) | |||||||||||||
|
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|
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|
|||||||||||
CASH AND CASH EQUIVALENTS, END OF PERIOD |
$ | 453 | $ | 9 | $ | 34 | $ | | $ | 496 | ||||||||||
|
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|
F-167
MEREDITH CORPORATION
Offer to Exchange
6.875% Senior Notes due 2026
Subject to completion, dated , 2019
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. | Indemnification of Directors and Officers. |
Iowa Registrants
(a) Meredith Corporation and Eating Well, Inc.
The Iowa Business Corporation Act (the Act), provides for or permits indemnification of directors and officers in certain situations. Unless limited by its Articles of Incorporation, indemnification is mandatory for a director or an officer (not an employee) who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director or officer was a party because such person is or was a director or officer of the corporation against reasonable expenses incurred by the director or officer in connection with the proceeding. In addition, unless the Articles of Incorporation provide otherwise, a director or officer may apply for limited court-ordered indemnification if indemnification is mandatory or certain standards are met.
The Act by its terms expressly permits indemnification where a director, officer, employee or agent in good faith and in a manner such person reasonably believed to be in (if acting in its official capacity), or not opposed to, the corporations best interests, and, in a criminal action, if such person had no reasonable cause to believe that his or her conduct was unlawful. Unless ordered by a court, no indemnification is permitted in connection with a proceeding by or in the right of a corporation in which the person was adjudged liable to the corporation or in connection with any other proceeding charging improper personal benefit to the director, whether or not involving action in an official capacity, in which the person was adjudged liable on the basis that personal benefit was improperly received.
The Act also permits advancement of expenses to a director, officer, employee or agent upon (1) receipt of an undertaking by such to repay all amounts advanced if it shall ultimately be determined that he or she is not entitled to be indemnified by the corporation; (2) the person furnishes the corporation a written affirmation of the persons good faith belief he or she has met the applicable standard of conduct; or (3) determination is made that the facts then known to those making the determination would not preclude indemnification.
Generally, the above provisions of the Act are permissive in nature. The only indemnification requirement imposed by the Act is that, unless limited by its Articles of Incorporation, a corporation must indemnify a director or officer against reasonable expenses incurred in connection with the wholly successful defense of a proceeding. The Act does permit a corporation to obligate itself in advance to indemnify officers and directors as otherwise permitted by the Act in its Articles of Incorporation, Bylaws, resolution or other agreement. The right to indemnification granted by the Articles of Incorporation, Bylaws, resolution or other agreement cannot be eliminated after an event entitling an officer or director to indemnification has taken place.
The Act specifically provides that, subject to certain limitations, its terms shall not be deemed exclusive of any other right to indemnification to which a director or officer may be entitled under a corporations Articles of Incorporation or Bylaws, or any agreement, vote of shareholders or disinterested directors, or otherwise. However, indemnification cannot be provided to officers, in their sole capacity as officers, in the case of (1) receipt of a financial benefit by an officer to which such person is not entitled, (2) an intentional infliction of harm on the corporation or the shareholders, or (3) an intentional violation of criminal law. Indemnification by or in the right of the corporation is limited to reasonable expenses in connection with the proceeding.
Prior to indemnifying a director or officer a corporation must determine that the director or officer has met the required standard of conduct.
Article Twelve of the Bylaws of the Company provides that the Company shall indemnify its directors and officers to the fullest extent permitted by Iowa law and advance the expenses of directors, officers and employees
II-1
incurred in defending any related proceeding upon receipt by the Company of an undertaking, by or on behalf of such director, officer or employee to repay all amounts advanced if it shall ultimately be determined that the director, officer or employee is not entitled to be indemnified.
The Company maintains directors and officers liability insurance covering all directors and officers of the Company against claims arising out of the performance of their duties.
The articles of incorporation of Eating Well, Inc. generally provide that, to the fullest extent permitted by Iowa law then in effect, a director of the company shall not be personally liable to Eating Well, Inc. or its shareholders for monetary damages for the directors breach of fiduciary duty, except for a breach of the duty of loyalty, for any act or omission not in good faith or which involves intentional misconduct or knowing violation of the law, for any transaction from which the director derives an improper personal benefit or under Section 490.833 of the Act with respect to unlawful distributions.
In addition, the bylaws of Eating Well, Inc. provide that the company shall indemnify any person who was or is a party to, or is threatened to be made a party to, any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of Eating Well, Inc.) by reason of the fact that such person is or was a director, officer, employee or agent of Eating Well, Inc., or is or was serving at the request of Eating Well, Inc. as a director, officer, employee or agent of another 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; provided, however, that such person must have acted in good faith and in a manner reasonably believed to be in (or not opposed to) the best interests of the company and had no reason to believe such conduct was unlawful.
The bylaws of Eating Well, Inc. also provide that, with respect to any threatened, pending or completed action or suit by or in the right of Eating Well, Inc. to procure a judgment in its favor, Eating Well, Inc. shall indemnify any such person against expenses (including attorneys fees) actually and reasonably incurred in connection with the defense or settlement of such action or suit; provided, however, that such person must have acted in good faith and in a manner reasonably believed to be in (or not opposed to) the best interests of Eating Well, Inc.; and further provided, that Eating Well, Inc. will not indemnify any person who has been judged to be liable for negligence or misconduct in the performance of his or her duties to Eating Well, Inc., subject to certain exceptions.
Furthermore, the bylaws of Eating Well, Inc. permit the company to procure insurance on behalf of any person described above.
(b) Meredith Performance Marketing, LLC and Meredith Shopper Marketing, LLC
Section 490A.202(17) of the Iowa Limited Liability Company Act permits a limited liability company to indemnify a member, manager or other person, as provided in an operating agreement. Section 490A.706(4) of the Iowa Limited Liability Company Act provides that a manager shall not be liable for any action taken as a manager or any failure to take any action if the manager performed the duties of the managers office in good faith, with the care an ordinary prudent person in a like position would exercise under similar circumstances, and in a manner the manager believes to be in the best interests of the limited liability company.
The operating agreement of each of Meredith Performance Marketing, LLC and Meredith Shopper Marketing, LLC provide that managers and officers of each company shall not be personally liable to the company or its members for monetary damages for any act or omission, except for a breach of the duty of loyalty, a financial benefit received by such person to which it is not entitled, authorization of any distribution that violates Section 405 of the Iowa Limited Liability Company Act, an intentional infliction of harm on the company or a member thereof or an intentional violation of criminal law. Except with respect to the limitations set forth above, the operating agreements further provide that each company shall defend, indemnify and hold harmless its current and former managers and officers from and against any and all losses, claims, damages, liabilities,
II-2
settlements and other amounts (including reasonable legal fees and expenses) arising from claims, demands, actions, suits or proceedings related to such persons management of the company. Except with respect to the limitations set forth above, the operating agreements also provide that each company shall indemnify its managers or officers who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or proceeding by or in the right of such company to procure a judgment in its favor, by reason of the fact such manager or officer is or was an agent of the company, against any losses, claims, damages, liabilities, settlements, expenses, legal fees or any other amounts incurred by such manager or officer in connection with the defense or settlement of such action. The operating agreements of Meredith Performance Marketing, LLC and Meredith Shopper Marketing, LLC also permit each company to advance a manager or officer any expenses incurred as a result of any such action. Meredith Performance Marketing, LLC and Meredith Shopper Marketing, LLC also may procure insurance on behalf of a member or manager.
Delaware Registrants
(a) Selectable Media Inc.; TI Gotham Inc.; BIZRATE INSIGHTS INC.; Cozi Inc.; Entertainment Weekly Inc.; FanSided Inc.; Health Media Ventures Inc.; Hello Giggles, Inc.; MNI Targeted Media Inc.; NSSI Holdings Inc.; SI DIGITAL GAMES, INC.; Southern Progress Corporation; Synapse Direct, Inc.; Synapse Group, Inc.; Synapse Retail Ventures, Inc.; Synapse Ventures, Inc.; Synapseconnect, Inc.; TI International Holdings Inc.; TI Live Events Inc.; TI Marketing Services Inc.; TI Media Solutions Inc.; TI MEXICO HOLDINGS INC.; TI PAPERCO INC.; TI Consumer Marketing, Inc.; TI Customer Service, Inc.; TI Distribution Services Inc.; TI Inc. Books; TI Inc. Lifestyle Group; TI Inc. Play; TI Inc. Ventures; TI Publishing Ventures, Inc.; Viant Technology Holding Inc.
Section 145 of the Delaware General Corporation Law (the DGCL) grants each corporation organized thereunder the power to indemnify any person who is or was a director, officer, employee or agent of a corporation or enterprise, against expenses, including attorneys fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with 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 being or having been in any such capacity, if such person acted in good faith and in a manner 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 the persons conduct was unlawful.
Section 102(b)(7) of the DGCL enables a corporation in its certificate of incorporation or an amendment thereto to eliminate or limit the personal liability of a director to the corporation or its stockholders of monetary damages for violations of the directors fiduciary duty of care, except (i) for any breach of the directors duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the DGCL (providing for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions) or (iv) for any transaction from which a director derived an improper personal benefit.
The certificate of incorporation of each of Selectable Media Inc., BIZRATE INSIGHTS INC., Cozi Inc., FanSided Inc., Health Media Ventures Inc., Hello Giggles, Inc., NSSI Holdings Inc., SI DIGITAL GAMES, INC., Synapse Group, Inc., Synapse Retail Ventures, Inc., Synapseconnect, Inc., TI International Holdings Inc., TI Live Events Inc., TI Marketing Services Inc., TI MEXICO HOLDINGS INC., TI Inc. Play, and Viant Technology Holding Inc. eliminates personal liability of the directors to the fullest extent permitted by Section 102(b)(7) of the DGCL. The certificate of incorporation of Selectable Media Inc. also generally provides that the company is authorized to indemnify and advance expenses to its directors, officers, employees, agents and any other persons permitted to receive indemnification under the DGCL. The certificate of incorporation of Cozi Inc. also generally provides that the company shall indemnify its officers, directors, employees and agents to the extent permitted by the DGCL. The certificate of incorporation of Synapseconnect, Inc. also generally provides that the company shall indemnify and advance expenses all persons permitted by the DGCL.
II-3
In addition, the bylaws of Selectable Media Inc. provide that the company shall indemnify any person who was or is a party to, or is threatened to be made a party to, any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of Selectable Media Inc.) by reason of the fact that such person is or was a director, officer, employee or agent of Selectable Media Inc., or is or was serving at the request of Selectable Media Inc. as a director, officer, employee or agent of another 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; provided, however, that such person must have acted in good faith and in a manner reasonably believed to be in (or not opposed to) the best interests of the company and had no reason to believe such conduct was unlawful.
The bylaws of Selectable Media Inc. also provide that, with respect to any threatened, pending or completed action or suit by or in the right of Selectable Media Inc. to procure a judgment in its favor, Selectable Media Inc. shall indemnify any such person against expenses (including attorneys fees) actually and reasonably incurred in connection with the defense or settlement of such action or suit; provided, however, that such person must have acted in good faith and in a manner reasonably believed to be in (or not opposed to) the best interests of Selectable Media Inc.; and further provided, that Selectable Media Inc. will not indemnify any person who has been judged to be liable for negligence or misconduct in the performance of his or her duties to Selectable Media Inc., subject to certain exceptions.
Furthermore, the bylaws of Selectable Media Inc. permit the company to procure insurance on behalf of any person described above.
The certificate of incorporation of TI Gotham Inc. generally eliminates personal liability of directors to the company or its stockholders for monetary damages for breach of fiduciary duty, to the fullest extent permitted by the DGCL or other applicable as then in effect. The bylaws of TI Gotham Inc. also provide that TI Gotham Inc., to the fullest extent permitted or required by the DGCL or other applicable law as then in effect (to the extent such amendment or change permits broader indemnification), shall indemnify and hold harmless each director and officer who is or was involved in any manner, or is threatened to be made so involved, in any threatened, pending or completed investigation, claim, action, suit or proceeding, by reason of the fact that such person is or was a director, officer, employee or agent of the company, or is or was serving at the request of the company as a director, officer, employee or agent of another enterprise, against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such investigation, claim, action, suit or proceeding; provided, however, that the foregoing shall not apply to a director or officer with respect to an investigation, claim, action, suit or proceeding commenced by such director or officer unless it was commenced after a change of control of TI Gotham Inc. The bylaws of TI Gotham Inc. also permit the company to indemnify other officers, employees and agents to the extent permitted by applicable law. The bylaws of TI Gotham Inc. require the company to advance to its indemnitees all expenses incurred in connection with an investigation, claim, action, suit or proceeding, prior to the disposition thereof and promptly following request, subject to the requirements of applicable law. TI Gotham Inc. may also procure insurance on behalf of any indemnitee.
The bylaws of each of BIZRATE INSIGHTS INC., Cozi Inc., Entertainment Weekly Inc., FanSided Inc., Health Media Ventures Inc., Hello Giggles, Inc., MNI Targeted Media Inc., NSSI Holdings Inc., SI DIGITAL GAMES, INC., Southern Progress Corporation, Synapse Group, Inc., Synapse Retail Ventures, Inc., TI International Holdings Inc., TI Live Events Inc., TI Marketing Services Inc., TI MEXICO HOLDINGS INC., TI PAPERCO INC., TI Consumer Marketing, Inc., TI Customer Service, Inc., TI Distribution Services Inc., TI Inc. Books, TI Inc. Lifestyle Group, TI Inc. Play, TI Inc. Ventures, TI Publishing Ventures, Inc. and Viant Technology Holding Inc. provide that each company, to the fullest extent permitted by applicable law as then in effect, shall indemnify each director and officer who is or was involved in any manner, or is threatened to be made so involved, in any threatened, pending or completed investigation, claim, action, suit or proceeding, by reason of the fact that such person is or was a director, officer, employee or agent of the company or a subsidiary thereof, or is or was serving at the request of the company as a director, officer, employee or agent of another enterprise, against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and
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reasonably incurred by such person in connection with such investigation, claim, action, suit or proceeding; provided, however, that the foregoing shall not apply to a director or officer with respect to an investigation, claim, action, suit or proceeding that was commenced by such director or officer. The bylaws also permit each company to indemnify other officers, employees and agents of such company to the extent permitted by applicable law. The bylaws require each company to advance to its indemnitees all expenses incurred in connection with an investigation, claim, action, suit or proceeding, prior to the disposition thereof and promptly following request, subject to the requirements of applicable law. Each company may also procure insurance on behalf of any indemnitee.
The certificate of incorporation of each of Synapse Direct, Inc. and Synapse Ventures, Inc. eliminates personal liability of their respective directors for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability, to the fullest extent permitted by the DGCL as then in effect. The certificates of incorporation also generally provide that each company shall, to the fullest extent permitted by Section 145 of the DGCL as then in effect, indemnify each person who was or is a party, or threatened to be made a party, to any threatened, pending or completed action suit or proceeding, by reason of the fact that such person is, was or has agreed to become a director or officer of the company, or is or was serving, or has agreed to serve, at the request of the company as a director, officer or trustee of, or in a similar capacity with, another enterprise, against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by or on behalf of such person in connection with such action, suit or proceeding. The certificates of incorporation also condition this indemnification on the indemnitee notifying the company in writing as soon as practicable of any action, suit or proceeding for which indemnity will or could be sought. The certificates of incorporation further provide that if the company does not assume the defense of such action, suit or proceeding, the company shall pay in advance any expenses (including attorneys fees) incurred by the indemnitee; provided, however, that the indemnitee must repay all advanced expenses if it is subsequently determined that the indemnitee was not entitled to such indemnification; and further provided, that the company will not advance any expenses if the indemnitee did not act in good faith and in a manner he or she reasonably believed to be in (or not opposed to) the best interests of the company or that he or she had reasonable cause to believe that his or her conduct was unlawful.
The certificate of incorporation and bylaws of TI Media Solutions Inc. generally provide that the company shall, to the fullest extent permitted by the DGCL, and subject to the determination of the board of directors, indemnify its directors and officers and their respective heirs, executors and administrators against expenses reasonably incurred in connection with any action, suit or proceeding to which such person may be made a party by reason of the fact that such person is or was a director or officer of the company, or is or was serving at the request of the company as a director or creditor of another corporation from which such person is not entitled to be indemnified.
(b) NewSub Magazine Services LLC; TI Administrative Holdings LLC; TI Books Holdings LLC; TI Circulation Holdings LLC; TI Corporate Holdings LLC; TI Distribution Holdings LLC; TI Magazine Holdings LLC; TI Sales Holdings LLC; TI Direct Ventures LLC
Section 18-108 of the Delaware Limited Liability Company Act (the DLLCA) empowers a Delaware limited liability company to indemnify and hold harmless any member or manager of the limited liability company or other person from and against any and all claims and demands whatsoever.
The limited liability company agreement of NewSub Magazine Services LLC eliminates personal liability of the companys managers and members, and the officers, directors, employees, representatives, consultants and agents of the managers, members, the company and its affiliates, for any act or omission in relation to the company taken or omitted in good faith by such person with the reasonable belief that such act or omission was in (or not contrary to) the best interests of the company. The limited liability company agreement also provides that NewSub Magazine Services LLC shall indemnify and hold harmless, to the fullest extent permitted by law, each manager, member and officer of the company, and each officer or director of any member, from and against any and all losses, claims, demands, liabilities, expenses, judgments, fines, settlements and other amounts arising
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from any and all actions, suits or proceedings in which such person may be involved, or threatened to be involved, in any manner by reason of its management of the affairs of the company or which relates to or arises out of the company or its property, business or affairs. The limited liability company agreement further provides that such limitation of liability and indemnification shall not apply with respect to acts or omissions that constitute fraud, willful misconduct, bad faith or gross negligence. Additionally, NewSub Magazine Services LLC will advance to any indemnitee expenses incurred in investigating or defending any action, suit or proceeding; provided, that such person must repay such amount if it is determined that he or she is not entitled to indemnification. The limited liability company agreement also permits NewSub Magazine Services LLC to indemnify other employees, representatives, agents and consultants.
The limited liability company operating agreement of each of TI Administrative Holdings LLC, TI Books Holdings LLC, TI Circulation Holdings LLC, TI Corporate Holdings LLC, TI Distribution Holdings LLC, TI Magazine Holdings LLC, TI Sales Holdings LLC and TI Direct Ventures LLC eliminates personal liability of each companys members, their respective officers, directors, shareholders, partners, employees, representatives and agents, and each of their respective affiliates with respect to the company or any of the aforementioned persons for any loss, liability, damage, cost, claim or expense incurred by reason of any act or omission taken or omitted in good faith on behalf of the company. The limited liability company operating agreements also provide that each company shall indemnify, defend and hold harmless each of the aforementioned persons from and against any and all loss, liability, damage, cost, claim or expense (including attorneys fees) suffered or incurred in defense of any demands, claims, actions, proceedings or lawsuits against such persons as a result of or relating to his or her capacity, actions or omissions concerning the company or its activities. Each such person shall also be entitled to receive, upon request, to the extent the company has available cash, advances to cover the costs of defending any such demand, claim, action, proceeding or lawsuit. The limited liability company operating agreements further provide that such persons will not be entitled to the limitation of liability, indemnification and expense advancements if a court of competent jurisdiction finds such acts or omissions to be the result of fraud, gross negligence, bad faith or willful or intentional misconduct, or with respect to indemnification and expense advancements, to have violated a lesser standard of conduct or public policy by which applicable law prohibits indemnification.
New York Registrants
Sections 202(a)(10) and 722 of the New York Business Corporations Law (NYBCL) permit a corporation to indemnify any person made, or threatened to be made, a party to an action or proceeding (other than one by or in the right of the corporation to procure a judgment in its favor), whether civil or criminal, including an action by or in the right of any other corporation of any type or kind, domestic or foreign, or any partnership, joint venture, trust, employee benefit plan or other enterprise, which any director or officer of the corporation serves or served in any capacity at the request of the corporation, by reason of the fact that he, his testator or intestate, is or was a director or officer of the corporation, or serves or served such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys fees actually and necessarily incurred as a result of such action or proceeding, or any appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the corporation and, in criminal actions or proceedings, in addition, had no reasonable cause to believe that his conduct was unlawful.
The certificate of incorporation of each of Book-of-the-Month Club, Inc. and TI Inc. Affluent Media Group eliminates personal liability, to the fullest extent permitted by applicable law as then in effect, of each companys directors to each company or its stockholders for monetary damages for breach of fiduciary duty as a director. The certificates of incorporation further generally provide that each person who is, was or had agreed to become a director or officer of the company, and each such person who is or was serving or who had agreed to serve at the request of the company as a director, officer, partner, member, employee or agent of another enterprise (including the heirs, executor, administrators or estate of such person), shall be indemnified by such company to the fullest extent permitted by applicable law as then in effect.
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The bylaws of each of Book-of-the-Month Club, Inc., TI Inc. Affluent Media Group and TI Inc. Retail provide that each company, to the fullest extent permitted by applicable law as then in effect, shall indemnify any of its directors or officers who is or was involved in any manner, or is threatened to be made so involved, in any threatened, pending or completed investigation, claim, action, suit or proceeding, by reason of the fact that such person is or was a director, officer, employee or agent of the company or a subsidiary thereof, or is or was serving at the request of the company as a director, officer, employee or agent of another enterprise, against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such investigation, claim, action, suit or proceeding; provided, however, that the foregoing shall not apply to a director or officer with respect to an investigation, claim, action, suit or proceeding that was commenced by such director or officer. The bylaws permit each company to indemnify other officers, employees and agents of such company to the extent permitted by applicable law. The bylaws also require each company to advance to its indemnitees in connection with an investigation, claim, action, suit or proceeding, prior to the disposition thereof, all expenses incurred in connection with the proceeding, subject to the requirements of applicable law. Each company may also procure insurance on behalf of any indemnitee.
Washington Registrant
Sections 23B.08.510 and 23B.08.570 of the Washington Business Corporation Act (WBCA) authorizes Washington corporations to indemnify their directors, officers, employees and agents under certain circumstances against expenses and liabilities incurred in legal proceedings involving them as a result of their service in such capacities. Section 23B.08.560 of the WBCA authorizes a corporation by provision in its articles of incorporation, bylaws or a shareholder resolution to agree to indemnify a director and obligate itself to advance or reimburse expenses without regard to the provisions of Sections 23B.08.510 through 23B.08.550; provided however that no such indemnity shall be made for or on account of any (a) acts or omissions of a director that involve intentional misconduct or a knowing violation of law, (b) conduct in violation of Section 23B.08.310 of the WBCA (relating to unlawful distributions) or (c) any transaction from which a director personally received a benefit in money, property or services to which the director was not legally entitled.
The articles of incorporation of Allrecipes.com, Inc. generally provide that the company shall indemnify its directors and officers to the fullest extent not prohibited by applicable law then in effect, arising out of a proceeding to which such individual was made a party by reason of the fact that individual is or was a director or an officer of the company, except as set forth in the WBCA. The bylaws of Allrecipes.com further provide that the company shall indemnify and hold harmless to the fullest extent permitted by applicable law as then in effect, each person who was or is made a party, is threatened to be made a party to or is otherwise involved in any actual or threatened action, suit or proceeding by reason of the fact that such person is or was a director or officer of the company, or, while serving as a director or officer of the company, is or was also serving at the request of the company as a director, officer, partner, trustee or agent of another enterprise, against all expense, liability and loss (including attorneys fees, judgments, fines, certain excise taxes or penalties and amounts to be paid in settlement) actually and reasonably incurred by such person in connection therewith; provided, however, that Allrecipes.com shall not provide any indemnification prohibited by the WBCA or other applicable law as then in effect. Furthermore, notwithstanding the foregoing, Allrecipes.com shall provide indemnification to any such person in connection with a proceeding initiated by such person (except with respect to successful proceedings seeking to enforce indemnification rights) only if the proceeding was authorized or ratified by the companys board of directors. The bylaws also require Allrecipes.com to advance expenses to each such indemnitee upon delivery of an undertaking to repay to the company all amounts so advanced if it is determined by a final judicial decision that such person is not entitled to be identified, and upon delivery of a written affirmation that such indemnitee has met the standard of conduct necessary for indemnification under the bylaws. The bylaws also permit Allrecipes.com to indemnify and advance expenses to its other employees and agents. Allrecipes.com may also procure insurance on behalf of any indemnitee.
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Arizona Registrant
Sections 10-850 through 10-858 of the Arizona Revised Statutes (the A.R.S.) permit indemnification of present and former directors, officers, employees or agents of an Arizona corporation, whether or not authority for such indemnification is contained in the indemnifying corporations articles of incorporation or bylaws.
Section 10-852 of the A.R.S. requires an Arizona corporation, unless limited by its articles of incorporation, to indemnify an officer or director who has prevailed, on the merits or otherwise, in defending any proceeding brought against the officer or director because such person is or was an officer or director of the corporation. The corporation must indemnify the officer or director for reasonable expenses, including attorneys fees and all other costs and expenses reasonably related to a proceeding. A proceeding includes any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal.
Section 10-856 of the A.R.S. provides that a corporation may indemnify officers to the same extent as directors and, in the case of officers who are not also directors (or officers who are also directors but who are made a party to a proceeding based on an act or omission solely made as an officer), to the further extent as may be provided in the articles of incorporation, bylaws, a resolution of the board of directors, or contract, subject to certain exceptions and limitations. Further, A.R.S. Section 10-856 provides that officers who are not directors are entitled to mandatory indemnification under A.R.S. Section 10-852 described above to the same extent as directors.
Section 10-851 of the A.R.S. permits an Arizona corporation to indemnify an officer or director made a party to a proceeding because such person is or was an officer or director of the corporation. The corporation may indemnify the officer or director against liability incurred in the proceeding if all of the following conditions exist: (i) the officer or directors conduct was in good faith; (ii) the officer or director reasonably believed that his or her conduct was at least not opposed to the best interests of the corporation, or, where the conduct was in an official corporate capacity, that the conduct was in the best interest of the corporation; and (iii) in the case of criminal proceedings, the officer or director had no reasonable cause to believe that the conduct was unlawful.
Before discretionary indemnification under Section 10-851 of the A.R.S. may be awarded to a director, under Section 10-855 of the A.R.S. the corporation must determine that it is permissible under the circumstances. This determination may be made either: (i) by majority vote of the directors not at the time parties to the proceedings; (ii) by special legal counsel selected by majority vote of the disinterested directors, or by majority vote of the board if there are no disinterested directors; or (iii) by the shareholders (but shares owned by or voted under the control of directors who are at the time parties to the proceeding are not voted).
Section 10-854 of the A.R.S. permits a director of an Arizona corporation who is a party to a proceeding, unless the articles of incorporation provide otherwise, to apply to a court of competent jurisdiction for indemnification or for an advance of expenses. The court may order indemnification or an advance if it determines that the director is entitled to mandatory indemnification under Section 10-852 of the A.R.S., or if it determines that indemnification is fair and reasonable, even if the director did not meet the prescribed standard of conduct described in Section 10-851 of the A.R.S.
The bylaws of KPHO Broadcasting Corporation provide that the company shall indemnify and advance expenses to any person who was or is a party to or is threatened to be made a party to any threatened, pending or contemplated claim, action, suit or proceeding, by reason of the fact that such person is or was a director or officer of the company, or while serving as a director or officer of the company, is or was serving at the request of KPHO Broadcasting Corporation as a director, officer, employee, agent, partner or trustee (or in a similar capacity) of another enterprise, to the maximum extent permitted by Article 5 of Chapter 8 of Title 10 of the A.R.S. as then in effect (to the extent such amendment or change permits broader indemnification). Such indemnification shall cover reasonable expenses (including attorneys fees), judgments, fines, penalties
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(including an excise tax assessed with respect to an employee benefit plan) and amounts paid in settlement actually and reasonably incurred by such person in connection with such claim, action, suit or proceeding. The bylaws of KPHO Broadcasting Corporation condition such indemnification upon the company having the opportunity to participate directly on behalf of such indemnitee in such claim, action, suit or proceeding and, with respect to any settlement or non-adjudicated disposition, upon the companys prior approval of the proposed settlement or non-adjudicated disposition.
Oregon Registrant
Sections 60.391(1) and 60.407(1) of the Oregon Revised Statutes (ORS) permit a corporation to indemnify an officer or director in any proceeding to which such individual was made a party because the individual was or is an officer or director if (a) the conduct of the individual was in good faith, (b) the individual reasonably believed that the individuals conduct was in the best interests of the corporation, or at least was not opposed to the corporations best interests and (c) in the case of a criminal proceeding, the individual did not have reasonable cause to believe the individuals conduct was unlawful. Sections 60.397 and 60.407(2) of the ORS also permit a corporation to pay for or reimburse reasonable expenses incurred by an officer or director who is a party to a proceeding in advance of final disposition of the proceeding.
The articles of incorporation of KPTV-KPDX Broadcasting Corporation generally provides that the company has elected to indemnify its directors, officers, employees and agents for liability and related expenses under ORS Sections 60.387 to 60.414. The bylaws of KPTV-KPDX Broadcasting Corporation more specifically provide that the company shall indemnify and advance expenses to any person who was or is a party to or is threatened to be made a party to any threatened, pending or contemplated claim, action, suit or proceeding, by reason of the fact that such person is or was a director or officer of the company, or while serving as a director or officer of the company, is or was serving at the request of KPTV-KPDX Broadcasting Corporation as a director, officer, employee, agent, partner or trustee (or in a similar capacity) of another enterprise, to the maximum extent permitted by ORS Sections 60.387 through 60.414as then in effect (to the extent such amendment or change permits broader indemnification). Such indemnification shall cover reasonable expenses (including attorneys fees), judgments, fines, penalties (including an excise tax assessed with respect to an employee benefit plan) and amounts paid in settlement actually and reasonably incurred by such person in connection with such claim, action, suit or proceeding. The bylaws of KPTV-KPDX Broadcasting Corporation condition such indemnification upon the company having the opportunity to participate directly on behalf of such person in such claim, action, suit or proceeding and, with respect to any settlement or non-adjudicated disposition, upon the companys prior approval of the proposed settlement or non-adjudicated disposition.
Nevada Registrant
Section 78.7502 of the General Corporation Law of Nevada (the GCLN) authorizes a court to award, or a corporations board of directors to grant, indemnity to officers and directors of the corporation under certain circumstances and subject to certain limitations. In addition, Section 78.138(7) of the GCLN provides that, unless the articles of incorporation or an amendment thereto filed after October 1, 2003 provide for greater individual liability, a director or officer is not individually liable to a corporation or its stockholders or creditors for any damages as a result of any act or failure to act in such persons capacity as a director or officer unless it is proven that (i) such persons act or failure to act constituted a breach of his or her fiduciary duties as a director or officer and (ii) such persons breach of those duties involved intentional misconduct, fraud or a knowing violation of law.
Neither the articles of incorporation nor the bylaws of KVVU Broadcasting Corporation establish any express obligation on the part of KVVU Broadcasting Corporation to indemnify its directors, officers or employees for costs or expenses either related to an action, suit or proceeding involving or related to KVVU Broadcasting Corporation or otherwise.
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Colorado Registrants
Section 7-80-407 of the Colorado Limited Liability Company Act (COLLCA) provides that a limited liability company shall reimburse any person who is or was a member or manager of the limited liability company for payments made, and indemnify any person who is or was a member or manager of the limited liability company for liabilities incurred by the person, in the ordinary course of the business of the limited liability company or for preservation of its business or property, if such payments were made or liabilities incurred without violation of the persons duties to the limited liability company.
The operating agreement of MyWedding, LLC provides that managers and officers of MyWedding, LLC shall not be personally liable to the company or its members for monetary damages for any act or omission, except for a breach of the duty of loyalty, a financial benefit received by such person to which it is not entitled, authorization of any distribution that violates Section 606 of the COLLCA, an intentional infliction of harm on the company or a member thereof or an intentional violation of criminal law. Except with respect to the limitations set forth above, the operating agreements further provide that MyWedding, LLC shall defend, indemnify and hold harmless its current and former managers and officers from and against any and all losses, claims, damages, liabilities, settlements and other amounts (including reasonable legal fees and expenses) arising from claims, demands, actions, suits or proceedings related to such persons management of the company. Except with respect to the limitations set forth above, the operating agreement also provides that MyWedding, LLC shall indemnify its managers or officers who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or proceeding by or in the right of MyWedding, LLC to procure a judgment in its favor, by reason of the fact such manager or officer is or was an agent of the company, against any losses, claims, damages, liabilities, settlements, expenses, legal fees or any other amounts incurred by such manager or officer in connection with the defense or settlement of such action. The operating agreement of MyWedding, LLC also permits the company to advance a manager or officer any expenses incurred as a result of any such action. MyWedding, LLC also may procure insurance on behalf of a member or manager.
Certain Other Arrangements
The registrants maintain a directors and officers liability insurance policy that covers the directors, officers, members and managers of each of the registrants in amounts that the registrants believe are customary in their industry.
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Item 21. | Exhibits and Financial Statement Schedules. |
(a) Exhibits
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Exhibit |
Description of Document | |
25.1** | Form T-1 Statement of Eligibility of Trustee | |
99.1** | Form of Letter of Transmittal | |
99.2** | Form of Notice of Guaranteed Delivery | |
99.3** | Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees | |
99.4** | Form of Letter to Clients |
* | Management contract or compensatory plan or arrangement. |
** | Filed herewith. |
| Confidential treatment has been granted with respect to portions of this exhibit (indicated by asterisks) and those portions have been separately filed with the SEC. |
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Item 22. | Undertakings. |
(a) Each of the undersigned registrants hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective registration statement; and
(iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
(2) that, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof;
(3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering;
(4) that, for the purpose of determining liability under the Securities Act to any purchaser, if the registrants are subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use; and
(5) that, for the purpose of determining liability of the registrants under the Securities Act to any purchaser in the initial distribution of the securities: Each of the undersigned registrants undertakes that in a primary offering of securities of the undersigned registrants pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrants will be sellers to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
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(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) Each of the undersigned registrants hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrants annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Each of the undersigned registrants hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11 or 13 of Form S-4, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
(d) Each of the undersigned registrants hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.
(e) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
Meredith Corporation | ||
By: | /s/ John S. Zieser | |
John S. Zieser | ||
Chief Development Officer / | ||
General Counsel and Secretary |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his or her true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his or her substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Thomas H. Harty Thomas H. Harty |
President, Chief Executive Officer, and Director |
January 7, 2019 | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
Chief Financial Officer |
January 7, 2019 | ||
/s/ Stephen M. Lacy Stephen M. Lacy |
Executive Chairman of the Board and Director |
January 7, 2019 | ||
D. Mell Meredith Frazier |
Vice Chairman of the Board and Director |
|||
/s/ Donald A. Baer Donald A. Baer |
Director |
January 7, 2019 | ||
/s/ Donald C. Berg Donald C. Berg |
Director |
January 7, 2019 |
Signature |
Title |
Date | ||
/s/ Frederick B. Henry Frederick B. Henry |
Director |
January 7, 2019 | ||
/s/ Philip A. Marineau Philip A. Marineau |
Director |
January 7, 2019 | ||
/s/ Beth J. Kaplan Beth J. Kaplan |
Director |
January 7, 2019 | ||
/s/ Elizabeth E. Tallett Elizabeth E. Tallett |
Director |
January 7, 2019 | ||
/s/ Paula A. Kerger Paula A. Kerger |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
ALLRECIPES.COM, INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President and Director (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 | ||
Stephen M. Lacy |
Director |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
EATING WELL, INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President and Director (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
KPHO BROADCASTING CORPORATION | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
Treasurer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 | ||
Stephen M. Lacy |
Director |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
KPTV-KPDX BROADCASTING CORPORATION | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
Treasurer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 | ||
Stephen M. Lacy |
Director |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
KVVU BROADCASTING CORPORATION | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
Treasurer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 | ||
Stephen M. Lacy |
Director |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
SELECTABLE MEDIA INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President and Director (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
TI GOTHAM INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and Director (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
BIZRATE INSIGHTS INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and Director (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
BOOK-OF-THE-MONTH CLUB, INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President and Chief Executive Officer (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
COZI INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and Director (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
ENTERTAINMENT WEEKLY INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and Director (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
FANSIDED INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and Director (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
HEALTH MEDIA VENTURES INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and Director (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
HELLO GIGGLES, INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and Director (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
MNI TARGETED MEDIA INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and
Director |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
NSSI HOLDINGS INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and Director (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
SI DIGITAL GAMES, INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and Director (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
SOUTHERN PROGRESS CORPORATION | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and
Director |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
SYNAPSE DIRECT, INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and
Director |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
SYNAPSE GROUP, INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and
Director |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
SYNAPSE RETAIL VENTURES, INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and
Director |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
SYNAPSE VENTURES, INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and
Director |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
SYNAPSECONNECT, INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and
Director |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
TI INTERNATIONAL HOLDINGS INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President and Chief Executive Officer (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
TI LIVE EVENTS INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and
Director |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
TI MARKETING SERVICES INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and
Director |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
TI MEDIA SOLUTIONS INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and
Director |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
TI MEXICO HOLDINGS INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and
Director |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
TI PAPERCO INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and
Director |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
TI CONSUMER MARKETING, INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and
Director |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
TI CUSTOMER SERVICE, INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and
Director |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
TI DISTRIBUTION SERVICES INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and
Director |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
TI INC. AFFLUENT MEDIA GROUP | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and
Director |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
TI INC. BOOKS | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and Director (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
TI INC. LIFESTYLE GROUP | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and Director (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
TI INC. PLAY | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and Director (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
TI INC. RETAIL | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and Director (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
TI INC. VENTURES | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and Director (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
TI PUBLISHING VENTURES, INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President, Chief Executive Officer and Director (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
VIANT TECHNOLOGY HOLDING INC. | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President and Chief Executive Officer (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Director |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
MEREDITH PERFORMANCE MARKETING, LLC | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
Treasurer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
Treasurer (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Sole Manager |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
MEREDITH SHOPPER MARKETING, LLC | ||
By: |
/s/ John S. Zieser | |
John S. Zieser | ||
President, Secretary and Treasurer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ John S. Zieser John S. Zieser |
President, Secretary, Treasurer and Sole Manager (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
MYWEDDING, LLC | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Sole Manager | January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
NEWSUB MAGAZINE SERVICES LLC | ||
By: |
/s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser, Joseph H. Ceryanec and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President and Chief Executive Officer (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 | ||
/s/ John S. Zieser John S. Zieser |
Sole Manager | January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
TI ADMINISTRATIVE HOLDINGS LLC | ||
By: Book-of-the-Month-Club, Inc., its sole member | ||
By: | /s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President and Chief Executive Officer, and President and Chief Executive Officer of Book-of-the-Month-Club, Inc., its sole member (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
TI BOOKS HOLDINGS LLC | ||
By: TI Gotham Inc., its sole member | ||
By: | /s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President and Chief Executive Officer, and President and Chief Executive Officer of TI Gotham Inc., its sole member (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
TI CIRCULATION HOLDINGS LLC | ||
By: TI Gotham Inc., its sole member | ||
By: | /s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President and Chief Executive Officer, and President and Chief Executive Officer of TI Gotham Inc., its sole member (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
TI CORPORATE HOLDINGS LLC | ||
By: MNI Targeted Media Inc., its sole member | ||
By: | /s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President and Chief Executive Officer, and President and Chief Executive Officer of MNI Targeted Media Inc., its sole member (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
TI DISTRIBUTION HOLDINGS LLC | ||
By: TI Gotham Inc., its sole member | ||
By: | /s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President and Chief Executive Officer, and President and Chief Executive Officer of TI Gotham Inc., its sole member (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
TI MAGAZINE HOLDINGS LLC | ||
By: TI Gotham Inc., its sole member | ||
By: | /s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President and Chief Executive Officer, and President and Chief Executive Officer of TI Gotham Inc. its sole member (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
TI SALES HOLDINGS LLC | ||
By: TI Gotham Inc., its sole member | ||
By: | /s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President and Chief Executive Officer, and President and Chief Executive Officer of TI Gotham Inc., its sole member (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, State of Iowa, on January 7, 2019.
TI DIRECT VENTURES LLC | ||
By: TI Circulation Holdings, LLC, its sole member | ||
By: | /s/ Joseph H. Ceryanec | |
Joseph H. Ceryanec | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John S. Zieser and Norbert W. Kaut his true and lawful attorney-in-fact and agent, with full powers of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on the dates indicated.
Signature |
Title |
Date | ||
/s/ Joseph H. Ceryanec Joseph H. Ceryanec |
President and Chief Executive Officer, and President and Chief Executive Officer of TI Circulation Holdings, LLC, its sole member (Principal Executive, Financial and Accounting Officer) |
January 7, 2019 |
Exhibit 3.5
State of Delaware Secretary of State Division of Corporations Delivered 05:35 PM 11/14/2018 FILED 05:35 PM 11/14/2018 SR 20187647456 - File Number 2173859 |
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION
The corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware does hereby certify:
FIRST: That at a meeting of the Board of Directors of Time Inc. resolutions were duly adopted setting forth a proposed amendment of the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing the Article thereof numbered I so that, as amended, said Article shall be and read as follows:
The name of the corporation (hereinafter, the Corporation) is TI Gotham Inc.
SECOND: That thereafter, pursuant to resolution of its Board of Directors, a special meeting of the stockholders of said corporation was duly called and held upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said corporation has caused this certificate to be signed this 31st day of October, 2018.
By: | /s/ Joseph H. Ceryanec | |
Authorized Officer | ||
Title: | President & CEO | |
Name: | Joseph H. Ceryanec | |
Print or Type |
Exhibit 3.7
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
ALLRECIPES.COM, INC.
Pursuant to RCW 23B.10.070, the following Amended and Restated Articles of Incorporation are hereby submitted for filing:
1. The name of the corporation is Allrecipes.com, Inc.
2. The text of this corporations Amended and Restated Articles of Incorporation is as follows:
ARTICLE I
NAME
The name of the corporation is Allreeipes.com, Inc.
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the registered office of Allrecipes.com, Inc. (the Corporation) is 520 Pike Street, Seattle, Washington 98101, and the name of the registered agent at such address is CT Corporation.
ARTICLE III
PURPOSE
The Corporation is organized for the purposes of transacting any and all lawful business for which a corporation may be incorporated under the Washington Business Corporation Act, Title 23B of the Revised Code of Washington, now or hereafter in force (the Act).
ARTICLE IV
CAPITAL SHARES
4.1 Authorized Shares. The total number of shares of stock that the Corporation shall have authority to issue is 100 shares of common stock, no par value (Common Stock). Except as otherwise provided in accordance with these Articles of Incorporation, the Common Stock shall have unlimited voting rights, with each share being entitled to one vote, and the rights to receive the net assets of the Corporation upon dissolution, with each share participating on a pro rata basis.
ARTICLE V
NO PREEMPTIVE RIGHTS
Shareholders of the Corporation have no preemptive rights to acquire additional shares of stock or securities convertible into shares of stock issued by the Corporation.
ARTICLE VI
DIRECTORS
6.1 Number. The number of directors of the Corporation shall be fixed in the manner specified by the bylaws of the Corporation.
6.2 Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors shall be filled only by a majority of the directors then in office, although less than a quorum, or by a sole remaining director, unless for any reason there are no directors in office in which case they shall be filled by a special election by shareholders.
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ARTICLE VII
ELECTION OF DIRECTORS
Shareholders of the Corporation shall not have the right to cumulate votes in the election of directors.
ARTICLE VIII
SPECIAL SHAREHOLDER MEETINGS
Special meetings of the shareholders of the Corporation for any purpose or purposes may be called at any time by the Board of Directors, or by a committee of the Board of Directors which has been duly designated by the Board of Directors and whose powers and authority, as provided in a resolution of the Board of Directors or in the bylaws of the Corporation, include the power to call such meetings, but such special meetings may not be called by any other person or persons.
ARTICLE IX
AMENDMENT OF BYLAWS
In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, adopt, repeal, alter, amend, and rescind the bylaws of the Corporation by a resolution adopted by a majority of the directors.
ARTICLE X
LIMITATION OF DIRECTOR LIABILITY
A director of the Corporation shall not be personally liable to the Corporation or its shareholders for monetary damages for conduct as a director, except for;
(a) | Acts or omissions involving intentional misconduct by the director or a knowing violation of law by the director. |
(b) | Conduct violating Section 23B.08.310 of the Act (which involves distributions by the Corporation); or |
(c) | Any transaction from which the director will personally receive a benefit in money, property, or services to which the director is not legally entitled. |
If the Washington Business Corporation Act is amended to authorize corporate action further eliminating or limiting the personal liability of directors, than the liability of a director of the Corporation shall be eliminated or limited to the fullest extent not prohibited by the WBCA, as so amended. The provisions of this Article shall be deemed to be a contract with each Director of the Corporation who serves as such at any time while such provisions are in effect, and each such Director shall be deemed to be serving as such in reliance on the provisions of this Article. Any repeal or modification of the foregoing paragraph by the shareholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation with respect to any acts or omissions of such director occurring prior to such repeal or modification.
ARTICLE XI
MERGERS, SHARE EXCHANGES, AND OTHER TRANSACTIONS
A merger, share exchange, sale of substantially all of the Corporations assets, or dissolution must be approved by the affirmative vote of a majority of the Corporations outstanding shares entitled to vote, or if separate voting by voting groups is required then by not less than a majority of all the votes entitled to be cast by that voting group.
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ARTICLE XII
INDEMNIFICATION
12.1 Definitions. As used in this Article:
a. Agent means an individual who is or was an agent of the Corporation or an individual who, while an agent of the Corporation, is or was serving at the Corporations request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. Agent includes, unless the context requires otherwise, the spouse, heirs, estate and personal representative of an agent.
b. Corporation means the Corporation, and any domestic or foreign predecessor entity which, in a merger or other transaction, ceased to exist.
c. Director means an individual who is or was a director of the Corporation or an individual who, while a director of the Corporation, is or was serving at the Corporations request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan or other enterprise. Director includes, unless the context requires otherwise, the spouse, heirs, estate and personal representative of a director.
d. Employee means an individual who is or was an employee of the Corporation or an individual, while an employee of the Corporation, is or was serving at the Corporations request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, Employee includes, unless the context requires otherwise, the spouse, heirs, estate and personal representative of an employee.
e. Expenses include counsel fees.
f. Indemnitee means an individual made a party to a proceeding because the individual is or was a Director, Officer, Employee, or Agent of the Corporation, and who possesses indemnification rights pursuant to these Articles or other corporate action. Indemnitee includes, unless the context requires otherwise, the spouse, heirs, estate, and personal representative of such individuals.
g. Liability means the obligation to pay a judgment, settlement penalty, fine, including an excise tax with respect to an employee benefit plan, or reasonable Expenses incurred with respect to a proceeding.
h. Officer means an individual who is or was an officer of the Corporation (regardless of whether or not such individual was also a Director) or an individual who, while an officer of the Corporation, is or was serving at the Corporations request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. Officer includes, unless the context requires otherwise, the spouse, heirs, estate and personal representative of an officer.
i. Party includes an individual who was, is, or is threatened to be named a defendant, respondent or witness in a proceeding.
j. Proceeding means any threatened, pending, or completed action, suit, or proceeding, whether civil, derivative, criminal, administrative, or investigative, and whether formal or informal.
12.2 Indemnification Rights of Directors and Officers. The Corporation shall indemnify its Directors and Officers to the full extent not prohibited by applicable law now or hereafter in force against liability arising out of a Proceeding to which such individual was made a Party because the individual is or was a Director or an Officer. However, such indemnity shall not apply on account of:
(a) | Acts or omissions of a Director or Officer finally adjudged to be intentional misconduct or a knowing violation of law; |
(b) | Conduct of a Director or Officer finally adjudged to be in violation of Section 23B.08.310 of the Act relating to distributions by the Corporation; or |
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(c) | Any transaction with respect to which it was finally adjudged that a Director or Officer personally received a benefit in money, property, or services to which the Director or Officer was not legally entitled. |
Subject to the foregoing, it is specifically intended that Proceedings covered by indemnification shall include Proceedings brought by the Corporation (including derivative actions), Proceedings by government entities and governmental officials or other third party actions.
12.3 Indemnification of Employees and Agents of the Corporation. The Corporation may, by action of its Board of Directors from time to time, provide indemnification and pay Expenses in advance of the final disposition of a Proceeding to Employees and Agents of the Corporation who are not also Directors, in each case to the same extent as to a Director with respect to the indemnification and advancement of Expenses pursuant to rights granted under, or provided by, the Act or otherwise.
12.4 Partial Indemnification. If an Indemnitee is entitled to indemnification by the Corporation for some or a portion of Expenses, liabilities, or losses actually and reasonably incurred by Indemnitee in an investigation, defense, appeal or settlement but not, however, for the total amount thereof, the Corporation shall nevertheless indemnify Indemnitee for the portion of such Expenses, liabilities or losses to which Indemnitee is entitled.
12.5 Procedure for Seeking Indemnification and/or Advancement of Expenses. The following procedures shall apply in the absence of (or at the option of the Indemnitee, in lieu thereof) specific procedures otherwise applicable to an Indemnitee pursuant to a contract, trust agreement, or general or specific action of the Board of Directors:
12.5.1 Notification and Defense of Claim. Indemnitee shall promptly notify the Corporation in writing of any proceeding for which indemnification could be sought under this Article. In addition, Indemnitee shall give the Corporation such information and cooperation as it may reasonably require and as shall be within Indemnitees power.
With respect to any such proceeding as to which Indemnitee has notified the Corporation:
(a) | The Corporation will be entitled to participate therein at its own expense; and |
(b) | Except as otherwise provided below, to the extent that it may wish, the Corporation, jointly with any other indemnifying party similarly notified, will be entitled to assume the defense thereof, with counsel satisfactory to Indemnitee. Indemnitees consent to such counsel may not be unreasonably withheld. |
After notice from the Corporation to Indemnitee of its election to assume the defense, the Corporation will not be liable to Indemnitee under this Article for any legal or other Expenses subsequently incurred by Indemnitee in connection with such defense. However, Indemnitee shall continue to have the right to employ its counsel in such proceeding, at Indemnitees expense; and if:
(i) | The employment of counsel by Indemnitee has been authorized by the Corporation; |
(ii) | Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Corporation and Indemnitee in the conduct of such defense; or |
(iii) | The Corporation shall not in fact have employed counsel to assume the defense of such proceeding, the fees and Expenses of Indemnitees counsel shall be at the expense of the Corporation. |
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The Corporation shall not be entitled to assume the defense of any proceeding brought by or on behalf of the Corporation or as to which Indemnitee shall reasonably have made the conclusion that a conflict of interest may exist between the Corporation and the Indemnitee in the conduct of the defense.
12.5.2 Information to be Submitted and Method of Determination and Authorization of indemnification. For the purpose of pursuing rights to indemnification under this Article, the Indemnitee shall submit to the Board a sworn statement requesting indemnification and reasonable evidence of all amounts for which such indemnification is requested (together, the sworn statement and the evidence constitute an Indemnification Statement).
Submission of an Indemnification Statement to the Board shall create a presumption that the Indemnitee is entitled to indemnification hereunder, and the Corporation shall, within sixty (60) calendar days thereafter, make the payments requested in the Indemnification Statement to or for the benefit of the Indemnitee, unless: (1) within such sixty (60) calendar day period it shall be determined by the Corporation that the Indemnitee is not entitled to indemnification under this Article; (2) such determination shall be based upon clear and convincing evidence (sufficient to rebut the foregoing presumption); and (3) the Indemnitee shall receive notice in writing of such determination, which notice shall disclose with particularity the evidence upon which the determination is based.
The foregoing determination may be made: (1) by the Board of Directors by majority vote of a quorum of Directors who are not at the time parties to the proceedings; (2) if a quorum cannot be obtained, by majority vote of a committee duly designated by the Board of Directors (in which designation Directors who are parties may participate) consisting solely of two (2) or more Directors not at the time parties to the proceeding; (3) by special legal counsel; or (4) by the shareholders as provided by Section 23B.08.550 of the Act.
Any determination that the Indemnitee is not entitled to indemnification, and any failure to make the payments requested in the Indemnification Statement, shall be subject to judicial review by any court of competent jurisdiction.
12.5.3 Special Procedure Regarding Advance for Expenses. An Indemnitee seeking payment of Expenses in advance of a final disposition of the proceeding must furnish the Corporation, as part of the Indemnification Statement:
(a) | A written affirmation of the Indemnitees good faith belief that the Indemnitee has met the standard of conduct required to be eligible for indemnification; and |
(b) | A written undertaking, constituting an unlimited general obligation of the Indemnitee, to repay the advance if it is ultimately determined that the Indemnitee did not meet the required standard of conduct. |
Upon satisfaction of the foregoing the Indemnitee shall have a contractual right to the payment of such Expenses.
12.5.4 Settlement. The Corporation is not liable to indemnify Indemnitee for any amounts paid in settlement of any proceeding without the Corporations written consent. The Corporation shall not settle any proceeding in any manner which would impose any penalty or limitation on Indemnitee without Indemnitees written consent. Neither the Corporation nor Indemnitee may unreasonably withhold its consent to a proposed settlement.
12.6. Contract and related rights.
12.6.1 Contract Rights. The right of an Indemnitee to indemnification and advancement of Expenses is a contract right upon which the Indemnitee shall be presumed to have relied in determining to serve or to continue to serve in his or her capacity with the Corporation. Such right shall continue as long as the Indemnitee shall be subject to any possible proceeding. Any amendment to or repeal of this Article shall not adversely affect any right or protection of an Indemnitee with respect to any acts or omissions of such Indemnitee occurring prior to such amendment or repeal.
12.6.2 Optional Insurance, Contracts, and Funding. The Corporation may:
(a) | Maintain insurance, at its expense, to protect itself and any Indemnitee against any liability, whether or not the Corporation would have power to indemnify the individual against the same liability under Section 23B.08.5 10 or .520 of the Act; |
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(b) | Enter into contracts with any Indemnitee in furtherance of this Article and consistent with the Act; and |
(c) | Create a trust fund, grant a security interest, or use other means (including without limitation a letter of credit) to ensure the payment of such amounts as may be necessary to effect indemnification as provided in this Article. |
12.6.3 Severability. If any provision or application of this Article shall be invalid or unenforceable, the remainder of this Article and its remaining applications shall not be affected thereby, and shall continue in full force and effect.
12.6.4 Right of Indemnitee to Bring Suit. If (1) a claim under this Article for indemnification is not paid in full by the Corporation within sixty (60) days after a written claim has been received by the Corporation; or (2) a claim under this Article for advancement of Expenses is not paid in full by the Corporation within twenty (20) days after a written claim has been received by the Corporation, then the Indemnitee may, but need not, at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. To the extent successful in whole or in part, the Indemnitee shall be entitled to also be paid the expense (to be proportionately prorated if the Indemnitee is only partially successful) of prosecuting such claim. Neither (1) the failure of the Corporation (including its Board of Directors, its shareholders, or independent legal counsel) to have made a determination prior to the commencement of such proceeding that indemnification or reimbursement or advancement of Expenses to the Indemnitee is proper in the circumstances; nor (2) an actual determination by the Corporation (including its Board of Directors, its shareholders, or independent legal counsel) that the Indemnitee is not entitled to indemnification or to the reimbursement or advancement of Expenses, shall be a defense to the proceeding or create a presumption that the Indemnitee is not so entitled,
12.6.5 Nonexclusivity of Rights. The right to indemnification and the payment of Expenses incurred in defending a Proceeding in advance of its final disposition granted in this Article shall not be exclusive of any other right which any Indemnitee may have or hereafter acquire under any statute, provision of this Article or the bylaws, agreement, vote of shareholders or disinterested directors, or otherwise. The Corporation shall have the express right to grant additional indemnity without seeking further approval or satisfaction by the shareholders. All applicable indemnity provisions and any applicable law shall be interpreted and applied so as to provide an Indemnitee with the broadest but nonduplicative indemnity to which he or she is entitled.
12.7 Contribution. If the indemnification provided in Section 12.2 of this Article is not available to be paid to Indemnitee for any reason other than those set forth in subparagraphs 12.2(a), 12.2(b), and 12.2(c) of Section 12.2 of this Article (for example, because indemnification is held to be against public policy even though otherwise permitted under Section 12.2) then in respect of any proceeding in which the Corporation is jointly liable with Indemnitee (or would be if joined in such proceeding), the Corporation shall contribute to the amount of loss paid or payable by Indemnitee in such proportion as is appropriate to reflect:
The relative benefits received by the Corporation on the one hand and the Indemnitee on the other hand from the transaction from which such proceeding arose, and
The relative fault of the Corporation on the one hand and the Indemnitee on the other hand in connection with the events which resulted in such loss, as well as any other relevant equitable consideration.
The relative benefits received by and fault of the Corporation on the one hand and the Indemnitee on the other shall be determined by a court of appropriate jurisdiction (which may be the same court in which the proceeding took place) with reference to, among other things, the parties relative intent, knowledge, access to information, and opportunity to correct or prevent the circumstances resulting in such loss. The Corporation agrees that it would not be just and equitable if a contribution pursuant to this Article was determined by pro rata allocation or any other method of allocation which does not take account of the foregoing equitable considerations.
12.8.2 Lack of good Faith. Instituted by Indemnitee to enforce or interpret this Article, if a court of competent jurisdiction determines that each of the material assertions made by Indemnitee in such proceeding was not made in good faith or was frivolous.
12.8.3 Insured Claims. For which any of the Expenses or liabilities for indemnification is being sought have been paid directly to Indemnitee by an insurance carrier under a policy of officers and directors liability insurance maintained by the Corporation.
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12.8.4 Prohibited by Law. If the Corporation is prohibited by the Act or other applicable law as then in effect from paying such indemnification and/or advancement of Expenses.
12.9 Successors and Assigns. All obligations of the Corporation to indemnify any Director or Officer shall be binding upon all successors and assigns of the Corporation (including any transferee of all or substantially all of its assets and any successor by merger or otherwise by operation of law). The Corporation shall not effect any sale of substantially all of its assets, merger, consolidation, or other reorganization, in which it is not the surviving entity, unless the surviving entity agrees in writing to assume all such obligations oldie Corporation.
ARTICLE XIII
CORPORATIONS ACQUISITION OF ITS OWN SHARES
The Corporation may purchase, redeem, receive, take or otherwise acquire, own and hold, sell, lend, exchange, transfer or otherwise dispose of, pledge, use and otherwise deal with and in its own shares. As a specific modification of Section 23B.06.310 of the Act, pursuant to the authority in Section 23B.02.020(5)(c) of the Act, to include provisions related to the management of the business and the regulation of the affairs of the Corporation, shares of the Corporations stock acquired by it pursuant to this Article shall be considered Treasury Stock and so held by the Corporation. The shares so acquired by the Corporation shall not be considered as authorized and unissued but rather as authorized, issued, and held by the Corporation. The shares, so acquired shall not be regarded as cancelled or as a reduction to the authorized capital of the Corporation unless specifically so designated by the Board of Directors in an amendment to these Articles of Incorporation. The provisions of this Article do not alter or effect the status of the Corporations acquisition of its shares as a distribution by the Corporation as defined in Section 23B.01.400(6) of the Act, nor alter or effect the limitations on distributions by the Corporation as set forth in Section 23B.06.400 of the Act. Any shares so acquired by the Corporation, unless otherwise specifically designated by the Board of Directors, at the time of acquisition, shall be considered on subsequent disposition, as transferred rather than reissued. Nothing in this Article limits or restricts the right of the Corporation to resell or otherwise dispose of any of its shares previously acquired for such consideration and according to such procedures as established by the Board of Directors.
The undersigned has signed these Amended and Restated Articles of Incorporation as of April 20, 2006.
/s/ Clifford H.R. Dupree |
Clifford H.R. Dupree |
Secretary |
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CONSENT TO APPOINTMENT AS REGISTERED AGENT
CT Corporation hereby consents to serve as registered agent in the State of Washington for the following corporation: Allrecipes.com, Inc. CT Corporation understands that as agent for the corporation, it will be its responsibility to accept service in the name of the corporation, to forward all mail and license renewals to the appropriate officer(s) of the corporation, and to notify the Office of the Secretary of State immediately of its resignation or of any changes in the address of the registered office of the corporation for which it is agent.
Dated: 4-20-06
CT CORPORATION | ||
By: | /s/ Ruth [illegible] | |
, its Vice President | ||
Address: 520 Pike Street | ||
Seattle, WA 98101 |
CERTIFICATE ACCOMPANYING
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
ALLRECIPES.COM, INC.
The Amended and Restated Articles of Incorporation contain amendments to the corporations existing Amended and Restated Articles of Incorporation requiring shareholder approval as described below.
1. The name of the corporation is Allrecipes.com, Inc.
2. The existing Amended and Restated Articles of Incorporation of the corporation are amended in their entirety to read as set forth on Exhibit A attached hereto.
3. The date of the adoption of the amendments by the shareholders of the corporation is April 20, 2006. The amendments were approved by the sole shareholder of the corporation in accordance with the provisions of RCW 23B.10.030 and RCW 23B.10.040. Such approval was obtained by unanimous written consent in accordance with RCW 23B.07.040.
Executed this 20th day of April, 2006.
ALLRECIPES.COM, INC. | ||
By: | /s/ Clifford H.R. DuPree | |
Clifford H.R. Dupree, Secretary |
EXHIBIT A
Amended and Restated
Articles of Incorporation of Allrecipes.com. Inc.
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
ALLRECIPES.COM, INC.
Pursuant to RCW 23B.10.070, the following Amended and Restated Articles of Incorporation are hereby submitted for filing:
1. The name of the corporation is Allrecipes.com, Inc.
2. The text of this corporations Amended and Restated Articles of Incorporation is as follows:
ARTICLE I
NAME
The name of the corporation is Allrecipes.com, Inc.
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the registered office of Allrecipes.com, Inc. (the Corporation) is 999 Third Avenue, 4200 First Interstate Center, Seattle, Washington 98104, and the name of the registered agent at such address is Lisa E. Riveland.
ARTICLE III
PURPOSE
The Corporation is organized for the purposes of transacting any and all lawful business for which a corporation may be incorporated under the Washington Business Corporation Act, Title 23B of the Revised Code of Washington, now or hereafter in force (the Act).
ARTICLE IV
CAPITAL SHARES
4.1 Authorized Shares. The total number of shares of stock that the Corporation shall have authority to issue is 100 shares of common stock, no par value (Common Stock). Except as otherwise provided in accordance with these Articles of Incorporation, the Common Stock shall have unlimited voting rights, with each share being entitled to one vote, and the rights to receive the net assets of the Corporation upon dissolution, with each share participating on a pro rata basis.
ARTICLE V
NO PREEMPTIVE RIGHTS
Shareholders of the Corporation have no preemptive rights to acquire additional shares of stock or securities convertible into shares of stock issued by the Corporation.
ARTICLE VI
DIRECTORS
6.1 Number. The number of directors of the Corporation shall be fixed in the manner specified by the bylaws of the Corporation.
6.2 Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors shall be filled only by a majority of the directors then in office, although less than a quorum, or by a sole remaining director, unless for any reason there are no directors in office in which case they shall be filled by a special election by shareholders.
ARTICLE VII
ELECTION OF DIRECTORS
Shareholders of the Corporation shall not have the right to cumulate votes in the election of directors.
ARTICLE VIII
SPECIAL SHAREHOLDER MEETINGS
Special meetings of the shareholders of the Corporation for any purpose or purposes may be called at any time by the Board of Directors, or by a committee of the Board of Directors which has been duly designated by the Board of Directors and whose powers and authority, as provided in a resolution of the Board of Directors or in the bylaws of the Corporation, include the power to call such meetings, but such special meetings may not be called by any other person or persons.
ARTICLE IX
AMENDMENT OF BYLAWS
In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, adopt, repeal, alter, amend, and rescind the bylaws of the Corporation by a resolution adopted by a majority of the directors.
ARTICLE X
LIMITATION OF DIRECTOR LIABILITY
A director of the Corporation shall not be personally liable to the Corporation or its shareholders for monetary damages for conduct as a director, except for:
(a) | Acts or omissions involving intentional misconduct by the director or a knowing violation of law by the director; |
(b) | Conduct violating Section 23B.08.310 of the Act (which involves distributions by the Corporation); or |
(c) | Any transaction from which the director will personally receive a benefit in money, property, or services to which the director is not legally entitled. |
If the Washington Business Corporation Act is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent not prohibited by the WBCA, as so amended. The provisions of this Article shall be deemed to be a contract with each Director of the Corporation who serves as such at any time while such provisions are in effect, and each such Director shall be deemed to be serving as such in reliance on the provisions of this Article. Any repeal or modification of the foregoing paragraph by the shareholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation with respect to any acts or omissions of such director occurring prior to such repeal or modification.
ARTICLE XI
MERGERS, SHARE EXCHANGES, AND OTHER TRANSACTIONS
A merger, share exchange, sale of substantially all of the Corporations assets, or dissolution must be approved by the affirmative vote of a majority of the Corporations outstanding shares entitled to vote, or if separate voting by voting groups is required then by not less than a majority of all the votes entitled to be cast by that voting group.
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ARTICLE XII
INDEMNIFICATION
12.1 Definitions. As used in this Article:
a. Agent means an individual who is or was an agent of the Corporation or an individual who, while an agent of the Corporation, is or was serving at the Corporations request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. Agent includes, unless the context requires otherwise, the spouse, heirs, estate and personal representative of an agent.
b. Corporation means the Corporation, and any domestic or foreign predecessor entity which, in a merger or other transaction, ceased to exist.
c. Director means an individual who is or was a director of the Corporation or an individual who, while a director of the Corporation, is or was serving at the Corporations request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan or other enterprise. Director includes, unless the context requires otherwise, the spouse, heirs, estate and personal representative of a director.
d. Employee means an individual who is or was an employee of the Corporation or an individual, while an employee of the Corporation, is or was serving at the Corporations request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. Employee includes, unless the context requires otherwise, the spouse, heirs, estate and personal representative of an employee.
e. Expenses include counsel fees.
f. Indemnitee means an individual made a party to a proceeding because the individual is or was a Director, Officer, Employee, or Agent of the Corporation, and who possesses indemnification rights pursuant to these Articles or other corporate action. Indemnitee includes, unless the context requires otherwise, the spouse, heirs, estate, and personal representative of such individuals.
g. Liability means the obligation to pay a judgment, settlement penalty, fine, including an excise tax with respect to an employee benefit plan, or reasonable Expenses incurred with respect to a proceeding.
h. Officer means an individual who is or was an officer of the Corporation (regardless of whether or not such individual was also a Director) or an individual who, while an officer of the Corporation, is or was serving at the Corporations request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. Officer includes, unless the context requires otherwise, the spouse, heirs, estate and personal representative of an officer.
i. Party includes an individual who was, is, or is threatened to be named a defendant, respondent or witness in a proceeding.
j. Proceeding means any threatened, pending, or completed action, suit, or proceeding, whether civil, derivative, criminal, administrative, or investigative, and whether formal or informal.
12.2 Indemnification Rights of Directors and Officers. The Corporation shall indemnify its Directors and Officers to the full extent not prohibited by applicable law now or hereafter in force against liability arising out of a Proceeding to which such individual was made a Party because the individual is or was a Director or an Officer. However, such indemnity shall not apply on account of:
(a) | Acts or omissions of a Director or Officer finally adjudged to be intentional misconduct or a knowing violation of law; |
(b) | Conduct of a Director or Officer finally adjudged to be in violation of Section 23B.08.310 of the Act relating to distributions by the Corporation; or |
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(c) | Any transaction with respect to which it was finally adjudged that a Director or Officer personally received a benefit in money, property, or services to which the Director or Officer was not legally entitled. |
Subject to the foregoing, it is specifically intended that Proceedings covered by indemnification shall include Proceedings brought by the Corporation (including derivative actions), Proceedings by government entities and governmental officials or other third party actions.
12.3 Indemnification of Employees and Agents of the Corporation. The Corporation may, by action of its Board of Directors from time to time, provide indemnification and pay Expenses in advance of the final disposition of a Proceeding to Employees and Agents of the Corporation who are not also Directors, in each case to the same extent as to a Director with respect to the indemnification and advancement of Expenses pursuant to rights granted under, or provided by, the Act or otherwise.
12.4 Partial indemnification. If an Indemnitee is entitled to indemnification by the Corporation for some or a portion of Expenses, liabilities, or losses actually and reasonably incurred by Indemnitee in an investigation, defense, appeal or settlement but not, however, for the total amount thereof, the Corporation shall nevertheless indemnify Indemnitee for the portion of such Expenses, liabilities or losses to which Indemnitee is entitled.
12.5 Procedure for Seeking Indemnification and/or Advancement of Expenses. The following procedures shall apply in the absence of (or at the option of the Indemnitee, in lieu thereof) specific procedures otherwise applicable to an Indemnitee pursuant to a contract, trust agreement, or general or specific action of the Board of Directors:
12.5.1 Notification and Defense of Claim. Indemnitee shall promptly notify the Corporation in writing of any proceeding for which indemnification could be sought under this Article. In addition, Indemnitee shall give the Corporation such information and cooperation as it may reasonably require and as shall be within Indemnitees power.
With respect to any such proceeding as to which Indemnitee has notified the Corporation:
(a) | The Corporation will be entitled to participate therein at its own expense; and |
(b) | Except as otherwise provided below, to the extent that it may wish, the Corporation, jointly with any other indemnifying party similarly notified, will be entitled to assume the defense thereof, with counsel satisfactory to Indemnitee. Indemnitees consent to such counsel may not be unreasonably withheld. |
After notice from the Corporation to Indemnitee of its election to assume the defense, the Corporation will not be liable to Indemnitee under this Article for any legal or other Expenses subsequently incurred by Indemnitee in connection with such defense. However, Indemnitee shall continue to have the right to employ its counsel in such proceeding, at Indemnitees expense; and if:
(i) | The employment of counsel by Indemnitee has been authorized by the Corporation; |
(ii) | Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Corporation and Indemnitee in the conduct of such defense; or |
(iii) | The Corporation shall not in fact have employed counsel to assume the defense of such proceeding, the fees and Expenses of Indemnitees counsel shall be at the expense of the Corporation. |
The Corporation shall not be entitled to assume the defense of any proceeding brought by or on behalf of the Corporation or as to which Indemnitee shall reasonably have made the conclusion that a conflict of interest may exist between the Corporation and the Indemnitee in the conduct of the defense.
12.5.2 Information to be Submitted and Method of Determination and Authorization of Indemnification. For the purpose of pursuing rights to indemnification under this Article, the Indemnitee shall submit to the Board a sworn statement requesting indemnification and reasonable evidence of all amounts for which such indemnification is requested (together, the sworn statement mid the evidence constitute an Indemnification Statement).
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Submission of an Indemnification Statement to the Board shall create a presumption that the Indemnitee is entitled to indemnification hereunder, and the Corporation shall, within sixty (60) calendar days thereafter, make the payments requested in the Indemnification Statement to or for the benefit of the Indemnitee, unless: (1) within such sixty (60) calendar day period it shall be determined by the Corporation that the Indemnitee is not entitled to indemnification under this Article; (2) such determination shall be based upon clear and convincing evidence (sufficient to rebut the foregoing presumption); and (3) the Indemnitee shall receive notice in writing of such determination, which notice shall disclose with particularity the evidence upon which the determination is based.
The foregoing determination may be made: (1) by the Board of Directors by majority vote of a quorum of Directors who are not at the time parties to the proceedings; (2) if a quorum cannot be obtained, by majority vote of a committee duly designated by the Board of Directors (in which designation Directors who are parties may participate) consisting solely of two (2) or more Directors not at the time parties to the proceeding; (3) by special legal counsel; or (4) by the shareholders as provided by Section 23B.08.550 of the Act.
Any determination that the Indemnitee is not entitled to indemnification, and any failure to make the payments requested in the Indemnification Statement, shall be subject to judicial review by any court of competent jurisdiction.
12.5.3 Special Procedure Regarding Advance for Expenses. An Indemnitee seeking payment of Expenses in advance of a final disposition of the proceeding must furnish the Corporation, as part of the Indemnification Statement:
(a) | A written affirmation of the Indemnitees good faith belief that the Indemnitee has met the standard of conduct required to be eligible for indemnification; and |
(b) | A written undertaking, constituting an unlimited general obligation of the Indemnitee, to repay the advance if it is ultimately determined that the Indemnitee did not meet the required standard of conduct. |
Upon satisfaction of the foregoing the Indemnitee shall have a contractual right to the payment of such Expenses.
12.5.4 Settlement The Corporation is not liable to indemnify Indemnitee for any amounts paid in settlement of any proceeding without the Corporations written consent. The Corporation shall not settle any proceeding in any manner which would impose any penalty or limitation on Indemnitee without Indemnitees written consent. Neither the Corporation nor Indemnitee may unreasonably withhold its consent to a proposed settlement.
12.6. Contract and related rights.
12.6.1 Contract Rights. The right of an Indemnitee to indemnification and advancement of Expenses is a contract right upon which the Indemnitee shall be presumed to have relied in determining to serve or to continue to serve in his or her capacity with the Corporation. Such right shall continue as long as the Indemnitee shall be subject to any possible proceeding. Any amendment to or repeal of this Article shall not adversely affect any right or protection of an Indemnitee with respect to any acts or omissions of such Indemnitee occurring prior to such amendment or repeal.
12.6.2 Optional Insurance, Contracts, and Funding. The Corporation may:
(a) | Maintain insurance, at its expense, to protect itself and any Indemnitee against any liability, whether or not the Corporation would have power to indemnify the individual against the same liability under Section 23B.08.5 10 or .520 of the Act; |
(b) | Enter into contracts with any Indemnitee in furtherance of this Article and consistent with the Act; and |
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(c) | Create a trust fund, grant a security interest, or use other means (including without limitation a letter of credit) to ensure the payment of such amounts as may be necessary to effect indemnification as provided in this Article. |
12.6.3 Severability. If any provision or application of this Article shall be invalid or unenforceable, the remainder of this Article and its remaining applications shall not be affected thereby, and shall continue in full force and effect.
12.6.4 Right of Indemnitee to Bring Suit. If (1) a claim under this Article for indemnification is not paid in full by the Corporation within sixty (60) days after a written claim has been received by the Corporation; or (2) a claim under this Article for advancement of Expenses is not paid in full by the Corporation within twenty (20) days after a written claim has been received by the Corporation, then the Indemnitee may, but need not, at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. To the extent successful in whole or in part, the Indemnitee shall be entitled to also be paid the expense (to be proportionately prorated if the Indemnitee is only partially successful) of prosecuting such claim. Neither (1) the failure of the Corporation (including its Board of Directors, its shareholders, or independent legal counsel) to have made a determination prior to the commencement of such proceeding that indemnification or reimbursement or advancement of Expenses to the Indemnitee is proper in the circumstances; nor (2) an actual determination by the Corporation (including its Board of Directors, its shareholders, or independent legal counsel) that the Indemnitee is not entitled to indemnification or to the reimbursement or advancement of Expenses, shall be a defense to the proceeding or create a presumption that the Indemnitee is not so entitled.
12.6.5 Nonexclusivity Rights. The right to indemnification and the payment of Expenses incurred in defending a Proceeding in advance of its final disposition granted in this Article shall not be exclusive of any other right which any Indemnitee may have or hereafter acquire under any statute, provision of this Article or the bylaws, agreement, vote of shareholders or disinterested directors, or otherwise. The Corporation shall have the express right to grant additional indemnity without seeking further approval or satisfaction by the shareholders. All applicable indemnity provisions and any applicable law shall be interpreted and applied so as to provide an Indemnitee with the broadest but nonduplicative indemnity to which he or she is entitled.
12.7 Contribution. If the indemnification provided in Section 12.2 of this Article is not available to be paid to Indemnitee for any reason other than those set forth in subparagraphs 12.2(a), 12.2(b), and 12.2(c) of Section 12.2 of this Article (for example, because indemnification is held to be against public policy even though otherwise permitted under Section 12.2) then in respect of any proceeding in which the Corporation is jointly liable with Indemnitee (or would be if joined in such proceeding), the Corporation shall contribute to the amount of loss paid or payable by Indemnitee in such proportion as is appropriate to reflect:
The relative benefits received by the Corporation on the one hand and the Indemnitee on the other hand from the transaction from which such proceeding arose, and
The relative fault of the Corporation on the one hand and the Indemnitee on the other hand in connection with the events which resulted in such loss, as well as any other relevant equitable consideration.
The relative benefits received by and fault of the Corporation on the one hand and the Indemnitee on the other shall be determined by a court of appropriate jurisdiction (which may be the same court in which the proceeding took place) with reference to, among other things, the parties relative intent, knowledge, access to information, and opportunity to correct or prevent the circumstances resulting in such loss. The Corporation agrees that it would not be just and equitable if a contribution pursuant to this Article was determined by pro rata allocation or any other method of allocation which does not take account of the foregoing equitable considerations.
12.8.2 Lack of Good Faith. Instituted by Indemnitee to enforce or interpret this Article, if a court of competent jurisdiction determines that each of the material assertions made by Indemnitee in such proceeding was not made in good faith or was frivolous.
12.8.3 Insured Claims. For which any of the Expenses or liabilities for indemnification is being sought have been paid directly to Indemnitee by an insurance carrier under a policy of officers and directors liability insurance maintained by the Corporation.
12.8.4 Prohibited by Law. If the Corporation is prohibited by the Act or other applicable law as then in effect from paying such indemnification and/or advancement of Expenses.
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12.9 Successors and Assigns. All obligations of the Corporation to indemnify any Director or Officer shall be binding upon all successors and assigns of the Corporation (including any transferee of all or substantially all of its assets and any successor by merger or otherwise by operation of law). The Corporation shall not effect any sale of substantially all of its assets, merger, consolidation, or other reorganization, in which it is not the surviving entity, unless the surviving entity agrees in writing to assume all such obligations of the Corporation.
ARTICLE XIII
CORPORATIONS ACQUISITION OF ITS OWN SHARES
The Corporation may purchase, redeem, receive, take or otherwise acquire, own and hold, sell, lend, exchange, transfer or otherwise dispose of, pledge, use and otherwise deal with and in its own shares. As a specific modification of Section 23B.06.310 of the Act, pursuant to the authority in Section 23B.02.020(5)(c) of the Act, to include provisions related to the management of the business and the regulation of the affairs of the Corporation, shares of the Corporations stock acquired by it pursuant to this Article shall be considered Treasury Stock and so held by the Corporation. The shares so acquired by the Corporation shall not be considered as authorized and unissued but rather as authorized, issued, and held by the Corporation. The shares, so acquired shall not be regarded as cancelled or as a reduction to the authorized capital of the Corporation unless specifically so designated by the Board of Directors in an amendment to these Articles of Incorporation. The provisions of this Article do not alter or effect the status of the Corporations acquisition of its shares as a distribution by the Corporation as defined in Section 23B.01.400(6) of the Act, nor alter or effect the limitations on distributions by the Corporation as set forth in Section 23B.06.400 of the Act. Any shares so acquired by the Corporation, unless otherwise specifically designated by the Board of Directors, at the time of acquisition, shall be considered on subsequent disposition, as transferred rather than reissued. Nothing in this Article limits or restricts the right of the Corporation to resell or otherwise dispose of any of its shares previously acquired for such consideration and according to such procedures as established by the Board of Directors.
The undersigned has signed these Amended and Restated Articles of Incorporation as of April 20, 2006.
/s/ Clifford H.R. Dupree |
Clifford H.R. Dupree |
Secretary |
7
ARTICLES OF AMENDMENT
OF THE
ARTICLES OF INCORPORATION
OF
ALLRECIPES.COM, INC.
Under Section 23B.10.080 of the Washington Business Corporation Act
Pursuant to Section 23B.10.080 of the Business Corporation Act of the State of Washington, the undersigned officer of Allrecipes.com, Inc., a Washington corporation (the Corporation), does hereby certify the following:
FIRST: The name of the Corporation is Allrecipes.com, Inc.
SECOND: The text of the amendment approved by the Bankruptcy Court is the addition of a new Article XIV to read as follows.
ARTICLE XIV: The Corporation shall not issue any class of non-voting equity securities unless and solely to the extent permitted by section 1123(a)(6) of the United States Bankruptcy Code (the Bankruptcy Code) as in effect on the date of filing these Articles of Amendment with the Secretary of State of the State of Washington; provided, however, that this Article XIV (i) will have no further force and effect beyond that required under section 1123(a)(6) of the Bankruptcy Code; (ii) will have such force and effect, if any, only for so long as section 1123(a)(6) of the Bankruptcy Code is in effect and applicable to the Corporation and (iii) in all events may be amended or eliminated in accordance with applicable law from time to time in effect.
THIRD: The date of the Bankruptcy Courts order approving the Articles of Amendment and the title of the reorganization proceeding in which the order was entered is as follows:
The Corporation filed a voluntary petition under chapter 11 of title 11 of the United States Code, as amended with the United States Bankruptcy Court of the Southern District of New York (the Bankruptcy Court) on August 24, 2009 (Case No. 09-23529 (RDD)).
FOURTH: That the Bankruptcy Court had jurisdiction of the proceeding under the federal statute,
IN WITNESS WHEREOF, the undersigned affirms as true the foregoing under penalties of perjury, and has executed this Certificate this 19th day of February, 2010.
By: | /s/ Andrea R. Newborn | |
Name: | Andrea R. Newborn | |
Title: | Secretary |
Entity Name:
ALLRECIPES.COM, INC.
c/o NATIONAL REGISTERED AGENTS INC
1780 BARNES BLVD SW
TUMWATER WA 98512-0410
U.B.1. Number:
601 653 265
CERTIFICATE OF
ADMINISTRATIVE DISSOLUTION
In accordance with the Revised Code of Washington (RCW) the above entity is hereby administratively dissolved as of December 03, 2012.
This action was taken due to the failure of the entity to file an annual list ofofficers/license renewal within the time set forth by law.
A copy of this certificate is on file in this office:
Corporations Division
Office of the Secretary of State
PO Box 40234
Olympia, Washington 98504-0234
(360) 725-0377
Given under my hand and the seal of the State of Washington at Olympia, the State Capital. |
/s/ Sam Reed |
Sam Reed, Secretary of State |
Page 1 of 3
Domestic Corporation
Reinstatement Report
Chapter 238.14.220 RCW
Entity Name: ALLRECIPES.COM, INC. Current Registered Agent/Office Address: NATIONAL REGISTERED AGENTS INC 1780 BARNES BLVD SW TUMWATER WA 98512 |
UBI Number:601 653 265 |
☒ EXPEDITE (Add $50.00 to the amount shown below.)
Please submit completed paperwork with the required fee.
For an explanation of fees please refer to the instruction page.
If the last date of the reinstatement period* shown above has passed, please call 360-725-0377 as new forms and fees will be required. 1/3/13 RJF
SECTION 1: New registered agent information
(Required if changing registered agent or registered agent address(es))
Name: CT Corporation System | ||
Physical Street Address (required) 505 Union Ave. SE | ||
City Olympia | WA Zip Code 98501 | |
Mailing or Postal Address (optional): | ||
City | WA Zip Code |
CONSENT TO SERVE AS REGISTERED AGENT (If new agent):
I consent to serve as Registered Agent in the State of Washington for the above named corporation. I understand it will be my responsibility to accept Service of Process on behalf of the corporation; to forward mail to the corporation; and to immediately notify the Office of the Secretary of State if I resign or change the Registered Office Address.
James Halpin | ||||||
X /s/ James Halpin | Assistant Secretary | 1/3/12 | ||||
Signature of NEW registered Agent | Printed Name | Date |
Domestic Profit Corporation- Reinstatement | Washington Secretary of State | Revised 10/10 |
Page 2 of 3
Sections 2 4 are required in order to complete your filing.
Address: 413 Pine Street, Suite 500
City Seattle, WA WA Zip Code 98101
SECTION 3: Nature of Business
Briefly describe the business the Corporation is conducting in the State of Washington:
Development and marketing of computer websites.
SECTION 4: List Names and Addresses of Officers and Directors:
(attach additional list if needed)
President: Joseph H. Ceryanec (and Director) | ||||
Address: 1716 Locust St. | ||||
City Des Moines | State IA | Zip Code 50309 | ||
Vice President: Steven Cappaert | ||||
Address: 1716 Locust St. | ||||
City Des Moines | State IA | Zip Code 50309 | ||
Secretary: Norbert W. Kant | ||||
Address: 1716 Locust St. | ||||
City Des Moines | State IA | Zip Code 50309 | ||
Treasurer: Mike Riggs | ||||
Address: 1716 Locust St. | ||||
City Des Moines | State IA | Zip Code 50309 | ||
Directors: Stephen M. Lacy | ||||
Address: 1716 Locust St. | ||||
City Des Moines | State IA | Zip Code 50309 | ||
Director: John S. Lieser | ||||
Address: 1716 Locust St. | ||||
City Des Moines | State IA | Zip Code 50309 |
Domestic Profit Corporation- Reinstatement | Washington Secretary of State | Revised 10/10 |
Page 3 of 3
Sections 5 - 6 are required in order to complete your filing.
SECTION 5: Controlling Interest Transfer
Ownership of real property
| Does the company own land, buildings, or other real property in Washington? ☐ Yes OR ☑ No |
Controlling Interest Transfer
A Controlling Interest Transfer is when 50% or more of the ownership in an entity changes hands as defined under RCW 82.45.010(2).
| Has there been a transfer of stock, other financial interest change, or an option agreement exercised during the last 12 months that resulted in a transfer of controlling interest? ☑ Yes OR ☐ No |
| Has an option agreement been executed in the last 12 months allowing for the future purchase or acquisition of the entity, that, if exercised would result in a transfer of controlling interest? ☐ Yes OR ☑ No. |
If the company owns land, buildings, or other real estate in Washington State, you must contact the Washington State Department of Revenue to report a transfer of Controlling Interest. Failure to report the transfer is subject to the penalty of RCW 82.45.220
For more information please call the Dept. of Revenue at (380) 570-3265 and choose option 1, or visit their website at www.dor.wa.gov.
SECTION 6: Signature
| I certify that the grounds for dissolution either did not exist or have been eliminated and that the corporations name satisfies the requirements of RCW 23B.14.220. |
This document is hereby executed under penalties of perjury, and is, to the best of my knowledge, true and correct
X /s/ Norbert W. Kant | Norbert W. Kant, | 1/23/13 | (515) 284-2254 | |||
Signature of Officer or Chair Bd of Directors | Printed Name and Title Secretary | Date | Phone Number |
| THE DOMESTIC CORPORATION REINSTATEMENT APPLICATION AND APPLICABLE FEES MUST BE DELIVERED (MAILED) TO: |
| Corporations Division |
| Office of the Secretary of State |
| 801 Capitol Way South |
| PO BOX 40234 |
| Olympia, WA 98504-0234 |
| THE REINSTATEMENT FEE IS $140.00 PLUS ALL DELINQUENT LICENSE OR ANNUAL REPORT. |
| EXPEDITED SERVICES ARE AVAILABLE FOR AN ADDITIONAL $50.00. PLEASE WRITE EXPEDITE ON YOUR COVER LETTER OR ON THE OUTSIDE OF YOUR ENVELOPE. |
| THE REINSTATEMENT DOCUMENTS MUST BE FILED WITHIN FIVE (5) YEARS OF THE EFFECTIVE DATE OF THE ADMINISTRATIVE DISSOLUTION. |
Domestic Profit Corporation- Reinstatement | Washington Secretary of State | Revised 10/10 |
Exhibit 3.8
FIRST
AMENDED AND RESTATED
BYLAWS
OF
EMERGENT MEDIA, INC.
These First Amended and Restated Bylaws of Emergent Media, Inc. (the Corporation) amend and restate in their entirety the Bylaws adopted by the Corporation on March 11, 1996, as amended March 1996.
SECTION 1
Offices
1.1 Principal Office: The principal office of the corporation shall be located at the principal place of business or such other place as the Board of Directors may designate. The corporation may have such other offices, either within or without the State of Washington, as the Board may designate or as the business of the corporation may require from time to time.
1.2 Registered Office and Registered Agent: The corporation shall continuously maintain in the State of Washington (a) a registered office, which office shall be at a specific geographic location, and shall not be identified by post office box number or other non-geographic address; and (b) a registered agent, which agent may be either an individual resident in this state whose business office is identical with such registered office, or a corporation authorized to transact business in this state having a business office identical with such registered office. The initial registered office and registered agent shall be as set forth in the Articles of Incorporation. The corporation may change its registered office or registered agent or both to the full extent and in the manner prescribed by law.
1.3 Other Offices: The corporation may have other offices within or outside the State of Washington at such place or places as the Board of Directors may from time to time determine.
BYLAWS | PAGE 1 |
SECTION 2
Shareholders
2.1 Meeting Place: All meetings of the shareholders shall be held at the corporations principal office or at such other place or places, either within or without the State of Washington, as shall be determined from time to time by the Board of Directors, and the place at which any such meeting shall be held shall be stated in the notice of the meeting.
2.2 Annual Meeting: The annual meeting of the shareholders for the election of directors and for the transaction of such other business as may properly come before the meeting, shall be held each year on the third Wednesday of August at the hour of 10:00 a.m. if not a legal holiday, and if a legal holiday, then on the day following, at the same hour, or at such day and time as may be set by the Board of Directors. The failure to hold an annual meeting at the time stated in these Bylaws does not affect the validity of any corporate action.
2.3 Special Meetings: The President, the Board of Directors, or the Chairman of the Board (if one be appointed) may call special meetings of the shareholders for any purpose. Further, a special meeting of the shareholders shall be held if the holders of not less than ten percent (10%) of all the votes entitled to be cast on any issue proposed to be considered at such special meeting have dated, signed and delivered to the Secretary one or more written demands for such meeting, describing the purpose or purposes for which it is to be held. Upon receipt of such a demand, the Secretary shall cause notice of such meeting to be given as required in these Bylaws within thirty (30) days after the date the demand was delivered to the Secretary.
2.4 Notice: Written notice of each shareholders meeting stating the date, time, and place and, in case of a special meeting, the purpose(s) for which such meeting is called and the business proposed to be transacted therein, shall be given by the corporation, not less than ten (10) days, and, in the case of a special meeting, not less than twenty (20) days (unless in each case a greater period of notice is required by law in a particular case) nor more than sixty (60) days prior to the date of the meeting to each shareholder of record entitled to vote (unless the corporation is required by law to send notice to all shareholders regardless of whether or not such shareholders are entitled to vote), to the shareholders address as it appears on the current record of shareholders of the corporation. Such written notice shall comply with the requirements of Subsection 4.2, below.
2.5 Waiver of Notice: A shareholder may waive any notice required to be given by these Bylaws, or the Articles of Incorporation of the corporation, or any of the corporate laws of the State of Washington, before or after the meeting that is the subject of such notice. A valid waiver is created by any of the following three methods: (a) in writing, signed by the shareholder entitled to the notice and delivered to the corporation for inclusion in its corporate records; (b) attendance at the meeting, unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting; or (c) failure to object at the time of presentation of a matter not within the purpose or purposes described in the meeting notice.
BYLAWS | PAGE 2 |
2.6 Quorum of Shareholders: At any meeting of the shareholders, a majority in interest of all the shares entitled to vote on a matter, represented by shareholders of record in person or by proxy, shall constitute a quorum of that voting group for action on that matter.
Once a share is represented at a meeting, other than to object to holding the meeting or transacting business, it is deemed to be present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for the adjourned meeting. At such reconvened meeting, any business may be transacted which might have been transacted at the meeting as originally notified. Subject to the foregoing, the determination of the voting groups entitled to vote (as required by law), and the quorum and voting requirements applicable thereto, must be made separately for each matter being considered at a meeting.
If a quorum exists, action on a matter is approved by a voting group if the votes cast within the voting group favoring the action exceed the votes cast within the voting group opposing the action, unless the question is one upon which by express provision of law or of the Articles of Incorporation or of these Bylaws a different vote is required.
2.7 Proxies: Shareholders of record may vote at any meeting either in person or by proxy executed in writing. A proxy is effective when received by the person authorized to tabulate votes for the corporation. A proxy is valid for eleven (11) months unless a longer period is expressly provided in the proxy.
2.8 Voting: Unless otherwise provided in the Articles of Incorporation, each outstanding share, regardless of class, is entitled to one (1) vote on each matter voted on at a shareholders meeting.
2.9 Adjournment: A majority of the shares represented at the meeting, even if less than a quorum, may adjourn the meeting from time to time. At such reconvened meeting at which a quorum is present, any business may be transacted which might have been transacted at the meeting as originally notified. If a meeting is adjourned to a different date, time, or place, notice need not be given of the new date, time, or place if a new date, time, or place is announced at the meeting before adjournment; however, if a new record date for the adjourned meeting is or must be fixed in accordance with the corporate laws of the State of Washington, notice of the adjourned meeting must be given to persons who are shareholders as of the new record date.
2.10 Actions by Shareholders Without a Meeting: Subject to the Articles of Incorporation, any action required or permitted to be taken at a meeting of the shareholders may be accomplished without a meeting if the action is taken by shareholders holding of record or otherwise entitled to vote in the aggregate not less than the minimum number of votes that
BYLAWS | PAGE 3 |
would be necessary to authorize or take such action at a meeting at which all shares entitled to vote on the action were present and voted. The action must be evidenced by one or more written consents describing the action taken and signed by such minimum number of shareholders. All shareholders entitled to vote on such action must be given at least one (1) business day advanced notice before the action takes effect. Determination of the shareholders entitled to take action without a meeting, the form of the written consent, the time period for receipt of sufficient written consents, the effective date of the action taken, the notices required to be given to non-voting shareholders and to shareholders entitled to vote who have not consented to the action, and all other matters concerning shareholder action without a meeting shall be as set forth in these Bylaws and the Washington Business Corporation Act.
2.11 Record Date and Transfer Books: For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the Board of Directors may fix in advance a record date for any such determination of shareholders, such date in any case to be not more than seventy (70) days and, in case of a meeting of shareholders, not less than ten (10) days prior to the date on which the particular action requiring such determination of shareholders, is to be taken.
If no record date is fixed for such purposes, the date on which notice of the meeting is mailed or the date on which the resolution of the Board of Directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders.
When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment thereof, unless the Board of Directors fixes a new record date, which it must do if the meeting is adjourned more than one hundred twenty (120) days after the date is fixed for the original meeting.
2.12 Voting Record: The officer or agent having charge of the stock transfer books for shares of the corporation shall make at least ten (10) days before each meeting of shareholders a complete record of the shareholders entitled to vote at such meeting or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each. Such record shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting for the purposes thereof.
BYLAWS | PAGE 4 |
SECTION 3
Board of Directors
3.1 Numbers and Powers: Except as otherwise expressly provided by law or by the Articles of Incorporation, the management of all the affairs, property and interests of the corporation shall be vested in a Board of Directors, consisting of not less than three (3) nor more than seven (7) persons, the specific number to be set by resolution of the shareholders. The directors shall be elected at the annual meeting of the shareholders to hold office until the next succeeding annual meeting of the shareholders and until her successor is elected and qualifies. Directors need not be shareholders or residents of the State of Washington. The Board of Directors may exercise all powers of the corporation and do all lawful acts and things which are not by statute or by the Articles of Incorporation or by these Bylaws directed or required to be exercised or done by the shareholders.
3.2 Change of Number: The number of directors may at any time be increased or decreased by amendment of these Bylaws, but no decrease shall have the effect of shortening the term of any incumbent director.
3.3 Vacancies: All vacancies in the Board of Directors, whether caused by resignation, death or otherwise, may be filled by the affirmative vote of a majority of the remaining directors though less than a quorum of the Board of Directors. However, if the vacant office was held by a director elected by a voting group composed of less than all of the voting shareholders, then the Board of Directors shall not have the power to fill such vacancy. If there is only one director of the corporation and such director vacates his or her position for any reason, the vacancy so created shall be filled by affirmative vote of the shareholders. A director elected to fill any vacancy shall hold office only until the next election of directors by the shareholders.
3.4 Resignation and Removal: Any director of the corporation may resign at any time by giving written notice to the Board of Directors, its Chairperson, the President, or Secretary of the corporation. Any such resignation is effective when the notice is delivered, unless the notice specified a later effective date. The shareholders, at a special meeting called expressly for that purpose, may remove from office with or without cause one or more directors and elect their successors. A director may be removed only if the number of votes cast for removal exceeds the number of votes cast against removal; provided that, if a director (or the entire Board) has been elected by one or more voting groups, only those voting groups may participate in the vote for removal.
3.5 Annual Meetings: The first meeting of each newly elected Board of Directors shall be known as the annual meeting thereof and shall be held without notice immediately after the annual shareholders meeting or any special shareholders meeting at which a Board is elected. Such meeting shall be held at the same place as such shareholders meeting unless some other place shall be specified by resolution of the shareholders.
BYLAWS | PAGE 5 |
3.6 Regular Meetings: Regular meetings of the Board of Directors may be held without notice (other than as provided in Section 3.8 below) at such place or places, either within or without the State of Washington, as the Board of Directors may from time to time designate.
3.7 Special Meetings: Special meetings of the Board of Directors may be called at any time by the President, the Chairman of the Board (if one is appointed) or by directors constituting one third or more of the entire Board of Directors, to be held at the principal office of the corporation or at such other place or places as the directors may from time to time designate.
3.8 Notice: No notice is required for regular meetings of the Board of Directors if the place, day and time thereof have been fixed by resolution of the Board of Directors and a copy of such resolution has been delivered to each director at least two (2) business days before the day of the first meeting held pursuant thereto. Either oral or written notice of special meetings of the Board of Directors, stating the date, time, and place thereof, shall be given at least two (2) business days prior to the date of the meeting. The purpose of the meeting need not be given in the notice unless otherwise required by law, the Articles of Incorporation or these Bylaws.
3.9 Waiver of Notice: A director may waive notice of a special meeting of the Board either before or after the meeting, and such waiver shall be deemed to be the equivalent of giving notice. The waiver must be in writing, signed by the director entitled to the notice and delivered to the corporation for inclusion in its corporate records. Attendance of a director at a meeting shall constitute waiver of notice of that meeting unless said director attends for the express purpose of objecting to the transaction of business because the meeting has not been lawfully called or convened.
3.10 Quorum: A majority of the whole Board of Directors shall be necessary at all meetings to constitute a quorum for the transaction of business. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, except as otherwise provided by the Articles of Incorporation or these Bylaws. Directors at a meeting of the Board of Directors at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors, provided such withdrawal does not reduce the number of directors attending the meeting below the level of a quorum.
3.11 Presumption of Assent: A director who is present at a meeting of the Board of Directors at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless:
a. The director objects at the beginning of the meeting, or promptly upon the directors arrival, to holding the meeting or transacting business at the meeting;
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b. The directors dissent or abstention from the action taken is entered in the minutes of the meeting; or
c. The director shall file a written dissent or abstention with the presiding officer of the meeting before its adjournment or with the corporation within a reasonable time after adjournment of the meeting.
The right of dissent or abstention is not available to a director who votes in favor of the action taken.
3.12 Board of Directors Action Without a Meeting: Any action required or permitted to be taken at a meeting of the Board of Directors may be accomplished without a meeting if the action is taken by all the members of the Board of Directors. The action must be evidenced by one or more written consents describing the action to be taken signed by all directors and delivered to the corporation for inclusion in its minutes or filing with its corporate records. Directors consents may be signed either before or after the action is taken. Action taken by unanimous written consent is effective when the last director signs the consent, unless the consent specifies a later effective date.
3.13 Committees: The Board of Directors, by resolution adopted by a majority of the full Board of Directors, may designate from among its members an Executive Committee, a Compensation Committee and one or more other committees, each of which:
a. Must have two (2) or more members;
b. Must be governed by the same rules regarding meetings, action without meetings, notice, and waiver of notice, and quorum and voting requirements as applied to the Board of Directors; and
c. To the extent provided in such resolution, shall have and may exercise all the authority of the Board of Directors, except no such committee shall have the authority to:
(1) Authorize or approve a distribution except according to a general formula or method prescribed by the Board of Directors;
(2) Approve or propose to shareholders action that the Washington Business Corporation Act requires to be approved by shareholders;
(3) Fill vacancies on the Board of Directors or on any of its committees;
(4) Amend Articles of Incorporation pursuant to RCW 23B.10.020;
BYLAWS | PAGE 7 |
(5) Adopt, amend, or repeal Bylaws;
(6) Approve a plan of merger not requiring shareholder approval; or
(7) Authorize or approve the issuance or sale or contract for sale of shares, or determine the designation and relative rights, preferences, and limitations on a class or series of shares, except that the Board of Directors may authorize a committee, or a senior executive officer of the corporation, to do so within limits specifically prescribed by the Board of Directors.
If a committee is formed for the purposes of exercising functions of the Board, the committee must consist solely of directors. If the only function of the committee is to study and make recommendations for actions by the full Board, the committee need not consist of directors. All committees shall keep regular minutes of meetings.
3.14 Remuneration: By resolution of the Board of Directors, a fixed sum or stated salary and expenses of attendance, if any, may be paid directors for attendance at each regular or special meeting of the Board; provided, that nothing herein contained shall be construed to 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.
3.15 Chairman of the Board: The Board of Directors may at its option elect from among its members a Chairman of the Board. The Chairman of the Board shall, if present, preside at all meetings of the Board of Directors and, in addition, exercise and perform such other powers and duties as the Board of Directors shall by resolution direct.
SECTION 4
Measures Applying to Both Shareholders and Directors Meetings
4.1 Meetings by Communication Equipment: Shareholders or directors, as the case may be, may participate in any meeting of the shareholders or directors, as the case may be, by any means of communication by which all persons participating in the meeting can hear each other during the meeting. Participation by such means shall constitute presence in person at a meeting.
4.2 Oral and Written Notice: Oral notice may be communicated in person or by telephone, wire or wireless equipment, which does not transmit a facsimile of the notice. Oral notice is effective when communicated.
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Written notice may be transmitted by mail, private carrier, or personal delivery; telegraph or teletype; or telephone, wire, or wireless equipment which transmits a facsimile of the notice. Written notice is effective at the earliest of the following: (a) when received; (b) five (5) days after its deposit in the U.S. mail if mailed with first-class postage; (c) on the date shown on the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee. A declaration of the mailing or other means of giving any notice, executed by the Secretary, Assistant Secretary, or any transfer agent of the Corporation giving notice, shall be prima facie evidence of the giving of such notice.
SECTION 5
Officers
5.1 Designations: The officers of the corporation shall be a President, one or more Vice Presidents (one or more of whom may be Executive Vice Presidents), a Secretary and a Treasurer, and such Assistant Secretaries and Assistant Treasurers as the Board may designate, who shall be elected by the Board of Directors at its first meeting, and who shall hold office until their successors are elected and qualify. Any two or more offices may be held by the same person. None of the officers of the corporation need be a director, except as specified below.
5.2 Appointment and Term of Office: The officers of the corporation shall be appointed annually by the Board of Directors at the first meeting of the Board of Directors held after each annual meeting of the shareholders. If officers are not appointed at such meeting, such appointment shall occur as soon as possible thereafter. Each officer shall hold office until a successor shall have been appointed and qualified or until said officers earlier death, resignation, or removal.
5.3 Officers Enumerated: Except as otherwise provided by resolution of the Board of Directors, the officers of the corporation and their respective powers and duties shall be as follows:
5.3.1 Chairman of the Board. The Chairman of the Board (if such an officer be appointed) shall be a director and shall perform such duties as shall be assigned to him or her by the Board of Directors and in any employment agreement. The Chairman shall preside at all meetings of the shareholders and at all meetings of the Board at which he or she is present. The Chairman may sign deeds, mortgages, bonds, contracts, and other instruments, except when the signing thereof has been expressly delegated by the Board or by these bylaws to some other officer or in some other manner. If the President dies or becomes unable to act, the Chairman shall perform the duties of the President, except as may be limited by resolution of the Board of Directors, with all the powers of and subject to all the restrictions upon the President.
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5.3.2 President. Subject to such supervisory powers as may be given by the Board of Directors to the Chairman of the Board (if such an officer be appointed), the President shall be the chief executive officer of the corporation unless some other officer is so designated by the Board and, subject to the control of the Board and the Executive Committee (if one be established), shall supervise and control all of the assets, business, and affairs of the corporation. The President may sign certificates for shares of the corporation, deeds, mortgages, bonds, contracts, and other instruments, except when the signing thereof has been expressly delegated by the Board or by these Bylaws to some other officer or agent of the corporation or is otherwise required by law to be signed by some other officer or in some other manner. The President shall vote the shares owned by the corporation in other corporations, domestic or foreign, unless otherwise prescribed by law or resolution of the Board. In general, the President shall perform all duties incident to the office of President and such other duties as may be prescribed by the Board from time to time. In the absence of the chairman of the Board, the President, if a director, shall preside over all meetings of the shareholders and over all meetings of the Board of Directors. The President shall have the authority to appoint one or more Assistant Secretaries and Assistant Treasurers, as she deems necessary.
5.3.3 Vice Presidents. If no Chairman of the Board has been appointed, in the absence or disability of the President, the Vice Presidents, if any, in order of their rank as fixed by the Board of Directors or, if not ranked, a Vice President designated by the Board shall perform all the duties of the President and when so acting shall have all the powers of, and be subject to all the restrictions upon, the President; provided that no such Vice President shall assume the authority to preside as Chairman of meetings of the Board unless such Vice President is a member of the Board. The vice Presidents shall have such other powers and perform such other duties as from time to time may be respectively prescribed for them by the Board, these Bylaws, the President, or the Chairman of the Board (if one be appointed).
5.3.4 Secretary. The Secretary shall:
(a) have responsibility for preparing minutes of meetings of the shareholders and the Board of Directors and for authenticating records of the corporation;
(b) see that all notices are duly given in accordance with the provisions of these bylaws and as required by law;
(c) be custodian of the corporate records and seal of the corporation, if one be adopted;
(d) keep a register of the post office address of each shareholder and director;
(e) attest certificates for shares of the corporation;
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(f) have general charge of the stock transfer books of the corporation;
(g) when required by law or authorized by resolution of the Board of Directors, sign with the President, or other officer authorized by the President or the Board, deeds, mortgages, bonds, contracts, and other instruments; and
(h) in general, perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned by the President or the Board of Directors.
In the absence of the Secretary, an Assistant Secretary may perform the duties of the Secretary
5.3.5 Treasurer. If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his or her duties I such sum and with such surety or sureties as the Board shall determine. The Treasurer shall:
(a) have charge and custody of and be responsible for all funds and securities of the corporation;
(b) receive and give receipts for moneys due and payable to the corporation from any source whatsoever and deposit all such moneys in the name of the corporation in banks, trust companies, or other depositories selected in accordance with the provisions of these Bylaws; and
(c) in general, perform all of the duties incident to the office of Treasurer and such other duties as from time to time may be assigned by the President or the Board of Directors.
In the absence of the Treasurer, an Assistant Treasurer may perform the duties of the Treasurer.
5.4 Salaries and Contract Rights: The salaries, if any, of the officers shall be fixed from time to time by the Board of Directors. The appointment of an officer or agent shall not of itself create contract rights.
5.5 Resignation or Removal: Any officer of the corporation may resign at any time by giving written notice to the Board of Directors, or to any officer of the corporation. Any such resignation is effective when the notice is delivered, unless the notice specifies a later date, and shall be without prejudice to the contract rights, if any, of such officer. The Board of Directors, by majority vote of the entire Board, may remove any officer or agent appointed by it, with or without cause. The removal shall be without prejudice to the contract rights, if any, of the person so removed. An officer empowered to appoint another officer or assistant officer also has the power to remove any officer he or she would have the power to appoint whenever in his or her judgment the best interests of the corporation would be served thereby.
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5.6 Vacancies: If the office of any officer becomes vacant by any reason, the directors may appoint a successor or successors who shall hold office for the unexpired term.
SECTION 6
Certificates of Shares and Their Transfer
6.1 Issuance; Certificates of Shares: No shares of the corporation shall be issued unless authorized by the Board of Directors. Such authorization shall include the maximum number of shares to be issued, the consideration to be received, the value of the consideration if other than cash, and a statement that the Board considers the consideration to be adequate. Certificates for shares of the corporation shall be in such form as is consistent with the provisions of the Washington Business Corporation Act and shall state:
a. The name of the corporation and that the corporation is organized under the laws of the State of Washington;
b. The name of the person to whom issued;
c. The number and class of shares and the designation of the series, if any, which such certificate represents;
d. If the corporation is authorized to issue different classes of shares or different series within a class, either a summary of (on the face or back of the certificate), or a statement that the corporation will furnish to any shareholder upon written request and without charge a summary of, the designations, relative rights, preferences, and limitations applicable to each class and the variations in rights, preferences and limitations determined for each series, and the authority of the Board of Directors to determine variations for future series; and
e. If the shares are subject to transfer or other restrictions under applicable securities laws or contracts with the corporation, either a complete description of or a reference to the existence and general nature of such restrictions on the face or back of the certificate.
The certificate shall be signed by original or facsimile signature of two officers of the corporation, and the seal of the corporation may be affixed thereto.
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6.2 Transfer of Stock: Shares of stock may be transferred by delivery of the certificate to the corporation accompanied by (i) either an assignment in writing on the back of the certificate, or an assignment separate from certificate, or by a written power of attorney to assign and transfer the same on the books of the corporation, signed by the record holder of the certificate; and (ii) such additional documents, instruments, and other items of evidence as may be reasonably necessary to satisfy the requirements of any transfer restrictions applicable to such shares, whether arising under applicable securities or other laws, or by contract, or otherwise. The shares shall be transferable on the books of the corporation upon surrender thereof so assigned or endorsed.
6.3 Loss or Destruction of Certificates: In case of the loss, mutilation, or destruction of a certificate of stock, a duplicate certificate may be issued upon such terms as the Board of Directors shall prescribe.
6.4 Restrictions on Transfer: The Board of Directors shall have the authority to issue shares of the capital stock of this corporation and the certificates therefor subject to such transfer restrictions and other limitations as it may deem necessary to promote compliance with applicable federal and state securities laws, and to regulate the transfer thereof in such manner as may be calculated to promote such compliance or to further any other reasonable purpose. Except to the extent that the corporation has obtained an opinion of counsel acceptable to the corporation that transfer restrictions are not required under applicable securities laws, all certificates representing shares of the corporation shall bear the following legend (or a legend of substantially the same import) on the face of the certificate or on the reverse of the certificate if a reference to the legend is contained on the face:
NOTICE: RESTRICTIONS ON TRANSFER
The securities represented by this certificate have not been registered under the Securities Act of 1933, or any state securities laws, and may not be offered, sold, transferred, encumbered, or otherwise disposed of except upon satisfaction of certain conditions. Information concerning these restrictions may be obtained from the corporation or its legal counsel. Any offer or disposition of these securities without satisfaction of said conditions will be wrongful and will not entitle the transferee to register ownership of the securities with the corporation.
SECTION 7
Books and Records
7.1 Books of Accounts, Minutes, and Share Register: The corporation:
a. Shall keep as permanent records minutes of all meetings of its shareholders and Board of Directors, a record of all actions taken by the shareholders or Board of Directors without a meeting, and a record of all actions taken by a committee of the Board of Directors exercising the authority of the Board of Directors on behalf of the corporation;
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b. Shall maintain appropriate accounting records;
c. Shall maintain a record of its shareholders, in a form that permits preparation of a list of the names and addresses of all shareholders, in alphabetical order by class of shares showing the number and class of shares held by each; and
d. Shall keep a copy of the following records at its principal office:
(1) The Articles or Restated Articles of Incorporation and all amendments to them currently in effect;
(2) The Bylaws or Restated Bylaws and all amendments to them currently in effect;
(3) A copy of the minutes of all shareholders meetings, and records of all actions taken by shareholders without a meeting, for the past three (3) years;
(4) Its financial statements for the past three (3) years, including balance sheets showing in reasonable detail the financial condition of the corporation as of the close of each fiscal year, and an income statement showing the results of its operations during each fiscal year prepared on the basis of generally accepted accounting principles or, if not, prepared on a basis explained therein;
(5) All written communications to shareholders generally within the past three (3) years;
(6) A list of the names and business addresses of its current directors and officers; and
(7) Its most recent annual report delivered to the Secretary of State of Washington.
7.2 Copies of Resolutions: Any person dealing with the corporation may rely upon a copy of any of the records of the proceedings, resolutions, or votes of the Board of Directors or shareholders, when certified by the President or Secretary.
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SECTION 8
Distributions and Finance
8.1 Distributions: The Board of Directors may authorize and the corporation may make distributions to its shareholders, subject to any limitation in the Articles of Incorporation. However, no distribution may be made if, after giving it effect, either: (a) the corporation would not be able to pay its debts as they become due in the usual course of business; or (b) the corporations total assets would be less than the sum of its total liabilities plus, unless the Articles of Incorporation permit otherwise, the amount which would be needed, if the corporation were to be dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution of shareholders whose preferential rights are superior to those receiving the distribution. The Board of Directors may fix the record date for determining shareholders entitled to a distribution, which date may not be more than seventy (70) days before the date the Board of Directors authorized the distribution. If the Board of Directors does not fix a record date, it shall be the date the Board authorizes the distribution.
8.2 Reserves: There may be set aside out of the earnings of the corporation such sum or sums as the Board of Directors from time to time in its absolute discretion deems expedient as a reserve fund to meet contingencies, or for equalizing dividends, or for maintaining any property of the corporation, or for any other purpose.
8.3 Depositaries: The monies of the corporation shall be deposited in the name of the corporation in such financial institutions as the Board of Directors shall designate, and shall be drawn out only by checks or other order for payment of money signed by such persons and in such manner as may be determined by resolution of the Board of Directors.
SECTION 9
Indemnification of Officers, Directors,
Employees and Agents
9.1 Right to Indemnification: Each individual who was or is made a party or is threatened to be made a party to or is otherwise involved (including, without limitation, as a witness) in any actual or threatened action, suit or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal (hereinafter a proceeding), by reason of the fact that he or she is or was a director or officer of the corporation or, that while serving as a director or officer of the corporation, he or she is or was also serving at the request of the corporation as a director, officer, partner, trustee, employee or agent of another foreign or domestic corporation or of a foreign or domestic partnership, joint venture, trust, employee benefit plan or other enterprise (hereinafter an indemnitee), whether the basis of a proceeding is alleged action in an official capacity as such a director, officer, employee, partner, trustee, or agent or in any other capacity while serving as such a director, officer,
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employee, partner, trustee, or agent, shall be indemnified and held harmless by the corporation to the full extent permitted by applicable law as then in effect, against all expense, liability and loss (including attorneys fees, judgments, fines, ERISA excise taxes or penalties and amounts to be paid in settlement) actually and reasonably incurred or suffered by such indemnitee in connection therewith, and such indemnification shall continue as to an indemnitee who has ceased to be a director, officer, employee, partner, trustee, or agent and shall inure to the benefit of the indemnitees heirs, executors and administrators; provided, however, that no indemnification shall be provided to any such indemnitee if the corporation is prohibited by the Washington Business Corporation Act or other applicable law as then in effect from paying such indemnification; and provided, further, that except as provided in Section (2) of this Article with respect to proceedings seeking to enforce rights to indemnification, the corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if the proceeding (or part thereof) was authorized or ratified by the Board of Directors. The right to indemnification conferred in this Section (1) shall be a contract right and shall include the right to be paid by the corporation the expenses incurred in defending any proceeding in advance of its final disposition (hereinafter an advancement of expenses). Any advancement of expenses shall be made only upon delivery to the corporation of an undertaking (hereinafter an undertaking), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal that such indemnitee is not entitled to be indemnified for such expenses under this Section (1) and upon delivery to the corporation of a written affirmation (hereinafter an affirmation) by the indemnitee of his or her good faith belief that such indemnitee has met the standard of conduct necessary for indemnification by the corporation pursuant to this Section.
9.2 Right of Indemnitee to Bring Suit: If a claim under Section 9.1 of this Article is not paid in full by the corporation within sixty days after a written claim has been received by the corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty days, the indemnitee may at any time thereafter bring suit against the corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit or in a suit brought by the corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. The indemnitee shall be presumed to be entitled to indemnification under this Article upon submission of a written claim (and, in an action brought to enforce a claim for an advancement of expenses, where the required undertaking and affirmation have been tendered to the corporation) and thereafter the corporation shall have the burden of proof to overcome the presumption that the indemnitee is so entitled. Neither the failure of the corporation (including the Board of Directors, independent legal counsel or the shareholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances nor an actual determination by the corporation (including the Board of Directors, independent legal counsel or the shareholders) that the indemnitee is not entitled to indemnification shall be a defense to the suit or create a presumption that the indemnitee is not so entitled.
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9.3 Nonexclusivity of Rights: The right to indemnification and the advancement of expenses conferred in this Article shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Articles of Incorporation or Bylaws of the corporation, general or specific action of the Board of Directors, contract or otherwise.
9.4 Insurance, Contracts and Funding: The corporation may maintain insurance, at its expense, to protect itself and any individual who is or was a director, officer, employee or agent of the corporation or who, while a director, officer, employee or agent of the corporation, is or was serving at the request of the corporation as a director, officer, partner, trustee, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any expense, liability or loss asserted against or incurred by the individual in that capacity or arising from the individuals status as a director, officer, employee or agent, whether or not the corporation would have the power to indemnify such person against such expense, liability or loss under the Washington Business Corporation Act. The corporation may enter into contracts with any director, officer, employee or agent of the corporation in furtherance of the provisions of this Article and may create a trust fund, grant a security interest or use other means (including, without limitation, a letter of credit) to ensure the payment of such amounts as may be necessary to effect indemnification as provided in this Article.
9.5 Indemnification of Employees and Agents of the Corporation: The corporation may, by action of the Board of Directors, grant rights to indemnification and advancement of expenses to employees and agents of the corporation with the same scope and effect as the provisions of this Article provide with respect to the indemnification and advancement of expenses of directors and officers of the corporation or pursuant to rights granted pursuant to, or provided by, the Washington Business Corporation Act or otherwise.
9.6 Persons Serving Other Entities: Any individual who is or was a director, officer or employee of the corporation who, while a director, officer or employee of the corporation, is or was serving (a) as a director or officer of another foreign or domestic corporation of which a majority of the shares entitled to vote in the election of its directors is held by the corporation, (b) as a trustee of an employee benefit plan and the duties of the director or officer to the corporation also impose duties on, or otherwise involve services by, the director or officer to the plan or to participants in or beneficiaries of the plan, or (c) in an executive or management capacity in a foreign or domestic partnership, joint venture, trust or other enterprise of which the corporation or a wholly owned subsidiary of the corporation is a general partner or has a majority ownership, shall be deemed to be so serving at the request of the corporation and entitled to indemnification and advancement of expenses under Section (1) of this Article.
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SECTION 10
Amendments
10.1 By the Shareholders: These Bylaws may be amended or repealed at any annual or special meeting of the shareholders if notice of the proposed amendment is contained in the notice of the meeting.
10.2 By the Board of Directors: Unless such power is reserved by the Articles of Incorporation or by law to the shareholders in whole or in part, these Bylaws may be amended or repealed by the affirmative vote of a majority of the whole Board of Directors at any meeting of the Board, if notice of the proposed amendment is contained in the notice of the meeting. However, the directors may not modify the Bylaws fixing their qualifications, classifications, or term of office.
SECTION 11
Miscellaneous
11.1 Communications by Fax: Whenever these Bylaws require notice, consent, or other communication to be delivered for any purpose, transmission by phone, wire, or wireless equipment which transmits a facsimile of such communication shall constitute sufficient delivery for such purpose. Such communication shall be deemed to have been received by or in the possession of the addressee upon completion of the transmission.
11.2 Inspector of Elections: Before any annual meeting of shareholders, the Board of Directors may appoint an inspector of elections to act at the meeting and any adjournment thereof. If no inspector of elections is so appointed by the Board, then the chairman of the meeting may appoint an inspector of elections to act at the meeting. If any person appointed as inspector fails to appear or fails or refuses to act, then the chairman of the meeting may, and upon the request of any shareholder or a shareholders proxy shall, appoint a person to fill that vacancy.
Such inspector of elections shall:
(a) determine the number of shares outstanding and the voting power of each, the number of shares represented at the meeting, the existence of a quorum, and, with the advice of legal counsel to the corporation, the authenticity, validity, and effect of proxies pursuant to RCW 23B.07.220 and 23B.07.240 and any procedure adopted by the Board of Directors pursuant to RCW 23B.07.230;
(b) receive votes, ballots, or consents;
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(c) hear and determine all challenges and questions in any way arising in connection with the right to vote;
(d) count and tabulate all votes or consents;
(e) determine the result; and
(f) do any other acts that may be proper to conduct the election or vote with fairness to all shareholders.
11.3 Rules of Order: The rules contained in the most recent edition of Roberts Rules of Order, Revised, shall govern all meetings of shareholders and directors where those rules are not inconsistent with the Articles of Incorporation or Bylaws, subject to the following:
(a) The chairman of the meeting shall have absolute authority over matters of procedure, and there shall be no appeal from the ruling of the chairman. If the chairman in his or her absolute discretion deems it advisable to dispense with the rules of parliamentary procedure for any meeting or any part thereof, the chairman shall so state and shall clearly state the rules under which the meeting or appropriate part thereof shall be conducted.
(b) If disorder should arise which prevents continuation of the legitimate business of the meeting, the chairman may quit the chair and announce the adjournment of the meeting; upon so doing, the meeting shall be deemed immediately adjourned, subject to being reconvened in accordance with these Bylaws, as the case may be.
(c) The chairman may ask or require that anyone not a bona fide shareholder or proxy leave the meeting of shareholder.
(d) A resolution or motion at a meeting of shareholders shall be considered for vote only if proposed by a shareholder or duly authorized proxy other than the individual who proposed the resolution or motion.
11.4 Construction: Within these Bylaws, words of any gender shall be construed to include any other gender, and words in the singular or plural number shall be construed to include the plural or singular, respectively, unless the context otherwise requires.
ADOPTED BY resolution of the corporations Board of Directors on May 19, 1999.
BYLAWS | PAGE 19 |
/s/ David Quinn | ||
David Quinn | ||
Secretary |
BYLAWS | PAGE 20 |
Exhibit 3.9
ARTICLES OF INCORPORATION
OF
EW, INC.
TO THE SECRETARY OF STATE OF THE STATE OF IOWA:
Pursuant to Section 202 of the Iowa Business Corporation Act, the undersigned, acting as incorporator of a corporation, adopts the following Articles of Incorporation for the corporation.
1. The name of the corporation is EW, Inc.
2. The number of shares the corporation is authorized to issue is 100 shares of common stock, no par value.
3. The street address of the corporations initial registered office in Iowa and the name of its initial registered agent at that office is:
John S. Zieser
1716 Locust Street
Des Moines, Iowa 50309
4. The name and address of the incorporator is:
S. Christian Nelson
666 Walnut Street, Suite 2000
Des Moines, Iowa 50309
5. A director of this corporation shall not be personally liable to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except for liability (a) for any breach of the directors duty of loyalty to the corporation or its shareholders, (b) for any act or omission not in good faith or which involves intentional misconduct or knowing violation of the law, (c) for any transaction from which the director derives an improper personal benefit, or (d) under Section 490.833, Code of Iowa. If Iowa law is hereafter changed to permit further elimination or limitation of the liability of directors to the corporation or its shareholders, then the liability of a director of this corporation shall be eliminated or limited to the full extent then permitted.
6. The effective date of this document is the date of its filing with the Iowa Secretary of State.
/s/ S. Christian Nelson |
S. Christian Nelson, Incorporator |
ARTICLES OF MERGER
OF
EATING WELL, INC., A DELAWARE CORPORATION,
INTO EW, INC., AN IOWA CORPORATION
TO THE SECRETARY OF STATE OF THE STATE OF IOWA:
Pursuant to Section 1106 of the Iowa Business Corporation Act and Title 8, Section 252 of the Delaware General Corporation Law, the undersigned corporations adopt the following Articles of Merger by which Eating Well, Inc., a Delaware corporation, shall merge with and into EW, Inc., an Iowa corporation, and EW, Inc., an Iowa corporation, shall be the surviving entity.
1. Attached to these Articles of Merger and by this reference made a part of these Articles is Exhibit A, which is a true and correct copy of the Plan and Agreement of Merger (Plan) which was approved and adopted by the directors and shareholders of the corporations participating in the Merger; that is, EW, Inc., an Iowa corporation, as the surviving corporation, and Eating Well, Inc., a Delaware corporation, in the manner prescribed by the Iowa Business Corporation Act and the Delaware General Corporation Law.
2. The Merger was duly approved by the directors and shareholders of each of the corporations in the manner required by the Iowa Business Corporation Act and the Delaware General Corporation Law.
3. The effective date of this document is 12:01 a.m. on March 1, 2013.
EATING WELL, INC. | ||||
By: | /s/ Norbert W. Kaut | |||
Name: | Norbert W. Kaut | |||
Title: | Secretary | |||
EW, Inc. | ||||
By: | /s/ Norbert W. Kaut | |||
Name: | Norbert W. Kaut | |||
Title: | Secretary |
Exhibit A
(Attached.)
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the Merger Agreement) is made and entered into on February 25, 2013, and shall be effective the same date (the Effective Date), pursuant to the Iowa Business Corporation Act and Delaware General Corporation Law (the Statutes) by and between Eating Well, Inc. (EWI) and EW, Inc. (EW, Inc.), each being sometimes referred to herein individually as a Constituent Company and collectively as the Constituent Companies.
W I T N E S S E T H:
WHEREAS, EW, Inc. is a corporation duly organized, validly existing and in good standing under the laws of the State of Iowa;
WHEREAS, EWI is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware;
WHEREAS, the respective Boards of Directors and shareholders of the Constituent Companies have authorized and approved the merger of EWI with and into EW, Inc. subject to and upon the terms and conditions of this Merger Agreement (the Merger) and have approved this Merger Agreement and directed that it be executed by the undersigned officers; and
WHEREAS, it is the intention of the Constituent Companies that the Merger shall be a tax-free reorganization within the meaning of the Internal Revenue Code of 1986, as amended (the Code).
NOW, THEREFORE in consideration of the premises, which are hereby incorporated into the terms hereof, and the mutual covenants and agreements herein contained, and for the purpose of stating the terms and conditions of the merger, the mode of effectuating the same, and other details and provisions that are deemed desirable, the parties have agreed and do hereby agree, subject to the terms and conditions set forth as follows:
ARTICLE I
TERMS OF MERGER
1.1 MERGER. At the Effective Time of the Merger (as hereinafter defined), in accordance with the provisions of the Statutes, EWI shall be merged with and into EW, Inc. (at times referred to herein as the Surviving Company) upon the terms and conditions set forth in the subsequent provisions of this Merger Agreement, with EW, Inc. surviving. From and after the Effective Time, the Surviving Company shall have the name EW, Inc.
1.2 APPROVAL OF SHAREHOLDERS. This Merger Agreement has been submitted to and approved by the respective shareholders of EWI and EW, Inc. as provided by the Statutes. Provided this Merger Agreement is not terminated and abandoned pursuant to the provisions hereof, Articles of Merger and Certificate of Merger shall be filed in accordance with the applicable provisions of the Statutes.
1.3 FILINGS AND EFFECTIVENESS. As soon as practicable following the date of execution hereof; EWI and EW, Inc. will cause Articles of Merger along with any other required document to be filed with the Secretary of State of the State of Iowa pursuant to the Statutes and a Certificate of Merger along with any other required document to be filed with the Secretary of State of the State of Delaware pursuant to the Statutes. The Merger shall become effective upon the occurrence of each of the following actions:
(a) All of the conditions precedent to the consummation of the Merger specified in this Merger Agreement shall have been satisfied or duly waived; and
(b) An executed Articles of Merger and Certificate of Merger providing for an effective time of 12:01 a.m. on March 1, 2013 and meeting the requirements of the Statutes shall have been filed with the applicable secretary of State (the State of Iowa and State of Delaware) and said Secretary of State shall have accepted such Articles of Merger or Certificate of Merger, and the Surviving Company shall have performed all other requirements of the Statutes.
The date and time when the Merger shall become effective, as aforesaid, is herein called the Effective Time.
1.4 EFFECT OF MERGER - SECURITIES.
(a) As of the Effective Time, by virtue of the Merger and without any action on the part of the holder of any shares of common stock of EWI, all the issued and outstanding shares of common stock of EWI shall be cancelled.
(b) As of the Effective Time, by virtue of the Merger and without any action on the part of the holder of any shares of common stock of EW, Inc., all the issued and shares of common stock of EW, Inc. shall continue as issued and outstanding shares of common stock of the Surviving Company.
1.5 EFFECT OF MERGER - GENERAL
At and after the Effective Time, the Merger shall be effective as provided in the applicable provisions of the Statutes. The corporate existence of EW, Inc., as the Surviving Company, with all of its purposes and powers, shall continue unaffected and unimpaired by the Merger, and, as the Surviving Company, it shall be governed by the Statutes and succeed to all rights, assets, liabilities and obligations of EWI in accordance with the Statutes. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, except as otherwise provided herein, all the property, rights, privileges, powers and franchises of EWI and EW, Inc. shall vest in the Surviving Company, and all debts, liabilities and duties of EWI and EW, Inc. shall become the debts, liabilities and duties of the Surviving Company. The separate corporate existence of EWI shall cease at the Effective Time, with EW, Inc. continuing as the Surviving Company of the Merger.
1.6 CERTIFICATE OF INCORPORATION OF SURVIVING COMPANY. The Certificate of Incorporation of EW, Inc. shall become the Certificate of Incorporation of the Surviving Company until duly amended in accordance with the provisions thereof and applicable law.
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1.7 BY-LAWS OF SURVIVING COMPANY. The By-laws of EW, Inc. shall become the By-laws of the Surviving Company until altered, amended or repealed as provided in the By-laws or as provided by applicable law.
1.8 OFFICERS OF SURVIVING COMPANY. The officers of EW, Inc. shall be the officers of the Surviving Company until their respective successors are duly elected and qualified.
ARTICLE II
CONDITIONS TO MERGER
The obligations of the Constituent Companies to consummate the Merger are subject to satisfaction of the following conditions:
2.1 AUTHORIZATION. The holders of at least a majority of the outstanding shares of each class of capital stock of the Constituent Companies entitled to vote thereon shall have approved this Merger Agreement and the Merger. All necessary action shall have been taken to authorize the execution, delivery and performance of this Merger Agreement by each of the Constituent Companies.
ARTICLE III
GENERAL PROVISIONS
3.1 BINDING AGREEMENT. This Merger Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns; provided, however, that this Merger Agreement may not be assigned by any party without the written consent of the other party.
3.2 AMENDMENTS. The Boards of Directors of EWI and EW, Inc. may amend this Merger Agreement at any time prior to the filing of Articles of Merger with the Secretary of State of the State of Iowa, and Certificate of Merger with the Secretary of State of Delaware, provided that an amendment made subsequent to the adoption of this Merger Agreement by the shareholders of either EWI or EW, Inc. shall not: (i) alter or change the amount or kind of shares, securities, cash, property and/or rights to be received in exchange for or on conversion of all or any of the shares of any class or series thereof of EWI or EW, Inc., (ii) alter or change any term of the Certificate of Incorporation or By-laws of the Surviving Company, or (iii) alter or change any of the terms and conditions of this Merger Agreement if such alteration or change would adversely affect the holders of any class or series of units of capital stock of either EWI or EW, Inc..
3.3 FURTHER ASSURANCES. From time to time, as and when required by EW, Inc. or by its successors or assigns, there shall be executed and delivered on behalf of EWI such deeds and other instruments, and there shall be taken or caused to be taken by EW, Inc. such further and other actions as shall be appropriate or necessary in order to vest or perfect in or confirm of record or otherwise by Statutes the title to and possession of all the property, rights, privileges, powers, franchises, assets, immunities and authority of EWI and otherwise to carry out the purposes of this Merger Agreement. The officers and Directors of EW, Inc. are fully authorized in the name and on behalf of EWI or otherwise to take any and all such action and to execute and deliver any and all such deeds or other instruments.
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3.4 ABANDONMENT. At any time before the Effective Date of the Merger, this Merger Agreement may be terminated and the Merger may be abandoned for any reason whatsoever by the Board of Directors of either EWI or EW, Inc., or by both, by the adoption of appropriate resolutions and written notification thereof to the other party to the Merger, notwithstanding the approval of this Merger Agreement by the shareholders of EWI or EW, Inc., or by both. In the event of the termination of this Merger Agreement and the abandonment of the Merger pursuant to the provisions of this section, this Merger Agreement shall become void and have no effect, without any liability on the part of either of the Constituent Companies or their respective officers, Directors or shareholders in respect thereof.
3.5 GOVERNING LAW. This Merger Agreement shall be construed, interpreted and enforced in accordance with and governed by the laws of the State of Iowa and, so far as applicable, the merger provisions of the Statutes.
IN WITNESS WHEREOF, each of the undersigned corporations has caused this Merger Agreement to be signed in its name by its duly authorized officer as of the date first written above.
EATING WELL, INC. | ||
A Delaware corporation | ||
By: | /s/ Norbert W. Kaut | |
Name: | Norbert W. Kaut | |
Title: | Secretary | |
EW, Inc. | ||
An Iowa corporation | ||
By: | /s/ Norbert W. Kaut | |
Name: | Norbert W. Kaut | |
Title: | Secretary |
4
ARTICLES OF AMENDMENT TO THE
ARTICLES OF INCORPORATION OF
EW, INC.
TO THE SECRETARY OF STATE OF THE STATE OF IOWA:
Pursuant to Section 1006 of the Iowa Business Corporation Act, the undersigned corporation adopts the following amendment to the corporations Articles of Incorporation:
1. | The name of the corporation is: |
Eating Well, Inc.
2. | Article 1 of the Corporations Articles of Incorporation is hereby amended as follows: |
The name of the corporation is Eating Well, Inc.
3. | The date of adoption of the amendment was February 25, 2013. |
4. | The amendment was duly approved by the shareholders in the manner required by the Iowa Business Corporation Act and by the articles of incorporation. |
The effective date and time of this document March 1, 12:01 AM of filing with the Secretary of State.
EATING WELL, INC. | ||
By: | /s/ Norbert W. Kaut | |
Norbert W. Kaut, Secretary |
Exhibit 3.10
BYLAWS
OF
EW, INC.
TABLE OF CONTENTS
ARTICLE I. GENERAL PROVISIONS |
1 | |||
1. Principal Office In Iowa |
1 | |||
2. Registered Office |
1 | |||
3. Other Offices |
1 | |||
4. Number Of Directors |
1 | |||
5. Annual Meetings |
1 | |||
6. Fiscal Year |
1 | |||
ARTICLE II. MEETINGS OF SHAREHOLDERS |
1 | |||
1. Annual Meeting |
1 | |||
2. Special Meetings |
1 | |||
3. Place Of Meeting |
1 | |||
4. Notice Of Meeting. |
2 | |||
5. Waiver Of Notice |
2 | |||
6. Voting List |
2 | |||
7. Quorum |
2 | |||
8. Organization |
2 | |||
9. Voting Of Shares |
2 | |||
10. Voting By Representative |
3 | |||
11. Inspectors Of Election |
3 | |||
12. Proxies |
3 | |||
13. Informal Action By Shareholders |
4 | |||
ARTICLE III. BOARD OF DIRECTORS |
4 | |||
1. General Powers |
4 | |||
2. Number, Tenure And Qualifications |
4 | |||
3. Quorum And Manner Of Acting |
4 | |||
4. Resignation |
4 | |||
5. Removal |
4 | |||
6. Vacancies |
4 | |||
7. Number Of Directors Increased |
4 | |||
8. Compensation Of Directors |
4 | |||
9. Place Of Meetings, Etc.. |
4 | |||
10. Annual Meeting |
5 | |||
11. Regular Meetings |
5 | |||
12. Special Meetings; Notice |
5 | |||
13. Substitutes For Notice |
5 | |||
14. Directors Assent Presumed |
5 | |||
15. Order Of Business |
5 | |||
16. Action Without Meeting |
5 | |||
17. Committees |
5 |
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ARTICLE IV. OFFICERS |
6 | |||
1. Executive Officers |
6 | |||
2. Election and Term of Office |
6 | |||
3. Removal |
6 | |||
4. Resignations |
6 | |||
5. Vacancies. |
6 | |||
6. Powers And Duties Of The President. |
6 | |||
7. Powers And Duties Of The Vice-Presidents. |
6 | |||
8. Powers And Duties Of The Secretary. |
6 | |||
9. Powers And Duties Of The Treasurer |
7 | |||
10. Assistant Secretaries And Assistant Treasurers. |
7 | |||
11. Other Assistants And Acting Officers. |
7 | |||
12. Salaries. |
7 | |||
13. General Manager |
7 | |||
ARTICLE V. SHARES AND THEIR TRANSFER |
7 | |||
1. Certificates For Shares |
7 | |||
2. Execution Of Certificates |
7 | |||
3. Share Record |
7 | |||
4. Cancellation |
8 | |||
5. Transfers Of Stock |
8 | |||
6. Regulations |
8 | |||
7. Lost, Destroyed, Or Mutilated Certificates |
8 | |||
8. Closing Of Transfer Books |
8 | |||
ARTICLE VI. WRITTEN INSTRUMENTS, LOANS, CHECKS AND DEPOSITS |
8 | |||
1. Written Instruments |
8 | |||
2. Loans |
9 | |||
3. Checks, Drafts, Etc. |
9 | |||
4. Deposits |
9 | |||
ARTICLE VII. MISCELLANEOUS PROVISIONS |
9 | |||
1. Corporate Seal |
9 | |||
2. Voting Of Stocks Owned By The Corporation |
9 | |||
3. Dividends |
9 | |||
4. Shareholders Right To Information |
9 | |||
5. Conducting Of Meetings |
9 | |||
ARTICLE VIII. SPECIAL PROVISIONS |
9 | |||
1. Indemnification; Third Party Actions |
9 | |||
2. Indemnification; Derivative Actions |
10 | |||
3. Indemnification; Further Provisions |
10 | |||
ARTICLE IX. AMENDMENTS |
10 |
ii
BYLAWS
OF
EW, INC.
ARTICLE I. GENERAL PROVISIONS
1. Principal Office In Iowa.
The principal office of EW, Inc. (hereinafter called the Corporation) in the State of Iowa shall be located at 1716 Locust Street, Des Moines, Iowa 50309.
2. Registered Office.
The registered office of the Corporation is located at 1716 Locust Street, Des Moines, Iowa 50309.
3. Other Offices.
The Corporation may have places of business or other offices, either within or without the State of Iowa, as the Board may determine or as shall be appropriate for the conduct of its business.
4. Number Of Directors. The number of the Board of Directors shall be no fewer than one (1) and not more than five (5), with the number of directors being established within this range from time to time by resolution of either the shareholders or the Board of Directors. Until a subsequent resolution is passed by the shareholders or Board of Directors, the number of directors constituting the Board of Directors of the corporation shall be three (3). After shares are issued, only the shareholders may change the range for the size of the Board of Directors and may change from a variable-range size board to a fixed-size board. The Board of Directors shall have such powers and be subject to such duties as are provided in these Bylaws.
5. Annual Meetings.
The annual meeting of the shareholders shall be held on the 3rd Tuesday in the month of March in each year, at 10 oclock A.M., at such place as shall be provided in these Bylaws. The annual meeting of the Board of Directors shall be held immediately after the adjournment of the annual meeting of the shareholders and at the same place where said meeting of shareholders finally adjourned unless otherwise provided in section 10 of Article III.
6. Fiscal Year.
The fiscal year of the corporation shall end at the close of business on the last day of June of each year.
ARTICLE II. MEETINGS OF SHAREHOLDERS
1. Annual Meeting.
The annual meeting of the shareholders shall be held at the date and time as set forth in section 5 of Article I for the purpose of electing directors and for such other business as may come before the meeting. If the annual meeting date shall be a legal holiday, the meeting shall be held on the next succeeding business day at the same time and place. If the election of directors shall not be held on the day designated herein for such annual meeting, or at any adjournment thereof, the Board shall cause the election to be held at a special shareholder meeting as soon thereafter as conveniently may be.
2. Special Meetings.
Special shareholder meetings, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the President or the Board, and shall be called by the President at the written request of the holders of not less than one-tenth of the outstanding shares entitled to vote at the meeting. Such request shall state the purpose or purposes of the meeting.
3. Place Of Meeting.
The Board may designate any place, either within or without the State of Iowa, for any annual meeting or for any special meeting called by the Board. A waiver of notice signed by all shareholders entitled to vote thereat may designate any place, either within or without the State of Iowa, as the place of the
holding of such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the registered office of the Corporation in the State of Iowa, but any meeting may be adjourned to reconvene at any place designated by vote of a majority of the shares represented thereat.
4. Notice Of Meeting.
Written or printed notice stating the place, day and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which called, shall be delivered not less than ten days (or such greater number as required by law) nor more than fifty days before the meeting, either personally or by mail, by or at the direction of the President, or the officer or person calling the meeting, to each shareholder of record entitled to vote thereat. If mailed, such notice shall be deemed delivered when deposited in the United States mail, addressed to the shareholder at the shareholders address as it appears on the stock record books, with postage prepaid.
5. Waiver Of Notice.
(a) A written waiver of notice signed by any shareholder entitled to such notice, whether before or after the meeting, shall be equivalent to the giving of notice to such shareholder in due time as required by law and these Bylaws.
(b) Presence at or participation in any shareholders meeting, in person or by proxy, shall be equivalent to waiver of giving of notice of such meeting and irregularities in any notice given.
6. Voting List.
The person having charge of the stock transfer books shall make, at least ten days before each shareholder meeting, a complete list of shareholders entitled to vote at such meeting, or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each, which list, for a period of ten days prior to such meeting, shall be kept on file at the registered office of the Corporation subject to inspection by any shareholder during usual business hours. Such list shall also be produced at the meeting and shall there be subject to inspection of any shareholder. The stock transfer books shall be prima facie evidence as to the shareholders entitled to examine such list or books or to vote at any shareholder meeting. Failure to comply with this section shall not affect the validity of any action taken at such meeting.
7. Quorum.
At any shareholder meeting a majority of the shares entitled to vote, present in person or represented by proxy, shall constitute a quorum, unless a larger number is required by law or the Articles of Incorporation, and in that case, the representation of the number so required shall constitute a quorum. If the holders of the number of shares necessary for a quorum shall fail to attend in person or by proxy at the time and place fixed for an annual or special meeting, a majority in interest of the shareholders present in person or by proxy may adjourn by announcement at the meeting, until a quorum shall be present, At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally notified.
8. Organization.
(a) The President, or in the Presidents absence the senior (in point of service) Vice President present shall call meetings of the shareholders to order and shall act as Chairman. In the absence of any of the above, the holders of a majority of the shares present may appoint any shareholder to act as Chairman.
(b) The Secretary shall act as secretary at all shareholder meetings. In the absence of the Secretary, the Chairman may appoint any person to act as secretary of the meeting.
9. Voting Of Shares.
(a) Except as otherwise provided by law or these Bylaws, each outstanding share of stock entitled to vote thereon shall have one vote on each matter submitted to a vote, and at each election of directors shall be entitled to vote the number of shares owned by the shareholder for as many persons as there are directors to be elected. Such vote may be cast either in person or by proxy executed and delivered as provided in Section 12 of this Article.
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(b) The shareholders having the right to vote at any meeting shall only be those of record on the stock books of the Corporation, and those acting in a representative capacity under Section 10 of this Article, on the date fixed pursuant to Section 8 of Article V.
(c) Neither treasury shares nor shares held by another corporation, if a majority of the shares entitled to vote for the election of directors of such other corporation is held by this Corporation, shall be voted at any meeting or counted in determining the total number of outstanding shares at any given time.
(d) Voting by shareholders may be viva voce unless the Chairman shall order or any shareholder shall demand that voting be by ballot. In such case each ballot shall be signed by the shareholder voting, or in such shareholders name by proxy, and shall state the number of shares voted by such shareholder.
(e) If a quorum is present, the vote of the majority of the shares represented at the meeting and entitled to vote thereon shall be the act of the shareholders, unless the vote of a greater number is required by law, the Articles of Incorporation or these Bylaws.
10. Voting By Representative.
(a) Shares held by an administrator, executor, guardian or conservator may be voted by such person, either in person or by proxy, without transfer into such persons name.
(b) Shares held by or under the control of a receiver may be voted by such receiver without transfer into such receivers name upon appropriate order of the court appointing such receiver.
(c) Shares held in the name of a trustee may be voted by such trustee, either in person or by proxy, upon transfer into such trustees name.
(d) A shareholder may vote shares pledged until transferred into the pledgees name and thereafter the pledgee shall be entitled to vote such shares.
11. Inspectors Of Election.
The Board in advance of any shareholder meeting may appoint inspectors to act at such meeting or any adjournment thereof. If inspectors are not appointed, the Chairman of such meeting may, and on the request of any shareholder or such shareholders proxy, shall make such appointment. If any appointed inspector fails to appear or act, the vacancy may be filled by the Board in advance of the meeting, or at the meeting by the Chairman. The inspectors shall register proxies, determine the number of shares outstanding, the voting power of each, the shares represented, the existence of a quorum, the authenticity, validity and effect of proxies, determine all challenges and questions in connection with the vote, count and tabulate all votes, assents and consents, determine and announce the result, and do such acts proper to conduct the election or vote with fairness to all shareholders. No inspector need be a shareholder.
12. Proxies.
At all shareholder meetings, a shareholder entitled to vote may vote by proxy appointed in writing by the shareholder or by such shareholders duly authorized attorney-in-fact. Such proxy shall be filed with the Secretary or the Chairman before or at the time of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided therein. Each proxy for any shareholders meeting shall be registered with the election inspectors prior to such meeting. Registration shall be on the same date and at the same premises as the meeting and shall commence at least one hour prior to and terminate prior to the start of the meeting. Any proxies not so registered shall not be recognized, counted or tabulated as to any matters before the particular meeting.
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13. Informal Action By Shareholders.
Any action required or permitted by law or the Articles of Incorporation or these Bylaws to be taken at a meeting of shareholders may be taken without a meeting if a consent in writing setting forth the action so taken shall be signed by the holders of outstanding shares having not less that 90% of the votes entitled to be cast at a shareholders meeting. Prompt notice of the taking of any such corporate action by consent shall be given to those shareholders of the corporation who have not signed a written consent approving of the action so taken.
ARTICLE III. BOARD OF DIRECTORS
1. General Powers.
The business and affairs of the Corporation shall be managed by the Board of Directors, herein sometimes referred to as the Board.
2. Number, Tenure And Qualifications.
The number of directors shall be as determined in section 4 of Article I. Each director shall hold office until the next succeeding annual meeting and until a successor shall have been elected and qualifies, or until death, resignation or removal. Directors need not be residents of the State of Iowa, nor shareholders of the Corporation.
3. Quorum And Manner Of Acting.
A majority of the directors fixed by section 4 of Article I shall constitute a quorum; but if at any meeting there be less than a quorum present, a majority of the directors present may adjourn the meeting without notice until a quorum shall be present. At all meetings of directors, a quorum being present, the act of the majority of the directors present shall be the act of the Board.
4. Resignation.
Any director may resign by written notice to the President, or to the Secretary. Such resignation shall take effect upon receipt of notice thereof or at such later date as specified therein; and, unless otherwise specified therein, acceptance of such resignation shall not be necessary to make it effective.
5. Removal.
A director shall be subject to removal at a special meeting of the shareholders by the vote of a majority of the voting shares then outstanding.
6. Vacancies.
Any vacancy in the Board may be filled by vote of a majority of the remaining directors, though less than a quorum. A director elected to fill a vacancy shall be elected for the unexpired term of the directors predecessor, and until the election of a successor.
7. Number Of Directors Increased.
If the number of directors be increased, the new directorship shall be filled by vote of a majority of directors then in office, even if less than a quorum. Any director so elected shall serve until election of a successor.
8. Compensation Of Directors.
The directors shall be entitled to be reimbursed for expenses for attendance at any Board meeting and the Board may provide that the Corporation shall pay each director, except officers who are directors, compensation for services as fixed by the Board. Nothing herein shall preclude any director from serving the Corporation or any subsidiary in any other capacity and receiving compensation therefor. The Board may provide for, or delegate authority to an appropriate committee to provide for, reasonable pensions, disability or death benefits, and other benefits or payments, to directors, officers and employees and to their estates, families, dependents or beneficiaries for services rendered by such persons to the Corporation.
9. Place Of Meetings, Etc.
Except as provided in the following section, the Board may hold its meetings and keep the books and records of the Corporation (except the shareholder record which must be kept at its registered office, or principal place of business) at such place or places within or without the State of Iowa, as the Board determines.
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10. Annual Meeting.
Immediately after the final adjournment of each annual shareholder meeting, the Board shall meet for the purpose of election of officers and the transaction of other business. Notice of such meeting need not be given. Such meeting may be held at any other time or place specified in a notice given as hereinafter provided for special meetings of the Board or in a consent and waiver of notice signed by all directors.
11. Regular Meetings.
Regular meetings of the Board shall be held without need for notice thereof at such place and time as the Board shall fix and determine.
12. Special Meetings; Notice.
(a) Special meetings of the Board shall be held whenever called by the President, or one-third of the directors in office.
(b) Notice of each such meeting shall be mailed to each director, at the directors address as it appears on the books of the Corporation, at least five days before the meeting, or shall be sent to the director at such place by telegraph, cable, radio or wireless, or delivered personally or by telephone not later than the second day before the meeting. Each notice shall state the time and place of the meeting. Unless otherwise indicated in the notice, any and all business may be transacted at a special meeting. At any meeting at which every director is present, even without any notice, any business may be transacted.
13. Substitutes For Notice.
A written waiver of notice signed by a director, whether before or after the meeting, shall be equivalent to the giving of notice in due time as required by these Bylaws. Attendance of a director at a meeting shall constitute a waiver of notice, except where the director attends for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened.
14. Directors Assent Presumed.
A director who is present at a Board meeting shall be presumed to have assented to any action taken thereat unless the directors dissent is entered in the minutes or the director shall file such written dissent thereto with the secretary of the meeting before adjournment thereof or shall forward such dissent by registered or certified mail to the Secretary of the Corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action.
15. Order Of Business.
(a) At Board meetings, business shall be transacted in such order as the Board determines.
(b) At Board meetings, the President, or in the Presidents absence the senior Vice-President (in point of service) present, or in the absence of all Vice-Presidents, the senior director (in point of service) shall preside.
16. Action Without Meeting.
Any action required or permitted by law or the Articles of Incorporation or these Bylaws to be taken at any meeting of the Board may be taken without a meeting if a consent in writing setting forth the action so taken shall be signed by all of the directors then in office.
17. Committees.
The Board, by vote of a majority of the number of directors fixed by section 4 of Article I, may establish one or more committees, each committee to consist of such number of directors elected by the Board, to serve at the will of the Board and to have the powers and duties delegated to it by the Board. Each such committee may set rules governing the conduct of its activities.
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ARTICLE IV. OFFICERS
1. Executive Officers.
The executive officers shall be a President, one or more Vice-Presidents, a Secretary and a Treasurer. None of the officers need be directors. One person may hold the offices and perform the duties of any two or more of said offices.
2. Election And Term Of Office.
The executive officers shall be chosen by the Board at its annual meeting. Each such officer shall hold office until the next succeeding annual Board meeting and until a successor shall have been duly chosen and shall qualify or until death, resignation or removal.
3. Removal.
Any officer or agent may be removed by the Board whenever in its judgment the best interests of the Corporation will be served thereby, but without prejudice to the contract rights, if any, of such person. Election or appointment of an officer or agent shall not in itself create contract rights. The officers and agents appointed under sections 10 and 11 of this Article may be removed by the Board or by any superior officer or agent upon whom the power to appoint has been conferred by the Board.
4. Resignations.
Any officer may resign by written notice thereof to the President or to the Secretary. Such resignation shall take effect upon receipt thereof or at any later time specified therein; and, unless otherwise specified therein, acceptance thereof shall not be necessary to make it effective.
5. Vacancies.
A vacancy in any office may be filled for the unexpired portion of the term in the manner prescribed in these Bylaws for the election or appointment to such office for such term.
6. Powers And Duties Of The President.
Subject to the control of the Board itself, the President shall have general charge of and direct the operations of the Corporation. The President shall keep the Board fully informed and shall consult with them concerning the business of the Corporation. The President shall have authority to sign, execute and acknowledge all contracts, checks, deeds, mortgages, bonds, leases or other obligations on behalf of the Corporation as the President may deem necessary or proper in the course of the Corporations regular business, or which shall be authorized by the Board. The President may sign in the name of the Corporation reports and all other documents or instruments which are necessary or proper in the course of the Corporations business. The President shall perform all duties incident to the office, as herein defined, and all such other duties as from time to time may be assigned by the Board.
7. Powers And Duties Of The Vice-Presidents.
In the absence of the President or in the event of the Presidents death, inability or refusal to act, the Vice-President (or if more than one), the senior Vice-President in length of service shall perform the duties of the President, and when so acting, shall have all powers of and be subject to all restrictions upon the President. Each Vice-President shall perform such duties and have such authority as may be assigned to such Vice-President by the President or by the Board.
8. Powers And Duties Of The Secretary.
The Secretary shall (a) keep minutes of all meetings; (b) attend to serving all notices of the Corporation; (c) be custodian of the corporate seal, if any, the stock certificate books and such other books, records and papers as the Board directs; (d) keep a stock record showing the names of all shareholders, their post office addresses as furnished by them, and the shares of stock held by them, and at least ten days before each shareholders meeting, prepare a list of shareholders entitled to vote thereat arranged in alphabetical order; (e) sign in the name of the Corporation all contracts authorized by the Board or the President; and (f) in general, perform all duties incident to the office and such other duties as may be assigned by the President or the Board.
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9. Powers And Duties Of The Treasurer.
The Treasurer shall (a) have custody of and be responsible for all moneys and securities of the Corporation, keep full and accurate records and accounts of the transactions and financial condition of the Corporation, and see that all expenditures are duly authorized and evidenced by proper receipts and vouchers; (b) deposit in the name of the Corporation in such depository or depositories approved by the Board, all moneys that come into the Treasurers hands for the Corporations account; (c) make a full report of the financial condition of the Corporation at annual shareholder meetings or at any meeting of the Board; and (d) in general, perform such duties as may be assigned by the President or by the Board. The Treasurers books and accounts shall be open during business hours to the inspection of any director. The Treasurer shall, if required by the Board, give bond in such form and with such sureties as shall be required by the Board.
10. Assistant Secretaries And Assistant Treasurers.
There shall be such number, if any, of Assistant Secretaries and Assistant Treasurers as the Board may authorize and appoint, or as appointed by an officer upon whom such authority has been conferred by the Board. The Assistant Secretaries may attest the signature of the President or Vice-Presidents. The Assistant Treasurers shall, if required by the Board, give bonds in such form and with such sureties as the Board shall determine. The Assistant Secretaries and Assistant Treasurers, shall perform such other duties as shall be assigned to them by the Secretary, or the Treasurer, respectively, or by the President
or the Board.
11. Other Assistants And Acting Officers.
The Board or any officer, duly authorized by the Board, may appoint any person to act as assistant to any officer, or to perform the duties of such officer whenever it is impracticable for such officer to act personally, and such assistant or acting officer may perform all the duties of the office to which appointed as assistant, except as such power may be otherwise defined or restricted by the Board or the
appointing officer.
12. Salaries.
The salaries of the officers shall be fixed by the Board, and no officer shall be prevented from receiving such salary because he is also a director of the Corporation.
13. General Manager.
The Board may employ and fix the salary of a general manager to conduct the management of the Corporations business. An officer of the Corporation or any other person may serve as general manager. The general manager shall manage the regular business and affairs of the Corporation, and shall have such other powers and duties as the Board shall specify.
ARTICLE V. SHARES AND THEIR TRANSFER
1. Certificates For Shares.
Every shareholder shall be entitled to a certificate or certificates, in such form as the Board prescribes, certifying the number and class of shares owned. No certificate shall be issued for any share until such share is fully paid.
2. Execution Of Certificates.
The share certificates shall be numbered in the order issued and signed by the President, or any Vice-President, and the Treasurer, or an Assistant Treasurer or the Secretary, or an Assistant Secretary, and the corporate seal (if one be adopted) shall be affixed thereto.
3. Share Record.
A record shall be kept by the Secretary, or by any other person designated by the Board, of the names and addresses of all shareholders and the number and class of shares held by each and the respective dates thereof and in case of cancellation, the respective dates of cancellation. Said record shall be kept at the registered office or principal place of business of the Corporation.
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4. Cancellation.
Every certificate surrendered shall be cancelled, and no new certificate or certificates issued in exchange for any existing certificate until such existing certificate shall have been so cancelled, except as provided in Section 7 of this Article.
5. Transfers Of Stock.
Transfers of shares shall be made only on the books of the Corporation by the record holder thereof, or by his or her attorney authorized by power of attorney duly executed and filed with the Secretary, and on surrender of the certificate or certificates for such shares properly endorsed and the payment of all taxes thereon. The person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof for all purposes as regards the Corporation; provided, however, whenever any transfer of shares shall be made for collateral security, such fact, if known, shall be so expressed in the entry of transfer.
6. Regulations.
The Board may make such rules and regulations not inconsistent with the Articles of Incorporation or these Bylaws, concerning the issue, transfer and registration of certificates for stock, including the appointment of transfer clerks, transfer agents, or registrars, and may require all certificates to bear the signature or signatures of any of them. The Board may at any time terminate the employment of any transfer clerk or agent of registrar.
7. Lost, Destroyed, Or Mutilated Certificates.
The Board may require the owner of any lost, stolen, mutilated or destroyed certificate, or such persons legal representatives, to give a bond in such sum and in such form as it may direct with such surety or sureties satisfactory to the Board, to indemnify the Corporation against any claim that may be made against it on account of the alleged loss, theft, mutilation or destruction of any such certificate or the issuance of any new certificate. Proper evidence of such loss, theft, mutilation or destruction shall be procured for the Board, if required. The Board may authorize the issuance of such new certificates without any bond when, in its judgment, it is proper to do so. However, the Board may refuse to replace any lost certificate save upon court order.
8. Closing Of Transfer Books.
The Board may direct that the stock transfer books be closed for a period not exceeding fifty days preceding the date of any shareholder meeting or in order to make a determination of shareholders for any proper purpose. However, if the stock transfer books be closed for purposes of determining shareholders entitled to notice of or to vote at a shareholder meeting, such books shall be closed for at least ten days immediately preceding such meeting. In lieu of closing the stock transfer books, the Board may fix in advance a record date for any such determination, such date to be not more than fifty days, and, in case of a shareholder meeting, not less than ten days prior to the date on which the particular shareholder action is to be taken. If the stock transfer books are not closed and no record date is fixed, the date on which notice of the meeting is mailed or the date on which the resolution of the Board declaring any dividend is adopted, as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any shareholder meeting has been made, such determination shall apply to any adjournment thereof.
ARTICLE VI. WRITTEN INSTRUMENTS, LOANS, CHECKS AND DEPOSITS
1. Written Instruments.
All deeds and mortgages made by the Corporation and all other written contracts and agreements to which the Corporation is a party shall be executed in its name by the President, or by such other officer or officers, agent or agents as authorized by a resolution of the Board.
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2. Loans.
No loans shall be contracted on behalf of the Corporation, and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the Board. Such authority may be general or confined to specific instances.
3. Checks, Drafts, Etc.
All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers, agent or agents of the Corporation and in such manner as shall be determined by the Board.
4. Deposits.
All corporate funds not otherwise employed shall be deposited to the credit of the Corporation in such banks, trust companies or other depositories as the Board may select.
ARTICLE VII. MISCELLANEOUS PROVISIONS
1. Corporate Seal.
The Corporation shall have no corporate seal.
2. Voting Of Stocks Owned By The Corporation.
In the absence of a resolution of the Board to the contrary, the President or any Vice-President acting within the scope of such persons authority are authorized to attend, vote, or grant discretionary proxies to be used at any meeting of shareholders of any corporation in which this Corporation owns shares of stock, and to execute a waiver of notice of any such meeting. The Board may designate any officer or person as a proxy or attorney-in-fact to vote shares in any other corporation in which this Corporation may own shares of stock.
3. Dividends.
Subject to limitations imposed by law, the Board may, out of funds legally available therefor, declare dividends as it deems expedient. Before declaring any dividend, there may be set apart out of any funds available for dividends, such sum or sums as the Board in its discretion deems proper or in the interests of the Corporation.
4. Shareholders Right To Information.
(a) Any person who has been a shareholder of record for at least six months immediately preceding such persons demand or who is the holder of record of at least five percent of the outstanding shares of the Corporation, upon written demand stating the purpose thereof, shall have the right to examine, in person, or by agent or attorney, at any reasonable time, for any proper purpose, the books and records of account, minutes and record of shareholders, and to make extracts therefrom.
(b) Upon the written request of any shareholder, the Corporation shall mail to such shareholder its most recent financial statement.
5. Conducting Of Meetings.
All meetings shall be conducted pursuant to Roberts Rules of Order, Revised, except to the extent that other procedural requirements are set forth by law, the Articles of Incorporation, or the Bylaws.
ARTICLE VIII. SPECIAL PROVISIONS
1. Indemnification; Third Party Actions.
The Corporation shall indemnify 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 proceedings, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (such serving as a director, officer, employee or agent of the Corporation or at the request of the Corporation referred to herein as serving on behalf of or at the Corporations request), against expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding
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if he acted in good faith and in a manner he 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 his or her 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 he 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 his or her conduct was unlawful.
2. Indemnification; Derivative Actions.
The Corporation shall indemnify any person who was or is a party or is threatened to be made a party of 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 he is or was serving on behalf of or at the Corporations request, against expenses (including attorneys fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and 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 for negligence or misconduct in the performance of his or her duty to the Corporation unless and only to the extent that the Court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability, such person is fairly and reasonably entitled to indemnification for such expenses which such court shall deem proper.
3. Indemnification; Further Provisions.
If a director, officer, employee, or agent of the Corporation has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in Section 1 or 2, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in connection therewith. Any indemnification (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that the indemnification of such person is proper because he has met the applicable standard of conduct set forth in Section 1 and Section 2; such determination shall be made (1) by the Board by a majority vote of a quorum consisting of directors not parties to such action, suit or proceedings or (2) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (3) by the shareholders. Expenses incurred in defending a civil or criminal action, suit, or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized in the manner provided in this Section 3 upon receipt of an undertaking by or on behalf of such person to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified as authorized herein. The indemnification provided herein shall not be exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of shareholders or disinterested directors, or otherwise, and shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. The Board shall have power to purchase and maintain insurance on behalf of any person who is or was serving on behalf of or at the Corporations request against any liability asserted against him and incurred by him in any such capacity or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions hereof.
ARTICLE IX. AMENDMENTS
These Bylaws shall be subject to amendment, alteration or repeal in whole or in part or new Bylaws may be adopted by the vote of the majority of the directors then in office at any meeting of the Board; provided, however, that notice of intention to make, amend or repeal the Bylaws in whole or in part, or
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to adopt new Bylaws, shall have been given in the notice of such meeting, unless all directors then in office shall unanimously vote in favor of any such amendment, alteration or repeal, or shall consent thereto as provided in Section 16 of Article III.
Dated as of the 18th day of February, 2013.
/s/ Norbert W. Kaut |
Norbert W. Kaut, Secretary |
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Exhibit 3.11
AZ CORPORATION COMMISSION
FILED
NOV 1 5 2012
FILE NO 18041799
DO NOT WRITE ABOVE THIS LINE; RESERVED FOR ACC USE ONLY.
ARTICLES OF INCORPORATION
FOR-PROFIT or PROFESSIONAL CORPORATION
Read the Instructions C010i
1. | ENTITY TYPE - check only one to indicate the type of entity being formed: |
☑ FOR PROFIT (BUSINESS) CORPORATION ☐ PROFESSIONAL CORPORATION
2. | ENTITY NAME - see Instructions C010i for naming requirements - give the exact name of the corporation: |
KPHO Broadcasting Corporation
3. | PROFESSIONAL CORPORATION SERVICES - if professional corporation is checked in number 1, briefly describe the professional service or services that the professional corporation will provide (examples: law firm, accounting, medical): |
4. | CHARACTER OF BUSINESS - briefly describe the character of business the corporation initially intends to conduct in Arizona. NOTE that the character of business that the corporation ultimately conducts is not limited by the description provided. |
Television broadcasting station
5. | SHARES - see Instructions C010i - list the class (common, preferred, etc.) and total number of shares of each class that the corporation is AUTHORIZED to issue the total must be greater than zero. If more space is needed, check this box ☐ and complete and attach the Shares Authorized Attachment form C087. Note - Par Value is optional. |
Class: | Common |
Series: |
|
Total: | 1,000 |
Par Value: | $1.00 | |||||||
Class: |
|
Series: |
|
Total: |
|
Par Value: |
|
6. | ARIZONA KNOWN PLACE OF BUSINESS ADDRESS: |
6.1 | Is the Arizona known place of business address the same as the street address of the Statutory agent? |
☐ Yes - go to number 7 and continue
☑ No - go to number 6.2 and continue
6.2 | If you answered No to number 6.1, give the physical or street address (not a P.O. Box) of the known place of business of the corporation in Arizona: |
General Manager | ||||
Attention (optional) 4016 North Black Canyon Hywy | ||||
Address 1
|
||||
Address 2 (optional)
Phoenix |
AZ | 85017 | ||
City UNITED STATES Country
|
State or Province |
Zip |
C010 001 | Arizona Corporation Commission Corporation Division | |
Rev 2010 | Page 1 of 3 |
7. DIRECTORS - list the name and business address of each and every Director of the corporation. If more space is needed, check this box ☐ and complete and attach the Director Attachment form C082. | ||||||||||||||
Stephen M. Lacey | John Zieser | |||||||||||||
Name Meredith Corporation |
Name Meredith Corporation |
|||||||||||||
Address 1 1716 Locust Street |
Address l 1716 Locust Street |
|||||||||||||
Address 2 (optional) Des Moines |
IA | 50309 | Address 2 (optional) Des Moines |
IA | 50309 | |||||||||
City Country |
UNITED STATES | State or Province | Zip |
City Country |
UNITED STATES | State or Province | Zip | |||||||
Joseph Ceryanec | ||||||||||||||
Name Meredith Corporation |
Name | |||||||||||||
Address 1 1716 Locust Street |
Address 1 | |||||||||||||
Address 2 (optional) Des Moines |
IA | 50309 | Address 2 (optional) | |||||||||||
City Country |
UNITED STATES |
State or Province | Zip | City Country |
State or Province | Zip | ||||||||
Name | Name | |||||||||||||
Address 1 | Address 1 | |||||||||||||
Address 2 (optional) | Address 2 (optional) | |||||||||||||
City Country |
State or Province | Zip | City Country |
State or Province | Zip |
8. STATUTORY AGENTsee Instructions C010i: |
||||||||||
8.1 REQUIRED - give the name (can be an individual or an entity) and physical or street address (not a P.O. Box) in Arizona of the statutory agent: |
8.2 OPTIONAL - mailing address in Arizona of statutory agent (can be a P.O. Box): | |||||||||
CT Corporation System | ||||||||||
Statutory Agent Name (required) | ||||||||||
Attention (optional) 2394 E Camelback Road |
Attention (optional) | |||||||||
Address 1 | Address l | |||||||||
Address 2 (optional) City Phoenix |
AZ State |
85016 Zip |
Address 2 (optional) City |
State |
Zip | |||||
8.3 REQUIRED - the Statutory Agent Acceptance form M002 must be submitted along with these Articles of Incorporation. |
C010 001 | Arizona Corporation Commission Corporation Division | |
Rev 2010 | Page 2 of 3 |
9. | INCORPORATORS - list the name and address, and provide the signature, of each and every Incorporator - minimum of one is required. If more space is needed, check this box ☐ and complete and attach the Incorporator Attachment form C084. |
Jason L. Giles, Attorney at Law | ||||||||||||||
Name Nyemaster Goode, P.C. |
Name |
|||||||||||||
Address 1 700 Walnut Street, Suite 1600 |
Address 1 |
|||||||||||||
Address 2 (optional) Des Moines |
IA |
50309 | Address 2 (optional) |
|||||||||||
City UNITED STATES | State | Zip | City | State | Zip | |||||||||
Country | Country | |||||||||||||
SIGNATURE - see Instructions CO1Oi: By checking the box marked I accept below, I acknowledge under penalty of perjury that this document together with any attachments is submitted in compliance with Arizona law. |
SIGNATURE - see Instructions COlOi: By checking the box marked I accept below, I acknowledge under penalty of perjury that this document together with any attachments is submitted in compliance with Arizona law. | |||||||||||||
☑ I ACCEPT | ☐ I ACCEPT | |||||||||||||
/s/ Jason L. Giles | ||||||||||||||
Signature
|
Signature | |||||||||||||
Jason L. Giles Printed Name |
|
|
11/14/2012 Date |
Printed Name |
Date | |||||||||
IF SIGNING FOR AN ENTITY, CHECK ONE, FILL IN BLANK:
☐ Corporation as Incorporator -I am signing as an officer or authorized agent of a corporation and its name is: |
IF SIGNING FOR AN ENTITY, CHECK ONE, FILL IN BLANK:
☐ Corporation as Incorporator - I am signing as an officer or authorized agent of a corporation and its name is: | |||||||||||||
☐ LLC as Incorporator - I am signing as a member, manager, or authorized agent of a limited liability company, and its name is: |
☐ LLC as Incorporator - I am signing as a member, manager, or authorized agent of a limited liability company , and its name is: | |||||||||||||
Filing Fee: $60.00 (regular processing) Expedited processing - add $35.00 to filing fee. All fees are nonrefundable - see Instructions. |
Mail: Arizona Corporation Commission
Corporate Filings Section 1300 W. Washington St., Phoenix, Arizona 85007 Fax: 602-542-4100 |
Please be advised that A.C.C. forms reflect only the minimum provisions required by statute. You should seek private legal counsel for those matters that may pertain to the individual needs of your business.
All documents filed with the Arizona Corporation Commission are public record and are open for public Inspection
If you have questions after reading the Instructions, please call 602-542 3026 or (within Arizona only) 800-345-5819.
C010 001 | Arizona Corporation Commission Corporation Division | |
Rev 2010 | Page 3 of 3 |
DO NOT WRITE ABOVE THIS LINE; RESERVED FOR ACC USE ONLY.
STATUTORY AGENT ACCEPTANCE
Please read Instructions M0021
1. | ENTITY NAME give the exact name in Arizona of the corporation or LLC that has appointed the Statutory Agent: |
KPHO Broadcasting Corporation
2. | A.C.C. FILE NUMBER (If entity is already Incorporated or registered in AZ): |
Find the A.C.C. file number on the upper corner of filed documents OR on our website at: http://www.azcc.aov/Divisions/Corporations
3. | STATUTORY AGENT NAME give the exact name of the Statutory Agent appointed by the entity listed in number 1 above (this will be either an Individual or an entity): |
C T Corporation System
3.1 | Check one box: ☐ The statutory agent is an Individual (natural person). |
☑ The statutory agent is an Entity.
STATUTORY AGENT SIGNATURE;
By the signature appearing below, the individual or entity named in number 3 above accepts the appointment as statutory agent for the entity named In number 1 above, and acknowledges that the appointment is effective until the entity replaces the statutory agent or the statutory agent resigns, whichever occurs first.
By checking the box marked I accept below, I acknowledge under penalty of perjury that this document together with any attachments is submitted in compliance with Arizona law.
☑ I ACCEPT
/s/ Bernadette McNamara | Bernadette McNamara | 11/13/2012 | ||
Signature
REQUIRED - check only one: |
Printed Name Assistant Secretary |
Date |
☐ Individual as statutory agent: I am signing on behalf of myself as the individual |
☑ Entity as statutory agent: I am signing on behalf of the entity named as statutory agent, and I am authorized to act for that entity. |
Filing Fee: none (regular processing) Expedited processing - add $35.00 to filing fee. All fees are nonrefundable - see Instructions. |
Mail: Arizona Corporation Commission - Corporate Filings Section 1300 W. Washington St., Phoenix, Arizona 85007 Fax: 602-542-4100 |
Please be Advised that A.C.C. Forms name reflect only the minimum provisions required by statute. You should seek private legal counsel for those matters that may partain to the individual needs of your business.
All documents filed with the Arizona Corporation Commission are Public record and are open for public inspection.
If you have questions after reading this Instructions, please call 602-542-3026 of (within Arizona only) 800-345-5819.
M002.001 | Arizona Corporation Commission Corporation Division | |
Rev: 2010 | Page 1 of 1 |
DO NOT WRITE ABOVE THIS LINE; RESERVED FOR ACC USE ONLY.
CERTIFICATE OF DISCLOSURE
Read the Instructions C003i
1. | ENTITY NAME - give the exact name of the corporation in Arizona: |
KPHO Broadcasting Corporation
2. | A.C.C. FILE NUMBER (if already incorporated or registered in AZ): |
Find the A.C.C. file number on the upper corner of filed documents OR on our website at: http://www azcc.oov/Divisions/Corporations
3. | Check only one of the following to indicate the type of Certificate: |
☑ | Initial (accompanies formation or registration documents) |
☐ | Annual (credit unions and loan companies only) |
☐ | Supplemental to COD filed (supplements a previously-filed Certificate of Disclosure) |
4. FELONY/JUDGMENT QUESTIONS: Has any person (a) who is currently an officer, director, trustee, or incorporator, or (b) who controls or holds over ten per cent of the issued and outstanding common shares or ten per cent of any other proprietary, beneficial or membership interest in the corporation been: | ||||
4.1 Convicted of a felony involving a transaction in securities, consumer fraud or antitrust in any state or federal jurisdiction within the seven year period immediately preceding the signing of this certificate? |
☐ Yes | ☑ No | ||
4.2 Convicted of a felony, the essential elements of which consisted of fraud, misrepresentation, theft by false pretenses or restraint of trade or monopoly in any state or federal jurisdiction within the seven-year period Immediately preceding the signing of this certificate? |
☐ Yes | ☑ No | ||
4.3 Subject to an injunction, judgment, decree or permanent order of any state or federal court entered within the seven-year period immediately preceding the signing of this certificate, Involving any of the following: a. The violation of fraud or registration provisions of the securities laws of that jurisdiction; b. The violation of the consumer fraud laws of that jurisdiction; c. The violation of the antitrust or restraint of trade laws of that jurisdiction? |
☐ Yes | ☑ No | ||
4.4 If any of the answers to numbers 4.1, 4.2, or 4.3 are YES, you MUST complete and attach a Certificate of Disclosure Felony/Judgment Attachment form C004. |
C003.001 | Arizona Corporation Commission Corporation Division | |
Rev 2010 | Page 1 of 2 |
5. BANKRUPTCY QUESTION: | ||||
5.1 Has any person (a) who is currently an officer, director, trustee, incorporator, or (b) who controls or holds over twenty per cent of the issued and outstanding common shares or twenty per cent of any other proprietary, beneficial or membership interest in the corporation, served in any such capacity or held a twenty per cent Interest in any other corporation (not the one filing this Certificate) on the bankruptcy or receivership of the other corporation? |
☐ Yes | ☑ No | ||
5.2 If the answer to number 5.1 is YES, you MUST complete and attach a Certificate of Disclosure Bankruptcy Attachment form C005. |
IMPORTANT: If within 60 days of the delivery of this Certificate to the A.C.C. any person not included in this Certificate becomes an officer, director, trustee or person controlling or holding over ten per cent of the issued and outstanding shares or ten per cent of any other proprietary, beneficial or membership Interest In the corporation, the corporation must submit a SUPPLEMENTAL Certificate providing Information about that person, signed by all Incorporators or by a duly elected and authorized officer.
SIGNATURE REQUIREMENTS: | ||
Initial Certificate of Disclosure: | This Certificate must be signed by all Incorporators. If more space is needed, complete and attach an Incorporator Attachment form C084. | |
Foreign corporations: | This Certificate may be signed by a duly authorized officer or by the chairman of the Board of Directors. | |
Credit Unions and Loan Companies: | This Certificate must be signed by any 2 officers or directors. |
Jason L. Giles, Attorney at Law |
| |||||||||||||
Name Nyemaster Goode. P.C. |
Name | |||||||||||||
Address 1 700 Walnut Street, Suite 1600 |
Address 1 | |||||||||||||
Address 2 Des Moines |
IA |
50309 |
Address 2 | |||||||||||
City Country |
UNITED STATES | State |
Zip |
City Country |
UNITED STATES | State | Zip | |||||||
SIGNATURE - see Instructions C003i:
By checking the box marked I accept below, I acknowledge under penalty of perjury that this document together with any attachments is submitted In compliance with Arizona law. |
SIGNATURE - see Instructions C003i:
By checking the box marked I accept below, I acknowledge under penalty of perjury that this document together with any attachments is submitted In compliance with Arizona law. | |||||||||||||
|
☑ I ACCEPT | ☐ I ACCEPT | ||||||||||||
/s/ Jason L. Giles Signature |
Signature | |||||||||||||
Jason L. Giles | 11/14/2012 | |||||||||||||
Printed Name | Date | Printed Name | Date | |||||||||||
REQUIRED - check only one: ☑ Incorporator - I am an incorporator of the corporation submitting this Certificate. ☐ Officer - I am an officer of the corporation submitting this Certificate ☐ Chairman of the Board of Directors -1 am the Chairman of the Board of Directors of the corporation submitting this Certificate. ☐ Director - I am a Director of the credit union or loan company submitting this Certificate. |
REQUIRED - check only one: ☐ Incorporator - I am an incorporator of the corporation submitting this Certificate. ☐ Officer - I am an officer of the corporation submitting this Certificate ☐ Chairman of the Board of Directors - I am the Chairman of the Board of Directors of the corporation submitting this Certificate. ☐ Director - I am a Director of the credit union or loan company submitting this Certificate. |
Filing Fee: None (regular processing) Expedited processing - add $35.00 to Filing fee. All fees are nonrefundable - see Instructions. |
Mail: Arizona Corporation Commission - Corporate Filings Section 1300 W. Washington St., Phoenix, Arizona 85007 Fax: 602-542-4100 |
Please be advised that A.C C. torms reflect only the minimum provisions required by statute. You should seek private legal counsel for those matters that may pertain to the individual needs of your business
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C003 001 | Arizona Corporation Commission Corporation Division | |
Rev: 2010 | Page 2 of 3 |
STATE OF ARIZONA Office of the CORPORATION COMMISSION The Executive Director of the Arizona Corporation Commission does hereby certify that the attached copy of the following document: AFFIDAVIT OF PUBLICATION, 01/02/2013 consisting of 1 pages, is a true and complete copy of the original of said document on file with this office for: KPHO BROADCASTING CORPORATION ACC file number: 1804179-9 IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the Arizona Corporation Commission on this date: January 17, 2018. Ted Vogt?, Executive Director By: JO$GE MOYA
AFFIDAVIT OF PUBLICATION AZ Corp. Commission KPHO BROADCASTING CORPORATION 04143524 Articles of Incorporation Reference/PO # 1R04179-9 06 Ti Arizona Business The business resourece Gazette PODOX 194 Phoenix, Arizona 85001-0194 (602) 444-7315 FAX (602) 444-7364 STATE OF ARIZONA \ COUNTY OF MARICOPA J ^ Melissa Hoekstra, being first duly sworn, upon oath deposes and says: That she is the Legal Ad Rep of the Arizona Business Gazette, a newspaper of general circulation in the county of Maricopa, State of Arizona, published weekly at Phoenix, Arizona, and that the copy hereto attached is a true copy of the advertisement published in the said paper on the dates indicated. 12/13/2012 12/20/2012 12/27/2012 Sworn to before me this 27TH day of DECEMBER 2012 V f/*rlta: onrty !> Notary Public My Cotnm L*f sf
Exhibit 3.12
Adopted 11.15.2012
BYLAWS
OF
KPHO BROADCASTING CORPORATION
(an Arizona for-profit corporation)
(hereinafter referred to as the Corporation)
ARTICLE I
PRINCIPAL OFFICE
The location of the principal office of the Corporation in the State of Arizona will be identified in the Corporations annual report filed with the Arizona Corporations Commission.
ARTICLE II
STATUTORY OFFICE AND AGENT
The statutory agent and office of the Corporation are set forth in the Articles of Incorporation. The statutory agent or statutory office, or both, may be changed by resolution of the Board of Directors.
ARTICLE III
MEETINGS OF SHAREHOLDERS
Section 3.1 Annual Meeting. The annual meeting of the shareholders for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held each year on the date and at such place as the Board of Directors shall each year fix, or at such other place, time and date as the Board of Directors shall fix, which date shall be within the earlier of the first six (6) months after the end of the Corporations fiscal year or fifteen (15) months after the shareholders last annual meeting.
Section 3.2 Special Meetings. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by law (which for purposes of these Bylaws shall mean as required from time to time by Chapters 1 through 17 of Title 10 of the Arizona Revised Statutes or the Articles of Incorporation of the Corporation), (i) may be called by the President or the Board of Directors; (ii) may be called by any officer or any shareholder if at any time the Corporation does not have any directors in office by reason of death or resignation or other circumstance; and (iii) shall be called by the Board of Directors upon the written demand, signed, dated and delivered to the Secretary, of the holders of at least ten percent (10%) of all the votes entitled to be cast on any issue proposed to be considered at the meeting. Such written demand shall state the purpose or purposes for which such meeting is to be called. The time, date and place of any special meeting shall be determined by the Board of Directors or by the President. Unless otherwise provided in the Articles of Incorporation, a written demand for a special meeting may be revoked by a writing to that effect received by the Corporation prior to the receipt by the Corporation of demands sufficient in number to require the holding of a special meeting.
Section 3.3 Notices and Reports to Shareholders.
(a) Notice of the place, date and time of all meetings of shareholders and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be communicated not fewer than ten (10) days nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting and to such other shareholders as are required by law to be given such notice. The Board of Directors may establish a record date for the determination of shareholders entitled to notice, as provided in section 3.5 of these Bylaws. Notice of adjourned meetings need only be given if required by law or section 3.7 of these Bylaws.
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(b) In the event of any indemnification of or advancement of expenses to a director required by law to be reported to shareholders, the Corporation shall report the same to the shareholders with or before the notice of the next shareholders meeting.
(c) If notice of proposed corporate action is required by law to be given to shareholders not entitled to vote and the action is to be taken by consent of the voting shareholders, the Corporation shall give all shareholders written notice of the proposed action at least ten (10) days before the action is taken. The notice must contain or be accompanied by the same material that would have been required to be sent to shareholders not entitled to vote in a notice of meeting at which the proposed action would have been submitted to the shareholders for action.
(d) Notice may be communicated in person, by mail, or other method of delivery, or by telephone, voice mail or other electronic means. If these forms of personal notice are impracticable, notice may be communicated by a newspaper of general circulation in the area where published, or by radio, television, or other form of public broadcast communication. Written notice by the Corporation to its shareholders, if in a comprehensible form, is effective according to one of the following: (i) upon deposit in the United States mail, if mailed post-paid and correctly addressed to the shareholders address shown in the Corporations current record of shareholders; or (ii) when electronically transmitted to the shareholder in a manner authorized by the shareholder.
(e) Notice to a shareholder shall not be required to be given if either of the following applies: (i) notice of two (2) consecutive annual meetings, and all notices of meetings during the period between such two (2) consecutive annual meetings, have been sent to the shareholder at such shareholders address as shown on the records of the Corporation and have been returned undeliverable; or (ii) all, but not less than two (2), payments of dividends on securities during a twelve (12) month period, or two (2) consecutive payments of dividends on securities during a period of more than twelve (12) months, have been sent to the shareholder at such shareholders address as shown on the records of the Corporation and have been returned undeliverable. If any such shareholder shall deliver to the Corporation a written notice setting forth such shareholders then-current address, the requirement that notice be given to such shareholder shall be reinstated.
Section 3.4 Waiver of Notice.
(a) Any shareholder may waive any notice required by law or these Bylaws if in writing and signed by any shareholder entitled to such notice, whether before or after the date and time stated in such notice. Such a waiver shall be equivalent to notice to such shareholder in due time as required by law or these Bylaws. Any such waiver shall be delivered to the Corporation for inclusion in the minutes or filing with the corporate records.
(b) A shareholders attendance at a meeting, in person or by proxy, waives (i) objection to lack of notice or defective notice of such meeting, unless the shareholder at the beginning of the meeting or promptly upon the shareholders arrival objects to holding the meeting or transacting business at the meeting, and (ii) objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented.
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Section 3.5 Record Date. The Board of Directors may fix, in advance, a date as the record date for any determination of shareholders for any purpose, such date in every case to be not more than seventy (70) days prior to the date on which the particular action or meeting requiring such determination of shareholders is to be taken or held. If no record date is so fixed for the determination of shareholders, the close of business on the day before the date on which the first notice of a shareholders meeting is communicated to shareholders or the date on which the Board of Directors authorizes a share dividend or a distribution (other than one involving a repurchase or reacquisition of shares), as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment thereof, unless the Board of Directors selects a new record date or unless a new record date is required by law.
Section 3.6 Shareholders List. After fixing a record date for a meeting, the Secretary shall prepare an alphabetical list of the names of all shareholders who are entitled to notice of a shareholders meeting. The list must be arranged by voting group and within each voting group by class or series of shares, and show the address of and number of shares held by each shareholder. The shareholders list must be available for inspection by any shareholder beginning two (2) business days after notice of the meeting is given for which the list was prepared and continuing through the meeting, at the Corporations principal office or at a place identified in the meeting notice in the city where the meeting will be held. A shareholder, or a shareholders agent or attorney, is entitled on written demand to inspect and, subject to the requirements of law, to copy the list, during regular business hours and at the persons expense, during the period it is available for inspection. The Corporation shall make the shareholders list available at the meeting, and any shareholder, or a shareholders agent or attorney, is entitled to inspect the list at any time during the meeting or any adjournment.
Section 3.7 Quorum.
(a) At any meeting of the shareholders, a majority of the votes entitled to be cast on the matter by a voting group constitutes a quorum of that voting group for action on that matter, unless the representation of a different number is required by law or the Articles of Incorporation, and in that case, the representation of the number so required shall constitute a quorum. If a quorum shall fail to attend any meeting, the chairperson of the meeting or a majority of the votes present may adjourn the meeting to another place, date or time.
(b) When a meeting is adjourned to another place, date or time, notice need not be given of the adjourned meeting if the place, date and time 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 one hundred twenty (120) 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 place, date and time of the adjourned meeting shall be given in conformity with these Bylaws. At any adjourned meeting, any business may be transacted which might have been transacted at the original meeting.
(c) Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment thereof unless a new record date is or must be set for that adjourned meeting.
Section 3.8 Organization.
(a) The President, or in the absence of the President, the Vice President designated by the President or Board, or in that Vice Presidents absence, such person as the Board of Directors may have designated, or, in the absence of such a person, such person as shall be designated by the holders of a majority of the votes present at the meeting, shall call meetings of the shareholders to order and shall act as chairperson of such meetings.
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(b) The Secretary of the Corporation shall act as secretary at all meetings of the shareholders, but in the absence of the Secretary at any meeting of the shareholders, the chairperson may appoint any person to act as secretary of the meeting.
Section 3.9 Voting of Shares.
(a) Every shareholder entitled to vote may vote in person or by proxy. Except as provided in subsection (c) or unless otherwise provided by law, each outstanding share, regardless of class, shall be entitled to one vote on each matter submitted to a vote at a meeting of shareholders. Unless otherwise provided by law, directors shall be elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present. Shareholders have the right to cumulate their votes for directors by multiplying the number of votes they are entitled to cast by the number of directors for whom they are entitled to vote and casting the product for a single candidate or distributing the product among two or more candidates. A shareholder or shareholders agent or attorney-in-fact may appoint a proxy to vote or otherwise act for the shareholder by signing an appointment form or by an electronic transmission. An electronic transmission must contain or be accompanied by information from which one can determine that the shareholder, the shareholders agent, or the shareholders attorney-in-fact authorized the electronic transmission.
(b) The shareholders having the right to vote shares at any meeting shall be only those of record on the stock books of the Corporation and those acting in a representative capacity as specified in section 3.10 of this Article, on the record date fixed by law or pursuant to the provisions of section 3.5 of these Bylaws.
(c) Absent special circumstances, the shares of the Corporation held, directly or indirectly, by another corporation, are not entitled to vote if a majority of the shares entitled to vote for the election of directors of such other corporation is held by the Corporation. The foregoing does not limit the power of the Corporation to vote any shares held by the Corporation in a fiduciary capacity.
(d) Voting by shareholders on any question or in any election may be viva voce unless the chairperson of the meeting shall order or any shareholder shall demand that voting be by ballot. On a vote by ballot, each ballot shall be signed by the shareholder voting, or in the shareholders name by proxy, if there be such proxy, and shall state the number of shares voted by such shareholder.
(e) If a quorum exists, action on a matter, other than the election of directors, by a voting group is approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless a greater number is required by law.
Section 3.10 Voting by Proxy or Representative.
(a) At all meetings of the shareholders, a shareholder entitled to vote may vote in person or by proxy appointed in writing, which appointment shall be effective when received by the secretary of the meeting or other officer or agent authorized to tabulate votes. An appointment of a proxy is valid for eleven (11) months from the date of its execution, unless a longer period is expressly provided in the appointment form.
(b) Shares held by an administrator, executor, guardian, conservator, receiver, trustee, pledgee, or another corporation may be voted as provided by law.
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(c) A shareholder or shareholders agent or attorney-in-fact may appoint a proxy to vote or otherwise act for the shareholder by signing an appointment form or by an electronic transmission that complies with section 8.2 of these Bylaws. An electronic transmission must contain or be accompanied by information from which one can determine that the shareholder, the shareholders agent, or the shareholders attorney-in-fact authorized the electronic transmission.
Section 3.11 Inspectors. The Board of Directors in advance of any meeting of shareholders may (but shall not be obligated to) appoint inspectors to act at such meeting or any adjournment thereof. If inspectors are not so appointed, the officer or person acting as chairperson of any such meeting may, and on the request of any shareholder or the shareholders proxy, shall make such appointment. In case any person appointed as inspector shall fail to appear or act, the vacancy may be filled by appointment made by the Board of Directors in advance of the meeting, or at the meeting by the officer or person acting as chairperson. The inspectors shall register proxies; ascertain the number of shares outstanding and the voting power of each; determine the shares represented at a meeting; determine the existence of a quorum; determine the authenticity, validity and effect of proxies and ballots; receive votes, ballots, assents or consents; hear and determine all challenges and question in any way arising in connection with the vote; count all votes, assents, and consents; determine and announce the result; and do such acts as may appear proper to conduct the election or vote with fairness to all shareholders. Each inspector shall take and sign an oath to faithfully execute the duties of inspector with strict impartiality and according to the best of the inspectors ability. The maximum number of such inspectors appointed shall be three (3), and no inspector whether appointed by the Board of Directors or by the officer or person acting as chairperson need be a shareholder.
Section 3.12 Action Without Meeting. Except as otherwise set forth in this section 3.12, any action required or permitted by law to be taken at a meeting of the shareholders may be taken without a meeting or vote if one or more consents in writing setting forth the action taken shall be signed and dated by all of the shareholders entitled to vote on the action and are delivered to the Corporation for inclusion in the minutes or filing with the Corporations records. Written consents from all of the shareholders must be obtained within sixty (60) days from the date of the earliest dated consent for such consents to be effective to take corporate action. If not otherwise fixed by law or in accordance with these Bylaws, the record date for determining shareholders entitled to take action without a meeting is the date the first shareholder signs such a written consent. Written consents may be delivered to the Corporation by electronic transmission. A written consent may be revoked by a writing to that effect received by the Corporation before the date that the last shareholder signs the consent or consents.
Section 3.13 Conduct of Business. The chairperson of any meeting of shareholders shall determine the order of business and procedure at the meeting, including such regulation of the manner of voting and the conduct of business as seem to him or her to be in order. The chairperson shall also announce at the meeting when the polls close.
ARTICLE IV
BOARD OF DIRECTORS
Section 4.1 Qualifications and General Powers. No director is required to be an officer or employee or a shareholder of the Corporation or a resident of the State of Arizona, The business and affairs of the Corporation shall be managed under the direction of the Board of Directors. The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or to execute and deliver any instrument in the name and on behalf of the Corporation, and such authority may be general or confined to specific instances.
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Section 4.2 Number of Directors: Tenure. The number of directors of the Corporation shall be such number as the Board of Directors shall at the time have designated. In the absence of any such designation, such number shall be three (3). Each director shall hold office until the next succeeding annual meeting and until his or her successor shall have been elected and qualifies, or until his or her death, resignation or removal. In case the number of directors is increased by thirty percent (30%) or less of the number of directors last approved by the shareholders, by amendment to these Bylaws by the Board of Directors or by resolution of the Board of Directors, the directorships to be filled by reason thereof may be filled by the affirmative vote of a majority of the directors, though less than a quorum of the Board of Directors. Any director so elected shall serve only until the next election of directors by the shareholders.
Section 4.3 Quorum and Manner of Acting. A quorum of the Board of Directors consists of a majority of the number of directors prescribed in accordance with section 4.2 of these Bylaws. If at any meeting of the Board there be less than a quorum present, a majority of the directors present may adjourn the meeting from time to time until a quorum shall be present. Notice of any adjourned meeting need not be given. At all meetings of directors, a quorum being present, the act of the majority of the directors present at the meeting shall be the act of the Board of Directors.
Section 4.4 Resignation. Any director of the Corporation may resign at any time by delivering written notice to the Board of Directors, its chairman, or the Corporation. The resignation of any director shall take effect upon delivery of notice thereof or at such later date as shall be specified in such notice, and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 4.5 Removal. A director shall be subject to removal, with or without cause, at a meeting of the shareholders called for that purpose in the manner prescribed by law.
Section 4.6 Vacancies. Any vacancy occurring in the Board of Directors through death, resignation, removal or any other cause, including an increase in the number of directors, may be filled by the shareholders or by the Board of Directors. If the directors remaining in office constitute fewer than a quorum of the Board, they may fill a vacancy by the affirmative vote of a majority of the remaining directors. A director elected to fill a vacancy shall be elected only until the next election of directors by the shareholders.
Section 4.7 Compensation of Directors. The directors shall be entitled to be reimbursed for any expenses paid by them on account of attendance at any regular or special meeting of the Board of Directors, and the Board may fix the compensation of directors from time to time by resolution of the Board.
Section 4.8 Place of Meetings, etc. The Board of Directors may hold its meetings and keep the books and records of the Corporation (except that the record of its shareholders must also be kept at the places described in section 3.6 of these Bylaws) at such place or places within or without the State of Arizona, as the Board may from time to time determine. A director may participate in any meeting by any means of communication, including, but not limited to telephone conference call, by which all directors participating may simultaneously hear each other during the meeting. A director participating in a meeting by this means is deemed to be present in person at the meeting.
Section 4.9 Annual Meeting. Immediately after the final adjournment of each annual meeting of the shareholders for the election of directors, the Board of Directors shall meet, at the same place where said meeting of shareholders finally adjourned, for the purpose of organization, the election of officers and the transaction of other business, Notice of such meeting need not be given. Such meeting may be held at any other time or place as shall be specified in a notice given as hereinafter provided for special meetings of the Board of Directors or in a consent and waiver of notice thereof signed by all the directors, at which meeting the same matters shall be acted upon as is above provided.
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Section 4.10 Regular Meetings. Regular meetings of the Board of Directors shall be held at such place and at such times as the Board of Directors shall by resolution fix and determine from time to time. No notice shall be required for any such regular meeting of the Board.
Section 4.11 Special Meetings; Notice.
(a) Special meetings of the Board of Directors shall be held whenever called by direction of the President or at least one-third (1/3) of the directors at the time being in office.
(b) Notice of each such meeting shall be communicated to each director at least two (2) days before the date on which the meeting is to be held, by mail, telegraph, cable, radio or wireless, or personally or by telephone. Each notice shall state the date, time and place of the meeting. Unless otherwise stated in the notice thereof, any and all business may be transacted at a special meeting. At any meeting at which every director shall be present, even without any notice, any business may be transacted.
Section 4.12 Waiver of Notice. A director may waive any notice required by law or these Bylaws if in writing and signed by a director entitled to such notice, whether before or after the date and time stated in such notice. Such a waiver shall be equivalent to notice in due time as required by these Bylaws. Attendance of a director at or participation in a meeting shall constitute a waiver of notice of such meeting, unless the director at the beginning of the meeting or promptly upon arrival objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting.
Section 4.13 Directors Assent Presumed. A director of the Corporation who is present at a meeting of the Board of Directors at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless the directors dissent shall be entered in the minutes of the meeting or unless the director shall file a written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or shall forward such dissent by registered or certified mail to the Secretary of the Corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action.
Section 4.14 Order of Business.
(a) At meetings of the Board of Directors, business shall be transacted in such order as, from time to time, the Board of Directors may determine by resolution.
(b) At all meetings of the Board, the chairman of the meeting or in his or her absence, vice chairman, or in their absence the President, or in the Presidents absence the Vice President designated by the President or Board, or otherwise the person designated by the vote of a majority of the directors present shall preside.
Section 4.15 Action Without Meeting. Any action required or permitted by law to be taken at any meeting of the Board of Directors may be taken without a meeting if the action is taken by all members of the Board and if one or more consents in writing describing the action so taken shall be signed by each director then in office and included in the minutes or filed with the corporate records reflecting the action taken. Action taken under this section is effective when the last director signs the
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consent, unless the consent specifies a different effective date. Written consents may be delivered to the Corporation by electronic transmission. A directors consent may be withdrawn by a revocation signed by the director and delivered to the Corporation prior to the delivery to the Corporation of unrevoked written consents signed by all of the directors.
Section 4.16 Committees.
(a) The Board of Directors, by resolution adopted by the affirmative vote of a majority of the number of directors then in office, may establish one or more committees, including an executive committee, each committee to consist of two (2) or more directors appointed by the Board of Directors. Any such committee shall serve at the will of the Board of Directors. Each such committee shall have the powers and duties delegated to it by the Board of Directors. The Board of Directors may elect one or more of its members as alternate members of any such committee who may take the place of any absent member or members at any meeting of such committee, upon request by the President or the chairperson of such committee. Each such committee shall fix its own rules governing the conduct of its activities as the Board of Directors may request.
(b) A committee of the Board shall not: (i) authorize distributions; (ii) approve or submit to shareholders of the Corporation action that the law requires be approved by shareholders; (iii) fill vacancies on the Board of Directors of the Corporation or on any of its committees; provided, however, in the absence or disqualification of a member of a committee, the member or members present at a meeting and not disqualified from voting may unanimously appoint another director to act in place of the absent director; (iv) amend the articles of incorporation of the Corporation; (v) adopt, amend or repeal bylaws of the Corporation; (vi) approve a plan of merger not requiring shareholder approval; (vii) authorize or approve reacquisition of shares, except according to a formula or method prescribed by the Board of Directors; (viii) authorize or approve the issuance, sale or contract for sale of shares or determine the designation and relative rights, preferences and limitations of a class or series of shares, except that the Board of Directors may authorize a committee or an executive officer of the Corporation to do so within limits specifically prescribed by the Board of Directors; or (ix) fix the compensation of directors for serving on the Board or any committee of the Board of Directors.
ARTICLE V
OFFICERS
Section 5.1 Executive Officers. The executive officers of the Corporation shall be a President, a Vice President, a Secretary, a Treasurer and such other officers as may from time to time be elected by the Board of Directors. None of the officers need be directors. One person may hold the offices and perform the duties of any two (2) or more of said offices. In its discretion, the Board of Directors may delegate the powers or duties of any officer to any other officer or agents, notwithstanding any provision of these Bylaws, and the Board of Directors may leave unfilled for any such period as it may fix, any office except those of President, Treasurer and Secretary. The officers of the Corporation shall be appointed annually by the Board of Directors at the annual meeting thereof. Each such officer shall hold office until the next succeeding annual meeting of the Board of Directors and until his or her successor shall have been duly chosen and shall qualify, or until his or her death, or until he or she shall resign or shall have been removed.
Section 5.2 Resignation and Removal. An officer may resign at any time by delivering notice to the Secretary. A resignation is effective when the notice is delivered unless the notice specifies a later effective time; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Any officer may be removed by the Board of Directors at any time with or without cause, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. An officer may be removed at any time with or without cause by the Board of Directors.
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Section 5.3 Powers and Duties of the President. Subject to control of the Board of Directors, the President shall have general charge of and direct the operations of the Corporation and shall be the chief executive officer of the Corporation. The President shall, when present, preside at all meetings of the shareholders. The President shall, when present, preside at all meetings of the Board of Directors. The President shall keep the Board of Directors fully informed and shall freely consult with them concerning the business of the Corporation in his or her charge. The President shall have authority to sign, execute and acknowledge all stock certificates, contracts, checks, deeds, mortgages, bonds, leases or other obligations on behalf of the Corporation as the President may deem necessary or proper to be executed in the course of the Corporations regular business as authorized by the Board of Directors. The President may sign in the name of the Corporation reports and all other documents or instruments which are necessary or proper to be executed in the course of the Corporations business. He or she shall have general supervision and direction of all of the other officers, employees and agents of the Corporation. He or she shall perform all duties incident to the office of President as herein defined, and all such other duties as from time to time may be assigned by the Board of Directors.
Section 5.4 Powers and Duties of the Vice President(s). In the absence of the President or in the event of the death, inability or refusal to act of the President, the Vice President (or in the event there be more than one Vice President, the Vice President designated by the President or the Board, or in the absence of any designation, the senior Vice President in length of service) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Any Vice President may sign, with the Secretary or Assistant Secretary, certificates for shares of the Corporation, and shall perform such other duties and have such authority as from time to time may be assigned to such Vice President by the President or by the Board of Directors.
Section 5.5 Powers and Duties of the Secretary. The Secretary shall (a) keep minutes of all meetings of the shareholders and of the Board of Directors; (b) authenticate records of the Corporation and attend to giving and serving all notices of the Corporation as provided by these Bylaws or as required by law; (c) be custodian of the corporate seal (if any), the stock certificate books and such other books, records and papers as the Board of Directors may direct, and see that the corporate seal (if any) is affixed to all stock certificates and to all documents, the execution of which on behalf of the Corporation under its seal (if any) is duly authorized; (d) keep a stock record showing the names of all persons who are shareholders of the Corporation, their post office addresses as furnished by each such shareholder, and the number of shares of each class of stock held by them respectively, and at least ten (10) days before each shareholders meeting, prepare a complete list of shareholders entitled to vote at such meeting arranged in alphabetical order; (e) sign with the President or a Vice President certificates for shares of the Corporation, the issuance of which shall have been duly authorized; and (f) in general, perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to the Secretary by the President or the Board of Directors. Without limiting the foregoing, the Secretary shall be responsible for maintaining and authenticating the following records: (a) minutes of all meetings of the shareholders and Board of Directors; (b) all actions taken by the shareholders or Board of Directors without a meeting; (c) all actions taken by a committee of the Board of Directors in place of the Board of Directors on behalf of the Corporation; (d) articles or restated Articles of Incorporation and all amendments to them currently in effect; (e) bylaws or restated bylaws and all amendments to them currently in effect; (f) resolutions adopted by the Board of Directors creating one or more classes or series of shares, and fixing the relative rights, preferences and limitations if shares pursuant to those resolutions are outstanding; (g) all written communications to shareholders generally within the past three (3) years, including the financial statements furnished for the past three (3) years; (h) list of names and business addresses of the current directors and officers; and (i) the Corporations most recent annual report filed with the Arizona Corporations Commission.
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Section 5.6 Powers and Duties of the Treasurer. The Treasurer shall (a) have custody of and be responsible for all moneys and securities of the Corporation, shall keep full and accurate records and accounts in books belonging to the Corporation, showing the transactions of the Corporation, its accounts, liabilities and financial condition and shall see that all expenditures are duly authorized and are evidenced by proper receipts and vouchers; (b) deposit in the name of the Corporation in such depository or depositories as are approved by the Board of Directors, all moneys that may come into the Treasurers hands for the Corporations account; (c) prepare annual financial statements that include a balance sheet as of the end of the fiscal year and an income statement for that year; and (d) in general, perform such duties as may from time to time be assigned to the Treasurer by the President or by the Board of Directors.
Section 5.7 Assistants. There shall be such number of Assistant Secretaries and Assistant Treasurers as the Board of Directors may from time to time authorize and appoint. The Assistant Secretaries and Assistant Treasurers, in general, shall perform such duties as shall be assigned to them by the Secretary, or the Treasurer, respectively, or by the President or the Board of Directors. The Board of Directors shall have the power to appoint any person to act as assistant to any other officer, or to perform the duties of any other officer, whenever for any reason it is impracticable for such officer to act personally, and such assistant or acting officer so appointed shall have the power to perform all the duties of the office to which he or she is so appointed to be assistant, or as to which he or she is so appointed to act, except as such power may be otherwise defined or restricted by the Board of Directors.
ARTICLE VI
SHARES ISSUANCE AND TRANSFER
Section 6.1 Consideration for Shares. The Board of Directors may authorize shares to be issued for consideration consisting of any tangible or intangible property or benefit to the Corporation, including cash, services performed or other securities of the Corporation. Neither promissory notes nor future services constitute valid consideration. Before the Corporation issues shares, the Board of Directors must determine that the consideration received or to be received for shares to be issued is adequate.
Section 6.2 Certificates for Shares. Every shareholder of the Corporation shall be entitled to a certificate or certificates, to be in such form as the Board of Directors shall prescribe, certifying the number and class of shares of the Corporation owned by such shareholder.
Section 6.3 Execution of Certificates. The certificates for shares of stock shall be numbered in the order in which they shall be issued and shall be signed by the President or a Vice President and the Secretary or an Assistant Secretary of the Corporation. The signatures of the President or Vice President and the Secretary or Assistant Secretary or other persons signing for the Corporation upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the Corporation itself or an employee of the Corporation. In case any officer or other authorized person who has signed or whose facsimile signature has been placed upon such certificate for the Corporation shall have ceased to be such officer or employee or agent before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer or employee or agent at the date of its issue.
Section 6.4 Share Record. A record shall be kept by the Secretary, or by any other officer, employee or agent designated by the Board of Directors, of the names and addresses of all shareholders and the number and class of shares held by each represented by such certificates and the respective dates thereof and in case of cancellation, the respective dates of cancellation.
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Section 6.5 Cancellation. Every certificate surrendered to the Corporation for exchange or transfer shall be cancelled, and no new certificate or certificates shall be issued in exchange for any existing certificate until such existing certificate shall have been so cancelled, except in cases provided in section 6.8 of these Bylaws.
Section 6.6 Transfers of Stock. Transfers of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the record holder thereof, or by his or her attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the Corporation, and on surrender of the certificate or certificates for such shares properly endorsed and the payment of all taxes thereon. The person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof for all purposes as regards the Corporation; provided, however, that whenever any transfer of shares shall be made for collateral security, and not absolutely, such fact, if known to the Secretary of the Corporation, shall be so expressed in the entry of transfer.
Section 6.7 Regulations. The Board of Directors may make such other rules and regulations as it may deem expedient, not inconsistent with law, concerning the issue, transfer and registration of certificates for shares of the stock of the Corporation.
Section 6.8 Lost, Destroyed, or Mutilated Certificates. In the event of the loss, theft or destruction of any certificate of stock, another may be issued in its place pursuant to such regulations as the Board of Directors may establish concerning proof of such loss, theft or destruction and concerning the giving of a satisfactory bond or bonds of indemnity.
ARTICLE VII
CONTRACTS, LOANS, CHECKS, AND DEPOSITS
Section 7.1 Contracts. The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances.
Section 7.2 Loans. No loans shall be contracted on behalf of the Corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the Board of Directors. Such authority may be general or confined to specific instances.
Section 7.3 Checks, Drafts, etc. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by the President or such other officer or officers, agent or agents of the Corporation and in such manner as shall from time to time be determined by the President or by resolution of the Board of Directors.
Section 7.4 Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks, trust companies or other depositories as the Board of Directors may select.
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ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Facsimile and Electronic Signatures. In addition to the provisions for use of facsimile signatures elsewhere specifically authorized in these Bylaws, facsimile and electronic signatures of any officer or officers of the Corporation may be used whenever and as authorized by the Board of Directors or a committee thereof. An electronic signature is any electronic symbol or process attached to or logically associated with a document sent by electronic transmission and executed or adopted by a person with the intent to sign such document. Electronic signature includes (i) a unique password or unique identification assigned to a person by the Corporation; (ii) a persons typed name attached to or part of an electronic transmission sent by or from a source authorized by such person such as an e-mail address provided by such person as that persons e-mail address; (iii) a persons facsimile signature; and (iv) any other form of electronic signature approved by the Board.
Section 8.2 Electronic Transmissions. Electronic transmission or electronically transmitted means any process of communication not directly involving the physical transfer of paper that is suitable for the retention, retrieval and reproduction of information by the recipient. Notice by electronic transmission is written notice. Notices and written consents may be given by electronic transmission. Each written consent given by electronic transmission shall contain an electronic signature of the person giving such written consent.
Section 8.3 Corporate Seal. The Corporation shall not adopt an official seal.
Section 8.4 Fiscal Year. The fiscal year of the Corporation shall be from and include the first day of January to and including the last day of December.
Section 8.5 Corporate Records. The books and records of the Corporation shall be kept (except that the shareholder list must also be kept at the places described in section 3.6 of these Bylaws) at the principal office of the Corporation.
Section 8.6 Voting of Stocks Owned by the Corporation. In the absence of a resolution of the Board of Directors to the contrary, the President and any Vice President acting within the scope of his or her authority as provided in these Bylaws, are authorized and empowered on behalf of the Corporation to attend and vote, or to grant discretionary proxies to be used, at any meeting of shareholders of any corporation in which this Corporation holds or owns shares of stock, and in that connection, on behalf of this Corporation, to execute a waiver of notice of any such meeting or a written consent to action without a meeting. The Board of Directors shall have authority to designate any officer or person as a proxy or attorney-in-fact to vote shares of stock in any other corporation in which this Corporation may own or hold shares of stock.
Section 8.7 Shareholders Right to Information.
(a) Any shareholder who has been a holder of record of shares or of a voting trust beneficial interest therefor at least six (6) months immediately preceding its demand or will be the holder of record of or the holder of record of a voting trust beneficial interest for at least five percent (5%) of all of the outstanding shares of the Corporation is entitled to inspect and copy, during regular business hours at the Corporations principal office, any of the following records of the Corporation:
(i) | Articles or restated Articles of Incorporation and all amendments currently in effect; |
(ii) | Bylaws or restated bylaws and all amendments currently in effect; |
(iii) | Resolutions adopted by the Board of Directors creating one or more classes or series of shares and fixing their relative rights, preferences and limitations, if shares issued pursuant to those resolutions are outstanding; |
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(iv) | Minutes of all shareholders meetings and records of all action taken by shareholders without a meeting, for the past three (3) years; |
(v) | All written communications to shareholders generally within the past three (3) years, including the financial statements furnished for the past three (3) years; |
(vi) | A list of the names and business addresses of the Corporations current directors and officers; and |
(vii) | The Corporations most recent annual report delivered to the Arizona Corporations Commission. |
Provided the shareholder shall have given the Corporation written notice of the shareholders demand at least five (5) business days before the date on which the shareholder wishes to inspect and copy.
(b) If (i) a shareholder makes a demand in good faith and for a proper purpose, (ii) the shareholder describes with reasonable particularity the shareholders purpose and the records the shareholder desires to inspect, and (iii) the record requested is directly connected with the shareholders stated purpose, then the shareholder shall be entitled to inspect and copy, during regular business hours at a reasonable location specified by the Corporation, any of the following records of the Corporation provided the shareholder gives the Corporation written notice of the shareholders demand at least five (5) business days before the date on which the shareholder wishes to inspect and copy any of the following:
(i) | Excerpts from minutes of any meeting of the Board of Directors, records of any actions of a committee of the Board of Directors while acting in place of the Board of Directors on behalf of the Corporation, minutes of any meeting of the shareholders and records of action taken by the shareholders or the Board of Directors without a meeting to the extent not subject to inspection under paragraph (a) above; |
(ii) | Accounting records of the Corporation; |
(iii) | The record of shareholders of the Corporation; and |
(iv) | The Corporations most recent financial statements showing in reasonable detail its assets and liabilities and the results of its operations. |
(c) Within one hundred twenty (120) days after the close of each fiscal year, the Corporation shall, at its expense, mail or transmit to the shareholders the annual financial statements of the Corporation, including a balance sheet, an income statement and a statement of changes in shareholders equity (unless that information appears elsewhere in the financial statements). If the annual financial statements are reported upon by a public accountant, that report must accompany them. If the statements are not reported upon by a public accountant, then the statements shall be accompanied by a statement of the President or other person responsible for the Corporations accounting records that both: (i) states that persons reasonable belief whether the statements were prepared on the basis of generally accepted accounting principles and, if not, describing the basis of preparation; and (ii) describes any respects in which the statements were not prepared on a basis of accounting consistent with the statements prepared for the preceding year.
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(d) The Corporation may impose a reasonable charge, covering the costs of labor and material, for copies of any documents provided to the shareholder. The charge shall not exceed the estimated cost of production or reproduction of the records.
Section 8.8 Inspection of Records by Directors. A director is entitled to inspect and copy the books, records, and documents of the Corporation at any reasonable time to the extent reasonably related to the performance of the directors duties as a director, including any duties as a member of a committee, but not for any other purpose or in any manner that would violate any duty to the Corporation.
ARTICLE IX
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 9.1 Indemnity. The Corporation shall indemnify and advance expenses to any person who was or is a party to or is threatened to be made a party to any threatened, pending or completed claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including a grand jury proceeding) and whether formal or informal, by reason of the fact that such person (a) is or was a director or officer of the Corporation, or (b) while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee, agent, partner or trustee (or in a similar capacity) of another corporation, partnership, joint venture, trust, other enterprise, or employee benefit plan, to the maximum extent it is empowered to indemnify and advance expenses to a director by Article 5 of Chapter 8 of Title 10 of the Arizona Revised Statutes, as the same exists or may hereafter be amended or changed (but, in the case of any such amendment or change, only to the extent that such amendment or change empowers the Corporation to provide broader indemnification than said law empowered the Corporation to provide prior to such amendment or change), against reasonable expenses (including attorneys fees), judgments, fines, penalties, including an excise tax assessed with respect to an employee benefit plan, and amounts paid in settlement actually and reasonably incurred by such person in connection with such claim, action, suit or proceeding or any appeal thereof; provided, however, that except as provided in section 9.2 of these Bylaws with respect to proceedings seeking to enforce rights of indemnification, entitlement to such indemnification shall be conditioned upon the Corporation being afforded the opportunity to participate directly on behalf of such person in such claim, action, suit or proceeding or any settlement discussions relating thereto, and with respect to any settlement or other nonadjudicated disposition of any threatened or pending claim, action, suit or proceeding, entitlement to indemnification shall be further conditional upon the prior approval by the Corporation of the proposed settlement or nonadjudicated disposition.
The determination that a director has met the relevant standard of conduct shall be made in one of the following manners:
(a) By the Board of Directors, by a majority vote of the directors not at the time parties to the proceeding.
(b) By special legal counsel:
(i) | Selected by majority vote of the disinterested directors; or |
(ii) | If there are no disinterested directors, selected by majority vote of the Board. |
(c) By the shareholders, but shares owned by or voted under the control of directors who are at the time parties to the proceeding shall not be voted on the determination.
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A disinterested director is a director who, at the time of a vote referred to above, is neither a party to the proceeding nor an individual having a familial, financial, professional, or employment relationship with the director or officer whose indemnification or advance for expenses is the subject of the decision being made, which relationship would, in the circumstances, reasonably be expected to exert an influence on the directors judgment when voting on the decision being made.
Approval or disapproval by the Corporation of any proposed settlement or other nonadjudicated disposition shall not subject the Corporation to any liability to or require indemnification or reimbursement of any party whom the Corporation would not otherwise have been required to indemnify or reimburse. The right to indemnification conferred in this Article shall include the right to payment or reimbursement by the Corporation of reasonable expenses incurred in connection with any such claim, action, suit or proceeding in advance of its final disposition; provided, however, that the payment or reimbursement of such expenses in advance of the final disposition of such claim, action, suit or proceeding shall be made only upon (a) delivery to the Corporation of a written undertaking, by or on behalf of the person claiming indemnification under this Article, to repay all amounts so advanced if the director is not entitled to mandatory indemnification under Article 5 of Chapter 8 of Title 10 of the Arizona Revised Statutes and it is ultimately determined under Title 10 of the Arizona Revised Statutes that such person did not meet the relevant standard of conduct, and (b) delivery to the Corporation of a written affirmation of such persons good faith belief that such person has met the relevant standard of conduct necessary to require indemnification by the Corporation pursuant to this Article or otherwise, or (the proceeding involved conduct for which liability has been eliminated under a provision of the Articles of Incorporation.
Section 9.2 Payment. Any indemnification or advancement of expenses required under this Article shall be made promptly upon, and in any event within thirty (30) days after, the written request of the person entitled thereto. If the Corporation denies a written request for indemnity or advancement of expenses, in whole or in part, or if payment in full pursuant to such request is not made within thirty (30) days of the date such request is received by the Corporation, the person seeking indemnification or advancement of expenses as granted by this Article may at any time within the applicable statute of limitations bring suit against the Corporation in any court of competent jurisdiction to establish such persons right to indemnity or advancement of expenses. Such persons costs and expenses incurred in connection with successfully establishing his or her right to indemnification in any such action or proceeding shall also be indemnified by the Corporation. It shall be a defense to any action brought against the Corporation to compel indemnification (other than an action brought to enforce a claim for the advancement of expenses pursuant to this Article where the written affirmation of good faith or the undertaking to repay as required above has been received by the Corporation) that the claimant has not met the standard of conduct set forth in Section 10-851 or 10-856 of the Arizona Revised Statutes, as applicable, but the burden of proving such defense shall be on the Corporation. Neither (a) the failure of the Corporation (including its Board of Directors, committee, special legal counsel or the shareholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in Section 10-851 or 10-856 of the Arizona Revised Statutes, as applicable nor (b) the fact that there has been an actual determination by the Corporation (including its Board of Directors, committee, special legal counsel or the shareholders) that the claimant has not met such applicable standard of conduct, shall create a presumption that the claimant has not met the applicable standard of conduct. In the event that the applicable standard of conduct has been met as to some claims, actions, suits or proceedings, but not as to others, a person who has a right of indemnification pursuant to this Article shall be indemnified against all expenses (including attorneys fees) actually and reasonably incurred by such person in connection with the claim, action, suit or proceeding as to which the applicable standard has been met. Nothing contained in this section shall limit the obligation, duty or ability of the Corporation to indemnify such person as provided elsewhere in this Article.
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Section 9.3 Contract. The provisions of this Article shall be deemed a contract between the Corporation and each director and officer who serves in such capacity at any time while this Article and the relevant provisions of Chapters 1 through 17 of Title 10 of the Arizona Revised Statutes are in effect, and any repeal or modification of any such law or of this Article shall not adversely affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any claim, action, suit or proceeding theretofore or thereafter brought or threatened based in whole or in part upon any such state of facts.
Section 9.4 Witnesses. The Corporation shall indemnify and advance expenses to any person who was or is a witness in or is threatened to be made a witness in any threatened, pending or completed claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including a grand jury proceeding) and whether formal or informal, by reason of the fact that such person (a) is or was a director or officer of the Corporation, or (b) while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee, agent, partner or trustee (or in a similar capacity) of another corporation, partnership, joint venture, trust, other enterprise, or employee benefit plan, to the same extent that such person would be entitled to indemnification and advancement of expenses under this Article if such person were, or were threatened to be made, a party to such claim, action, suit or proceeding, against reasonable expenses (including attorneys fees) actually and reasonably incurred by such person in connection with such claim, action, suit or proceeding or any appeal thereof.
Section 9.5 Applicability. This Article shall be applicable to all claims, actions, suits or proceedings commenced after the effective date hereof, whether arising from acts or omissions occurring before or after the effective date hereof. Each person who is now serving or who shall hereafter serve as a director or officer of the Corporation shall be deemed to be doing so in reliance upon the rights of indemnification provided for in this Article, and such rights of indemnification shall continue as to a person who has ceased to be a director or officer, and shall inure to the benefit of the heirs, executors, administrators and legal or personal representatives of such a person. If this Article or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each director and officer of the Corporation to the maximum extent permitted by any applicable portion of this Article that shall not have been invalidated.
Section 9.6 Initiation of Claims. Notwithstanding anything in this Article to the contrary, except with respect to proceedings initiated to enforce rights of indemnification to which such person is entitled under this Article or otherwise, the Corporation shall indemnify any such person in connection with a claim, action, suit or proceeding (or part thereof) initiated by such person only if the initiation of such claim, action, suit or proceeding (or part thereof) was authorized by the Board of Directors.
Section 9.7 Insurance. The Corporation may purchase and maintain insurance, including retrospectively rated and self-insured programs, at its expense, to protect itself and any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust, other enterprise, or employee benefit plan against any liability asserted against such person and incurred by such person in such capacity, or arising out of such persons status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Article, Chapters 1 through 17 of Title 10 of the Arizona Revised Statutes or otherwise. The Corporation may create a trust fund, grant a security interest and/or use other means (including, without limitation, letters of credit, surety bonds and/or similar arrangements), as well as enter into contracts providing for indemnification to the maximum extent permitted by law and including as part thereof any or all of the foregoing, to ensure the payment of such sums as may become necessary to effect full indemnification. The Corporations obligation to make indemnification and pay expenses
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pursuant to this Article shall be in excess of any insurance purchased and maintained by the Corporation and such insurance shall be primary. To the extent that indemnity or expenses of a person entitled to indemnification and payment of expenses pursuant to this Article are paid on behalf of or to such person by such insurance such payments shall be deemed to be in satisfaction of the Corporations obligation to such person to make indemnification and pay expenses pursuant to this Article.
ARTICLE X
AMENDMENTS
Section 10.1 Amendments to Bylaws. These Bylaws may be amended or repealed by the Board of Directors or by the shareholders; provided, however, that the shareholders may from time to time specify further particular provisions of the bylaws that shall not be amended or repealed by the Board of Directors.
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Exhibit 3.13
Articles of incorporation - Business/professional Secretary of StateCorporation Division 255 Capitol Si NE, Suite 151Salem, OR 97310-1327http://www.FilinglnOregon.comPhone: (503) 986-2200 Check the appropriate box below: BUSINESS CORPORATION FILED (Complete only 1.2.3,4.5,6. 8, 9) PROFESSIONAL CORPORATION (Complete all items) NOV 2 8 2012 REGISTRY NUMBER: For office use only OREGON SECRETARY OF STATE dance with Oregon Revised Statute 192.410-192.490, all information on this form is publicly available, including addresses. release this information to all parties upon reguest and it will be posted on our website. For office use only Type or Print Legibly in Black Ink. Attach Additional Sheet if Necessary. Name OF Corporation: KPTV-KPDX Broadcasting Corporation NOTE: For a BUSINESS CORPORATION, the name must contain the word Corporation, Company, Incorporated, or Limited, or an abbreviation of one of such words. For a PROFESSIONAL CORPORATION, the name must contain the words Professional Corporation, or abbreviations thereof, i.e., P.C., or Prof. Corp. REGISTERED AGENT:(lndividual or entity that will accept legal service for this business) CT Corporation System Registered Agents Publicly Available Address: (Must be an Oregon Street Address, which is identical to the registered agents business office. Must include city, state, zip; No PO Boxes.) 388 State Street, Suite 420, Salem, OR 97301 Address where the Division may Mail Notices: KPTV-KPDX Broadcasting Corporation, Attn: GM, 14975 NW Greenbrier Partway, Beaverton, OR 97006 and Meredith Corporation; Attn: General Counsel, 1716 Locust Street. Des Moines, IA 50309 OPTIONAL PROVISIONS: (Attach a separate sheet if necessary.) â¡ INDEMNIFICATION: The corporation elects to indemnify its directors, officers, employees, agents for liability and related expenses under ORS 60.387 to 60.414. NUMBER OF Shares: (At least one share must be listed.) 1,000 Professional Corporation Only If rendering a LICENSED PROFESSIONAL SERVICE or services, describe the service(s) being rendered. INDEMNIFICATION: The corporation elects to indemnify its directors, officers, employees, agents for liability and related expenses under ORS 58.185. WHO IS FORMING THIS BUSINESS? (INCORPORATORS) (List names and addresses of each incorporator.) (Attach a separate sheet if necessary.) Jason L. Giles, Attorney at Law, 700 Walnut Street, Suite 1600, Des Moines, IA 50309 EXECUTION/SlGNATURE(S): (All Incorporators must sign.) (Attach a separate sheet If necessary.) By my signature, I declare as an authorized authority, that this filing has been examined by me and is, to the best of my knowledge and belief, true, correct, and complete. Making false statements in this document is against the law and may be penalized by fines, imprisonment or both. Signature: Printed Name: Jason L. Giles TACT NAME; (To resolve questions with this filing.) KPTV-KPDX BROADCASTING CORPORAT FEES Required Processing Fee $100 Processing Fees are nonrelundable. Please make check payable to Corporation Division. Free copies are available at FilinalnOreoon.com. using the Business Name Search program.
Business Registiy Database Search Secretary of State Corporation Division Registry Number: 895311 -99 255 Capitol Street NE, Suite 151 Date of Incorporation: 11/28/2012 Salem, OR 97310-1327 . Type: DOMESTIC BUSINESS CORPORATION Phone:(503)986-2200 www.filinginoregon.com FILED RE: KPTV-KPDX BROADCASTING CORPORATION JUN 25 2015 APPLICATION FOR REINSTATEMENT/REACTIVATION * OREGON SECRETARY OF STATE Please complete and return this letter and any enclosed documents for filing the requested reinstatement/reactivation. Submit $200 for the required fees. The above.entity hereby requests to be active on the records of the Corporation Division. The effective date of administrative dissolution is 01/30/2015 The reason(s) for administrative dissolution has been eliminated or did not exist. By: Date : (Authorized Signature) Any fees submitted with this document are non refundable and will be held for 45 days. If the document is returned for filing within 45 days no additional fees will be due unless otherwise stated in this letter. Business Registry. Corporation Division (503) 986-2200 Secretary of State Corporation Division ? 55 Capitol Street NE, Suite 151 cm, OR-97310-1327 none:(503)986-2200 REINSTATEMENT ANNUAL REPORT Registry Number: 895311-99 Date of Incorporation: 11/28/2012 Type: DOMESTIC BUSINESS CORPORATION
Business Registry Database Search www.filinginoregon.com KPTV-KPDX BROADCASTING CORPORATION .1716 LOCUST STREET DES MOINES IA 50309 Name of Domestic Business Corporation KPTV-KPDX BROADCASTING CORPORATION Jurisdiction: OREGON The following Information is required by.statute. Please complete the entire form. Registered Agent C T CORPORATION SYSTEM- If the Registered Agent has changed, 388 STATE ST STE 420 the new agent has consented to the appointment SALEM OR 97301 Oregon street address required. Type of Business Principal Place of Business (Address.city.state.zip) 3) Mailing Address (Address.city.state.zip) 14975 NW GREENBRIER 1716 LOCUST STREET BEAVERTON OR 97006 . DES MOINES IA 50309 . Page 2 of 2 4) President (Name & Address) 5) Secretary (Name & Address) PATRICK MCCREERY NORBERT W KAUT 14975 NW GREENBRIER 1716 LOCUST STREET BEAVERTON OR 97006 DES MOINES IA 50309 6) Signature ... 8) Date 9) Daytime Phono Number Make check payable to Corporation Division and mail completed form with payment to Secretary of State, Corporation Division, 255 Capitol ST NE Suite 151 .Salem, OR 97310 Note: Filing fees may be paid with VISA or MasterCard. Submit the card number and expiration date on a separate page for your protection.
Exhibit 3.14
Adopted 11.28.2012
BYLAWS
OF
KPTV-KPDX BROADCASTING CORPORATION
(an Oregon business corporation)
(hereinafter referred to as the Corporation)
ARTICLE I
PRINCIPAL OFFICE
The location of the principal office of the Corporation in the State of Oregon will be identified in the Corporations annual report filed with the Oregon Secretary of State.
ARTICLE II
REGISTERED OFFICE AND AGENT
The registered agent and office of the Corporation are set forth in the Articles of Incorporation. The registered agent or registered office, or both, may be changed by resolution of the Board of Directors.
ARTICLE III
MEETINGS OF SHAREHOLDERS
Section 3.1 Annual Meeting. The annual meeting of the shareholders for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held each year on the date and at such place as the Board of Directors shall each year fix, or at such other place, time and date as the Board of Directors shall fix, which date shall be within the earlier of the first six (6) months after the end of the Corporations fiscal year or fifteen (15) months after the shareholders last annual meeting.
Section 3.2 Special Meetings. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by law (which for purposes of these Bylaws shall mean as required from time to time by the Oregon Business Corporation Act or the Articles of Incorporation of the Corporation), may be called by the President or the Board of Directors, and shall be called by the Board of Directors upon the written demand, signed, dated and delivered to the Secretary, of the holders of at least ten percent (10%) of all the votes entitled to be cast on any issue proposed to be considered at the meeting. Such written demand shall state the purpose or purposes for which such meeting is to be called. The time, date and place of any special meeting shall be determined by the Board of Directors or by the President. Unless otherwise provided in the Articles of Incorporation, a written demand for a special meeting may be revoked by a writing to that effect received by the Corporation prior to the receipt by the Corporation of demands sufficient in number to require the holding of a special meeting.
Section 3.3 Notices and Reports to Shareholders.
(a) Notice of the place, date and time of all meetings of shareholders and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be communicated not fewer than ten (10) days nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting and to such other shareholders as are required by law to be given such notice. The Board of Directors may establish a record date for the determination of shareholders entitled to notice, as provided in section 3.5 of these Bylaws. Notice of adjourned meetings need only be given if required by law or section 3.7 of these Bylaws.
(b) In the event (i) of the issuance, or the authorization for issuance, of shares for promissory notes or promises to render services in the future, or (ii) of any indemnification of or advancement of expenses to a director required by law to be reported to shareholders, the Corporation shall report the same to the shareholders with or before the notice of the next shareholders meeting, including, in the case of issuance of shares, the number of shares and the consideration received.
(c) If notice of proposed corporate action is required by law to be given to shareholders not entitled to vote and the action is to be taken by consent of the voting shareholders, the Corporation shall give all shareholders written notice of the proposed action at least ten (10) days before the action is taken. The notice must contain or be accompanied by the same material that would have been required to be sent to shareholders not entitled to vote in a notice of meeting at which the proposed action would have been submitted to the shareholders for action.
(d) Notice may be communicated in person, by mail, or other method of delivery, or by telephone, voice mail or other electronic means. If these forms of personal notice are impracticable, notice may be communicated by a newspaper of general circulation in the area where published, or by radio, television, or other form of public broadcast communication. Written notice by the Corporation to its shareholders, if in a comprehensible form, is effective according to one of the following: (i) upon deposit in the United States mail, if mailed post-paid and correctly addressed to the shareholders address shown in the Corporations current record of shareholders; or (ii) when electronically transmitted to the shareholder in a manner authorized by the shareholder.
(e) Notice to a shareholder shall not be required to be given if either of the following applies:
(i) notice of two (2) consecutive annual meetings, and all notices of meetings during the period between such two (2) consecutive annual meetings, have been sent to the shareholder at such shareholders address as shown on the records of the Corporation and have been returned undeliverable; or (ii) all, but not less than two (2), payments of dividends on securities during a twelve (12) month period, or two (2) consecutive payments of dividends on securities during a period of more than twelve (12) months, have been sent to the shareholder at such shareholders address as shown on the records of the Corporation and have been returned undeliverable. If any such shareholder shall deliver to the Corporation a written notice setting forth such shareholders then-current address, the requirement that notice be given to such shareholder shall be reinstated.
Section 3.4 Waiver of Notice.
(a) Any shareholder may waive any notice required by law or these Bylaws if in writing and signed by any shareholder entitled to such notice, whether before or after the date and time stated in such notice. Such a waiver shall be equivalent to notice to such shareholder in due time as required by law or these Bylaws. Any such waiver shall be delivered to the Corporation for inclusion in the minutes or filing with the corporate records.
(b) A shareholders attendance at a meeting, in person or by proxy, waives (i) objection to lack of notice or defective notice of such meeting, unless the shareholder at the beginning of the meeting or promptly upon the shareholders arrival objects to holding the meeting or transacting business at the meeting, and (ii) objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented.
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Section 3.5 Record Date. The Board of Directors may fix, in advance, a date as the record date for any determination of shareholders for any purpose, such date in every case to be not more than seventy (70) days prior to the date on which the particular action or meeting requiring such determination of shareholders is to be taken or held. If no record date is so fixed for the determination of shareholders, the close of business on the day before the date on which the first notice of a shareholders meeting is communicated to shareholders or the date on which the Board of Directors authorizes a share dividend or a distribution (other than one involving a repurchase or reacquisition of shares), as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment thereof, unless the Board of Directors selects a new record date or unless a new record date is required by law.
Section 3.6 Shareholders List. After fixing a record date for a meeting, the Secretary shall prepare an alphabetical list of the names of all shareholders who are entitled to notice of a shareholders meeting. The list must be arranged by voting group and within each voting group by class or series of shares, and show the address of and number of shares held by each shareholder. The shareholders list must be available for inspection by any shareholder beginning two (2) business days after notice of the meeting is given for which the list was prepared and continuing through the meeting, at the Corporations principal office or at a place identified in the meeting notice in the city where the meeting will be held. A shareholder, or a shareholders agent or attorney, is entitled on written demand to inspect and, subject to the requirements of law, to copy the list, during regular business hours and at the persons expense, during the period it is available for inspection. The Corporation shall make the shareholders list available at the meeting, and any shareholder, or a shareholders agent or attorney, is entitled to inspect the list at any time during the meeting or any adjournment.
Section 3.7 Quorum.
(a) At any meeting of the shareholders, a majority of the votes entitled to be cast on the matter by a voting group constitutes a quorum of that voting group for action on that matter, unless the representation of a different number is required by law or the Articles of Incorporation, and in that case, the representation of the number so required shall constitute a quorum. If a quorum shall fail to attend any meeting, the chairperson of the meeting or a majority of the votes present may adjourn the meeting to another place, date or time.
(b) When a meeting is adjourned to another place, date or time, notice need not be given of the adjourned meeting if the place, date and time 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 one hundred twenty (120) 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 place, date and time of the adjourned meeting shall be given in conformity with these Bylaws. At any adjourned meeting, any business may be transacted which might have been transacted at the original meeting.
(c) Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment thereof unless a new record date is or must be set for that adjourned meeting.
Section 3.8 Organization.
(a) The President, or in the absence of the President, the Vice President designated by the President or Board, or in that Vice Presidents absence, such person as the Board of Directors may have designated, or, in the absence of such a person, such person as shall be designated by the holders of a majority of the votes present at the meeting, shall call meetings of the shareholders to order and shall act as chairperson of such meetings.
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(b) The Secretary of the Corporation shall act as secretary at all meetings of the shareholders, but in the absence of the Secretary at any meeting of the shareholders, the chairperson may appoint any person to act as secretary of the meeting.
Section 3.9 Voting of Shares.
(a) Every shareholder entitled to vote may vote in person or by proxy. Except as provided in subsection (c) or unless otherwise provided by law, each outstanding share, regardless of class, shall be entitled to one vote on each matter submitted to a vote at a meeting of shareholders. Unless otherwise provided by law, directors shall be elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present. Shareholders do not have the right to cumulate their votes for directors unless the Articles of Incorporation so provide. A shareholder or shareholders agent or attorney-in-fact may appoint a proxy to vote or otherwise act for the shareholder by signing an appointment form or by an electronic transmission. An electronic transmission must contain or be accompanied by information from which one can determine that the shareholder, the shareholders agent, or the shareholders attorney-in-fact authorized the electronic transmission.
(b) The shareholders having the right to vote shares at any meeting shall be only those of record on the stock books of the Corporation and those acting in a representative capacity as specified in section 3.10 of this Article, on the record date fixed by law or pursuant to the provisions of section 3.5 of these Bylaws.
(c) Absent special circumstances, the shares of the Corporation held, directly or indirectly, by another corporation, are not entitled to vote if a majority of the shares entitled to vote for the election of directors of such other corporation is held by the Corporation. The foregoing does not limit the power of the Corporation to vote any shares held by the Corporation in a fiduciary capacity.
(d) Voting by shareholders on any question or in any election may be viva voce unless the chairperson of the meeting shall order or any shareholder shall demand that voting be by ballot. On a vote by ballot, each ballot shall be signed by the shareholder voting, or in the shareholders name by proxy, if there be such proxy, and shall state the number of shares voted by such shareholder.
(e) If a quorum exists, action on a matter, other than the election of directors, by a voting group is approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless a greater number is required by law.
Section 3.10 Voting by Proxy or Representative.
(a) At all meetings of the shareholders, a shareholder entitled to vote may vote in person or by proxy authorized in writing, which authorization shall be effective when received by the secretary of the meeting or other officer or agent authorized to tabulate votes. An authorization of a proxy is valid for eleven (11) months from the date of its execution, unless a longer period is expressly provided in the authorization form.
(b) Shares held by an administrator, executor, guardian, conservator, receiver, trustee, pledgee, or another corporation may be voted as provided by law.
(c) A shareholder or shareholders agent or attorney-in-fact may appoint a proxy to vote or otherwise act for the shareholder by signing an authorization form or by an electronic transmission that complies with Section 8.2 of these Bylaws. An electronic transmission must contain or be accompanied by information from which one can determine that the shareholder, the shareholders agent, or the shareholders attorney-in-fact authorized the electronic transmission.
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Section 3.11 Inspectors. The Board of Directors in advance of any meeting of shareholders may (but shall not be obligated to) appoint inspectors to act at such meeting or any adjournment thereof. If inspectors are not so appointed, the officer or person acting as chairperson of any such meeting may, and on the request of any shareholder or the shareholders proxy, shall make such appointment. In case any person appointed as inspector shall fail to appear or act, the vacancy may be filled by appointment made by the Board of Directors in advance of the meeting, or at the meeting by the officer or person acting as chairperson. The inspectors shall register proxies; ascertain the number of shares outstanding and the voting power of each; determine the shares represented at a meeting; determine the existence of a quorum; determine the authenticity, validity and effect of proxies and ballots; receive votes, ballots, assents or consents; hear and determine all challenges and question in any way arising in connection with the vote; count all votes, assents, and consents; determine and announce the result; and do such acts as may appear proper to conduct the election or vote with fairness to all shareholders. Each inspector shall take and sign an oath to faithfully execute the duties of inspector with strict impartiality and according to the best of the inspectors ability. The maximum number of such inspectors appointed shall be three (3), and no inspector whether appointed by the Board of Directors or by the officer or person acting as chairperson need be a shareholder.
Section 3.12 Action Without Meeting. Except as otherwise set forth in this section 3.12, any action required or permitted by law to be taken at a meeting of the shareholders may be taken without a meeting or vote if one or more consents in writing setting forth the action taken shall be signed and dated by all the shareholders entitled to vote on the action, and are delivered to the Corporation for inclusion in the minutes or filing with the Corporations records. Written consents from all of the shareholders must be obtained within sixty (60) days from the date of the earliest dated consent for such consents to be effective to take corporate action. If not otherwise fixed by law or in accordance with these Bylaws, the record date for determining shareholders entitled to take action without a meeting is the date the first shareholder signs such a written consent. Written consents may be delivered to the Corporation by electronic transmission. A written consent may be revoked by a writing to that effect received by the Corporation prior to the date that the last shareholder signs the consent or consents.
Section 3.13 Conduct of Business. The chairperson of any meeting of shareholders shall determine the order of business and procedure at the meeting, including such regulation of the manner of voting and the conduct of business as seem to him or her to be in order. The chairperson shall also announce at the meeting when the polls close.
ARTICLE IV
BOARD OF DIRECTORS
Section 4.1 Qualifications and General Powers. No director is required to be an officer or employee or a shareholder of the Corporation or a resident of the State of Oregon. The business and affairs of the Corporation shall be managed under the direction of the Board of Directors. The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or to execute and deliver any instrument in the name and on behalf of the Corporation, and such authority may be general or confined to specific instances.
Section 4.2 Number of Directors; Tenure. The number of directors of the Corporation shall be such number as the Board of Directors shall at the time have designated. In the absence of any such designation, such number shall be three (3). Each director shall hold office until the next succeeding annual meeting and until his or her successor shall have been elected and qualifies, or until his or her
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death, resignation or removal. In case the number of directors is increased by thirty percent (30%) or less of the number of directors last approved by the shareholders, by amendment to these Bylaws by the Board of Directors or by resolution of the Board of Directors, the directorships to be filled by reason thereof may be filled by the affirmative vote of a majority of the directors, though less than a quorum of the Board of Directors. Any director so elected shall serve only until the next election of directors by the shareholders.
Section 4.3 Quorum and Manner of Acting. A quorum of the Board of Directors consists of a majority of the number of directors prescribed in accordance with section 4.2 of these Bylaws. If at any meeting of the Board there be less than a quorum present, a majority of the directors present may adjourn the meeting from time to time until a quorum shall be present. Notice of any adjourned meeting need not be given. At all meetings of directors, a quorum being present, the act of the majority of the directors present at the meeting shall be the act of the Board of Directors.
Section 4.4 Resignation. Any director of the Corporation may resign at any time by delivering written notice to the Board of Directors, its chairman, or the Corporation. The resignation of any director shall take effect upon delivery of notice thereof or at such later date as shall be specified in such notice, and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Once delivered, a notice of resignation is irrevocable unless revocation is permitted by the Board of Directors.
Section 4.5 Removal. A director shall be subject to removal, with or without cause, at a meeting of the shareholders called for that purpose in the manner prescribed by law.
Section 4.6 Vacancies. Any vacancy occurring in the Board of Directors through death, resignation, removal or any other cause, including an increase in the number of directors, may be filled by the shareholders or by the Board of Directors. If the directors remaining in office constitute fewer than a quorum of the Board, they may fill a vacancy by the affirmative vote of a majority of the remaining directors. A director elected to fill a vacancy shall be elected only until the next election of directors by the shareholders.
Section 4.7 Compensation of Directors. The directors shall be entitled to be reimbursed for any expenses paid by them on account of attendance at any regular or special meeting of the Board of Directors, and the Board may fix the compensation of directors from time to time by resolution of the Board.
Section 4.8 Place of Meetings, etc. The Board of Directors may hold its meetings and keep the books and records of the Corporation (except that the record of its shareholders must also be kept at the places described in section 3.6 of these Bylaws) at such place or places within or without the State of Oregon, as the Board may from time to time determine. A director may participate in any meeting by any means of communication, including, but not limited to telephone conference call, by which all directors participating may simultaneously hear each other during the meeting. A director participating in a meeting by this means is deemed to be present in person at the meeting.
Section 4.9 Annual Meeting. Immediately after the final adjournment of each annual meeting of the shareholders for the election of directors, the Board of Directors shall meet, at the same place where said meeting of shareholders finally adjourned, for the purpose of organization, the election of officers and the transaction of other business. Notice of such meeting need not be given. Such meeting may be held at any other time or place as shall be specified in a notice given as hereinafter provided for special meetings of the Board of Directors or in a consent and waiver of notice thereof signed by all the directors, at which meeting the same matters shall be acted upon as is above provided.
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Section 4.10 Regular Meetings. Regular meetings of the Board of Directors shall be held at such place and at such times as the Board of Directors shall by resolution fix and determine from time to time. No notice shall be required for any such regular meeting of the Board.
Section 4.11 Special Meetings; Notice.
(a) Special meetings of the Board of Directors shall be held whenever called by direction of the President or at least one-third (1/3) of the directors at the time being in office.
(b) Notice of each such meeting shall be communicated to each director at least two (2) days before the date on which the meeting is to be held, by mail, telegraph, cable, radio or wireless, or personally or by telephone. Each notice shall state the date, time and place of the meeting. Unless otherwise stated in the notice thereof, any and all business may be transacted at a special meeting. At any meeting at which every director shall be present, even without any notice, any business may be transacted.
Section 4.12 Waiver of Notice. A director may waive any notice required by law or these Bylaws if in writing and signed by a director entitled to such notice, whether before or after the date and time stated in such notice. Such a waiver shall be equivalent to notice in due time as required by these Bylaws. Attendance of a director at or participation in a meeting shall constitute a waiver of notice of such meeting, unless the director at the beginning of the meeting or promptly upon arrival objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting.
Section 4.13 Directors Assent Presumed. A director of the Corporation who is present at a meeting of the Board of Directors at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless the directors dissent shall be entered in the minutes of the meeting or unless the director shall file a written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or shall forward such dissent by registered or certified mail to the Secretary of the Corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action.
Section 4.14 Order of Business.
(a) At meetings of the Board of Directors, business shall be transacted in such order as, from time to time, the Board of Directors may determine by resolution.
(b) At all meetings of the Board, the chairman of the meeting or in his or her absence, vice chairman, or in their absence the President, or in the Presidents absence the Vice President designated by the President or Board, or otherwise the person designated by the vote of a majority of the directors present shall preside.
Section 4.15 Action Without Meeting. Any action required or permitted by law to be taken at any meeting of the Board of Directors may be taken without a meeting if the action is taken by all members of the Board and if one or more consents in writing describing the action so taken shall be signed by each director then in office and included in the minutes or filed with the corporate records reflecting the action taken. Action taken under this section is effective when the last director signs the consent, unless the consent specifies a different effective date. Written consents may be delivered to the Corporation by electronic transmission. A directors consent may be withdrawn by a revocation signed by the director and delivered to the Corporation prior to the delivery to the Corporation of unrevoked written consents signed by all of the directors.
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Section 4.16 Committees.
(a) The Board of Directors, by resolution adopted by the affirmative vote of a majority of the number of directors then in office, may establish one or more committees, including an executive committee, each committee to consist of two (2) or more directors appointed by the Board of Directors, except as otherwise required under the Oregon Business Corporation Act. Any such committee shall serve at the will of the Board of Directors. Each such committee shall have the powers and duties delegated to it by the Board of Directors. The Board of Directors may elect one or more of its members as alternate members of any such committee who may take the place of any absent member or members at any meeting of such committee, upon request by the President or the chairperson of such committee. Each such committee shall fix its own rules governing the conduct of its activities as the Board of Directors may request.
(b) A committee of the Board shall not: (i) authorize distributions by the Corporation unless in accordance with a formula or method, or within limits, prescribed by the Board of Directors; (ii) approve or propose to shareholders of the Corporation action that the law requires be approved by shareholders; (iii) fill vacancies on the Board of Directors of the Corporation or on any of its committees; provided, however, in the absence or disqualification of a member of a committee, the member or members present at a meeting and not disqualified from voting may unanimously appoint another director to act in place of the absent director; or (v) adopt, amend or repeal bylaws of the Corporation.
ARTICLE V
OFFICERS
Section 5.1 Executive Officers. The executive officers of the Corporation shall be a President, a Vice President, a Secretary, a Treasurer and such other officers as may from time to time be elected by the Board of Directors. None of the officers need be directors. One person may hold the offices and perform the duties of any two (2) or more of said offices. In its discretion, the Board of Directors may delegate the powers or duties of any officer to any other officer or agents, notwithstanding any provision of these Bylaws, and the Board of Directors may leave unfilled for any such period as it may fix, any office except those of President, Treasurer and Secretary, The officers of the Corporation shall be appointed annually by the Board of Directors at the annual meeting thereof. Each such officer shall hold office until the next succeeding annual meeting of the Board of Directors and until his or her successor shall have been duly chosen and shall qualify, or until his or her death, or until he or she shall resign or shall have been removed.
Section 5.2 Resignation and Removal. An officer may resign at any time by delivering notice to the Secretary. A resignation is effective when the notice is delivered unless the notice specifies a later effective time, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Once delivered, a notice of resignation is irrevocable unless revocation is permitted by the Board of Directors. Any officer may be removed by the Board of Directors at any time with or without cause, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. An officer may be removed at any time with or without cause by any of the following: (a) the Board of Directors; (b) the officer who appoints such officer, unless these Bylaws or the Board of Directors provide otherwise; or (c) any other officer if authorized by these Bylaws or the Board of Directors.
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Section 5.3 Powers and Duties of the President. Subject to control of the Board of Directors, the President shall have general charge of and direct the operations of the Corporation and shall be the chief executive officer of the Corporation. The President shall, when present, preside at all meetings of the shareholders. The President shall, when present, preside at all meetings of the Board of Directors. The President shall keep the Board of Directors fully informed and shall freely consult with them concerning the business of the corporation in his or her charge. The President shall have authority to sign, execute and acknowledge all stock certificates, contracts, checks, deeds, mortgages, bonds, leases or other obligations on behalf of the Corporation as the President may deem necessary or proper to be executed in the course of the Corporations regular business as authorized by the Board of Directors. The President may sign in the name of the Corporation reports and all other documents or instruments which are necessary or proper to be executed in the course of the Corporations business. He or she shall have general supervision and direction of all of the other officers, employees and agents of the Corporation. He or she shall perform all duties incident to the office of President as herein defined, and all such other duties as from time to time may be assigned by the Board of Directors.
Section 5.4 Powers and Duties of the Vice President(s). In the absence of the President or in the event of the death, inability or refusal to act of the President, the Vice President (or in the event there be more than one Vice President, the Vice President designated by the President or the Board, or in the absence of any designation, the senior Vice President in length of service) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Any Vice President may sign, with the Secretary or Assistant Secretary, certificates for shares of the Corporation; and shall perform such other duties and have such authority as from time to time may be assigned to such Vice President by the President or by the Board of Directors.
Section 5.5 Powers and Duties of the Secretary. The Secretary shall (a) keep minutes of all meetings of the shareholders and of the Board of Directors; (b) authenticate records of the Corporation and attend to giving and serving all notices of the Corporation as provided by these Bylaws or as required by law; (c) be custodian of the corporate seal (if any), the stock certificate books and such other books, records and papers as the Board of Directors may direct, and see that the corporate seal (if any) is affixed to all stock certificates and to all documents, the execution of which on behalf of the Corporation under its seal (if any) is duly authorized; (d) keep a stock record showing the names of all persons who are shareholders of the Corporation, their post office addresses as furnished by each such shareholder, and the number of shares of each class of stock held by them respectively, and at least ten (10) days before each shareholders meeting, prepare a complete list of shareholders entitled to vote at such meeting arranged in alphabetical order; (e) sign with the President or a Vice President certificates for shares of the Corporation, the issuance of which shall have been duly authorized; and (f) in general, perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to the Secretary by the President or the Board of Directors. Without limiting the foregoing, the Secretary shall be responsible for maintaining and authenticating the following records: (a) minutes of all meetings of the shareholders and Board of Directors; (b) all actions taken by the shareholders or Board of Directors without a meeting; (c) all actions taken by a committee of the Board of Directors in place of the Board of Directors on behalf of the Corporation; (d) articles or restated Articles of Incorporation and all amendments to them currently in effect; (e) bylaws or restated bylaws and all amendments to them currently in effect; (f) resolutions adopted by the Board of Directors creating one or more classes or series of shares, and fixing the relative rights, preferences and limitations if shares pursuant to those resolutions are outstanding; (g) all written communications to shareholders generally within the past three (3) years, including the financial statements furnished for the past three (3) years; (h) list of names and business addresses of the current directors and officers; and (i) the Corporations most recent annual report delivered to the Secretary of State.
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Section 5.6 Powers and Duties of the Treasurer. The Treasurer shall (a) have custody of and be responsible for all moneys and securities of the Corporation, shall keep full and accurate records and accounts in books belonging to the Corporation, showing the transactions of the Corporation, its accounts, liabilities and financial condition and shall see that all expenditures are duly authorized and are evidenced by proper receipts and vouchers; (b) deposit in the name of the Corporation in such depository or depositories as are approved by the Board of Directors, all moneys that may come into the Treasurers hands for the Corporations account; (c) prepare annual financial statements that include a balance sheet as of the end of the fiscal year and an income statement for that year; and (d) in general, perform such duties as may from time to time be assigned to the Treasurer by the President or by the Board of Directors.
Section 5.7 Assistants. There shall be such number of Assistant Secretaries and Assistant Treasurers as the Board of Directors may from time to time authorize and appoint. The Assistant Secretaries and Assistant Treasurers, in general, shall perform such duties as shall be assigned to them by the Secretary, or the Treasurer, respectively, or by the President or the Board of Directors. The Board of Directors shall have the power to appoint any person to act as assistant to any other officer, or to perform the duties of any other officer, whenever for any reason it is impracticable for such officer to act personally, and such assistant or acting officer so appointed shall have the power to perform all the duties of the office to which he or she is so appointed to be assistant, or as to which he or she is so appointed to act, except as such power may be otherwise defined or restricted by the Board of Directors.
ARTICLE VI
SHARES ISSUANCE AND TRANSFER
Section 6.1 Consideration for Shares. The Board of Directors may authorize shares to be issued for consideration consisting of any tangible or intangible property or benefit to the Corporation, including cash, promissory notes, services performed, contracts for services to be performed, or other securities of the Corporation. Before the Corporation issues shares, the Board of Directors must determine that the consideration received or to be received for shares to be issued is adequate.
Section 6.2 Certificates for Shares. Every shareholder of the Corporation shall be entitled to a certificate or certificates, to be in such form as the Board of Directors shall prescribe, certifying the number and class of shares of the Corporation owned by such shareholder.
Section 6.3 Execution of Certificates. The certificates for shares of stock shall be numbered in the order in which they shall be issued and shall be signed by the President or a Vice President and the Secretary or an Assistant Secretary of the Corporation. The signatures of the President or Vice President and the Secretary or Assistant Secretary or other persons signing for the Corporation upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the Corporation itself or an employee of the Corporation. In case any officer or other authorized person who has signed or whose facsimile signature has been placed upon such certificate for the Corporation shall have ceased to be such officer or employee or agent before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer or employee or agent at the date of its issue.
Section 6.4 Share Record. A record shall be kept by the Secretary, or by any other officer, employee or agent designated by the Board of Directors, of the names and addresses of all shareholders and the number and class of shares held by each represented by such certificates and the respective dates thereof and in case of cancellation, the respective dates of cancellation.
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Section 6.5 Cancellation. Every certificate surrendered to the Corporation for exchange or transfer shall be cancelled, and no new certificate or certificates shall be issued in exchange for any existing certificate until such existing certificate shall have been so cancelled, except in cases provided in section 6.8 of these Bylaws.
Section 6.6 Transfers of Stock. Transfers of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the record holder thereof, or by his or her attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the Corporation, and on surrender of the certificate or certificates for such shares properly endorsed and the payment of all taxes thereon. The person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof for all purposes as regards the Corporation; provided, however, that whenever any transfer of shares shall be made for collateral security, and not absolutely, such fact, if known to the Secretary of the Corporation, shall be so expressed in the entry of transfer.
Section 6.7 Regulations. The Board of Directors may make such other rules and regulations as it may deem expedient, not inconsistent with law, concerning the issue, transfer and registration of certificates for shares of the stock of the Corporation.
Section 6.8 Lost, Destroyed, or Mutilated Certificates. In the event of the loss, theft or destruction of any certificate of stock, another may be issued in its place pursuant to such regulations as the Board of Directors may establish concerning proof of such loss, theft or destruction and concerning the giving of a satisfactory bond or bonds of indemnity.
ARTICLE VII
CONTRACTS, LOANS, CHECKS, AND DEPOSITS
Section 7.1 Contracts. The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances.
Section 7.2 Loans. No loans shall be contracted on behalf of the Corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the Board of Directors. Such authority may be general or confined to specific instances.
Section 7.3 Checks, Drafts, etc. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by the President or such other officer or officers, agent or agents of the Corporation and in such manner as shall from time to time be determined by the President or by resolution of the Board of Directors.
Section 7.4 Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks, trust companies or other depositories as the Board of Directors may select.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Facsimile and Electronic Signatures. In addition to the provisions for use of facsimile signatures elsewhere specifically authorized in these Bylaws, facsimile and electronic signatures of any officer or officers of the Corporation may be used whenever and as authorized by the Board of Directors or a committee thereof. An electronic signature is any electronic symbol or process attached to or logically associated with a document sent by electronic transmission and executed or adopted by a person with the intent to sign such document. Electronic signature includes (i) a unique password or unique identification assigned to a person by the Corporation; (ii) a persons typed name attached to or part of an electronic transmission sent by or from a source authorized by such person such as an e-mail address provided by such person as that persons e-mail address; (iii) a persons facsimile signature; and (iv) any other form of electronic signature approved by the Board.
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Section 8.2 Electronic Transmissions. Electronic transmission or electronically transmitted means any process of communication not directly involving the physical transfer of paper that is suitable for the retention, retrieval and reproduction of information by the recipient. Notice by electronic transmission is written notice. Notices and written consents may be given by electronic transmission. Each written consent given by electronic transmission shall contain an electronic signature of the person giving such written consent.
Section 8.3 Corporate Seal. The Corporation shall not adopt an official seal.
Section 8.4 Fiscal Year. The fiscal year of the Corporation shall be from and include the first day of January to and including the last day of December.
Section 8.5 Corporate Records. The books and records of the Corporation shall be kept (except that the shareholder list must also be kept at the places described in section 3.6 of these Bylaws) at the principal office of the Corporation.
Section 8.6 Voting of Stocks Owned by the Corporation. In the absence of a resolution of the Board of Directors to the contrary, the President and any Vice President acting within the scope of his or her authority as provided in these Bylaws, are authorized and empowered on behalf of the Corporation to attend and vote, or to grant discretionary proxies to be used, at any meeting of shareholders of any corporation in which this Corporation holds or owns shares of stock, and in that connection, on behalf of this Corporation, to execute a waiver of notice of any such meeting or a written consent to action without a meeting. The Board of Directors shall have authority to designate any officer or person as a proxy or attorney-in-fact to vote shares of stock in any other corporation in which this Corporation may own or hold shares of stock.
Section 8.7 Shareholders Right to Information.
(a) A shareholder of the Corporation is entitled to inspect and copy, during regular business hours at the Corporations principal office, any of the following records of the Corporation:
(i) | Articles or restated Articles of Incorporation and all amendments currently in effect; |
(ii) | Bylaws or restated bylaws and all amendments currently in effect; |
(iii) | Resolutions adopted by the Board of Directors creating one or more classes or series of shares and fixing their relative rights, preferences and limitations, if shares issued pursuant to those resolutions are outstanding; |
(iv) | Minutes of all shareholders meetings and records of all action taken by shareholders without a meeting, for the past three (3) years; |
(v) | All written communications to shareholders generally within the past three (3) years; |
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(vi) | A list of the names and business addresses of the Corporations current directors and officers; and |
(vii) | The Corporations most recent annual report delivered to the Oregon Secretary of State. |
Provided the shareholder shall have given the Corporation written notice of the shareholders demand at least five (5) business days before the date on which the shareholder wishes to inspect and copy.
(b) If (i) a shareholder makes a demand in good faith and for a proper purpose, (ii) the shareholder describes with reasonable particularity the shareholders purpose and the records the shareholder desires to inspect, and (iii) the record requested is directly connected with the shareholders stated purpose, then the shareholder shall be entitled to inspect and copy, during regular business hours at a reasonable location specified by the Corporation, any of the following records of the Corporation provided the shareholder gives the Corporation written notice of the shareholders demand at least five (5) business days before the date on which the shareholder wishes to inspect and copy any of the following:
(i) | Excerpts from minutes of any meeting of the Board of Directors, records of any actions of a committee of the Board of Directors while acting in place of the Board of Directors on behalf of the Corporation, minutes of any meeting of the shareholders, and records of action taken by the shareholders or the Board of Directors without a meeting to the extent not subject to inspection under paragraph (a) above; |
(ii) | Accounting records of the Corporation, including tax returns; and |
(iii) | The record of shareholders of the Corporation. |
(c) The Corporation may impose a reasonable charge, covering the costs of labor and material, for copies of any documents provided to the shareholder. The charge shall not exceed the estimated cost of production or reproduction of the records.
Section 8.8 Inspection of Records by Directors. A director is entitled to inspect and copy the books, records, and documents of the Corporation at any reasonable time to the extent reasonably related to the performance of the directors duties as a director, including any duties as a member of a committee, but not for any other purpose or in any manner that would violate any duty to the Corporation.
ARTICLE IX
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 9.1 Indemnity. The Corporation shall indemnify and advance expenses to any person who was or is a party to or is threatened to be made a party to any threatened, pending or completed claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including a grand jury proceeding) and whether formal or informal, by reason of the fact that such person (a) is or was a director or officer of the Corporation, or (b) while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee, agent, partner or trustee (or in a similar capacity) of another corporation, partnership, joint venture, trust, other enterprise, or employee benefit plan, to the maximum extent it is empowered to indemnify and advance expenses to a director by Sections 387 through 414 of the Oregon Business Corporation Act, as the same exists or may hereafter be amended or changed (but, in the case of any such amendment or change, only to the extent that such amendment or change empowers the Corporation to provide broader indemnification than said law
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empowered the Corporation to provide prior to such amendment or change), against reasonable expenses (including attorneys fees), judgments, fines, penalties, including an excise tax assessed with respect to an employee benefit plan, and amounts paid in settlement actually and reasonably incurred by such person in connection with such claim, action, suit or proceeding or any appeal thereof; provided, however, that except as provided in section 9.2 of these Bylaws with respect to proceedings seeking to enforce rights of indemnification, entitlement to such indemnification shall be conditioned upon the Corporation being afforded the opportunity to participate directly on behalf of such person in such claim, action, suit or proceeding or any settlement discussions relating thereto, and with respect to any settlement or other nonadjudicated disposition of any threatened or pending claim, action, suit or proceeding, entitlement to indemnification shall be further conditional upon the prior approval by the Corporation of the proposed settlement or nonadjudicated disposition.
The determination that a director has met the relevant standard of conduct shall be made in one of the following manners:
(a) By the Board of Directors, by majority vote of a quorum consisting of directors not at the time parties to the proceeding.
(b) If a quorum cannot be obtained under subparagraph (a) above, by a majority vote of a committee duly designated by the Board of Directors consisting solely of two (2) or more directors not at the time parties to the proceeding; provided, however, that directors who are parties to the proceeding may participate in designation of such committee.
(c) By special legal counsel:
(i) | Selected by the Board of Directors or its committee in accordance with subparagraphs (a) or (b) above; or |
(ii) | If a quorum of the Board of Directors cannot be obtained under subparagraph (a) above and a committee cannot be designated under subparagraph (b) above, the special legal counsel shall be selected by majority vote of the full Board of Directors, including directors who are parties to the proceeding. |
(d) By the shareholders.
Approval or disapproval by the Corporation of any proposed settlement or other nonadjudicated disposition shall not subject the Corporation to any liability to or require indemnification or reimbursement of any party whom the Corporation would not otherwise have been required to indemnify or reimburse. The right to indemnification conferred in this Article shall include the right to payment or reimbursement by the Corporation of reasonable expenses incurred in connection with any such claim, action, suit or proceeding in advance of its final disposition; provided, however, that the payment or reimbursement of such expenses in advance of the final disposition of such claim, action, suit or proceeding shall be made only upon (a) delivery to the Corporation of a written undertaking, by or on behalf of the person claiming indemnification under this Article, to repay all amounts so advanced if such person is ultimately determined not to have met the standard of conduct under Section 391 of the Oregon Business Corporation Act, and (b) delivery to the Corporation of a written affirmation of such persons good faith belief that such person has met the relevant standard of conduct.
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Section 9.2 Payment. Any indemnification or advancement of expenses required under this Article shall be made promptly upon, and in any event within thirty (30) days after, the written request of the person entitled thereto. If the Corporation denies a written request for indemnity or advancement of expenses, in whole or in part, or if payment in full pursuant to such request is not made within thirty (30) days of the date such request is received by the Corporation, the person seeking indemnification or advancement of expenses as granted by this Article may at any time within the applicable statute of limitations bring suit against the Corporation in any court of competent jurisdiction to establish such persons right to indemnity or advancement of expenses. Such persons costs and expenses incurred in connection with successfully establishing his or her right to indemnification in any such action or proceeding shall also be indemnified by the Corporation. It shall be a defense to any action brought against the Corporation to compel indemnification (other than an action brought to enforce a claim for the advancement of expenses pursuant to this Article where the written affirmation of good faith or the undertaking to repay as required above has been received by the Corporation) that the claimant has not met the standard of conduct set forth in Sections 387 through 414 of the Oregon Business Corporation Act, as applicable, but the burden of proving such defense shall be on the Corporation. Neither (a) the failure of the Corporation (including its Board of Directors, committee, special legal counsel or the shareholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in Sections 387 through 414 of the Oregon Business Corporation Act, as applicable nor (b) the fact that there has been an actual determination by the Corporation (including its Board of Directors, committee, special legal counsel or the shareholders) that the claimant has not met such applicable standard of conduct, shall create a presumption that the claimant has not met the applicable standard of conduct. In the event that the applicable standard of conduct has been met as to some claims, actions, suits or proceedings, but not as to others, a person who has a right of indemnification pursuant to this Article shall be indemnified against all expenses (including attorneys fees) actually and reasonably incurred by such person in connection with the claim, action, suit or proceeding as to which the applicable standard has been met. Nothing contained in this section shall limit the obligation, duty or ability of the Corporation to indemnify such person as provided elsewhere in this Article.
Section 9.3 Contract. The provisions of this Article shall be deemed a contract between the Corporation and each director and officer who serves in such capacity at any time while this Article and the relevant provisions of the Oregon Business Corporation Act are in effect, and any repeal or modification of any such law or of this Article shall not adversely affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any claim, action, suit or proceeding theretofore or thereafter brought or threatened based in whole or in part upon any such state of facts.
Section 9.4 Witnesses. The Corporation shall indemnify and advance expenses to any person who was or is a witness in or is threatened to be made a witness in any threatened, pending or completed claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including a grand jury proceeding) and whether formal or informal, by reason of the fact that such person (a) is or was a director or officer of the Corporation, or (b) while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee, agent, partner or trustee (or in a similar capacity) of another corporation, partnership, joint venture, trust, other enterprise, or employee benefit plan, to the same extent that such person would be entitled to indemnification and advancement of expenses under this Article if such person were, or were threatened to be made, a party to such claim, action, suit or proceeding, against reasonable expenses (including attorneys fees) actually and reasonably incurred by such person in connection with such claim, action, suit or proceeding or any appeal thereof.
Section 9.5 Applicability. This Article shall be applicable to all claims, actions, suits or proceedings commenced after the effective date hereof, whether arising from acts or omissions occurring before or after the effective date hereof. Each person who is now serving or who shall hereafter serve as a director or officer of the Corporation shall be deemed to be doing so in reliance upon the rights of indemnification provided for in this Article, and such rights of indemnification shall continue as to a
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person who has ceased to be a director or officer, and shall inure to the benefit of the heirs, executors, administrators and legal or personal representatives of such a person. If this Article or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each director and officer of the Corporation to the maximum extent permitted by any applicable portion of this Article that shall not have been invalidated.
Section 9.6 Initiation of Claims. Notwithstanding anything in this Article to the contrary, except with respect to proceedings initiated to enforce rights of indemnification to which such person is entitled under this Article or otherwise, the Corporation shall indemnify any such person in connection with a claim, action, suit or proceeding (or part thereof) initiated by such person only if the initiation of such claim, action, suit or proceeding (or part thereof) was authorized by the Board of Directors.
Section 9.7 Insurance. The Corporation may purchase and maintain insurance, at its expense, to protect itself and any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust, other enterprise, or employee benefit plan against any liability asserted against such person and incurred by such person in such capacity, or arising out of such persons status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Article, the Oregon Business Corporation Act or otherwise. The Corporation may create a trust fund, grant a security interest and/or use other means (including, without limitation, letters of credit, surety bonds and/or similar arrangements), as well as enter into contracts providing for indemnification to the maximum extent permitted by law and including as part thereof any or all of the foregoing, to ensure the payment of such sums as may become necessary to effect full indemnification. The Corporations obligation to make indemnification and pay expenses pursuant to this Article shall be in excess of any insurance purchased and maintained by the Corporation and such insurance shall be primary. To the extent that indemnity or expenses of a person entitled to indemnification and payment of expenses pursuant to this Article are paid on behalf of or to such person by such insurance such payments shall be deemed to be in satisfaction of the Corporations obligation to such person to make indemnification and pay expenses pursuant to this Article.
ARTICLE X
AMENDMENTS
Section 10.1 Amendments to Bylaws. These Bylaws may be amended or repealed by the Board of Directors or by the shareholders; provided, however, that the shareholders may from time to time specify further particular provisions of the Bylaws that shall not be amended or repealed by the Board of Directors.
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Exhibit 3.15
|
C |
Filing Fee: $250.00 By: Manos & Cherry, Attys. 501 South Sixth St. Las Vegas, Nevada 89101 |
ARTICLES OF INCORPORATION
OF
CARSON BROADCASTING CORP.
KNOW ALL MEN BY THESE PRESENTS:
That we, the undersigned, have this day voluntarily associated ourselves together for the purpose of forming a corporation under and pursuant to the provisions of NRS 78.010 to NRS 78.090, inclusive, as amended, and certify that:
ARTICLE I
The name of this corporation is CARSON BROADCASTING CORP.
ARTICLE II
The principal office and place of business of this corporation in Nevada shall be located at 501 South 6th Street, Las Vegas, Nevada. Offices for the transaction of any business of the corporation, and where meetings of the Board of Directors and of the stockholders may be held, any be established and maintained in any other part of the State of Nevada, or in any other state, territory or possession of the United States of America, or in any foreign country as the Board of Directors may, from time to time, determine.
ARTICLE III
The nature of the businees and the objects and purpose proposed to be transacted, promoted or carried on by the corporation is:
A. To engage in any lawful activity.
ARTICLE IV
The capital stock of this corporation shall consist of one hundred thousand (100,000) shares of common stock, without nominal or par value, all of which stock shall be entitled to voting power.
........
ARTICLE V
The members of the governing board of this Corporation shall be styled Directors. The Board of Directors shall consist of at least three (3), but no more than ten (10).
The names and post office addresses of the first Board of Directors of this Corporation and the incorporators signing these Articles of Incorporation are:
NAMES |
ADDRESSES | |
MICHAEL A. CHERRY | 501 South 6th Street Las Vegas, Nevada 89101 | |
THEODORE J. MANOS | 501 South 6th Street | |
Las Vegas, Nevada 89101 | ||
FRANCES I. McNEILL | 6417 Bristol Way | |
Las Vegas, Nevada 89107 |
The numbers of Directors of this Corporation may, from time to time, be increased or decreased by an amendment to the By-Laws in that regard and without the necessity of amending the Articles of Incorporation. A majority of the Directors in office, present at any meeting of the Board of Directors, duly called, whether regular or special, shall always constitute a quorum for the transaction of business, unless the By-Laws shall otherwise provide.
ARTICLE VI
The capital stock of the Corporation, after the fixed consideration thereof has been paid or performed, shall not be subject to assessment, and the stockholders of this Corporation shall not be individually liable for the debts and liabilities of the Corporation, and the Articles of Incorporation shall never be amended as to the aforesaid provisions.
ARTICLE VII
This Corporation shall have perpetual existence.
ARTICLE VIII
A resolution, in writing, signed by all the members of
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the Board of Directors, shall be and constitute action by the said Board of Directors to the effect therein expressed, with the same force and effect as though such rosolution has been passed at a duly convened meeting, and it shall be the duty of the Secretary to record every such resolution in the Minute Book under its proper date.
ARTICLE IX
In the absence of fraud, no contract or other transaction of the Corporation shall be affected by the fact that any of the Directors of the Corporation are in any way interested in, or connected with, any other party to such contract or transaction, or are themselves, parties to such contract or transaction provided that this interest in any such contract or transaction of any such Director shall at the time be fully disclosed or otherwise known to the Board of Directors; and each and every person who may become a Director of the Corporation is hereby relieved of any liability that might otherwise exist from contracting with the Corporation for the benefit of himself or any firm, association or corporation in which he may be in any wise interested.
ARTICLE X
The Board of Directors shall have the power and authority to make and alter, or amend the By-Laws, to fix the amount, in cash or otherwise, to be reserved as working capital and to authorize and cause to be executed mortgages and liens upon the property and franchises of the Corporation.
DATED at Las Vegas, Nevada this 7 day of July, 1978.
/s/ Michael A. Cherry |
MICHAEL A. CHERRY |
/s/ Theodore J. Manos |
THEODORE J. MANOS |
/s/ Frances I. McNeill |
FRANCES I. McNEILL |
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STATE OF NEVADA | ) | |
) ss. | ||
COUNTY OF CLARK | ) |
On this 7 day of July, 1978, before me, the undersigned, a Notary Public in and for said County and State, personally appeared, MICHAEL A. CHERRY, THEODORE J. MANOS and FRANCES McNEILL, known to me to be the persons described in and who executed the foregoing instrument, who acknowledged to me that they executed the same freely and voluntarily and for the uses and purposes therein mentioned.
WITNESS my hand and official seal the day and year last above written.
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Filing Fee: $20.00 By: Manos & Cherry 501 South Sixth St. Las Vegas, Nevada 89101 |
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
CARSON BROADCASTING CORP.
Pursuant to the provisions of the General Corporation Laws of the State of Nevada, the undersigned certify:
FIRST: That they are the original incorporators of CARSON BROADCASTING CORP.
SECOND: That the corporation was organized and is existing under and by virtue of the General Corporation Laws of the State of Nevada. The Articles of Incorporation of the corporation were filed in the office of the Secretary of State of Nevada on the 13th day of July, 1978, and in the Office of the Clark County Clerk on August 1, 1978.
THIRD: The undersigned affirmatively declare that to the date of this Certificate of Amendment that no part of the capital of the corporation has been paid.
FOURTH: The original Articles of Incorporation of this corporation shall be amended by adding the following paragraph B to Article III thereof:
B. To engage in the business of television broadcasting and such other related activities.
FIFTH: This Certificate of
Amendment is adopted in accordance with the General Corporation Laws of the State of Nevada, as amended and supplemented.
DATED at Las Vegas, Nevada, this 11th day of September, 1978.
/s/ Michael A. Cherry |
MICHAEL A. CHERRY |
/s/ Theodore J. Manos |
THEODORE J. MANOS |
/s/ Frances I. McNeill |
FRANCES I. McNEILL |
/s/ FRANCES I. McNEILL |
||||
FRANCES I. McNEILL | ||||
STATE OF NEVADA, | ) | |||
) ss. | ||||
COUNTY OF CLARK. | ) |
On this 11th day of September, 1978, before me, the undersigned, a Notary Public in and for said County and State, personally appeared MICHAEL A. CHERRY, THEODORE J. MANOS and FRANCES I. McNEILL, known to me to be the persons described in and who executed the foregoing instrument, who acknowledged to me that they executed the same freely and voluntarily and for the uses and purposes therein mentioned.
WITNESS my hand and official seal the day and year first above written.
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FILING FEE: $50.00 BY: MEREDITH CORPORATION LOCUST AT 17TH DES MOINES, IOWA 50336 |
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
CARSON BROADCASTING CORPORATION
The undersigned, being the President and Secretary of Carson Broadcasting Corporation, a Nevada corporation, do hereby certify as follows:
1. | That effective June 10, 1985, the Directors of the corporation, by unanimous written consent, adopted and consented to the adoption of resolutions setting forth a proposed amendment to the Articles of Incorporation of the corporation, as hereinafter set forth, declaring the advisability thereof, and calling a meeting of the sole stockholder for the purpose of considering and voting upon the proposed amendment. |
2. | Said resolution called for the following amendment to said Articles of Incorporation: |
ARTICLE I thereof is amended to read in its entirety:
ARTICLE I
NAME
The name of the corporation is: KVVU Broadcasting Corporation.
3. | That effective June 10, 1985, the sole stockholder of the corporation, by unanimous written consent, adopted and consented to the adoption of a resolution setting forth the proposed amendment to the Articles of Incorporation as hereinabove set forth. |
4. | That the Articles of Incorporation of Carson Broadcasting Corporation are hereaby amended as set forth above and the undersigned makes this certificate pursuant to Sections 78.385 and 78.390 of the Nevada Revised Statutes. |
DATED: June 10, 1985
/s/ William C. McReynolds |
President |
/s/ Betty Campbell Madden |
Secretary |
STATE OF IOWA | ) | |
) ss: | ||
COUNTY OF POLK | ) |
On June 10, 1985, personally appeared before me, a Notary Public, William C. McReynolds and Betty Campbell Madden, who acknowledged to me that they executed the foregoing Certificate of Amendment of Articles of Incorporation of Carson Broadcasting Corporation.
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Exhibit 3.16
CARSON BROADCASTING CORP.
* * * * *
BYLAWS
* * * * *
ARTICLE I
OFFICES
Section 1. The principal office shall be in the City of Las Vegas, County of Clark, State of Nevada.
Section 2. The corporation may also have offices at such other places both within and without the State of Nevada as the Board of Directors may from time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All annual meetings of the stockholders shall be held at 270 North Canon Drive, in the City of Beverly Hills, State of California. Special meetings of the stockholders may be held at such time and place within or without the State of Nevada as shall be stated in the notice of the meeting, or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year 1979, shall be held on the first day of March, if not a legal holiday, and if a legal holiday, then on the next secular day following, at 10:00 A.M., at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting.
Section 3. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the articles of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting.
Section 4. Notices of meetings shall be in writing and signed by the president or a vice president, or the secretary, or an assistant secretary, or by such other person or persons as the directors shall designate. Such notice shall state the purpose or purposes for which the meeting is called and the time when, and the place, which may be within or without this state, where it is to be held. A copy of such notice shall be either delivered personally to or shall be mailed, postage
prepaid, to each stockholder of record entitled to vote at such meeting not less than ten nor more than sixty days before such meeting. If mailed, it shall be directed to a stockholder at his address as it appears upon the records of the corporation and upon such mailing of any such notice, the service thereof shall be complete, and the time of the notice shall begin to run from the date upon which such notice is deposited in the mail for transmission, to such stockholder. Personal delivery of any such notice to any officer of a corporation or association, or to any member of a partnership shall constitute delivery of such notice to such corporation, association or partnership. In the event of the transfer of stock after delivery or mailing of the notice of and prior to the holding of the meeting it shall not be necessary to deliver or mail notice of the meeting to the transferee.
Section 5. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.
Section 6. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the articles of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified.
Section 7. When a quorum is present or represented at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the articles of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question.
Section 8. Except as hereinafter provided, every stockholder of record of the corporation shall be entitled at each meeting of stockholders to one vote for each share of stock standing in his name on the books of the corporation. At all elections of directors each holder of stock possessing voting power shall be entitled to as many votes as shall equal the number of his shares of stock multiplied by the number of directors to be elected, and he may cast all of such votes for a single director or may distribute them among the number to be voted for or any two or more of them, as he may see fit.
Section 9. At any meeting of the stockholders, any stockholder may be represented and vote by a proxy or proxies appointed by an instrument in writing. In the event that any such instrument in writing shall designate two or more persons to act as proxies, a majority of such persons present at the meeting, or, if only one shall be present, then that one shall have and may exercise all of the powers conferred by such written instrument upon all of the persons so designated unless the instrument shall otherwise provide. No such proxy shall be valid after the expiration of six months from the date of its execution, unless coupled with an interest, or unless the person executing it specifies therein the length of time for which it is to continue in force, which in no case shall exceed seven years from the date of its execution. Subject to the above, any proxy duly executed is not revoked and continues in full force and effect until an instrument revoking it or a duly executed proxy bearing a later date is filed with the secretary of the corporation.
Section 10. Any action, except election of directors, which may be taken by the vote of the stockholders at a meeting, may be taken without a meeting if authorized by the written consent of stockholders holding at least a majority of the voting power, unless the provisions of the statutes or of the articles of incorporation require a greater proportion of voting power to authorize such action in which case such greater proportion of written consent shall be required.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole board shall be at least three (3), but no more than ten (10), all of whom shall be of full age and at least one of whom shall be a citizen of the United States. The directors shall be elected at the annual meeting of the stockholders, and except as provided in Section 2 of this Article, each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders.
Section 2. Vacancies, including those caused by an increase in the number of directors, may be filled by a majority of the remaining directors though less than a quorum. When one or more directors shall give notice of his or their resignation to the board, effective at a future date, the board shall have power to fill such vacancy or vacancies to take effect when such resignation or resignations shall become effective, each director so appointed to hold office during the remainder of the term of office of the resigning director or directors.
Section 3. The business of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the articles of incorporation or by these bylaws directed or required to be exercised or done by the stockholders.
Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Nevada.
MEETINGS OF THE BOARD OF DIRECTORS
Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held without notice at such time and place as shall from time to time be determined by the board.
Section 7. Special meetings of the board of directors may be called by the president or secretary on the written request of two directors. Written notice of special meetings of the board of directors shall be given to each director at least one day before the date of the meeting.
Section 8. A majority of the board of directors, at a meeting duly assembled, shall be necessary to constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the articles of incorporation. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors entitled to vote with respect to the subject matter thereof.
COMMITTEES OF DIRECTORS
Section 9. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation, which, to the extent provided in the resolution, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may have power to authorize the seal of the corporation to be affixed to all papers which may require it. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors.
Section 10. The committees shall keep regular minutes of their proceedings and report the same to the board when required.
COMPENSATION OF DIRECTORS
Section 11. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary 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.
ARTICLE IV
NOTICES
Section 1. Notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice by mail shall be deemed to be given at the time when the same shall be mailed. Notice to directors may also be given by telegram.
Section 2. Whenever all parties entitled to vote at any meeting, whether of directors or stockholders, consent, either by a writing on the records of the meeting or filed with the secretary, or by presence at such meeting and oral consent entered on the minutes, or by taking part in the deliberations at such meeting without objection, the doings of such meeting shall be as valid as if had at a meeting regularly called and noticed, and at such meeting any business may be transacted
which is not excepted from the written consent or to the consideration of which no objection for want of notice is made at the time, and if any meeting be irregular for want of notice or of such consent, provided a quorum was present at such meeting, the proceedings of said meeting may be ratified and approved and rendered likewise valid and the irregularity or defect therein waived by a writing signed by all parties having the right to vote at such meetings; and such consent or approval of stockholders may be by proxy or attorney, but all such proxies and powers of attorney must be in writing.
Section 3. Whenever any notice whatever is required to be given under the provisions of the statutes, of the articles of incorporation or of these bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice president, a secretary and a treasurer. Any person may hold two or more offices.
Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, a vice president, a secretary and a treasurer, none of whom need be a member of the board.
Section 3. The board of directors may appoint additional vice presidents, and assistant secretaries and assistant treasurers and such other officers and agents as it shall deem necessary 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 by the board.
Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation, and shall see that all orders and resolutions of the board of directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation.
THE VICE PRESIDENT
Section 8. The vice president shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties as the board of directors may from time to time prescribe.
THE SECRETARY
Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall keep in safe custody the seal of the corporation and, when authorized by the board of directors, affix the same to any instrument requiring it and, when so affixed, it shall be attested by his signature or by the signature of the treasurer or an assistant secretary.
THE TREASURER
Section 10. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors.
Section 11. He shall disburse the funds of the corporation as may be ordered by the board of directors taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at the regular meetings of the board, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation.
Section 12. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Every stockholder shall be entitled to have a certificate, signed by the president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation, certifying the number of shares owned by him in the corporation. When the corporation is authorized to issue shares of more than one class or more than one series of any class, there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation will furnish to any stockholders upon request and without charge, a full or summary statement of the designations, preferences and relative, participating, optional or other special rights of the various classes of stock or series thereof and the qualifications, limitations or restrictions or such rights, and, if the corporation shall be authorized to issue only special stock, such certificate shall set forth in full or summarize the rights of the holders of such stock.
Section 2. Whenever any certificate is countersigned or otherwise authenticated by a transfer agent or transfer clerk, and by a registrar, then a facsimile of the signatures of the officers or agents of the corporation may be printed or lithographed upon such certificate in lieu of the actual signatures. In case any officer or officers who shall have signed, or whose
facsimilae signature or signatures shall have been used on, any such certificate or certificates shall cease to be such officer or officers of the corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the corporation, such certificate or certificates may nevertheless be adopted by the corporation and be issued and delivered as though the person or persons who signed such certificate or certificates, or whose facsimile signature or signatures shall have been used thereon, had not ceased to be the officer of officers of such corporation.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or 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 or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.
CLOSING OF TRANSFER BOOKS
Section 5. The directors may prescribe a period not exceeding sixty days prior to any meeting of the stockholders during which no transfer of stock on the books of the corporation may be made, or may fix a day not more than sixty days prior to the holding of any such meeting as the day as of which stockholders entitled to notice of and to vote at such meeting shall be determined; and only stockholders of record on such day shall be entitled to notice or to vote at such meeting.
REGISTERED STOCKHOLDERS
Section 6. 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 the laws of Nevada.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the articles of incorporation, if any, may be declared by the board of directors at any regular or special meeting pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the articles of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserves in the manner in which it was created.
CHECKS
Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer of officers or such other person or persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of the corporation, the year of its incorporation and the words Corporate Seal, Nevada.
ARTICLE VIII
AMENDMENTS
Section 1. Those bylaws may be altered or repealed at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration or repeal be contained in the notice of such special meeting.
The undersigned, as Directors of Carson Broadcasting Corp., hereby adopt the foregoing bylaws as the bylaws of said corporation.
Dated: July 17, 1978.
/s/ Michael A. Cherry |
MICHAEL A. CHERRY |
/s/ Theodore J. Manos |
THEODORE J. MANOS |
/s/ Frances I. McNeill |
FRANCES I. McNEILL |
Exhibit 3.17
529620
SECRETARY OF STATE IOWA 16 SEP-1 PM 3:07 |
CERTIFICATE OF ORGANIZATION
OF
MEREDITH PERFORMANCE MARKETING, LLC
TO THE SECRETARY OF STATE OF THE STATE OF IOWA:
Pursuant to Section 201 of the Iowa Revised Uniform Limited Liability Company Act, the undersigned, acting as organizer of the limited liability company, adopts the following Certificate of Organization for the limited liability company.
1. | The name of the limited liability company is Meredith Performance Marketing, LLC. |
2. | The street address of the limited liability companys initial registered office: |
1716 Locust Street
Des Moines, Iowa 50309
3. | The name and street and mailing address of the initial registered agent for service of process of the limited liability company is: |
John S. Zieser
1716 Locust Street
Des Moines, Iowa 50309
4. | The effective time and date of this document is the time and date of its filing with the Iowa Secretary of State. |
/s/ Norbert Kaut |
Norbert Kaut, Organizer |
FILED IOWA SECRETARY OF STATE |
9-1-16 3:07PM |
W01066576 |
Exhibit 3.18
OPERATING AGREEMENT
OF
MEREDITH PERFORMANCE MARKETING, LLC
TABLE OF CONTENTS
ARTICLE 1. |
GENERAL PROVISIONS | 1 | ||||
1(a) |
Formation | 1 | ||||
1(b) |
Principal Office In Iowa | 1 | ||||
1(c) |
Other Offices | 1 | ||||
1(d) |
Number Of Managers | 1 | ||||
1(e) |
Fiscal Year | 1 | ||||
1(f) |
Limited Liability Company Debts and Obligations | 1 | ||||
1(g) |
No Member Fiduciary Duties | 2 | ||||
1(h) |
Duty of Loyalty Owed by Managers and Officers | 2 | ||||
1(i) |
Managers and Officers have no Exclusive Duty to the Limited Liability Company | 2 | ||||
1(j) |
Liability Limitation and Indemnification of Managers and Officers | 3 | ||||
1(k) |
Statements of Authority | 4 | ||||
ARTICLE 2. |
DEFINITIONS | 4 | ||||
2(a) |
Affiliate | 4 | ||||
2(b) |
Net Profits And Losses | 4 | ||||
2(c) |
Non-Taxable Income And Unallowable Deductions | 4 | ||||
2(d) |
Cash Flow | 5 | ||||
2(e) |
Distributable Cash | 5 | ||||
2(f) |
Members | 5 | ||||
2(g) |
Majority In Interest Of The Members | 6 | ||||
2(h) |
Person | 6 | ||||
2(i) |
Units | 6 | ||||
ARTICLE 3. |
CAPITAL CONTRIBUTIONS | 6 | ||||
3(a) |
Initial Capital Contributions | 6 | ||||
3(b) |
Additional Capital Contributions and Loans Required | 6 | ||||
ARTICLE 4. |
NET PROFITS, NET LOSSES AND DISTRIBUTIONS | 7 | ||||
4(a) |
Profits, Losses And Credits | 7 | ||||
4(b) |
Distributions Of Distributable Cash | 7 | ||||
4(c) |
Termination Proceeds | 7 | ||||
ARTICLE 5. |
TERM, DISSOLUTION AND TERMINATION OF LIMITED LIABILITY COMPANY | 7 | ||||
5(a) |
Term And Dissolution Of Limited Liability Company | 7 | ||||
5(b) |
No Dissolution As A Result Of Certain Other Events | 8 |
i
5(c) |
Winding Up, Liquidation, Distribution Of Assets And Termination | 8 | ||||
ARTICLE 6. |
DISSOCIATION AND TRANSFERS OF INTERESTS | 8 | ||||
6(a) |
Restrictions On Dissociation | 8 | ||||
6(b) |
Assignment, Sale, and Transfer of Units | 8 | ||||
6(c) |
Admission Of New Members | 9 | ||||
6(d) |
Allocations To Additional Or Substitute Members | 9 | ||||
ARTICLE 7. |
WRITTEN INSTRUMENTS, LOANS, CHECKS AND DEPOSITS | 9 | ||||
7(a) |
Written Instruments | 9 | ||||
7(b) |
Loans | 9 | ||||
7(c) |
Checks, Drafts, Etc. | 9 | ||||
7(d) |
Deposits | 10 | ||||
ARTICLE 8. |
RECORDS; FINANCIAL AND FISCAL AFFAIRS; TAX REPORTING | 10 | ||||
8(a) |
Records and Accounting | 10 | ||||
8(b) |
Tax Information | 10 | ||||
8(c) |
Tax Returns | 10 | ||||
8(d) |
Elections | 10 | ||||
8(e) |
Interim Closing of the Books | 11 | ||||
8(f) |
Accounting & Tax Matters | 11 | ||||
ARTICLE 9. |
MEETINGS OF MEMBERS | 11 | ||||
9(a) |
Meetings | 11 | ||||
9(b) |
Place Of Meeting | 11 | ||||
9(c) |
Notice Of Meeting | 11 | ||||
9(d) |
Waiver Of Notice | 11 | ||||
9(e) |
Voting List | 12 | ||||
9(f) |
Quorum | 12 | ||||
9(g) |
Organization | 12 | ||||
9(h) |
Voting Of Membership Interests | 12 | ||||
9(i) |
Inspectors Of Election | 13 | ||||
9(j) |
Proxies | 13 | ||||
9(k) |
Informal Action By Members | 13 | ||||
ARTICLE 10. |
MANAGERS | 13 | ||||
10(a) |
General Powers | 13 | ||||
10(b) |
Specific Powers | 14 | ||||
10(c) |
Number, Tenure And Qualifications | 14 | ||||
10(d) |
Quorum And Manner Of Acting | 14 |
ii
10(e) |
Resignation | 14 | ||||
10(f) |
Removal | 14 | ||||
10(g) |
Vacancies | 14 | ||||
10(h) |
Number Of Managers Increased | 14 | ||||
10(i) |
Compensation Of Managers | 14 | ||||
10(j) |
Place Of Meetings, Etc. | 15 | ||||
10(k) |
Meeting | 15 | ||||
10(l) |
Regular Meetings | 15 | ||||
10(m) |
Special Meetings; Notice | 15 | ||||
10(n) |
Substitutes For Notice | 15 | ||||
10(o) |
Managers Assent Presumed | 15 | ||||
10(p) |
Order Of Business | 15 | ||||
10(q) |
Action Without Meeting | 16 | ||||
10(r) |
Committees | 16 | ||||
ARTICLE 11. |
OFFICERS | 16 | ||||
11(a) |
Executive Officers | 16 | ||||
11(b) |
Election And Term Of Office | 16 | ||||
11(c) |
Removal | 16 | ||||
11(d) |
Resignations | 16 | ||||
11(e) |
Vacancies | 16 | ||||
11(f) |
Powers and Duties of the President | 16 | ||||
11(g) |
Powers and Duties of the Vice President | 17 | ||||
11(h) |
Powers and Duties of the Secretary | 17 | ||||
11(i) |
Powers and Duties of the Treasurer | 17 | ||||
11(j) |
Other Officers | 17 | ||||
11(k) |
Assistants And Acting Officers | 17 | ||||
11(l) |
Salaries | 18 | ||||
ARTICLE 12. |
BUY-SELL PROVISION | 18 | ||||
ARTICLE 13. |
MISCELLANEOUS PROVISIONS | 18 | ||||
13(a) |
Application Of Iowa Law | 18 | ||||
13(b) |
Waiver Of Action For Partition | 18 | ||||
13(c) |
Amendments | 18 | ||||
13(d) |
Certificates | 18 | ||||
13(e) |
Execution Of Additional Instruments | 18 | ||||
13(f) |
Construction | 18 | ||||
13(g) |
Headings | 19 | ||||
13(h) |
Waivers | 19 | ||||
13(i) |
Rights And Remedies Cumulative | 19 | ||||
13(j) |
Severability | 19 | ||||
13(k) |
Heirs, Successors And Assigns | 19 | ||||
13(l) |
Creditors | 19 |
iii
13(m) |
Counterparts | 19 | ||||
13(n) |
Annual Reports | 19 | ||||
13(o) |
Loans From Members | 19 | ||||
13(p) |
No Right Of Members To Receive Property Other Than Cash In Return For Contributions | 20 |
iv
OPERATING AGREEMENT
OF
MEREDITH PERFORMANCE MARKETING, LLC
ARTICLE 1. GENERAL PROVISIONS
1(a) Formation
The parties to this Operating Agreement (referred to herein as Operating Agreement or Agreement) have agreed to the formation and are the Members of Meredith Performance Marketing, LLC (hereinafter called the Limited Liability Company) a limited liability company organized under the provisions of the Iowa Revised Uniform Limited Liability Company Act. A certificate of organization has been filed with the Iowa Secretary of State.
1(b) Principal Office In Iowa.
The principal office of Limited Liability Company in the State of Iowa shall be located at:
1716 Locust Street
Des Moines, IA 50309
1(c) Other Offices.
The Limited Liability Company may have places of business or other offices, either within or without the State of Iowa, as the Managers may determine or as shall be appropriate for the conduct of its business.
1(d) Number Of Managers.
As set forth in Section 10(a) of this Operating Agreement, the business and affairs of the Limited Liability Company shall be conducted by or under the direction of the Managers.
The Managers shall be appointed by the vote of a majority in interest of the Members. The number of Managers may be changed from time to time by a unanimous vote of the Members. The Managers shall have such powers and be subject to such duties as are provided in this Operating Agreement. The Managers need not be Members.
The number of the Managers shall be one (1) and the initial Manager shall be:
John S. Zieser
1(e) Fiscal Year.
The fiscal year of the Limited Liability Company shall end at the close of business on the last day of December of each year.
1(f) Limited Liability Company Debts and Obligations.
Debts, obligations or other liabilities of the Limited Liability Company, whether arising in contract, tort, or otherwise are solely the debts, obligations, or other liabilities of the Limited Liability Company and do not become the debts, obligations or other liabilities of a Member, Manager of officer solely by reason of the Member acting as a Member, the Manager acting as a Manager, or the officer acting as an officer.
The failure of the Limited Liability Company to observe any particular formalities related to the exercise of its powers or management of its activities is not a ground for imposing liability on the Members, Managers or officers for the debts, obligations, or other liabilities of the Limited Liability Company.
1(g) No Member Fiduciary Duties.
A Member does not have any fiduciary duty to the Limited Liability Company or to any other Member solely by reason of being a member of the limited liability company.
1(h) Duty of Loyalty Owed by Managers and Officers.
(1) The duty of loyalty owed by the Managers and officers to the Limited Liability Company and its Members includes all of the following duties:
(A) | To account to the Limited Liability Company and to hold as trustee for the Limited Liability Company any property, profit or benefit derived by the Manager or officer regarding any of the following: |
(i) | Any property, profit or benefit derived by the Manager or officer during the Managers or officers conduct or winding up of the Limited Liability Companys activities; |
(ii) | Any property, profit or benefit derived by the Manager or officer from using any of the Limited Liability Companys property; and |
(iii) | Any property, profit or benefit derived by the Manager or officer from the appropriation of a Limited Liability Company business or other opportunity. |
(B) | To refrain from dealing with the Limited Liability Company in the conduct or winding up of the Limited Liability Companys activities as or on behalf of a person having an interest that is adverse to the Limited Liability Company. |
(C) | To refrain from competing with the Limited Liability Company in the conduct of the Limited Liability Companys business and other activities before the dissolution of the Limited Liability Company. |
(2) | After full disclosure of all material facts, a Majority-in-Interest of the Members may confirm, approve or ratify a specific act or transaction that otherwise would violate any duty of loyalty set forth above. |
1(i) Managers and Officers have no Exclusive Duty to the Limited Liability Company.
So long as he or she does not violate Section 1(h) above, neither a Manager nor an officer, solely by reason of being a Manager or officer, shall be required to manage the Limited Liability Company as his or her sole and exclusive function, and a Manager or officer may have other business interests and may engage in other activities in addition to those relating to the Limited Liability Company. Neither the Limited Liability Company nor any Member shall have any right, by virtue of this agreement, to share or participate in such other investments or activities of any Manager or officer or to the income or proceeds derived therefrom.
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1(j) Liability Limitation and Indemnification of Managers and Officers.
(1) | A Manager or officer shall not be personally liable to the Limited Liability Company or the Members for money damages for any action taken, or any failure to take any action, except liability for any of the following: |
(A) | A breach of the duty of loyalty as set forth in Section 1(h) above; |
(B) | A financial benefit received by the Manager or officer to which the Manager or officer is not entitled; |
(C) | Authorizing any distribution that violates the limitations on distributions set forth in Section 405 of the Iowa Revised Uniform Limited Liability Company Act; |
(D) | An intentional infliction of harm on the Limited Liability Company or a Member of the Limited Liability Company; or |
(E) | An intentional violation of criminal law. |
(2) | Any Manager or officer shall be defended, indemnified, and held harmless by the Limited Liability Company from and against any and all losses, claims, damages, liabilities, settlements and other amounts arising from any and all claims (including reasonable legal fees and expenses), demands, actions, suits or proceedings (civil, criminal, administrative or investigative), in which he or she may be involved, as a party or otherwise, by reason of his or her management of the Limited Liability Company, whether or not he or she continues to be Manager or officer at the time any such liability or expense is paid or incurred; provided that neither the Manager nor the officer shall be entitled to the foregoing indemnification if a court of competent jurisdiction determined that such losses, claims, damages, liabilities, expenses, or such other amounts relate to liability for any of the matters set forth above in Section 1(j)(1) of this Operating Agreement. |
The termination of a proceeding by judgment, order, settlement or conviction upon a plea of nolo contendere, or its equivalent, shall not, of itself, create any presumption that such losses, claims, damages, liabilities, expenses, or such other amounts relate to liability for any of the matters set forth above in Section 1(j)(1) of this Operating Agreement.
The Limited Liability Company shall also indemnify any Manager or officer who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding by or in the right of the Limited Liability Company to procure a judgment in its favor by reason of the fact that such Manager or officer is or was an agent of the Limited Liability Company, against any losses, claims, damages, liabilities, settlements, expenses, legal fees or any other amounts incurred by such Manager or officer in connection with the defense or settlement of such action; provided that the Manager or officer shall not be entitled to the foregoing indemnification if a court of competent jurisdiction shall have determined that any such losses, claims, damages, liabilities, expenses or such other amounts relate to liability for any of the matters set forth above in Section 1(j)(1) of this Operating Agreement.
The Limited Liability Company may, but is not required to, advance a Manager or officer any expenses (including, without limitation, reasonable legal fees and expenses) incurred as a result of any claim, demand, action, suit or proceeding referred to in this Section 1(j)(2) provided that:
(A) | the legal action, suit, etc, relates to the performance of duties or services by the Manager or officer on behalf of the Limited Liability Company; and |
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(B) | the Manager or officer gives the Limited Liability Company a full recourse promissory note for the amounts of such advances in the event that the Manager or officer is determined to be not entitled to indemnification under this Operating Agreement. The promissory note must contain payment and collateral security terms that are satisfactory to the Limited Liability Company in it sole discretion. |
(3) | The indemnification provided by Section 1(j)(2) shall not be deemed to be exclusive of any other rights to which the Managers or officers may be entitled under any agreement, as a matter of law, in equity or otherwise, and shall continue as to the Managers or officers who have ceased to have an official capacity and shall inure to the benefit of the heirs, personal administrators, executors, successors and assigns of the Managers or officers. |
(4) | Any indemnification pursuant to this section will be payable only from the assets of the Limited Liability Company. |
(5) | The Limited Liability Company may purchase and maintain insurance on behalf of a Member or Manager against liability asserted against or incurred by the Member or Manager in the capacity or arising from that status. |
1(k) Statements of Authority.
The Managers are authorized on behalf of the Limited Liability Company to deliver Statements of Authority to the Iowa Secretary of State for filing. The statements may provide with respect to any Manager or officer, the authority, or limitations on the authority, of all persons holding the position to do any of the following:
(1) | Execute an instrument transferring real property held in the name of the Limited Liability Company; and |
(2) | Enter into other transactions on behalf of, or otherwise act for or bind, the Limited Liability Company. |
ARTICLE 2. DEFINITIONS
2(a) Affiliate
The term Affiliate means, with respect to any Person: (i) any person directly or indirectly controlling, controlled by or under common control with such Person; (ii) any persons owning or controlling ten percent (10%) or more of the outstanding voting securities of such Person; (iii) any officer, director, member of such Person; or (iv) any company in which such Person is an officer, director, member or partner.
2(b) Net Profits And Losses.
The terms Net Profits and Net Losses shall mean the taxable income or taxable loss of the Limited Liability Company determined for purposes of preparing the Limited Liability Company information return for federal income tax purposes.
2(c) Non-Taxable Income And Unallowable Deductions.
The terms Non-taxable Income and Unallowable Deductions shall mean any items of income or deduction properly treated as income or deductions by the Limited Liability Company for financial accounting purposes but not includable as income or allowable as a deduction for federal income tax purposes, and any expenditures described in Section 705(a)(2)(B) of the Internal Revenue Code.
-4-
2(d) Cash Flow.
The term Cash Flow shall mean the excess of cash receipts over cash disbursements for the applicable period; provided, however, Cash Flow shall not include any cash received pursuant to the dissolution and termination of the Limited Liability Company.
2(e) Distributable Cash.
The term Distributable Cash shall mean Cash Flow for the applicable period reduced (or increased) by such amounts which are determined by the Managers to be reasonably necessary (or no longer necessary) to be expended or held as reserves for the conduct of Limited Liability Company business, including expansion thereof, capital improvements, and future payments of anticipated obligations and liabilities. Distributable Cash shall not include, however, any cash that may not be distributed by the Limited Liability Company without violating the limitations on distributions set forth in Section 405 of the Iowa Revised Uniform Limited Liability Company Act.
2(f) Members.
The term Members shall refer to those persons or individuals who are members of the Limited Liability Company, including substitute and new Members under Article 6.
A person shall cease to be a Member of the Limited Liability Company at such time as:
(1) | The Member withdraws from the Limited Liability Company as permitted by Section (a) of Article 6. |
(2) | The Member does any of the following: |
(A) | Makes an assignment for the benefit of creditors. |
(B) | Files a voluntary petition in bankruptcy. |
(C) | Is adjudicated a bankrupt or insolvent or has entered against the Member an order for relief in any bankruptcy or insolvency proceeding. |
(D) | Files a petition or answer seeking for the Member reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any statute, law, or regulation. |
(E) | Seeks, consents to, or acquiesces in the appointment of a trustee, receiver, or liquidator of the Member or of all or a substantial part of the Members properties. |
(F) | Files an answer or other pleading admitting or failing to contest material allegations of a petition filed against the Member in a proceeding of a nature specified in this subsection. |
(3) | The continuation of any proceeding against the Member seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief, under any statute, law, or regulation for 120 days after the commencement of such proceeding, or the appointment of a trustee, receiver or liquidator for the Member or for all or any substantial part of the Members properties without the Members agreement or acquiescence, which appointment is not vacated or stayed for 120 days or, if the appointment is stayed, for 120 days after the expiration of the stay during which period the application is not vacated. |
(4) | If the Member is a natural person, when either the Member dies or a court of competent jurisdiction finds the Member incapable of managing the Members person or property. |
-5-
(5) | If the Member is acting as a Member by virtue of being a trustee of a trust, when the trust terminates. Substitution of a new trustee is not termination of the trust. |
(6) | If the Member is a partnership or limited liability company, the dissolution and commencement of winding up of the partnership or limited liability company. |
(7) | If the Member is a corporation, the filing of a certificate of dissolution, or its equivalent, for the corporation or revocation of the corporations charter. |
(8) | If the Member is acting as a Member by virtue of being a fiduciary of an estate, the distribution by the fiduciary of the estates entire interest in the Limited Liability Company. |
(9) | If the Member assigns its entire interest as a Member of the Limited Liability Company. |
If a person shall cease to be a Member as a result of a foregoing event and if the Limited Liability Company continues and is not terminated under Article 5, then the successor in interest to such Member as a result of such event, if any, shall be treated as an assignee of such Members interest in the Limited Liability Company, subject to the terms of any Buy-Sell Agreement entered into by any Member and the Company.
2(g) Majority In Interest Of The Members.
The term Majority in Interest shall refer to those Members owning more than 50% of the total Units then held by the Members referred to.
2(h) Person.
The term Person means an individual, partnership, corporation, trust, limited liability company or any other entity or association.
2(i) Units.
The term Units shall refer to those interests in the Limited Liability Company issued by the Limited Liability Company to its Members.
ARTICLE 3. CAPITAL CONTRIBUTIONS
3(a) Initial Capital Contributions.
The organizing Member contributed the amount set forth below and the outstanding units are owned and held as follows:
Voting Units | Amount | |||||||
Meredith Corporation |
1,000 | $ | 1,000.00 | |||||
Total |
1,000 | $ | 1,000.00 |
3(b) Additional Capital Contributions and Loans Required.
No Member shall be required to make any capital contributions or loans to the Limited Liability Company beyond the amounts set forth in this Article. However, the Members may, from time to time, agree that one or more Members shall make additional capital contributions, in cash unless otherwise stipulated.
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ARTICLE 4. NET PROFITS, NET LOSSES AND DISTRIBUTIONS
4(a) Profits, Losses And Credits.
Net Profits, Net Losses, Non-taxable Income, Unallowable Deductions and credits shall be computed for each period and shall be allocated among the Members in accordance with their Units as of the end of such period.
4(b) Distributions Of Distributable Cash.
Distributable Cash shall be distributed among the Members in accordance with their Units. The Company shall make a minimum distribution each year equal to the Members equal to the Net Profits multiplied by highest combined income tax rate (federal and state) for the Members.
Except as provided in this Section (b) and in Section (c) of this Article, no Member shall be entitled to withdraw any amount from his or her investment in the Limited Liability Company.
4(c) Termination Proceeds.
In the event of the dissolution and termination of the Limited Liability Company under Article 5, the proceeds of such dissolution and termination shall be allocated as follows:
(1) | First, in payment of all accrued but unpaid debts and liabilities of the Limited Liability Company requiring payment in order of priority; |
(2) | Second, to expenses of sale or dissolution, including customary brokerage fees; |
(3) | Third, to provide such reserves as the Managers deem advisable for contingent liabilities of the Limited Liability Company (which reserves will be held in escrow); and |
(4) | Fourth, to all other Members in accordance with their Units. |
Each Member shall look solely to the assets of the Limited Liability Company for the return of such Members capital contribution and if the Limited Liability Company property remaining after the payment or discharge of the prior debts, liabilities and distributions of the Limited Liability Company is insufficient to return such capital contributions, no Member shall have any recourse against any other Member or Manager.
ARTICLE 5. TERM, DISSOLUTION AND TERMINATION OF LIMITED LIABILITY COMPANY
5(a) Term And Dissolution Of Limited Liability Company.
The term of the Limited Liability Company shall commence as of the date of the filing of the Certificate of Organization with the Iowa Secretary of State, and shall continue until the earliest of the following:
(1) | The sale, expiration, abandonment or other disposition of all Limited Liability Company assets; |
(2) | Dissolution of the Limited Liability Company by judicial decree; or |
(3) | The written consent of a Majority in Interest of the Members. |
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5(b) No Dissolution As A Result Of Certain Other Events.
The Limited Liability Company shall not be dissolved by any event not set forth in Section (a) of this Article, and no other event shall entitle any Member to a return of capital.
5(c) Winding Up, Liquidation, Distribution Of Assets And Termination.
If the Limited Liability Company is dissolved, then:
(1) | The Managers shall wind up the affairs of the Limited Liability Company; and sell or otherwise liquidate or dispose of or abandon all of the Limited Liability Company assets in a manner consistent with attempting to obtain the fair market value thereof; and shall terminate the Limited Liability Company. |
(2) | The proceeds from such disposition shall be distributed pursuant to Section (c) of Article 4. |
ARTICLE 6. DISSOCIATION AND TRANSFERS OF INTERESTS
6(a) Restrictions On Dissociation.
A Member may not voluntarily dissociate as a Member unless any amendment to this Operating Agreement or the Certificate of Organization of the Limited Liability Company is adopted over the Members written dissent and adversely affects the rights or preferences of the Members interest in the Limited Liability Company in any of the following ways:
(1) | By altering or abolishing the Members right to receive a distribution; |
(2) | By altering or abolishing the Members right to voluntarily withdraw or resign; |
(3) | By altering or abolishing the Members right to vote on any matter, except as the rights may be altered or abolished through the acceptance of contributions or the making of contribution agreements; |
(4) | By altering or abolishing the Members preemptive right to make contributions; or |
(5) | By establishing or changing the conditions for or consequences of expulsion. |
6(b) Assignment, Sale, and Transfer of Units.
(1) | No Transfers Permitted. Except as permitted pursuant to a written agreement of the Members and Company, a Member shall not transfer his or her Units, unless consented to by the Managers and a Majority in Interest of the Members. For purposes of this Section, Transfer shall mean (1) to sell, transfer, assign, pledge or otherwise encumber or dispose of whether with or without consideration and whether voluntarily or involuntarily or by operation of law, directly or indirectly; provided, that a lien arising with respect to Units in connection with a general lien on all or substantially all of the assets of the holder of Units shall not constitute a Transfer, and (2) to allow a change of control of any Member who owns any Units in the Limited Liability Company. As used in this definition, the term control means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person or entity, whether through ownership of voting securities, by contract or otherwise. A Transfer includes a transfer to Members spouse, children (including natural, adopted and stepchildren), grandchildren, and parents, or a trust for the benefit of the Member or the Members spouse, children (including natural, adopted and stepchildren), grandchildren, and parents. No other provision of this Operating Agreement to the contrary, Transfer of a Unit shall not dissolve or terminate the Limited Liability Company. |
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(2) | Economic Member. Notwithstanding anything contained herein to the contrary, unless the transferee of Units has received the approval of the Managers and a Majority in Interest of the Members to become a Member, the transferee has no right to vote or to participate in the management of the business and affairs of the Limited Liability Company and is entitled only to receive the share of profits and losses and distributions to which the Transferring Member would have otherwise been entitled. As a condition to his, her or its admission as a Member (a) any transferee shall execute and deliver such instruments, in form and substance satisfactory to the Limited Liability Company, as the Limited Liability Company shall deem necessary or desirable to cause him, her or it to become a Member, and (b) such transferee shall pay all reasonable expenses in connection with his, her or its admission as a Member. |
6(c) Admission Of New Members.
From the date of the formation of the Limited Liability Company, with the consent of the Managers and of a Majority in Interest of the Members, any person or entity acceptable to the Managers may, subject to the terms and conditions of this Operating Agreement, become an additional Member in this Limited Liability Company by the sale of new Limited Liability Company interests for such consideration as the Managers shall determine. Any Additional Member must accept and agree to be bound by the terms of this Operating Agreement, as evidenced by such Additional Members execution of an acknowledgement in the form attached hereto as Exhibit A.
6(d) Allocations To Additional Or Substitute Members.
No additional or substitute Member shall be entitled to any retroactive allocation of losses, income or expense deductions incurred by the Limited Liability Company. The Managers may, at their option, at the time an additional or substitute Member is admitted, close the Limited Liability Companys books (as though the Limited Liability Companys tax year had ended) or make pro rata allocations of loss, income and expense deductions to an additional or substitute Member for that portion of the Companys tax year in which an additional or substitute Member was admitted.
ARTICLE 7. WRITTEN INSTRUMENTS, LOANS, CHECKS AND DEPOSITS
7(a) Written Instruments.
All deeds and mortgages made by the Limited Liability Company and all other written contracts and agreements to which the Limited Liability Company is a party shall be executed in its name by a majority of the Managers, or by a Manager or Officer pursuant to a general or specific grant of authority approved by a majority of the Managers.
7(b) Loans.
No loans shall be contracted on behalf of the Limited Liability Company, and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the Managers. Such authority may be general or confined to specific instances.
7(c) Checks, Drafts, Etc.
All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Limited Liability Company, shall be signed by such officer or officers, agent or agents of the Limited Liability Company and in such manner as shall be determined by the Managers.
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7(d) Deposits.
All corporate funds not otherwise employed shall be deposited to the credit of the Limited Liability Company in such banks, trust companies or other depositories as the Managers may select.
ARTICLE 8. RECORDS; FINANCIAL AND FISCAL AFFAIRS; TAX REPORTING
8(a) Records and Accounting.
The books and records of the Limited Liability Company shall be kept in accordance with United States Generally Accepted Accounting Principles consistently applied. Such books and records shall show a true and accurate record of all costs and expenses incurred, all charges made, all credits made and received and all income derived in connection with the Limited Liability Companys business.
Upon request, for any purpose reasonably related to the Members interest as a Member, the Limited Liability Company will furnish a copy of such information to a Member or his representative; provided, however, that the information furnished to the Member will not, in any event, be used for commercial purposes. Any Member may inspect and copy or obtain from the Limited Liability Company the financial records of the Limited Liability Company and its tax returns. A member shall give the Limited Liability Company at least five (5) business days prior written notice for any inspection and copying permitted pursuant to this subsection by the Member or its authorized attorney or agent.
8(b) Tax Information.
The Members will use their best efforts to cause to be delivered, as soon as practical after the end of each fiscal year of the Limited Liability Company, to the Members and persons or individuals who were Members during such fiscal year all information concerning the Company necessary to enable such Member to prepare such Members Federal and State partnership income tax returns for such fiscal year, including a statement indicating such Members share of profits, losses, deductions and credits for such fiscal year for Federal and state income tax purposes, and the amount of any distribution made to or for the account of such Member during such fiscal year pursuant to this Agreement.
8(c) Tax Returns.
The Members shall cause the Limited Liability Companys accountants to prepare all income and other tax
returns of the Limited Liability Company and cause the same to be filed in a timely manner in accordance with applicable law. The Members shall cause all tax obligations of the Limited Liability Company to be paid in a timely manner.
8(d) Elections.
(1) | The Members may elect to adjust the basis of the assets of the Limited Liability Company for Federal income tax purposes in accordance with Section 754 of the Internal Revenue Code in the event of a distribution of Limited Liability Company property as described in Section 734 of the Internal Revenue Code or a transfer by any Member of the interest of such Member in the Limited Liability Company as described in Section 743 of the Internal Revenue Code. |
(2) | The Members, at any time and from time to time may also make such other tax elections as they deems necessary or desirable, in their discretion. |
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8(e) Interim Closing of the Books.
There shall be an interim closing of the books of account of the Limited Liability Company (i) at any time a taxable year of the Limited Liability Company shall end pursuant to the Internal Revenue Code, and (ii) at any other time determined by the Members to be required by good accounting practice or otherwise appropriate under the circumstances.
8(f) Accounting & Tax Matters.
Until the Managers designate a new Tax Matters Partner, Meredith Corporation shall be the designated Tax Matters Partner within the meaning of Internal Revenue Code § 6231(a)(7) and is authorized to exercise the functions of a Tax Matters Partner under the Internal Revenue Code. The Tax Matters Partner shall be reimbursed for all reasonable expenses associated with its duties as Tax Matters Partner.
ARTICLE 9. MEETINGS OF MEMBERS
9(a) Meetings.
Member meetings, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the Managers or by a Majority in Interest of the Members, and shall be called by the Managers at the written request of Members holding 20% or more of the Units. Such request shall state the purpose or purposes of the meeting,
9(b) Place Of Meeting.
The Managers may designate any place, either within or without the State of Iowa, for any meeting called by the Managers or by the Members, except that a waiver of notice signed by all Members entitled to vote thereat may designate any place, either within or without the State of Iowa, as the place of the holding of such meeting. If no designation is made, the place of meeting shall be the registered office of the Limited Liability Company in the State of Iowa, but any meeting may be adjourned to reconvene at any place designated by a Majority in Interest of the Members at the adjourned meeting.
9(c) Notice Of Meeting.
Written or printed notice stating the place, day and hour of the meeting, and the purpose or purposes for which called, shall be delivered not less than ten (10) days (or such greater number as required by law) nor more than fifty (50) days before the meeting, either personally or by mail, by or at the direction of the Managers or person calling the meeting, to each Member of record entitled to vote thereat. If mailed, such notice shall be deemed delivered when deposited in the United States mail, addressed to the Member at the Members address as it appears on the Limited Liability Companys record books, with postage prepaid. A meeting notice may also be delivered electronically via e-mail to the Members current email address as provided by the Member to the Limited Liability Company from time to time, or by facsimile to the Members current facsimile number as provided by the Member to the Limited Liability Company from time to time.
9(d) Waiver Of Notice.
(1) | A written waiver of notice signed by any Member entitled to such notice, whether before or after the meeting, shall be equivalent to the giving of notice to such Member in due time as required by law. |
(2) | Presence at or participation in any Members meeting, in person or by proxy, shall be equivalent to waiver of giving of notice of such meeting and irregularities in any notice given. |
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9(e) Voting List.
The Managers shall make, at least ten days before each Member meeting, a complete list of Members entitled to vote at such meeting, or any adjournment thereof, arranged in alphabetical order, with the address of and the Units owned by each, which list, for a period of ten days prior to such meeting, shall be kept on file at the registered office of the Limited Liability Company subject to inspection by any Member during usual business hours. Such list shall also be produced at the meeting and shall there be subject to inspection of any Member. The membership transfer books shall be prima facie evidence as to the Members entitled to examine such list or books or to vote at any Member meeting. Failure to comply with this Section shall not affect the validity of any action taken at such meeting.
9(f) Quorum.
At any Member meeting a Majority in Interest of the Members, present in person or represented by proxy, shall constitute a quorum, unless a larger number is required by law or the Certificate of Organization, and in that case, the representation of the number so required shall constitute a quorum. If the holders of the Units necessary for a quorum shall fail to attend in person or by proxy at the time and place fixed for a meeting, a Majority in Interest of the Members present in person or by proxy may adjourn by announcement at the meeting, until a quorum shall be present. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally notified.
9(g) Organization.
(1) | The holders of a Majority in Interest of the Members present may appoint any Member to act as Chairman. |
(2) | The Chairman may appoint any person to act as Secretary of the meeting. |
9(h) Voting Of Membership Interests.
(1) | Unless otherwise specifically stated in this Operating Agreement or as required by law, only Members holding Units shall have a right to vote on any matters. |
(2) | Except as otherwise provided by law or this Operating Agreement, each one Unit entitled to vote shall have one vote on each matter submitted to a vote. Such vote may be cast either in person or by proxy executed and delivered as provided in Section (k) of this Article. |
(3) | The Members having the right to vote at any meeting shall only be those of record on the books of the Limited Liability Company, and those acting in a representative capacity under Section (i) of this Article, on the date of such meeting. A Member may vote interests in the Limited Liability Company pledged. |
(4) | Voting by Members may be via voice vote unless the Chairman shall order or any Member entitled to vote shall demand that voting be by ballot. In such case each, ballot shall be signed by the Member voting or in such Members name by proxy, and shall state the Units voted by such Member. |
(5) | The vote of a Majority in Interest of all of the Members entitled to vote and not just of those Members represented at the meeting and entitled to vote thereon shall be required to be the act of the Members, unless the vote of a greater number is required by law, the Certificate of Organization or this Operating Agreement. |
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9(i) Inspectors Of Election.
The Managers in advance of any Member meeting may appoint inspectors to act at such meeting or any adjournment thereof. If inspectors are not appointed, the Chairman of such meeting may, and on the request of any Member or such Members proxy shall, make such appointment. If any appointed inspector fails to appear or act, the vacancy may be filled by the Managers in advance of the meeting, or at the meeting by the Chairman. The inspectors shall register proxies, determine the amount of Units, the existence of a quorum, the authenticity, validity and effect of proxies, determine all challenges and questions in connection with the vote, count and tabulate all votes, assents and consents, determine and announce the result, and do such acts proper to conduct the election or vote with fairness to all Members. No inspector need be a Member.
9(j) Proxies.
At all Member meetings, a Member entitled to vote may vote by proxy appointed in writing by the Member or by such Members duly authorized attorney-in-fact. Such proxy shall be filed with the Secretary or the Chairman before or at the time of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided therein. Each proxy for any Members meeting shall be registered with the election inspectors prior to such meeting. Registration shall be on the same date and at the same premises as the meeting and shall commence at least one hour prior to and terminate prior to the start of the meeting. Any proxies not so registered shall not be recognized, counted or tabulated as to any matters before the particular meeting.
9(k) Informal Action By Members.
Any action required or permitted by law or the Certificate of Organization or this Operating Agreement to be taken at a meeting of Members, may be taken without a meeting if a consent in writing setting forth the action so taken shall be signed by all of the Members entitled to vote thereon.
ARTICLE 10. MANAGERS
10(a) General Powers.
The business and affairs of the Limited Liability Company shall be managed by the Managers. However, the Managers must receive the prior consent and approval of a Majority-In-Interest of the Members to do any of the following:
(1) | Sell, lease, exchange or otherwise dispose of all, or substantially all of the Limited Liability Companys property, with or without the Limited Liability Companys goodwill, outside of the ordinary course of the Limited Liability Companys business; |
(2) | Approve a merger, conversion or domestication involving the Limited Liability Company; or |
(3) | Amend this Operating Agreement pursuant to the provisions of Section 12(c) of this Operating Agreement. |
Further, if any Member will have any personal liability with respect to a surviving, converted or domesticated organization, approval or amendment of a plan of merger, conversion or domestication is ineffective without the approval and consent of all Members who will have any personal liability with respect to the taking of any such action.
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10(b) Specific Powers.
Included within the powers of the Managers is the authority to sign, execute and acknowledge all contracts, checks, deeds, mortgages, bonds, leases or other instruments and obligations on behalf of the Limited Liability Company which shall be signed by a majority of the Managers.
10(c) Number, Tenure And Qualifications.
The number of Managers shall be as determined under Section (d) of Article 1. Each Manager shall hold office until a successor shall have been elected and qualifies, or until death, resignation or removal. Managers need not be residents of the State of Iowa, nor Members of the Limited Liability Company.
10(d) Quorum And Manner Of Acting.
A majority of the number of Managers fixed in the manner provided by Section (d) of Article 1 shall constitute a quorum; but if at any meeting there be less than a quorum present, a majority of the Managers present may adjourn the meeting without notice until a quorum shall be present. At all meetings of Managers, even though a quorum be present, the act of a majority of the Managers and not just of a majority of the Managers present shall be required to be the act of the Managers.
10(e) Resignation.
Any Manager may resign by written notice to the other Managers or, if there be no such individuals, then to each of the Members. Such resignation shall take effect upon receipt of notice thereof or at such later date as specified therein; and, unless otherwise specified therein, acceptance of such resignation shall not be necessary to make it effective.
10(f) Removal.
A Manager shall be subject to removal at a meeting of the Members by the vote of a Majority in Interest of the Members.
10(g) Vacancies.
Any vacancy among the Managers may be filled by a vote of the majority in interest of the Members. A Manager elected to fill a vacancy shall be elected until the election of a successor.
10(h) Number Of Managers Increased.
If the number of Managers be increased, the new Manager shall be selected by vote of a majority of Managers then in office, even if less than a quorum. Any Manager so elected shall serve until election of a successor.
10(i) Compensation Of Managers.
The Managers shall be entitled to be reimbursed for expenses for attendance at any Managers meeting, and the Managers may provide that the Limited Liability Company shall pay each Manager compensation for services as fixed by the Managers. Nothing herein shall preclude any Manager from serving the Limited Liability Company in any other capacity and receiving compensation therefor. The Managers may provide for, or delegate authority to an appropriate committee to provide for, reasonable pensions, disability or death benefits, and other benefits or payments, to Managers, officers and employees and to their estates, families, dependents or beneficiaries for services rendered by such persons to the Limited Liability Company.
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10(j) Place Of Meetings, Etc.
Except as provided in the following Section, the Managers may hold their meetings and keep the books and records of the Limited Liability Company (except those records required by law to be kept at its principal office) at such place or places within or without the State of Iowa, as the Managers determine.
10(k) Meeting.
Meetings may be held at any time or place specified in a notice given as hereinafter provided for meetings of the Managers or in a consent and waiver of notice signed by all Managers.
10(l) Regular Meetings.
Regular meetings of the Managers shall be held without need for notice thereof at such place and time as the Managers shall fix and determine.
10(m) Special Meetings; Notice.
(1) | Special meetings of the Managers shall be held whenever called by one-third of the Managers in office. |
(2) | Notice of each such meeting shall be mailed to each Manager, at the Managers address as it appears on the books of the Limited Liability Company, at least five (5) days before the meeting, delivered personally or by telephone not later than the second day before the meeting. Each notice shall state the time and place of the meeting. A meeting notice may also be delivered electronically via e-mail to the Managers current email address as provided by the Manager to the Limited Liability Company from time to time, or by facsimile to the Managers current facsimile number as provided by the Manager to the Limited Liability Company from time to time. Unless otherwise indicated in the notice, any and all business may be transacted at a special meeting. At any meeting at which every Manager is present, even without any notice, any business may be transacted. |
10(n) Substitutes For Notice.
A written waiver of notice signed by a Manager, whether before or after the meeting, shall be equivalent to the giving of notice in due time as required by this Operating Agreement. Attendance of a Manager at a meeting shall constitute a waiver of notice, except where the Manager attends for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened.
10(o) Managers Assent Presumed.
A Manager who is present at a Managers meeting shall be presumed to have assented to any action taken thereat unless the Managers dissent is entered in the minutes or the Manager shall file his written dissent thereto with the Secretary of the meeting before adjournment thereof or shall forward such dissent by registered or certified mail to the other Managers immediately after the adjournment of the meeting. Such right to dissent shall not apply to a Manager who voted in favor of such action.
10(p) Order Of Business.
At Manager meetings, business shall be transacted in such order as the Managers determine, and the senior Manager (in point of service) shall preside.
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10(q) Action Without Meeting.
Any action required or permitted by law or the Certificate of Organization or this Operating Agreement to be taken at any meeting of the Managers may be taken without a meeting if a consent in writing setting forth the action so taken shall be signed by all of the Managers then in office.
10(r) Committees.
The Managers, by vote of a majority of the number of Managers fixed in the manner provided by Section (d) of Article 1, may establish one or more committees, each committee to consist of such number of Managers elected by the Managers, to serve at the will of the Managers and to have the powers and duties delegated to it by the Managers. Each such committee may set rules governing the conduct of its activities.
ARTICLE 11. OFFICERS
11 (a) Executive Officers.
The Managers may appoint executive officers, including a President, one or more Vice-Presidents, a Secretary and a Treasurer. None of the officers need be Managers or Members. One person may hold the offices and perform the duties of any two or more of said offices.
11(b) Election And Term Of Office.
Executive officers may be chosen by the Managers at any meeting. Each such officer shall hold office until the next Managers meeting and until a successor shall have been duly chosen and shall qualify or until death, resignation or removal.
11(c) Removal.
Any officer or agent may be removed by the Managers whenever in their judgment the best interests of the Limited Liability Company will be served thereby, but without prejudice to the contract rights, if any, of such person. Election or appointment of an officer or agent shall not in itself create contract rights.
11(d) Resignations.
Any officer may resign by written notice thereof to the Managers. Such resignation shall take effect upon receipt thereof or at any later time specified therein; and, unless otherwise specified therein, acceptance thereof shall not be necessary to make it effective.
11(e) Vacancies.
A vacancy in any office may be filled by appointment by the Managers.
11(f) Powers and Duties of the President.
If appointed by the Managers, the President shall have general charge of and direct the operations of the Limited Liability Company, subject to the control of the Managers, and shall keep the Managers fully informed and shall consult with them concerning the business of the Limited Liability Company. If appointed, the President shall have authority to sign, execute and acknowledge all contracts, checks, deeds, mortgages, bonds, leases or other obligations on behalf of the Limited Liability Company as the President may deem necessary or proper in the course of the Limited Liability Companys regular business, or which shall be authorized by the Managers. The President may sign in the name of the Limited Liability Company reports and all other documents or instruments which are necessary or proper in the course of the Limited Liability Companys business. The President shall perform all duties incident to the office, as herein defined, and all such other duties as from time to time may be assigned by the Managers.
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The limited liability company may appoint more than one person to serve as the President and, if more than one person is appointed to serve as President, each shall be denominated as a co-President and each shall have the powers and duties set forth above.
11(g) Powers and Duties of the Vice President.
If one or more Vice-Presidents are appointed by the Managers, in the absence of the President or in the event of the Presidents death, inability or refusal to act, the Vice-President (or if more than one), the senior Vice-President in length of service shall perform the duties of the President, and when so acting, shall have all powers of and be subject to all restrictions upon the President. Each Vice-President shall perform such duties and have such authority as may be assigned to such Vice-President by the President or by the Managers.
11(h) Powers and Duties of the Secretary.
If appointed by the Managers, the Secretary shall (a) keep minutes of all meetings; (b) attend to serving all notices of the Limited Liability Company; (c) be custodian of the Members ownership books and such other books, records and papers as the Managers direct; (d) keep a record showing the names of all Members, their post office addresses as furnished by them, and their Units, and at least ten days before each Members meeting, prepare a list of Members entitled to vote thereat arranged in alphabetical order; (e) sign in the name of the Limited Liability Company all contracts authorized by the Managers or the President; and (f) in general, perform all duties incident to the office and such other duties as may be assigned by the President or the Managers.
11(i) Powers and Duties of the Treasurer.
If appointed by the Managers, the Treasurer shall (a) have custody of and be responsible for all moneys and securities of the Limited Liability Company, keep full and accurate records and accounts of the transactions and financial condition of the Limited Liability Company, and see that all expenditures are duly authorized and evidenced by proper receipts and vouchers; (b) deposit in the name of the Limited Liability Company in such depository or depositories approved by the Managers, all moneys that come into the Treasurers hands for the Limited Liability Companys account; (c) make a full report of the financial condition of the Limited Liability Company at annual Member meetings or at any meeting of the Managers; and (d) in general, perform such duties as may be assigned by the President or by the Managers. The Treasurers books and accounts shall be open during business hours to the inspection of any Manager. The Treasurer shall, if required by the Managers, give bond in such form and with such sureties as shall be required by the Managers.
11(j) Other Officers.
The Managers may appoint such other officers as are necessary or appropriate in order to conduct the Limited Liability Companys business operations.
11(k) Assistants And Acting Officers.
The Managers or any officer, duly authorized by the Managers, may appoint any person to act as assistant to any officer, or to perform the duties of such officer whenever it is impracticable for such officer to act personally, and such assistant or acting officer may perform all the duties of the office to which appointed as assistant, except as such power may be otherwise defined or restricted by the Managers or the appointing officer.
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11(1) Salaries.
The salaries of any officers shall be fixed by the Managers, and no officer shall be prevented from receiving such salary because he or she is also a Manager of the Limited Liability Company.
ARTICLE 12. BUY-SELL PROVISION
The Company and Members may enter into a separate Buy-Sell Agreement.
ARTICLE 13. MISCELLANEOUS PROVISIONS
13(a) Application Of Iowa Law.
This Operating Agreement, and the application of interpretation hereof, shall be governed exclusively by its terms and by the laws of the State of Iowa, and specifically Iowas Revised Uniform Limited Liability Company Act.
13(b) Waiver Of Action For Partition.
Each Member irrevocably waives during the term of the Limited Liability Company any right that it may have to maintain any action for partition with respect to the property of the Limited Liability Company.
13(c) Amendments.
The Certificate of Organization and/or this Operating Agreement shall be subject to amendment or alteration in whole or in part or new Certificate of Organization or an Operating Agreement may be adopted by the vote of a majority of the Managers and of a Majority in Units of the Members; provided, however, that notice of intention to make or amend such documents in whole or in part, or to adopt new Certificate of Organization or a new Operating Agreement, shall have been given in the notice of such meeting, unless all Managers and all Members entitled to vote thereon unanimously vote in favor of any such amendment or alteration or shall consent thereto as provided in Section (1) of Article 8 and Section (q) of Article 9.
13(d) Certificates.
If the Managers determine to issue certificates, every Member shall be entitled to a certificate or certificates in such form as the Managers shall prescribe. No certificate shall be issued for any interest in the Limited Liability Company until payment is received for such interest. The Managers may make such rules and regulations, not inconsistent with the Certificate of Organization and this Operating Agreement, concerning the issue, transfer and registration of certificates. Any assignment or transfer of certificates permitted by such rules and regulations shall not be construed to grant any right to participate in the management of the business and affairs of the Limited Liability Company or to become a substitute Member except as provided in Section (b) of Article 6.
13(e) Execution Of Additional Instruments.
Each Member hereby agrees to execute such other and further statements of interest and holdings, designations, powers of attorney and other instruments necessary to comply with any laws, rules or regulations.
13(f) Construction.
Whenever the singular number is used in this Operating Agreement and when required by the context, the same shall include the plural, and the masculine gender shall include the feminine and neuter genders and vice versa.
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13(g) Headings.
The headings in this Operating Agreement are inserted for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent or intent of this Operating Agreement or any provision hereof.
13(h) Waivers.
The failure of any party to seek redress for violation of or to insist upon the strict performance of any covenant or condition of this Operating Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation.
13(i) Rights And Remedies Cumulative.
The rights and remedies provided by this Operating Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive the right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise.
13(j) Severability.
If any provision of this Operating Agreement or the application thereof to any person or circumstance shall be invalid, illegal or unenforceable to any extent, the remainder of this Operating Agreement and the application thereof shall not be affected and shall be enforceable to the fullest extent permitted by law.
13(k) Heirs, Successors And Assigns.
Each and all of the covenants, terms, provisions and agreements herein contained shall be binding upon and inure to the benefit of the parties hereto and, to the extent permitted by this Operating Agreement, their respective heirs, legal representatives, successors and assigns.
13(1) Creditors.
None of the provisions of this Operating Agreement shall be for the benefit of or enforceable by any creditor of the Limited Liability Company.
13(m) Counterparts.
This Operating Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.
13(n) Annual Reports.
The Managers shall cause an annual report to be sent to the Members not later than 75 days after the close of each taxable year, which report shall include a balance sheet, operating statement, cash flow statement and statement of distribution of funds to the Members for such year.
13(o) Loans From Members.
In the event that the Limited Liability Companys funds are not sufficient to meet its costs, expenses, obligations, liabilities and charges, any Member may, as permitted by a majority vote of the Managers, advance funds to the Limited Liability Company. Such loans shall not constitute a contribution to the capital of the Limited Liability Company or be credited to the investment of the Member or Members or entitle such Member or Members to any increase in a share of Limited Liability Company allocations. Loans in accordance with this
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paragraph shall be a debt due from the Limited Liability Company to such Member or Members and shall be, together with accrued interest thereon, reimbursed to the Member or Members making such loans in accordance with the terms of any such loans and, to the extent applicable, prior to any other distribution to the Members, whether such distribution be in connection with the dissolution of the Limited Liability Company or otherwise. Such loans shall bear a reasonable rate of interest.
13(p) No Right Of Members To Receive Property Other Than Cash In Return For Contributions.
No Member shall have any right to demand or receive property other than cash in return for his or her contribution to the capital of the Limited Liability Company; provided, however, a distribution upon dissolution and termination of the Limited Liability Company may, as provided in this Operating Agreement or as required by law, be in a form other than cash.
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IN WITNESS WHEREOF, the Members have executed this Operating Agreement effective as of Sept 1, 2016
MEREDITH CORPORATION, sole Member | ||
By: | /s/ John S. Zieser | |
John S. Zieser, Chief Development Officer and General Counsel |
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Exhibit A
ADDITIONAL SIGNATURE PAGE TO THE
OPERATING AGREEMENT OF
MEREDITH PERFORMANCE MARKETING, LLC
The undersigned does hereby represent and warrant that the undersigned, as a condition to becoming a Member in Meredith Performance Marketing, LLC (the Company), has received a copy of the Companys Operating Agreement, dated , 2016, and, if applicable, all amendments and modifications thereto or restatements thereof (collectively, the Operating Agreement), and does hereby agree that the undersigned, along with the other parties to the Operating Agreement, shall be subject to and comply with all terms and conditions of said Operating Agreement in all respects and that the undersigned is and shall be bound by all of the provisions of said Operating Agreement.
[Printed Name]
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Exhibit 3.19
500778
CERTIFICATE OF ORGANIZATION
OF
MEREDITH SHOPPER MARKETING, LLC
TO THE SECRETARY OF STATE OF THE STATE OF IOWA:
Pursuant to Section 201 of the Iowa Revised Uniform Limited Liability Company Act, the undersigned, acting as organizer of the limited liability company, adopts the following Certificate of Organization for the limited liability company.
1. | The name of the limited liability company is Meredith Shopper Marketing, LLC. |
2. | The street address of the limited liability companys initial registered office: |
1716 Locust Street
Des Moines, Iowa 50309
3. | The name and street and mailing address of the initial registered agent for service of process of the limited liability company is: |
John S. Zieser
1716 Locust Street
Des Moines, Iowa 50309
4. | The effective time and date of this document is the time and date of its filing with the Iowa Secretary of State. |
/s/ S. Christian Nelson |
S. Christian Nelson, Organizer |
Exhibit 3.20
OPERATING AGREEMENT
OF
MEREDITH SHOPPER MARKETING, LLC
TABLE OF CONTENTS
ARTICLE 1. |
GENERAL PROVISIONS | 1 | ||||
1(a) |
Formation | 1 | ||||
1(b) |
Principal Office In Iowa | 1 | ||||
1(c) |
Other Offices | 1 | ||||
1(d) |
Number Of Managers | 1 | ||||
1(e) |
Fiscal Year | 1 | ||||
1(f) |
Limited Liability Company Debts and Obligations | 1 | ||||
1(g) |
No Member Fiduciary Duties | 2 | ||||
1(h) |
Duty of Loyalty Owed by Managers and Officers | 2 | ||||
1(i) |
Managers and Officers have no Exclusive Duty to the Limited Liability Company | 2 | ||||
1(j) |
Liability Limitation and Indemnification of Managers and Officers | 3 | ||||
1(k) |
Statements of Authority | 4 | ||||
ARTICLE 2. |
DEFINITIONS | 4 | ||||
2(a) |
Affiliate | 4 | ||||
2(b) |
Net Profits And Losses | 4 | ||||
2(c) |
Non-Taxable Income And Unallowable Deductions | 4 | ||||
2(d) |
Cash Flow | 5 | ||||
2(e) |
Distributable Cash | 5 | ||||
2(f) |
Members | 5 | ||||
2(g) |
Majority In Interest Of The Members | 6 | ||||
2(h) |
Person | 6 | ||||
2(i) |
Units | 6 | ||||
ARTICLE 3. |
CAPITAL CONTRIBUTIONS | 6 | ||||
3(a) |
Initial Capital Contributions | 6 | ||||
3(b) |
Additional Capital Contributions and Loans Required | 6 | ||||
ARTICLE 4. |
NET PROFITS, NET LOSSES AND DISTRIBUTIONS | 7 | ||||
4(a) |
Profits, Losses And Credits | 7 | ||||
4(b) |
Distributions Of Distributable Cash | 7 | ||||
4(c) |
Termination Proceeds | 7 | ||||
ARTICLE 5. |
TERM, DISSOLUTION AND TERMINATION OF LIMITED LIABILITY COMPANY | 7 | ||||
5(a) |
Term And Dissolution Of Limited Liability Company | 7 | ||||
5(b) |
No Dissolution As A Result Of Certain Other Events | 8 |
i
5(c) |
Winding Up, Liquidation, Distribution Of Assets And Termination | 8 | ||||
ARTICLE 6. |
DISSOCIATION AND TRANSFERS OF INTERESTS | 8 | ||||
6(a) |
Restrictions On Dissociation | 8 | ||||
6(b) |
Assignment, Sale, and Transfer of Units | 8 | ||||
6(c) |
Admission Of New Members | 9 | ||||
6(d) |
Allocations To Additional Or Substitute Members | 9 | ||||
ARTICLE 7. |
WRITTEN INSTRUMENTS, LOANS, CHECKS AND DEPOSITS | 9 | ||||
7(a) |
Written Instruments | 9 | ||||
7(b) |
Loans | 9 | ||||
7(c) |
Checks, Drafts, Etc. | 9 | ||||
7(d) |
Deposits | 10 | ||||
ARTICLE 8. |
RECORDS; FINANCIAL AND FISCAL AFFAIRS; TAX REPORTING | 10 | ||||
8(a) |
Records and Accounting | 10 | ||||
8(b) |
Tax Information | 10 | ||||
8(c) |
Tax Returns | 10 | ||||
8(d) |
Elections | 10 | ||||
8(e) |
Interim Closing of the Books | 11 | ||||
8(f) |
Accounting & Tax Matters | 11 | ||||
ARTICLE 9. |
MEETINGS OF MEMBERS | 11 | ||||
9(a) |
Meetings | 11 | ||||
9(b) |
Place Of Meeting | 11 | ||||
9(c) |
Notice Of Meeting | 11 | ||||
9(d) |
Waiver Of Notice | 11 | ||||
9(e) |
Voting List | 12 | ||||
9(f) |
Quorum | 12 | ||||
9(g) |
Organization | 12 | ||||
9(h) |
Voting Of Membership Interests | 12 | ||||
9(i) |
Inspectors Of Election | 13 | ||||
9(j) |
Proxies | 13 | ||||
9(k) |
Informal Action By Members | 13 | ||||
ARTICLE 10. MANAGERS |
13 | |||||
10(a) |
General Powers | 13 | ||||
10(b) |
Specific Powers | 14 | ||||
10(c) |
Number, Tenure And Qualifications | 14 | ||||
10(d) |
Quorum And Manner Of Acting | 14 |
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10(e) |
Resignation | 14 | ||||
10(f) |
Removal | 14 | ||||
10(g) |
Vacancies | 14 | ||||
10(h) |
Number Of Managers Increased | 14 | ||||
10(i) |
Compensation Of Managers | 14 | ||||
10(j) |
Place Of Meetings, Etc. | 15 | ||||
10(k) |
Meeting | 15 | ||||
10(1) |
Regular Meetings | 15 | ||||
10(m) |
Special Meetings; Notice | 15 | ||||
10(n) |
Substitutes For Notice | 15 | ||||
10(o) |
Managers Assent Presumed | 15 | ||||
10(p) |
Order Of Business | 15 | ||||
10(q) |
Action Without Meeting | 16 | ||||
10(r) |
Committees | 16 | ||||
ARTICLE 11. OFFICERS |
16 | |||||
11(a) |
Executive Officers | 16 | ||||
11(b) |
Election And Term Of Office | 16 | ||||
11(c) |
Removal | 16 | ||||
11(d) |
Resignations | 16 | ||||
11(e) |
Vacancies | 16 | ||||
11(f) |
Powers and Duties of the President | 16 | ||||
11(g) |
Powers and Duties of the Vice President | 17 | ||||
11(h) |
Powers and Duties of the Secretary | 17 | ||||
11(i) |
Powers and Duties of the Treasurer | 17 | ||||
11(j) |
Other Officers | 17 | ||||
11(k) |
Assistants And Acting Officers | 17 | ||||
11(1) |
Salaries | 18 | ||||
ARTICLE 12. BUY-SELL PROVISION |
18 | |||||
ARTICLE 13. MISCELLANEOUS PROVISIONS |
18 | |||||
13(a) |
Application Of Iowa Law | 18 | ||||
13(b) |
Waiver Of Action For Partition | 18 | ||||
13(c) |
Amendments | 18 | ||||
13(d) |
Certificates | 18 | ||||
13(e) |
Execution Of Additional Instruments | 18 | ||||
13(f) |
Construction | 18 | ||||
13(g) |
Headings | 19 | ||||
13(h) |
Waivers | 19 | ||||
13(i) |
Rights And Remedies Cumulative | 19 | ||||
13(j) |
Severability | 19 | ||||
13(k) |
Heirs, Successors And Assigns | 19 | ||||
13(l) |
Creditors | 19 |
iii
13(m) |
Counterparts | 19 | ||||
13(n) |
Annual Reports | 19 | ||||
13(o) |
Loans From Members | 19 | ||||
13(p) |
No Right Of Members To Receive Property Other Than Cash In Return For Contributions | 20 |
iv
OPERATING AGREEMENT
OF
MEREDITH SHOPPER MARKETING, LLC
ARTICLE 1. GENERAL PROVISIONS
1(a) Formation
The parties to this Operating Agreement (referred to herein, as Operating Agreement or Agreement) have agreed to the formation and are the Members of Meredith Shopper Marketing, LLC (hereinafter called the Limited Liability Company) a limited liability company organized under the provisions of the Iowa Revised Uniform Limited Liability Company Act. A certificate of organization has been filed with the Iowa Secretary of State.
1(b) Principal Office In Iowa.
The principal office of Limited Liability Company in the State of Iowa shall be located at:
1716 Locust Street
Des Moines, IA 50309
1(c) Other Offices.
The Limited Liability Company may have places of business or other offices, either within or without the State of Iowa, as the Managers may determine or as shall be appropriate for the conduct of its business.
1(d) Number Of Managers.
As set forth in Section 10(a) of this Operating Agreement, the business and affairs of the Limited Liability Company shall be conducted by or under the direction of the Managers.
The Managers shall be appointed by the vote of a majority in interest of the Members. The number of Managers may be changed from time to time by a unanimous vote of the Members. The Managers shall have such powers and be subject to such duties as are provided in this Operating Agreement. The Managers need not be Members.
The number of the Managers shall be one (1) and the initial Manager shall be:
John S. Zieser
1(e) Fiscal Year.
The fiscal year of the Limited Liability Company shall end at the close of business on the last day of December of each year.
1(f) Limited Liability Company Debts and Obligations.
Debts, obligations or other liabilities of the Limited Liability Company, whether arising in contract, tort, or otherwise are solely the debts, obligations, or other liabilities of the Limited Liability Company and do not become the debts, obligations or other liabilities of a Member, Manager of officer solely by reason of the Member acting as a Member, the Manager acting as a Manager, or the officer acting as an officer.
The failure of the Limited Liability Company to observe any particular formalities related to the exercise of its powers or management of its activities is not a ground for imposing liability on the Members, Managers or officers for the debts, obligations, or other liabilities of the Limited Liability Company.
1(g) No Member Fiduciary Duties.
A Member does not have any fiduciary duty to the Limited Liability Company or to any other Member solely by reason of being a member of the limited liability company.
1(h) Duty of Loyalty Owed by Managers and Officers.
(1) | The duty of loyalty owed by the Managers and officers to the Limited Liability Company and its Members includes all of the following duties: |
(A) | To account to the Limited Liability Company and to hold as trustee for the Limited Liability Company any property, profit or benefit derived by the Manager or officer regarding any of the following: |
(i) | Any property, profit or benefit derived by the Manager or officer during the Managers or officers conduct or winding up of the Limited Liability Companys activities; |
(ii) | Any property, profit or benefit derived by the Manager or officer from using any of the Limited Liability Companys property; and |
(iii) | Any property, profit or benefit derived by the Manager or officer from the appropriation of a Limited Liability Company business or other opportunity. |
(B) | To refrain from dealing with the Limited Liability Company in the conduct or winding up of the Limited Liability Companys activities as or on behalf of a person having an interest that is adverse to the Limited Liability Company. |
(C) | To refrain from competing with the Limited Liability Company in the conduct of the Limited Liability Companys business and other activities before the dissolution of the Limited Liability Company. |
(2) | After full disclosure of all material facts, a Majority-in-Interest of the Members may confirm, approve or ratify a specific act or transaction that otherwise would violate any duty of loyalty set forth above. |
1(i) Managers and Officers have no Exclusive Duty to the Limited Liability Company.
So long as he or she does not violate Section 1(h) above, neither a Manager nor an officer, solely by reason of being a Manager or officer, shall be required to manage the Limited Liability Company as his or her sole and exclusive function, and a Manager or officer may have other business interests and may engage in other activities in addition to those relating to the Limited Liability Company. Neither the Limited Liability Company nor any Member shall have any right, by virtue of this agreement, to share or participate in such other investments or activities of any Manager or officer or to the income or proceeds derived therefrom.
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1(j) Liability Limitation and Indemnification of Managers and Officers.
(1) | A Manager or officer shall not be personally liable to the Limited Liability Company or the Members for money damages for any action taken, or any failure to take any action, except liability for any of the following: |
(A) | A breach of the duty of loyalty as set forth in Section 1 (h) above; |
(B) | A financial benefit received by the Manager or officer to which the Manager or officer is not entitled; |
(C) | Authorizing any distribution that violates the limitations on distributions set forth in Section 405 of the Iowa Revised Uniform Limited Liability Company Act; |
(D) | An intentional infliction of harm on the Limited Liability Company or a Member of the Limited Liability Company; or |
(E) | An intentional violation of criminal law. |
(2) | Any Manager or officer shall be defended, indemnified, and held harmless by the Limited Liability Company from and against any and all losses, claims, damages, liabilities, settlements and other amounts arising from any and all claims (including reasonable legal fees and expenses), demands, actions, suits or proceedings (civil, criminal, administrative or investigative), in which he or she may be involved, as a party or otherwise, by reason of his or her management of the Limited Liability Company, whether or not he or she continues to be Manager or officer at the time any such liability or expense is paid or incurred; provided that neither the Manager nor the officer shall be entitled to the foregoing indemnification if a court of competent jurisdiction determined that such losses, claims, damages, liabilities, expenses, or such other amounts relate to liability for any of the matters set forth above in Section 1(j)(1) of this Operating Agreement. |
The termination of a proceeding by judgment, order, settlement or conviction upon a plea of nolo contendere, or its equivalent, shall not, of itself, create any presumption that such losses, claims, damages, liabilities, expenses, or such other amounts relate to liability for any of the matters set forth above in Section 1(j)(1) of this Operating Agreement.
The Limited Liability Company shall also indemnify any Manager or officer who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding by or in the right of the Limited Liability Company to procure a judgment in its favor by reason of the fact that such Manager or officer is or was an agent of the Limited Liability Company, against any losses, claims, damages, liabilities, settlements, expenses, legal fees or any other amounts incurred by such Manager or officer in connection with the defense or settlement of such action; provided that the Manager or officer shall not be entitled to the foregoing indemnification if a court of competent jurisdiction shall have determined that any such losses, claims, damages, liabilities, expenses or such other amounts relate to liability for any of the matters set forth above in Section 1(j)(1) of this Operating Agreement.
The Limited Liability Company may, but is not required to, advance a Manager or officer any expenses (including, without limitation, reasonable legal fees and expenses) incurred as a result of any claim, demand, action, suit or proceeding referred to in this Section 1(j)(2) provided that:
(A) | the legal action, suit, etc, relates to the performance of duties or services by the Manager or officer on behalf of the Limited Liability Company; and |
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(B) | the Manager or officer gives the Limited Liability Company a full recourse promissory note for the amounts of such advances in the event that the Manager or officer is determined to be not entitled to indemnification under this Operating Agreement. The promissory note must contain payment and collateral security terms that are satisfactory to the Limited Liability Company in it sole discretion. |
(3) | The indemnification provided by Section 1(j)(2) shall not be deemed to be exclusive of any other rights to which the Managers or officers may be entitled under any agreement, as a matter of law, in equity or otherwise, and shall continue as to the Managers or officers who have ceased to have an official capacity and shall inure to the benefit of the heirs, personal administrators, executors, successors and assigns of the Managers or officers. |
(4) | Any indemnification pursuant to this section will be payable only from the assets of the Limited Liability Company. |
(5) | The Limited Liability Company may purchase and maintain insurance on behalf of a Member or Manager against liability asserted against or incurred by the Member or Manager in the capacity or arising from that status. |
1(k) Statements of Authority.
The Managers are authorized on behalf of the Limited Liability Company to deliver Statements of Authority to the Iowa Secretary of State for filing. The statements may provide with respect to any Manager or officer, the authority, or limitations on the authority, of all persons holding the position to do any of the following:
(1) | Execute an instrument transferring real property held in the name of the Limited Liability Company; and |
(2) | Enter into other transactions on behalf of, or otherwise act for or bind, the Limited Liability Company. |
ARTICLE 2. DEFINITIONS
2(a) Affiliate
The term Affiliate means, with respect to any Person: (i) any person directly or indirectly controlling, controlled by or under common control with such Person; (ii) any persons owning or controlling ten percent (10%) or more of the outstanding voting securities of such Person; (iii) any officer, director, member of such Person; or (iv) any company in which such Person is an officer, director, member or partner.
2(b) Net Profits And Losses.
The terms Net Profits and Net Losses shall mean the taxable income or taxable loss of the Limited Liability Company determined for purposes of preparing the Limited Liability Company information return for federal income tax purposes.
2(c) Non-Taxable Income And Unallowable Deductions.
The terms Non-taxable Income and Unallowable Deductions shall mean any items of income or deduction properly treated as income or deductions by the Limited Liability Company for financial accounting purposes but not includable as income or allowable as a deduction for federal income tax purposes, and any expenditures described in Section 705(a)(2)(B) of the Internal Revenue Code.
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2(d) Cash Flow.
The term Cash Flow shall mean the excess of cash receipts over cash disbursements for the applicable period; provided, however, Cash Flow shall not include any cash received pursuant to the dissolution and termination of the Limited Liability Company.
2(e) Distributable Cash.
The term Distributable Cash shall mean Cash Flow for the applicable period reduced (or increased) by such amounts which are determined by the Managers to be reasonably necessary (or no longer necessary) to be expended or held as reserves for the conduct of Limited Liability Company business, including expansion thereof, capital improvements, and future payments of anticipated obligations and liabilities. Distributable Cash shall not include, however, any cash that may not be distributed by the Limited Liability Company without violating the limitations on distributions set forth in Section 405 of the Iowa Revised Uniform Limited Liability Company Act.
2(f) Members.
The term Members shall refer to those persons or individuals who are members of the Limited Liability Company, including substitute and new Members under Article 6.
A person shall cease to be a Member of the Limited Liability Company at such time as:
(1) | The Member withdraws from the Limited Liability Company as permitted by Section (a) of Article 6. |
(2) | The Member does any of the following: |
(A) | Makes an assignment for the benefit of creditors. |
(B) | Files a voluntary petition in bankruptcy. |
(C) | Is adjudicated a bankrupt or insolvent or has entered against the Member an order for relief in any bankruptcy or insolvency proceeding. |
(D) | Files a petition or answer seeking for the Member reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any statute, law, or regulation. |
(E) | Seeks, consents to, or acquiesces in the appointment of a trustee, receiver, or liquidator of the Member or of all or a substantial part of the Members properties. |
(F) | Files an answer or other pleading admitting or failing to contest material allegations of a petition filed against the Member in a proceeding of a nature specified in this subsection. |
(3) | The continuation of any proceeding against the Member seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief, under any statute, law, or regulation for 120 days after the commencement of such proceeding, or the appointment of a trustee, receiver or liquidator for the Member or for all or any substantial part of the Members properties without the Members agreement or acquiescence, which appointment is not vacated or stayed for 120 days or, if the appointment is stayed, for 120 days after the expiration of the stay during which period the application is not vacated. |
(4) | If the Member is a natural person, when either the Member dies or a court of competent jurisdiction finds the Member incapable of managing the Members person or property. |
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(5) | If the Member is acting as a Member by virtue of being a trustee of a trust, when the trust terminates. Substitution of a new trustee is not termination of the trust. |
(6) | If the Member is a partnership or limited liability company, the dissolution and commencement of winding up of the partnership or limited liability company. |
(7) | If the Member is a corporation, the filing of a certificate of dissolution, or its equivalent, for the corporation or revocation of the corporations charter. |
(8) | If the Member is acting as a Member by virtue of being a fiduciary of an estate, the distribution by the fiduciary of the estates entire interest in the Limited Liability Company. |
(9) | If the Member assigns its entire interest as a Member of the Limited Liability Company. |
If a person shall cease to be a Member as a result of a foregoing event and if the Limited Liability Company continues and is not terminated under Article 5, then the successor in interest to such Member as a result of such event, if any, shall be treated as an assignee of such Members interest in the Limited Liability Company, subject to the terms of any Buy-Sell Agreement entered into by any Member and the Company.
2(g) Majority In Interest Of The Members.
The term Majority in Interest shall refer to those Members owning more than 50% of the total Units then held by the Members referred to.
2(h) Person.
The term Person means an individual, partnership, corporation, trust, limited liability company or any other entity or association.
2(i) Units.
The term Units shall refer to those interests in the Limited Liability Company issued by the Limited Liability Company to its Members.
ARTICLE 3. CAPITAL CONTRIBUTIONS
3(a) Initial Capital Contributions.
The organizing Member contributed the amount set forth below and the outstanding units are owned and held as follows:
Voting Units | Amount | |||||||
Meredith Corporation |
1,000 | $ | 1,000.00 | |||||
Total |
1,000 | $ | 1,000.00 |
3(b) Additional Capital Contributions and Loans Required.
No Member shall be required to make any capital contributions or loans to the Limited Liability Company beyond the amounts set forth in this Article. However, the Members may, from time to time, agree that one or more Members shall make additional capital contributions, in cash unless otherwise stipulated.
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ARTICLE 4. NET PROFITS, NET LOSSES AND DISTRIBUTIONS
4(a) Profits, Losses And Credits.
Net Profits, Net Losses, Non-taxable Income, Unallowable Deductions and credits shall be computed for each period and shall be allocated among the Members in accordance with their Units as of the end of such period.
4(b) Distributions Of Distributable Cash.
Distributable Cash shall be distributed among the Members in accordance with their Units. The Company shall make a minimum distribution each year equal to the Members equal to the Net Profits multiplied by highest combined income tax rate (federal and state) for the Members.
Except as provided in this Section (b) and in Section (c) of this Article, no Member shall be entitled to withdraw any amount from his or her investment in the Limited Liability Company.
4(c) Termination Proceeds.
In the event of the dissolution and termination of the Limited Liability Company under Article 5, the proceeds of such dissolution and termination shall be allocated as follows:
(1) | First, in payment of all accrued but unpaid debts and liabilities of the Limited Liability Company requiring payment in order of priority; |
(2) | Second, to expenses of sale or dissolution, including customary brokerage fees; |
(3) | Third, to provide such reserves as the Managers deem advisable for contingent liabilities of the Limited Liability Company (which reserves will be held in escrow); and |
(4) | Fourth, to all other Members in accordance with their Units. |
Each Member shall look solely to the assets of the Limited Liability Company for the return of such Members capital contribution and if the Limited Liability Company property remaining after the payment or discharge of the prior debts, liabilities and distributions of the Limited Liability Company is insufficient to return such capital contributions, no Member shall have any recourse against any other Member or Manager.
ARTICLE 5. TERM, DISSOLUTION AND TERMINATION OF LIMITED LIABILITY COMPANY
5(a) Term And Dissolution Of Limited Liability Company.
The term of the Limited Liability Company shall commence as of the date of the filing of the Certificate of Organization with the Iowa Secretary of State, and shall continue until the earliest of the following:
(1) | The sale, expiration, abandonment or other disposition of all Limited Liability Company assets; |
(2) | Dissolution of the Limited Liability Company by judicial decree; or |
(3) | The written consent of a Majority in Interest of the Members. |
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5(b) No Dissolution As A Result Of Certain Other Events.
The Limited Liability Company shall not be dissolved by any event not set forth in Section (a) of this Article, and no other event shall entitle any Member to a return of capital.
5(c) Winding Up, Liquidation, Distribution Of Assets And Termination.
If the Limited Liability Company is dissolved, then:
(1) | The Managers shall wind up the affairs of the Limited Liability Company; and sell or otherwise liquidate or dispose of or abandon all of the Limited Liability Company assets in a manner consistent with attempting to obtain the fair market value thereof; and shall terminate the Limited Liability Company. |
(2) | The proceeds from such disposition shall be distributed pursuant to Section (c) of Article 4. |
ARTICLE 6. DISSOCIATION AND TRANSFERS OF INTERESTS
6(a) Restrictions On Dissociation.
A Member may not voluntarily dissociate as a Member unless any amendment to this Operating Agreement or the Certificate of Organization of the Limited Liability Company is adopted over the Members written dissent and adversely affects the rights or preferences of the Members interest in the Limited Liability Company in any of the following ways:
(1) | By altering or abolishing the Members right to receive a distribution; |
(2) | By altering or abolishing the Members right to voluntarily withdraw or resign; |
(3) | By altering or abolishing the Members right to vote on any matter, except as the rights may be altered or abolished through the acceptance of contributions or the making of contribution agreements; |
(4) | By altering or abolishing the Members preemptive right to make contributions; or |
(5) | By establishing or changing the conditions for or consequences of expulsion. |
6(b) Assignment, Sale, and Transfer of Units.
(1) | No Transfers Permitted. Except as permitted pursuant to a written agreement of the Members and Company, a Member shall not transfer his or her Units, unless consented to by the Managers and a Majority in Interest of the Members. For purposes of this Section, Transfer shall mean (1) to sell, transfer, assign, pledge or otherwise encumber or dispose of whether with or without consideration and whether voluntarily or involuntarily or by operation of law, directly or indirectly; provided, that a lien arising with respect to Units in connection with a general lien on all or substantially all of the assets of the holder of Units shall not constitute a Transfer, and (2) to allow a change of control of any Member who owns any Units in the Limited Liability Company. As used in this definition, the term control means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person or entity, whether through ownership of voting securities, by contract or otherwise. A Transfer includes a transfer to Members spouse, children (including natural, adopted and stepchildren), grandchildren, and parents, or a trust for the benefit of the Member or the Members spouse, children (including natural, adopted and stepchildren), grandchildren, and parents. No other provision of this Operating Agreement to the contrary, Transfer of a Unit shall not dissolve or terminate the Limited Liability Company. |
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(2) | Economic Member. Notwithstanding anything contained herein to the contrary, unless the transferee of Units has received the approval of the Managers and a Majority in Interest of the Members to become a Member, the transferee has no right to vote or to participate in the management of the business and affairs of the Limited Liability Company and is entitled only to receive the share of profits and losses and distributions to which the Transferring Member would have otherwise been entitled. As a condition to his, her or its admission as a Member (a) any transferee shall execute and deliver such instruments, in form and substance satisfactory to the Limited Liability Company, as the Limited Liability Company shall deem necessary or desirable to cause him, her or it to become a Member, and (b) such transferee shall pay all reasonable expenses in connection with his, her or its admission as a Member. |
6(c) Admission Of New Members.
From the date of the formation of the Limited Liability Company, with the consent of the Managers and of a Majority in Interest of the Members, any person or entity acceptable to the Managers may, subject to the terms and conditions of this Operating Agreement, become an additional Member in this Limited Liability Company by the sale of new Limited Liability Company interests for such consideration as the Managers shall determine. Any Additional Member must accept and agree to be bound by the terms of this Operating Agreement, as evidenced by such Additional Members execution of an acknowledgement in the form attached hereto as Exhibit A.
6(d) Allocations To Additional Or Substitute Members.
No additional or substitute Member shall be entitled to any retroactive allocation of losses, income or expense deductions incurred by the Limited Liability Company, The Managers may, at their option, at the time an additional or substitute Member is admitted, close the Limited Liability Companys books (as though the Limited Liability Companys tax year had ended) or make pro rata allocations of loss, income and expense deductions to an additional or substitute Member for that portion of the Companys tax year in which an additional or substitute Member was admitted.
ARTICLE 7. WRITTEN INSTRUMENTS, LOANS, CHECKS AND DEPOSITS
7(a) Written Instruments.
All deeds and mortgages made by the Limited Liability Company and all other written contracts and agreements to which the Limited Liability Company is a party shall be executed in its name by a majority of the Managers, or by a Manager or Officer pursuant to a general or specific grant of authority approved by a majority of the Managers.
7(b) Loans.
No loans shall be contracted on behalf of the Limited Liability Company, and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the Managers. Such authority may be general or confined to specific instances.
7(c) Checks, Drafts, Etc.
All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Limited Liability Company, shall be signed by such officer or officers, agent or agents of the Limited Liability Company and in such manner as shall be determined by the Managers.
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7(d) Deposits.
All corporate funds not otherwise employed shall be deposited to the credit of the Limited Liability Company in such banks, trust companies or other depositories as the Managers may select.
ARTICLE 8. RECORDS; FINANCIAL AND FISCAL AFFAIRS; TAX REPORTING
8(a) Records and Accounting.
The books and records of the Limited Liability Company shall be kept in accordance with United States Generally Accepted Accounting Principles consistently applied. Such books and records shall show a true and accurate record of all costs and expenses incurred, all charges made, all credits made and received and all income derived in connection with the Limited Liability Companys business.
Upon request, for any purpose reasonably related to the Members interest as a Member, the Limited Liability Company will furnish a copy of such information to a Member or his representative; provided, however, that the information furnished to the Member will not, in any event, be used for commercial purposes. Any Member may inspect and copy or obtain from the Limited Liability Company the financial records of the Limited Liability Company and its tax returns. A member shall give the Limited Liability Company at least five (5) business days prior written notice for any inspection and copying permitted pursuant to this subsection by the Member or its authorized attorney or agent.
8(b) Tax Information.
The Members will use their best efforts to cause to be delivered, as soon as practical after the end of each fiscal year of the Limited Liability Company, to the Members and persons or individuals who were Members during such fiscal year all information concerning the Company necessary to enable such Member to prepare such Members Federal and State partnership income tax returns for such fiscal year, including a statement indicating such Members share of profits, losses, deductions and credits for such fiscal year for Federal and state income tax purposes, and the amount of any distribution made to or for the account of such Member during such fiscal year pursuant to this Agreement.
8(c) Tax Returns.
The Members shall cause the Limited Liability Companys accountants to prepare all income and other tax returns of the Limited Liability Company and cause the same to be filed in a timely manner in accordance with applicable law. The Members shall cause all tax obligations of the Limited Liability Company to be paid in a timely manner.
8(d) Elections.
(1) | The Members may elect to adjust the basis of the assets of the Limited Liability Company for Federal income tax purposes in accordance with Section 754 of the Internal Revenue Code in the event of a distribution of Limited Liability Company property as described in Section 734 of the Internal Revenue Code or a transfer by any Member of the interest of such Member in the Limited Liability Company as described in Section 743 of the Internal Revenue Code. |
(2) | The Members, at any time and from time to time may also make such other tax elections as they deems necessary or desirable, in their discretion. |
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8(e) Interim Closing of the Books.
There shall be an interim closing of the books of account of the Limited Liability Company (i) at any time a taxable year of the Limited Liability Company shall end pursuant to the Internal Revenue Code, and (ii) at any other time determined by the Members to be required by good accounting practice or otherwise appropriate under the circumstances.
8(f) Accounting & Tax Matters.
Until the Managers designate a new Tax Matters Partner, John S. Zieser shall be the designated Tax Matters Partner within the meaning of Internal Revenue Code § 6231(a)(7) and is authorized to exercise the functions of a Tax Matters Partner under the Internal Revenue Code. The Tax Matters Partner shall be reimbursed for all reasonable expenses associated with its duties as Tax Matters Partner.
ARTICLE 9. MEETINGS OF MEMBERS
9(a) Meetings.
Member meetings, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the Managers or by a Majority in Interest of the Members, and shall be called by the Managers at the written request of Members holding 20% or more of the Units. Such request shall state the purpose or purposes of the meeting.
9(b) Place Of Meeting.
The Managers may designate any place, either within or without the State of Iowa, for any meeting called by the Managers or by the Members, except that a waiver of notice signed by all Members entitled to vote thereat may designate any place, either within or without the State of Iowa, as the place of the holding of such meeting. If no designation is made, the place of meeting shall be the registered office of the Limited Liability Company in the State of Iowa, but any meeting may be adjourned to reconvene at any place designated by a Majority in Interest of the Members at the adjourned meeting.
9(c) Notice Of Meeting.
Written or printed notice stating the place, day and hour of the meeting, and the purpose or purposes for which called, shall be delivered not less than ten (10) days (or such greater number as required by law) nor more than fifty (50) days before the meeting, either personally or by mail, by or at the direction of the Managers or person calling the meeting, to each Member of record entitled to vote thereat. If mailed, such notice shall be deemed delivered when deposited in the United States mail, addressed to the Member at the Members address as it appears on the Limited Liability Companys record books, with postage prepaid. A meeting notice may also be delivered electronically via e-mail to the Members current email address as provided by the Member to the Limited Liability Company from time to time, or by facsimile to the Members current facsimile number as provided by the Member to the Limited Liability Company from time to time.
9(d) Waiver Of Notice.
(1) | A written waiver of notice signed by any Member entitled to such notice, whether before or after the meeting, shall be equivalent to the giving of notice to such Member in due time as required by law. |
(2) | Presence at or participation in any Members meeting, in person or by proxy, shall be equivalent to waiver of giving of notice of such meeting and irregularities in any notice given. |
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9(e) Voting List.
The Managers shall make, at least ten days before each Member meeting, a complete list of Members entitled to vote at such meeting, or any adjournment thereof, arranged in alphabetical order, with the address of and the Units owned by each, which list, for a period of ten days prior to such meeting, shall be kept on file at the registered office of the Limited Liability Company subject to inspection by any Member during usual business hours. Such list shall also be produced at the meeting and shall there be subject to inspection of any Member. The membership transfer books shall be prima facie evidence as to the Members entitled to examine such list or books or to vote at any Member meeting. Failure to comply with this Section shall not affect the validity of any action taken at such meeting.
9(f) Quorum.
At any Member meeting a Majority in Interest of the Members, present in person or represented by proxy, shall constitute a quorum, unless a larger number is required by law or the Certificate of Organization, and in that case, the representation of the number so required shall constitute a quorum. If the holders of the Units necessary for a quorum shall fail to attend in person or by proxy at the time and place fixed for a meeting, a Majority in Interest of the Members present in person or by proxy may adjourn by announcement at the meeting, until a quorum shall be present. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally notified.
9(g) Organization.
(1) | The holders of a Majority in Interest of the Members present may appoint any Member to act as Chairman. |
(2) | The Chairman may appoint any person to act as Secretary of the meeting. |
9(h) Voting Of Membership Interests.
(1) | Unless otherwise specifically stated in this Operating Agreement or as required by law, only Members holding Units shall have a right to vote on any matters. |
(2) | Except as otherwise provided by law or this Operating Agreement, each one Unit entitled to vote shall have one vote on each matter submitted to a vote. Such vote may be cast either in person or by proxy executed and delivered as provided in Section (k) of this Article. |
(3) | The Members having the right to vote at any meeting shall only be those of record on the books of the Limited Liability Company, and those acting in a representative capacity under Section (i) of this Article, on the date of such meeting. A Member may vote interests in the Limited Liability Company pledged. |
(4) | Voting by Members may be via voice vote unless the Chairman shall order or any Member entitled to vote shall demand that voting be by ballot. In such case each, ballot shall be signed by the Member voting or in such Members name by proxy, and shall state the Units voted by such Member. |
(5) | The vote of a Majority in Interest of all of the Members entitled to vote and not just of those Members represented at the meeting and entitled to vote thereon shall be required to be the act of the Members, unless the vote of a greater number is required by law, the Certificate of Organization or this Operating Agreement. |
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9(i) Inspectors Of Election.
The Managers in advance of any Member meeting may appoint inspectors to act at such meeting or any adjournment thereof. If inspectors are not appointed, the Chairman of such meeting may, and on the request of any Member or such Members proxy shall, make such appointment. If any appointed inspector fails to appear or act, the vacancy may be filled by the Managers in advance of the meeting, or at the meeting by the Chairman. The inspectors shall register proxies, determine the amount of Units, the existence of a quorum, the authenticity, validity and effect of proxies, determine all challenges and questions in connection with the vote, count and tabulate all votes, assents and consents, determine and announce the result, and do such acts proper to conduct the election or vote with fairness to all Members. No inspector need be a Member.
9(j) Proxies.
At all Member meetings, a Member entitled to vote may vote by proxy appointed in writing by the Member or by such Members duly authorized attorney-in-fact. Such proxy shall be filed with the Secretary or the Chairman before or at the time of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided therein. Each proxy for any Members meeting shall be registered with the election inspectors prior to such meeting. Registration shall be on the same date and at the same premises as the meeting and shall commence at least one hour prior to and terminate prior to the start of the meeting. Any proxies not so registered shall not be recognized, counted or tabulated as to any matters before the particular meeting.
9(k) Informal Action By Members.
Any action required or permitted by law or the Certificate of Organization or this Operating Agreement to be taken at a meeting of Members, may be taken without a meeting if a consent in writing setting forth the action so taken shall be signed by all of the Members entitled to vote thereon.
ARTICLE 10. MANAGERS
10(a) General Powers.
The business and affairs of the Limited Liability Company shall be managed by the Managers. However, the Managers must receive the prior consent and approval of a Majority-In-Interest of the Members to do any of the following:
(1) | Sell, lease, exchange or otherwise dispose of all, or substantially all of the Limited Liability Companys property, with or without the Limited Liability Companys goodwill, outside of the ordinary course of the Limited Liability Companys business; |
(2) | Approve a merger, conversion or domestication involving the Limited Liability Company; or |
(3) | Amend this Operating Agreement pursuant to the provisions of Section 12(c) of this Operating Agreement. |
Further, if any Member will have any personal liability with respect to a surviving, converted or domesticated organization, approval or amendment of a plan of merger, conversion or domestication is ineffective without the approval and consent of all Members who will have any personal liability with respect to the taking of any such action.
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10(b) Specific Powers.
Included within the powers of the Managers is the authority to sign, execute and acknowledge all contracts, checks, deeds, mortgages, bonds, leases or other instruments and obligations on behalf of the Limited Liability Company which shall be signed by a majority of the Managers.
10(c) Number, Tenure And Qualifications.
The number of Managers shall be as determined under Section (d) of Article 1. Each Manager shall hold office until a successor shall have been elected and qualifies, or until death, resignation or removal. Managers need not be residents of the State of Iowa, nor Members of the Limited Liability Company.
10(d) Quorum And Manner Of Acting.
A majority of the number of Managers fixed in the manner provided by Section (d) of Article 1 shall constitute a quorum; but if at any meeting there be less than a quorum present, a majority of the Managers present may adjourn the meeting without notice until a quorum shall be present. At all meetings of Managers, even though a quorum be present, the act of a majority of the Managers and not just of a majority of the Managers present shall be required to be the act of the Managers.
10(e) Resignation.
Any Manager may resign by written notice to the other Managers or, if there be no such individuals, then to each of the Members. Such resignation shall take effect upon receipt of notice thereof or at such later date as specified therein; and, unless otherwise specified therein, acceptance of such resignation shall not be necessary to make it effective.
10(f) Removal.
A Manager shall be subject to removal at a meeting of the Members by the vote of a Majority in Interest of the Members.
10(g) Vacancies.
Any vacancy among the Managers may be filled by a vote of the majority in interest of the Members. A Manager elected to fill a vacancy shall be elected until the election of a successor.
10(h) Number Of Managers Increased.
If the number of Managers be increased, the new Manager shall be selected by vote of a majority of Managers then in office, even if less than a quorum. Any Manager so elected shall serve until election of a successor.
10(i) Compensation Of Managers.
The Managers shall be entitled to be reimbursed for expenses for attendance at any Managers meeting, and the Managers may provide that the Limited Liability Company shall pay each Manager compensation for services as fixed by the Managers. Nothing herein shall preclude any Manager from serving the Limited Liability Company in any other capacity and receiving compensation therefor. The Managers may provide for, or delegate authority to an appropriate committee to provide for, reasonable pensions, disability or death benefits, and other benefits or payments, to Managers, officers and employees and to their estates, families, dependents or beneficiaries for services rendered by such persons to the Limited Liability Company.
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10(j) Place Of Meetings, Etc.
Except as provided in the following Section, the Managers may hold their meetings and keep the books and records of the Limited Liability Company (except those records required by law to be kept at its principal office) at such place or places within or without the State of Iowa, as the Managers determine.
10(k) Meeting.
Meetings may be held at any time or place specified in a notice given as hereinafter provided for meetings of the Managers or in a consent and waiver of notice signed by all Managers.
10(1) Regular Meetings.
Regular meetings of the Managers shall be held without need for notice thereof at such place and time as the Managers shall fix and determine.
10(m) Special Meetings; Notice.
(1) | Special meetings of the Managers shall be held whenever called by one-third of the Managers in office. |
(2) | Notice of each such meeting shall be mailed to each Manager, at the Managers address as it appears on the books of the Limited Liability Company, at least five (5) days before the meeting, delivered personally or by telephone not later than the second day before the meeting. Each notice shall state the time and place of the meeting. A meeting notice may also be delivered electronically via e-mail to the Managers current email address as provided by the Manager to the Limited Liability Company from time to time, or by facsimile to the Managers current facsimile number as provided by the Manager to the Limited Liability Company from time to time. Unless otherwise indicated in the notice, any and all business may be transacted at a special meeting. At any meeting at which every Manager is present, even without any notice, any business may be transacted. |
10(n) Substitutes For Notice.
A written waiver of notice signed by a Manager, whether before or after the meeting, shall be equivalent to the giving of notice in due time as required by this Operating Agreement. Attendance of a Manager at a meeting shall constitute a waiver of notice, except where the Manager attends for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened.
10(o) Managers Assent Presumed.
A Manager who is present at a Managers meeting shall be presumed to have assented to any action taken thereat unless the Managers dissent is entered in the minutes or the Manager shall file his written dissent thereto with the Secretary of the meeting before adjournment thereof or shall forward such dissent by registered or certified mail to the other Managers immediately after the adjournment of the meeting. Such right to dissent shall not apply to a Manager who voted in favor of such action.
10(p) Order Of Business.
At Manager meetings, business shall be transacted in such order as the Managers determine, and the senior Manager (in point of service) shall preside.
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10(q) Action Without Meeting.
Any action required or permitted by law or the Certificate of Organization or this Operating Agreement to be taken at any meeting of the Managers may be taken without a meeting if a consent in writing setting forth the action so taken shall be signed by all of the Managers then in office.
10(r) Committees.
The Managers, by vote of a majority of the number of Managers fixed in the manner provided by Section (d) of Article 1, may establish one or more committees, each committee to consist of such number of Managers elected by the Managers, to serve at the will of the Managers and to have the powers and duties delegated to it by the Managers, Each such committee may set rules governing the conduct of its activities.
ARTICLE 11. OFFICERS
11(a) Executive Officers.
The Managers may appoint executive officers, including a President, one or more Vice-Presidents, a Secretary and a Treasurer. None of the officers need be Managers or Members. One person may hold the offices and perform the duties of any two or more of said offices.
11(b) Election And Term Of Office.
Executive officers may be chosen by the Managers at any meeting. Each such officer shall hold office until the next Managers meeting and until a successor shall have been duly chosen and shall qualify or until death, resignation or removal.
11(c) Removal.
Any officer or agent may be removed by the Managers whenever in their judgment the best interests of the Limited Liability Company will be served thereby, but without prejudice to the contract rights, if any, of such person. Election or appointment of an officer or agent shall not in itself create contract rights.
11(d) Resignations.
Any officer may resign by written notice thereof to the Managers. Such resignation shall take effect upon receipt thereof or at any later time specified therein; and, unless otherwise specified therein, acceptance thereof shall not be necessary to make it effective.
11(e) Vacancies.
A vacancy in any office may be filled by appointment by the Managers.
11(f) Powers and Duties of the President.
If appointed by the Managers, the President shall have general charge of and direct the operations of the Limited Liability Company, subject to the control of the Managers, and shall keep the Managers fully informed and shall consult with them concerning the business of the Limited Liability Company. If appointed, the President shall have authority to sign, execute and acknowledge all contracts, checks, deeds, mortgages, bonds, leases or other obligations on behalf of the Limited Liability Company as the President may deem necessary or proper in the course of the Limited Liability Companys regular business, or which shall be authorized by the Managers. The President may sign in the name of the Limited Liability Company reports and all other documents or instruments which are necessary or proper in the course of the Limited Liability Companys business. The President shall perform all duties incident to the office, as herein defined, and all such other duties as from time to time may be assigned by the Managers.
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The limited liability company may appoint more than one person to serve as the President and, if more than one person is appointed to serve as President, each shall be denominated as a co-President and each shall have the powers and duties set forth above.
11(g) Powers and Duties of the Vice President.
If one or more Vice-Presidents are appointed by the Managers, in the absence of the President or in the event of the Presidents death, inability or refusal to act, the Vice-President (or if more than one), the senior Vice-President in length of service shall perform the duties of the President, and when so acting, shall have all powers of and be subject to all restrictions upon the President. Each Vice-President shall perform such duties and have such authority as may be assigned to such Vice-President by the President or by the Managers.
11(h) Powers and Duties of the Secretary.
If appointed by the Managers, the Secretary shall (a) keep minutes of all meetings; (b) attend to serving all notices of the Limited Liability Company; (c) be custodian of the Members ownership books and such other books, records and papers as the Managers direct; (d) keep a record showing the names of all Members, their post office addresses as furnished by them, and their Units, and at least ten days before each Members meeting, prepare a list of Members entitled to vote thereat arranged in alphabetical order; (e) sign in the name of the Limited Liability Company all contracts authorized by the Managers or the President; and (f) in general, perform all duties incident to the office and such other duties as may be assigned by the President or the Managers.
11(i) Powers and Duties of the Treasurer.
If appointed by the Managers, the Treasurer shall (a) have custody of and be responsible for all moneys and securities of the Limited Liability Company, keep full and accurate records and accounts of the transactions and financial condition of the Limited Liability Company, and see that all expenditures are duly authorized and evidenced by proper receipts and vouchers; (b) deposit in the name of the Limited Liability Company in such depository or depositories approved by the Managers, all moneys that come into the Treasurers hands for the Limited Liability Companys account; (c) make a full report of the financial condition of the Limited Liability Company at annual Member meetings or at any meeting of the Managers; and (d) in general, perform such duties as may be assigned by the President or by the Managers. The Treasurers books and accounts shall be open during business hours to the inspection of any Manager. The Treasurer shall, if required by the Managers, give bond in such form and with such sureties as shall be required by the Managers.
11(j) Other Officers.
The Managers may appoint such other officers as are necessary or appropriate in order to conduct the Limited Liability Companys business operations.
11(k) Assistants And Acting Officers.
The Managers or any officer, duly authorized by the Managers, may appoint any person to act as assistant to any officer, or to perform the duties of such officer whenever it is impracticable for such officer to act personally, and such assistant or acting officer may perform all the duties of the office to which appointed as assistant, except as such power may be otherwise defined or restricted by the Managers or the appointing officer.
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11(1) Salaries.
The salaries of any officers shall be fixed by the Managers, and no officer shall be prevented from receiving such salary because he or she is also a Manager of the Limited Liability Company.
ARTICLE 12. BUY-SELL PROVISION
The Company and Members may enter into a separate Buy-Sell Agreement.
ARTICLE 13. MISCELLANEOUS PROVISIONS
13(a) Application Of Iowa Law.
This Operating Agreement, and the application of interpretation hereof, shall be governed exclusively by its terms and by the laws of the State of Iowa, and specifically Iowas Revised Uniform Limited Liability Company Act.
13(b) Waiver Of Action For Partition.
Each Member irrevocably waives during the term of the Limited Liability Company any right that it may have to maintain any action for partition with respect to the property of the Limited Liability Company.
13(c) Amendments.
The Certificate of Organization and/or this Operating Agreement shall be subject to amendment or alteration in whole or in part or new Certificate of Organization or an Operating Agreement may be adopted by the vote of a majority of the Managers and of a Majority in Units of the Members; provided, however, that notice of intention to make or amend such documents in whole or in part, or to adopt new Certificate of Organization or a new Operating Agreement, shall have been given in the notice of such meeting, unless all Managers and all Members entitled to vote thereon unanimously vote in favor of any such amendment or alteration or shall consent thereto as provided in Section (1) of Article 8 and Section (q) of Article 9.
13(d) Certificates.
If the Managers determine to issue certificates, every Member shall be entitled to a certificate or certificates in such form as the Managers shall prescribe. No certificate shall be issued for any interest in the Limited Liability Company until payment is received for such interest. The Managers may make such rules and regulations, not inconsistent with the Certificate of Organization and this Operating Agreement, concerning the issue, transfer and registration of certificates. Any assignment or transfer of certificates permitted by such rules and regulations shall not be construed to grant any right to participate in the management of the business and affairs of the Limited Liability Company or to become a substitute Member except as provided in Section (b) of Article 6.
13(e) Execution Of Additional Instruments.
Each Member hereby agrees to execute such other and further statements of interest and holdings, designations, powers of attorney and other instruments necessary to comply with any laws, rules or regulations.
13(f) Construction.
Whenever the singular number is used in this Operating Agreement and when required by the context, the same shall include the plural, and the masculine gender shall include the feminine and neuter genders and vice versa.
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13(g) Headings.
The headings in this Operating Agreement are inserted for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent or intent of this Operating Agreement or any provision hereof.
13(h) Waivers.
The failure of any party to seek redress for violation of or to insist upon the strict performance of any covenant or condition of this Operating Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation.
13(i) Rights And Remedies Cumulative.
The rights and remedies provided by this Operating Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive the right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise.
13(j) Severability.
If any provision of this Operating Agreement or the application thereof to any person or circumstance shall be invalid, illegal or unenforceable to any extent, the remainder of this Operating Agreement and the application thereof shall not be affected and shall be enforceable to the fullest extent permitted by law.
13(k) Heirs, Successors And Assigns.
Each and all of the covenants, terms, provisions and agreements herein contained shall be binding upon and inure to the benefit of the parties hereto and, to the extent permitted by this Operating Agreement, their respective heirs, legal representatives, successors and assigns.
13(l) Creditors.
None of the provisions of this Operating Agreement shall be for the benefit of or enforceable by any creditor of the Limited Liability Company.
13(m) Counterparts.
This Operating Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.
13(n) Annual Reports.
The Managers shall cause an annual report to be sent to the Members not later than 75 days after the close of each taxable year, which report shall include a balance sheet, operating statement, cash flow statement and statement of distribution of funds to the Members for such year.
13(o) Loans From Members.
In the event that the Limited Liability Companys funds are not sufficient to meet its costs, expenses, obligations, liabilities and charges, any Member may, as permitted by a majority vote of the Managers, advance funds to the Limited Liability Company. Such loans shall not constitute a contribution to the capital of the Limited Liability Company or be credited to the investment of the Member or Members or entitle such Member or Members to any increase in a share of Limited Liability Company allocations. Loans in accordance with this
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paragraph shall be a debt due from the Limited Liability Company to such Member or Members and shall be, together with accrued interest thereon, reimbursed to the Member or Members making such loans in accordance with the terms of any such loans and, to the extent applicable, prior to any other distribution to the Members, whether such distribution be in connection with the dissolution of the Limited Liability Company or otherwise. Such loans shall bear a reasonable rate of interest.
13(p) No Right Of Members To Receive Property Other Than Cash In Return For Contributions.
No Member shall have any right to demand or receive property other than cash in return for his or her contribution to the capital of the Limited Liability Company; provided, however, a distribution upon dissolution and termination of the Limited Liability Company may, as provided in this Operating Agreement or as required by law, be in a form other than cash.
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IN WITNESS WHEREOF, the Members have executed this Operating Agreement effective as of June 1, 2015
MEREDITH CORPORATION, sole Member | ||
By: | /s/ John S. Zieser | |
John S. Zieser, Chief Development Officer and General Counsel |
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Exhibit A
ADDITIONAL SIGNATURE PAGE TO THE
OPERATING AGREEMENT OF
MEREDITH SHOPPER MARKETING, LLC
The undersigned does hereby represent and warrant that the undersigned, as a condition to becoming a Member in Meredith Shopper Marketing, LLC (the Company), has received a copy of the Companys Operating Agreement, dated , 2015, and, if applicable, all amendments and modifications thereto or restatements thereof (collectively, the Operating Agreement), and does hereby agree that the undersigned, along with the other parties to the Operating Agreement, shall be subject to and comply with all terms and conditions of said Operating Agreement in all respects and that the undersigned is and shall be bound by all of the provisions of said Operating Agreement.
[Printed Name] |
-22-
Exhibit 3.21
Document must be filed electronically. Paper documents will not be accepted. Document processing fee Fees & forms/cover sheets are subject to change. To access other information or print copies of filed documents, visit www.sos.state.co.us and select Business Center. |
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Colorado Secretary of State Date and Time: 09/21/2009 06:31 AM ID Number: 20091496826
| ||
$50.00 | Document number: 20091496826
Amount Paid: $50.00 |
ABOVE SPACE FOR OFFICE USE ONLY
Articles of Organization
filed pursuant to § 7-80-203 and § 7-80-204 of the Colorado Revised Statutes (C.R.S.)
1. The domestic entity name of the limited liability company is
MyWedding, LLC | ||
(The name of a limited liability company must contain the term or abbreviation limited liability company, ltd. liability company, limited liability co., ltd. liability co., limited, l.l.c, llc, or ltd.. See §7-90-601, C.R.S.) |
(Caution: The use of certain terms or abbreviations are restricted by law. Read instructions for more information.)
2. The principal office address of the limited liability companys initial principal office is
Street address | 1601 Arapahoe Street | |
(Street number and name) | ||
Suite 800 | ||
Denver CO 80202 | ||
(City) (State) (ZIP/Postal Code) | ||
United States | ||
(Province if applicable) (Country) |
Mailing address |
| |
(leave blank if same as street address) | (Street number and name or Post Office Box information) | |
| ||
(City) (State) (ZIP Postal Code) | ||
(Province if applicable) (Country) |
3. The registered agent name and registered agent address of the limited liability companys initial registered agent are
Name (if an individual) |
Pastorius | Edward | w | Jr. | ||||
(Last) | (First) | (Middle) | (Suffix) | |||||
OR
|
||||||||
(if an entity) | ||||||||
| ||||||||
(Caution: Do not provide both an individual and an entity name.) | ||||||||
Street address |
1601 Arapahoe Street | |||||||
| ||||||||
(Street number and name) | ||||||||
Suite 800 | ||||||||
| ||||||||
Denver | CO | 80202 | ||||||
(City) | (State) | (ZIP Code) |
ARTORG_LLC | Page 1 of 3 | Rev. 02/28/2008 |
Mailing address |
| |
(leave blank if same as street address) | (Street number and name or Post Office Box information) | |
| ||
CO | ||
(City) (State) (ZIP Code) |
(The following statement is adopted by marking the box.)
☒ The person appointed as registered agent has consented to being so appointed.
4. The true name and mailing address of the person forming the limited liability company are
Name | Pastorius Edward Wood Jr. | |
(if an individual) | (Last) (First) (Middle) (Suffix) | |
OR | ||
(if an entity) | ||
(Caution: Do not provide both an individual and an entity name.) | ||
Mailing address |
1601 Arapahoe Street | |
Suite 800 (Street number and name or Post Office Box information) | ||
Denver CO 80202 | ||
(City) (State) (ZIP/Postal Code) | ||
United States | ||
(Province - if applicable) (Country) |
(If the following statement applies, adopt the statement by marking the box and include an attachment.)
☐ | The limited liability company has one or more additional persons forming the limited liability company and the name and mailing address of each such person are stated in an attachment. |
5. The management of the limited liability company is vested in
(Mark the applicable box.)
☒ one or more managers.
OR
☐ the members.
6. | (The following statement is adopted by marking the box.) |
☒ There is at least one member of the limited liability company.
7. | (If the following statement applies, adopt the statement by marking the box and include an attachment.) |
☐ | This document contains additional information as provided by law. |
8. | (Caution: Leave blank if the document does not have a delayed effective date. Stating a delayed effective date has significant legal consequences. Read instructions before entering a date.) |
(If the following statement applies, adopt the statement by entering a date and, if applicable, time using the required format.)
The delayed effective date and, if applicable, time of this document is/are .
(mm/dd/yyyy hour:minute am/pm)
ARTORG_LLC | Page 2 of 3 | Rev. 02/28/2008 |
Notice:
Causing this document to be delivered to the Secretary of State for filing shall constitute the affirmation or acknowledgment of each individual causing such delivery, under penalties of perjury, that the document is the individuals act and deed, or that the individual in good faith believes the document is the act and deed of the person on whose behalf the individual is causing the document to be delivered for filing, taken in conformity with the requirements of part 3 of article 90 of title 7, C.R.S., the constituent documents, and the organic statutes, and that the individual in good faith believes the facts stated in the document are true and the document complies with the requirements of that Part, the constituent documents, and the organic statutes.
This perjury notice applies to each individual who causes this document to be delivered to the Secretary of State, whether or not such individual is named in the document as one who has caused it to be delivered.
9. The true name and mailing address of the individual causing the document to be delivered for filing are
Pastorius |
Edward |
Wood |
Jr. | |||
(Last) | (First) | (Middle) | (Suffix) | |||
1601 Arapahoe Street | ||||||
(Street number and name or Post Office Box information) | ||||||
Suite 800 | ||||||
Denver |
CO |
80202 | ||||
(City) | (State) | (ZIP/Postal Code) | ||||
|
United States |
|||||
(Province if applicable) | (Country) |
(If the following statement applies, adopt the statement by marking the box and include an attachment.)
☐ | This document contains the true name and mailing address of one or more additional individuals causing the document to be delivered for filing. |
Disclaimer:
This form/cover sheet, and any related instructions, are not intended to provide legal, business or tax advice, and are furnished without representation or warranty. While this form/cover sheet is believed to satisfy minimum legal requirements as of its revision date, compliance with applicable law, as the same may be amended from time to time, remains the responsibility of the user of this form/cover sheet. Questions should be addressed to the users legal, business or tax advisor(s).
ARTORG_LLC | Page 3 of 3 | Rev. 02/28/2008 |
Exhibit 3.22
SECOND AMENDED AND RESTATED
OPERATING AGREEMENT
OF
MYWEDDING, LLC
TABLE OF CONTENTS
ARTICLE 1. GENERAL PROVISIONS |
1 | |||||
1(a) |
Formation | 1 | ||||
1(b) |
Principal Office In Colorado | 1 | ||||
1(c) |
Other Offices | 1 | ||||
1(d) |
Number Of Managers | 1 | ||||
1(e) |
Fiscal Year | 1 | ||||
1(f) |
Limited Liability Company Debts and Obligations | 2 | ||||
1(g) |
No Member Fiduciary Duties | 2 | ||||
1(h) |
Duty of Loyalty Owed by Managers and Officers | 2 | ||||
1(i) |
Managers and Officers have no Exclusive Duty to the Limited Liability Company | 2 | ||||
1(j) |
Liability Limitation and Indemnification of Managers and Officers | 3 | ||||
1(k) |
Statements of Authority | 4 | ||||
ARTICLE 2. DEFINITIONS |
4 | |||||
2(a) |
Affiliate | 4 | ||||
2(b) |
Net Profits And Losses | 4 | ||||
2(c) |
Non-Taxable Income And Unallowable Deductions | 5 | ||||
2(d) |
Cash Flow | 5 | ||||
2(e) |
Distributable Cash | 5 | ||||
2(f) |
Members | 5 | ||||
2(g) |
Majority In Interest Of The Members | 6 | ||||
2(h) |
Person | 6 | ||||
2(i) |
Units | 6 | ||||
ARTICLE 3. OWNERSHIP AND CAPITAL CONTRIBUTIONS |
6 | |||||
3(a) |
Current Ownership | 6 | ||||
3(b) |
Additional Capital Contributions and Loans Required | 7 | ||||
ARTICLE 4. NET PROFITS, NET LOSSES AND DISTRIBUTIONS |
7 | |||||
4(a) |
Profits, Losses And Credits | 7 | ||||
4(b) |
Distributions Of Distributable Cash | 7 | ||||
4(c) |
Termination Proceeds | 7 | ||||
ARTICLE 5. TERM, DISSOLUTION AND TERMINATION OF LIMITED LIABILITY COMPANY |
7 | |||||
5(a) |
Term And Dissolution Of Limited Liability Company | 7 | ||||
5(b) |
No Dissolution As A Result Of Certain Other Events | 8 |
i
5(c) |
Winding Up, Liquidation, Distribution Of Assets And Termination | 8 | ||||
ARTICLE 6. DISSOCIATION AND TRANSFERS OF INTERESTS |
8 | |||||
6(a) |
Restrictions On Dissociation | 8 | ||||
6(b) |
Assignment, Sale, and Transfer of Units | 8 | ||||
6(c) |
Admission Of New Members | 9 | ||||
6(d) |
Allocations To Additional Or Substitute Members | 9 | ||||
ARTICLE 7. WRITTEN INSTRUMENTS, LOANS, CHECKS AND DEPOSITS |
9 | |||||
7(a) |
Written Instruments | 9 | ||||
7(b) |
Loans | 9 | ||||
7(c) |
Checks, Drafts, Etc. | 9 | ||||
7(d) |
Deposits | 10 | ||||
ARTICLE 8. RECORDS; FINANCIAL AND FISCAL AFFAIRS; TAX REPORTING |
10 | |||||
8(a) |
Records and Accounting | 10 | ||||
8(b) |
Tax Information | 10 | ||||
8(c) |
Tax Returns | 10 | ||||
8(d) |
Elections | 10 | ||||
8(e) |
Interim Closing of the Books | 11 | ||||
8(f) |
Accounting & Tax Matters | 11 | ||||
ARTICLE 9. MEETINGS OF MEMBERS |
11 | |||||
9(a) |
Meetings | 11 | ||||
9(b) |
Place Of Meeting | 11 | ||||
9(c) |
Notice Of Meeting | 11 | ||||
9(d) |
Waiver Of Notice | 11 | ||||
9(e) |
Voting List | 12 | ||||
9(f) |
Quorum | 12 | ||||
9(g) |
Organization | 12 | ||||
9(h) |
Voting Of Membership Interests | 12 | ||||
9(i) |
Inspectors Of Election | 13 | ||||
9(j) |
Proxies | 13 | ||||
9(k) |
Informal Action By Members | 13 | ||||
ARTICLE 10. MANAGERS |
13 | |||||
10(a) |
General Powers | 13 | ||||
10(b) |
Specific Powers | 14 | ||||
10(c) |
Number, Tenure And Qualifications | 14 | ||||
10(d) |
Quorum And Manner Of Acting | 14 |
ii
10(e) |
Resignation | 14 | ||||
10(f) |
Removal | 14 | ||||
10(g) |
Vacancies | 14 | ||||
10(h) |
Number Of Managers Increased | 14 | ||||
10(i) |
Compensation Of Managers | 14 | ||||
10(j) |
Place Of Meetings, Etc | 15 | ||||
10(k) |
Meeting | 15 | ||||
10(l) |
Regular Meetings | 15 | ||||
10(m) |
Special Meetings; Notice | 15 | ||||
10(n) |
Substitutes For Notice | 15 | ||||
10(o) |
Managers Assent Presumed | 15 | ||||
10(p) |
Order Of Business | 15 | ||||
10(q) |
Action Without Meeting | 16 | ||||
10(r) |
Committees | 16 | ||||
ARTICLE 11. OFFICERS |
16 | |||||
11(a) |
Executive Officers | 16 | ||||
11(b) |
Election And Term Of Office | 16 | ||||
11(c) |
Removal | 16 | ||||
11(d) |
Resignations | 16 | ||||
11(e) |
Vacancies | 16 | ||||
11(f) |
Powers and Duties of the President | 16 | ||||
11(g) |
Powers and Duties of the Vice President | 17 | ||||
11(h) |
Powers and Duties of the Secretary | 17 | ||||
11(i) |
Powers and Duties of the Treasurer | 17 | ||||
11(j) |
Other Officers | 17 | ||||
11(k) |
Assistants And Acting Officers | 17 | ||||
11(l) |
Salaries | 18 | ||||
ARTICLE 12. BUY-SELL PROVISION |
18 | |||||
ARTICLE 13. MISCELLANEOUS PROVISIONS |
18 | |||||
13(a) |
Application Of Colorado Law | 18 | ||||
13(b) |
Waiver Of Action For Partition | 18 | ||||
13(c) |
Amendments | 18 | ||||
13(d) |
Certificates | 18 | ||||
13(e) |
Execution Of Additional Instruments | 18 | ||||
13(f) |
Construction | 18 | ||||
13(g) |
Headings | 18 | ||||
13(h) |
Waivers | 19 | ||||
13(i) |
Rights And Remedies Cumulative | 19 | ||||
13(j) |
Severability | 19 | ||||
13(k) |
Heirs, Successors And Assigns | 19 | ||||
13(l) |
Creditors | 19 |
iii
13(m) |
Counterparts | 19 | ||||
13(n) |
Annual Reports | 19 | ||||
13(o) |
Loans From Members | 19 | ||||
13(p) |
No Right Of Members To Receive Property Other Than Cash In Return For Contributions | 20 | ||||
13(q) |
Entire Agreement | 20 |
iv
SECOND AMENDED AND RESTATED
OPERATING AGREEMENT
OF
MYWEDDING, LLC
ARTICLE 1. GENERAL PROVISIONS
1(a) Formation
The parties to this Second Amended and Restated Operating Agreement (referred to herein as Operating Agreement or Agreement) are the Members of MyWedding, LLC (hereinafter called the Limited Liability Company) a limited liability company organized under the provisions of the Colorado Limited Liability Company Act. Articles of Organization have been filed with the Colorado Secretary of State.
1(b) Principal Office In Colorado.
The initial principal office of Limited Liability Company in the State of Colorado shall be located at:
4700 Castleton Way
Castle Rock, Colorado 80109
The principal office of the Limited Liability Company may be changed by agreement of a Majority-in-Interest of the Members.
1(c) Other Offices.
The Limited Liability Company may have places of business or other offices, either within or without the State of Colorado, as the Managers may determine or as shall be appropriate for the conduct of its business.
1(d) Number Of Managers.
As set forth in Section 10(a) of this Operating Agreement, the business and affairs of the Limited Liability Company shall be conducted by or under the direction of the Managers.
The Managers shall be appointed by the vote of a majority in interest of the Members. The number of Managers may be changed from time to time by a unanimous vote of the Members. The Managers shall have such powers and be subject to such duties as are provided in this Operating Agreement. The Managers need not be Members.
The Manager of the Limited Liability Company as of the date of this Operating Agreement is:
John S. Zieser
1(e) Fiscal Year.
The fiscal year of the Limited Liability Company shall end at the close of business on the last day of December of each year.
1(f) Limited Liability Company Debts and Obligations.
Debts, obligations or other liabilities of the Limited Liability Company, whether arising in contract, tort, or otherwise are solely the debts, obligations, or other liabilities of the Limited Liability Company and do not become the debts, obligations or other liabilities of a Member, Manager of officer solely by reason of the Member acting as a Member, the Manager acting as a Manager, or the officer acting as an officer.
The failure of the Limited Liability Company to observe any particular formalities related to the exercise of its powers or management of its activities is not a ground for imposing liability on the Members, Managers or officers for the debts, obligations, or other liabilities of the Limited Liability Company.
1(g) No Member Fiduciary Duties.
A Member does not have any fiduciary duty to the Limited Liability Company or to any other Member solely by reason of being a member of the limited liability company.
1(h) Duty of Loyalty Owed by Managers and Officers.
(1) | The duty of loyalty owed by the Managers and officers to the Limited Liability Company and its Members includes all of the following duties: |
(A) | To account to the Limited Liability Company and to hold as trustee for the Limited Liability Company any property, profit or benefit derived by the Manager or officer regarding any of the following: |
(i) | Any property, profit or benefit derived by the Manager or officer during the Managers or officers conduct or winding up of the Limited Liability Companys activities; |
(ii) | Any property, profit or benefit derived by the Manager or officer from using any of the Limited Liability Companys property; and |
(iii) | Any property, profit or benefit derived by the Manager or officer from the appropriation of a Limited Liability Company business or other opportunity. |
(B) | To refrain from dealing with the Limited Liability Company in the conduct or winding up of the Limited Liability Companys activities as or on behalf of a person having an interest that is adverse to the Limited Liability Company. |
(C) | To refrain from competing with the Limited Liability Company in the conduct of the Limited Liability Companys business and other activities before the dissolution of the Limited Liability Company. |
(2) | Each Manager and officer of the Limited Liability Company shall carry out such Mangers or officers duty in good faith as required by Colorado law. |
(3) | After full disclosure of all material facts, a Majority-in-Interest of the Members may confirm, approve or ratify a specific act or transaction that otherwise would violate any duty of loyalty set forth above. |
1(i) Managers and Officers have no Exclusive Duty to the Limited Liability Company.
So long as he or she does not violate Section 1(h) above, neither a Manager nor an officer, solely by reason of being a Manager or officer, shall be required to manage the Limited Liability Company as his or her sole and exclusive function, and a Manager or officer may have other business interests and may engage in other activities in addition to those relating to the Limited Liability Company. Neither the Limited Liability Company nor any Member shall have any right, by virtue of this agreement, to share or participate in such other investments or activities of any Manager or officer or to the income or proceeds derived therefrom.
-2-
1(j) Liability Limitation and Indemnification of Managers and Officers.
(1) | A Manager or officer shall not be personally liable to the Limited Liability Company or the Members for money damages for any action taken, or any failure to take any action, except liability for any of the following: |
(A) | A breach of the duty of loyalty as set forth in Section 1(h) above; |
(B) | A financial benefit received by the Manager or officer to which the Manager or officer is not entitled; |
(C) | Authorizing any distribution that violates the limitations on distributions set forth in Section 606 of the Colorado Limited Liability Company Act; |
(D) | An intentional infliction of harm on the Limited Liability Company or a Member of the Limited Liability Company; or |
(E) | An intentional violation of criminal law. |
(2) | Any Manager or officer shall be defended, indemnified, and held harmless by the Limited Liability Company from and against any and all losses, claims, damages, liabilities, settlements and other amounts arising from any and all claims (including reasonable legal fees and expenses), demands, actions, suits or proceedings (civil, criminal, administrative or investigative), in which he or she may be involved, as a party or otherwise, by reason of his or her management of the Limited Liability Company, whether or not he or she continues to be Manager or officer at the time any such liability or expense is paid or incurred; provided that neither the Manager nor the officer shall be entitled to the foregoing indemnification if a court of competent jurisdiction determined that such losses, claims, damages, liabilities, expenses, or such other amounts relate to liability for any of the matters set forth above in Section 1(j)(1) of this Operating Agreement. |
The termination of a proceeding by judgment, order, settlement or conviction upon a plea of nolo contendere, or its equivalent, shall not, of itself, create any presumption that such losses, claims, damages, liabilities, expenses, or such other amounts relate to liability for any of the matters set forth above in Section 1(j)(1) of this Operating Agreement.
The Limited Liability Company shall also indemnify any Manager or officer who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding by or in the right of the Limited Liability Company to procure a judgment in its favor by reason of the fact that such Manager or officer is or was an agent of the Limited Liability Company, against any losses, claims, damages, liabilities, settlements, expenses, legal fees or any other amounts incurred by such Manager or officer in connection with the defense or settlement of such action; provided that the Manager or officer shall not be entitled to the foregoing indemnification if a court of competent jurisdiction shall have determined that any such losses, claims, damages, liabilities, expenses or such other amounts relate to liability for any of the matters set forth above in Section 1(j)(1) of this Operating Agreement.
-3-
The Limited Liability Company may, but is not required to, advance a Manager or officer any expenses (including, without limitation, reasonable legal fees and expenses) incurred as a result of any claim, demand, action, suit or proceeding referred to in this Section 1(j)(2) provided that:
(A) | the legal action, suit, etc, relates to the performance of duties or services by the Manager or officer on behalf of the Limited Liability Company; and |
(B) | the Manager or officer gives the Limited Liability Company a full recourse promissory note for the amounts of such advances in the event that the Manager or officer is determined to be not entitled to indemnification under this Operating Agreement. The promissory note must contain payment and collateral security terms that are satisfactory to the Limited Liability Company in it sole discretion. |
(3) | The indemnification provided by Section 1(j)(2) shall not be deemed to be exclusive of any other rights to which the Managers or officers may be entitled tinder any agreement, as a matter of law, in equity or otherwise, and shall continue as to the Managers or officers who have ceased to have an official capacity and shall inure to the benefit of the heirs, personal administrators, executors, successors and assigns of the Managers or officers. |
(4) | Any indemnification pursuant to this section will be payable only from the assets of the Limited Liability Company. |
(5) | The Limited Liability Company may purchase and maintain insurance on behalf of a Member or Manager against liability asserted against or inclined by the Member or Manager in the capacity or arising from that status. |
1(k) Statements of Authority.
The Managers are authorized on behalf of the Limited Liability Company to deliver Statements of Authority to the Colorado Secretary of State for filing. The statements may provide with respect to any Manager or officer, the authority, or limitations on the authority, of all persons holding the position to do any of the following:
(1) | Execute an instrument transferring real property held in the name of the Limited Liability Company; and |
(2) | Enter into other transactions on behalf of, or otherwise act for or bind, the Limited Liability Company. |
ARTICLE 2. DEFINITIONS
2(a) Affiliate
The term Affiliate means, with respect to any Person: (i) any person directly or indirectly controlling, controlled by or under common control with such Person; (ii) any persons owning or controlling ten percent (10%) or more of the outstanding voting securities of such Person; (iii) any officer, director, member of such Person; or (iv) any company in which such Person is an officer, director, member or partner.
2(b) Net Profits And Losses.
The terms Net Profits and Net Losses shall mean the taxable income or taxable loss of the Limited Liability Company determined for purposes of preparing the Limited Liability Company information return for federal income tax purposes.
-4-
2(c) Non-Taxable Income And Unallowable Deductions.
The terms Non-taxable Income and Unallowable Deductions shall mean any items of income or deduction properly treated as income or deductions by the Limited Liability Company for financial accounting purposes but not includable as income or allowable as a deduction for federal income tax purposes, and any expenditures described in Section 705(a)(2)(B) of the Internal Revenue Code.
2(d) Cash Flow.
The term Cash Flow shall mean the excess of cash receipts over cash disbursements for the applicable period; provided, however, Cash Flow shall not include any cash received pursuant to the dissolution and termination of the Limited Liability Company.
2(e) Distributable Cash.
The term Distributable Cash shall mean Cash Flow for the applicable period reduced (or increased) by such amounts which are determined by the Managers to be reasonably necessary (or no longer necessary) to be expended or held as reserves for the conduct of Limited Liability Company business, including expansion thereof, capital improvements, and future payments of anticipated obligations and liabilities. Distributable Cash shall not include, however, any cash that may not be distributed by the Limited Liability Company without violating the limitations on distributions set forth in Section 606 of the Colorado Limited Liability Company Act.
2(f) Members.
The term Members shall refer to those persons or individuals who are members of the Limited Liability Company, including substitute and new Members under Article 6.
A person shall cease to be a Member of the Limited Liability Company at such time as:
(1) | The Member withdraws from the Limited Liability Company as permitted by Section (a) of Article 6. |
(2) | The Member does any of the following: |
(A) | Makes an assignment for the benefit of creditors. |
(B) | Files a voluntary petition in bankruptcy. |
(C) | Is adjudicated a bankrupt or insolvent or has entered against the Member an order for relief in any bankruptcy or insolvency proceeding. |
(D) | Files a petition or answer seeking for the Member reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any statute, law, or regulation. |
(E) | Seeks, consents to, or acquiesces in the appointment of a trustee, receiver, or liquidator of the Member or of all or a substantial part of the Members properties. |
(F) | Files an answer or other pleading admitting or failing to contest material allegations of a petition filed against the Member in a proceeding of a nature specified in this subsection. |
-5-
(3) | The continuation of any proceeding against the Member seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief, under any statute, law, or regulation for 120 days after the commencement of such proceeding, or the appointment of a trustee, receiver or liquidator for the Member or for all or any substantial part of the Members properties without the Members agreement or acquiescence, which appointment is not vacated or stayed for 120 days or, if the appointment is stayed, for 120 days after the expiration of the stay during which period the application is not vacated. |
(4) | If the Member is a natural person, when either the Member dies or a court of competent jurisdiction finds the Member incapable of managing the Members person or property. |
(5) | If the Member is acting as a Member by virtue of being a trustee of a trust, when the trust terminates. Substitution of a new trustee is not termination of the trust. |
(6) | If the Member is a partnership or limited liability company, the dissolution and commencement of winding up of the partnership or limited liability company. |
(7) | If the Member is a corporation, the filing of a certificate of dissolution, or its equivalent, for the corporation or revocation of the corporations charter. |
(8) | If the Member is acting as a Member by virtue of being a fiduciary of an estate, the distribution by the fiduciary of the estates entire interest in the Limited Liability Company. |
(9) | If the Member assigns its entire interest as a Member of the Limited Liability Company. |
If a person shall cease to be a Member as a result of a foregoing event and if the Limited Liability Company continues and is not terminated under Article 5, then the successor in interest to such Member as a result of such event, if any, shall be treated as an assignee of such Members interest in the Limited Liability Company, subject to the terms of any Buy-Sell Agreement entered into by any Member and the Company.
2(g) Majority In Interest Of The Members.
The term Majority in Interest shall refer to those Members owning more than 50% of the total Units then held by the Members referred to.
2(h) Person.
The term Person means an individual, partnership, corporation, trust, limited liability company or any other entity or association.
2(i) Units.
The term Units shall refer to those interests in the Limited Liability Company issued by the Limited Liability Company to its Members.
ARTICLE 3. OWNERSHIP AND CAPITAL CONTRIBUTIONS
3(a) Current Ownership.
As of the date of this Operating Agreement, Meredith Corporation is the sole Member of the Limited Liability Company and sole owner of all issued and outstanding Units of the Limited Liability of all classes and types.
-6-
3(b) Additional Capital Contributions and Loans Required.
No Member shall be required to make any additional capital contributions or loans to the Limited Liability Company. However, the Members may, from time to time, agree that one or more Members shall make additional capital contributions, in cash unless otherwise stipulated.
ARTICLE 4. NET PROFITS, NET LOSSES AND DISTRIBUTIONS
4(a) Profits, Losses And Credits.
Net Profits, Net Losses, Non-taxable Income, Unallowable Deductions and credits shall be computed for each period and shall be allocated among the Members in accordance with their Units as of the end of such period.
4(b) Distributions Of Distributable Cash.
Distributable Cash shall be distributed among the Members in accordance with their Units. The Company shall make a minimum distribution each year equal to the Members equal to the Net Profits multiplied by highest combined income tax rate (federal and state) for the Members.
Except as provided in this Section (b) and in Section (c) of this Article, no Member shall be entitled to withdraw any amount from his or her investment in the Limited Liability Company.
4(c) Termination Proceeds.
In the event of the dissolution and termination of the Limited Liability Company under Article 5, the proceeds of such dissolution and termination shall be allocated as follows;
(1) | First, in payment of all accrued but unpaid debts and liabilities of the Limited Liability Company requiring payment in order of priority; |
(2) | Second, to expenses of sale or dissolution, including customary brokerage fees; |
(3) | Third, to provide such reserves as the Managers deem advisable for contingent liabilities of the Limited Liability Company (which reserves will be held in escrow); and |
(4) | Fourth, to all other Members in accordance with their Units. |
Each Member shall look solely to the assets of the Limited Liability Company for the return of such Members capital contribution and if the Limited Liability Company property remaining after the payment or discharge of the prior debts, liabilities and distributions of the Limited Liability Company is insufficient to return such capital contributions, no Member shall have any recourse against any other Member or Manager.
ARTICLE 5. TERM, DISSOLUTION AND TERMINATION OF LIMITED LIABILITY COMPANY
5(a) Term And Dissolution Of Limited Liability Company.
The term of the Limited Liability Company shall commence as of the date of the filing of the Articles of Organization with the Colorado Secretary of State, and shall continue until the earliest of the following:
(1) | The sale, expiration, abandonment or other disposition of all Limited Liability Company assets; |
(2) | Dissolution of the Limited Liability Company by judicial decree; or |
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(3) | The written consent of a Majority in Interest of the Members. |
5(b) No Dissolution As A Result Of Certain Other Events.
The Limited Liability Company shall not be dissolved by any event not set forth in Section (a) of this Article, and no other event shall entitle any Member to a return of capital.
5(c) Winding Up, Liquidation, Distribution Of Assets And Termination.
If the Limited Liability Company is dissolved, then:
(1) | The Managers shall wind up the affairs of the Limited Liability Company; and sell or otherwise liquidate or dispose of or abandon all of the Limited Liability Company assets in a manner consistent with attempting to obtain the fair market value thereof; and shall terminate the Limited Liability Company. |
(2) | The proceeds from such disposition shall be distributed pursuant to Section (c) of Article 4. |
ARTICLE 6. DISSOCIATION AND TRANSFERS OF INTERESTS
6(a) Restrictions On Dissociation.
A Member may not voluntarily dissociate as a Member unless any amendment to this Operating Agreement or the Articles of Organization of the Limited Liability Company is adopted over the Members written dissent and adversely affects the rights or preferences of the Members interest in the Limited Liability Company in any of the following ways:
(1) | By altering or abolishing the Members right to receive a distribution; |
(2) | By altering or abolishing the Members right to voluntarily withdraw or resign; |
(3) | By altering or abolishing the Members right to vote on any matter, except as the rights may be altered or abolished through the acceptance of contributions or the making of contribution agreements; |
(4) | By altering or abolishing the Members preemptive right to make contributions; or |
(5) | By establishing or changing the conditions for or consequences of expulsion. |
6(b) Assignment, Sale, and Transfer of Units.
(1) | No Transfers Permitted. Except as permitted pursuant to a written agreement of the Members and Company, a Member shall not transfer his or her Units, unless consented to by the Managers and a Majority in Interest of the Members. For purposes of this Section, Transfer shall mean (1) to sell, transfer, assign, pledge or otherwise encumber or dispose of whether with or without consideration and whether voluntarily or involuntarily or by operation of law, directly or indirectly; provided, that a lien arising with respect to Units in connection with a general lien on all or substantially all of the assets of the holder of Units shall not constitute a Transfer, and (2) to allow a change of control of any Member who owns any Units in the Limited Liability Company. As used in this definition, the term control means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person or entity, whether through ownership of voting securities, by contract or otherwise. A Transfer includes a transfer to Members spouse, children (including natural, adopted and stepchildren), grandchildren, and parents, or a trust for the benefit of the Member or the Members spouse, children (including natural, adopted and stepchildren), grandchildren, and parents. No other provision of this Operating Agreement to the contrary, Transfer of a Unit shall not dissolve or terminate the Limited Liability Company. |
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(2) | Economic Member. Notwithstanding anything contained herein to the contrary, unless the transferee of Units has received the approval of the Managers and a Majority in Interest of the Members to become a Member, the transferee has no right to vote or to participate in the management of the business and affairs of the Limited Liability Company and is entitled only to receive the share of profits and losses and distributions to which the Transferring Member would have otherwise been entitled. As a condition to his, her or its admission as a Member (a) any transferee shall execute and deliver such instruments, in form and substance satisfactory to the Limited Liability Company, as the Limited Liability Company shall deem necessary or desirable to cause him, her or it to become a Member, and (b) such transferee shall pay all reasonable expenses in connection with his, her or its admission as a Member. |
6(c) Admission Of New Members.
From the date of the formation of the Limited Liability Company, with the consent of the Managers and of a Majority in Interest of the Members, any person or entity acceptable to the Managers may, subject to the terms and conditions of this Operating Agreement, become an additional Member in this Limited Liability Company by the sale of new Limited Liability Company interests for such consideration as the Managers shall determine. Any Additional Member must accept and agree to be bound by the terms of this Operating Agreement, as evidenced by such Additional Members execution of an acknowledgement in the form attached hereto as Exhibit A.
6(d) Allocations To Additional Or Substitute Members.
No additional or substitute Member shall be entitled to any retroactive allocation of losses, income or expense deductions incurred by the Limited Liability Company. The Managers may, at their option, at the time an additional or substitute Member is admitted, close the Limited Liability Companys books (as though the Limited Liability Companys tax year had ended) or make pro rata allocations of loss, income and expense deductions to an additional or substitute Member for that portion of the Companys tax year in which an additional or substitute Member was admitted.
ARTICLE 7. WRITTEN INSTRUMENTS, LOANS, CHECKS AND DEPOSITS
7(a) Written Instruments.
All deeds and mortgages made by the Limited Liability Company and all other written contracts and agreements to which the Limited Liability Company is a party shall be executed in its name by a majority of the Managers, or by a Manager or Officer pursuant to a general or specific grant of authority approved by a majority of the Managers.
7(b) Loans.
No loans shall be contracted on behalf of the Limited Liability Company, and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the Managers. Such authority may be general or confined to specific instances.
7(c) Checks, Drafts, Etc.
All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Limited Liability Company, shall be signed by such officer or officers, agent or agents of the Limited Liability Company and in such manner as shall be determined by the Managers.
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7(d) Deposits.
All corporate funds not otherwise employed shall be deposited to the credit of the Limited Liability Company in such banks, trust companies or other depositories as the Managers may select.
ARTICLE 8. RECORDS; FINANCIAL AND FISCAL AFFAIRS; TAX REPORTING
8(a) Records and Accounting.
The books and records of the Limited Liability Company shall be kept in accordance with United States Generally Accepted Accounting Principles consistently applied. Such books and records shall show a true and accurate record of all costs and expenses incurred, all charges made, all credits made and received and all income derived in connection with the Limited Liability Companys business.
Upon request, for any purpose reasonably related to the Members interest as a Member, the Limited Liability Company will furnish a copy of such information to a Member or his representative; provided, however, that the information furnished to the Member will not, in any event, be used for commercial purposes. Any Member may inspect and copy or obtain from the Limited Liability Company the financial records of the Limited Liability Company and its tax returns. A member shall give the Limited Liability Company at least five (5) business days prior written notice for any inspection and copying permitted pursuant to this subsection by the Member or its authorized attorney or agent.
8(b) Tax Information.
The Members will use their best efforts to cause to be delivered, as soon as practical after the end of each fiscal year of the Limited Liability Company, to the Members and persons or individuals who were Members during such fiscal year all information concerning the Company necessary to enable such Member to prepare such Members Federal and State partnership income tax returns for such fiscal year, including a statement indicating such Members share of profits, losses, deductions and credits for such fiscal year for Federal and state income tax purposes, and the amount of any distribution made to or for the account of such Member during such fiscal year pursuant to this Agreement.
8(c) Tax Returns.
The Members shall cause the Limited Liability Companys accountants to prepare all income and other tax
returns of the Limited Liability Company and cause the same to be filed in a timely manner in accordance with applicable law. The Members shall cause all tax obligations of the Limited Liability Company to be paid in a timely manner.
8(d) Elections.
(1) | The Members may elect to adjust the basis of the assets of the Limited Liability Company for Federal income tax purposes in accordance with Section 754 of the Internal Revenue Code in the event of a distribution of Limited Liability Company property as described in Section 734 of the Internal Revenue Code or a transfer by any Member of the interest of such Member in the Limited Liability Company as described in Section 743 of the Internal Revenue Code. |
(2) | The Members, at any time and from time to time may also make such other tax elections as they deems necessary or desirable, in their discretion. |
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8(e) Interim Closing of the Books.
There shall be an interim closing of the books of account of the Limited Liability Company (i) at any time a taxable year of the Limited Liability Company shall end pursuant to the Internal Revenue Code, and (ii) at any other time determined by the Members to be required by good accounting practice or otherwise appropriate under the circumstances.
8(f) Accounting & Tax Matters.
Until the Managers designate a new Tax Matters Partner, Meredith Corporation shall be the designated Tax Matters Partner within the meaning of Internal Revenue Code § 6231(a)(7) and is authorized to exercise the functions of a Tax Matters Partner under the Internal Revenue Code. The Tax Matters Partner shall be reimbursed for all reasonable expenses associated with its duties as Tax Matters Partner.
ARTICLE 9. MEETINGS OF MEMBERS
9(a) Meetings.
Member meetings, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the Managers or by a Majority in Interest of the Members, and shall be called by the Managers at the written request of Members holding 20% or more of the Units. Such request shall state the purpose or purposes of the meeting.
9(b) Place Of Meeting.
The Managers may designate any place, either within or without the State of Colorado, for any meeting called by the Managers or by the Members, except that a waiver of notice signed by all Members entitled to vote thereat may designate any place, either within or without the State of Colorado, as the place of the holding of such meeting. If no designation is made, the place of meeting shall be the registered office of the Limited Liability Company in the State of Colorado, but any meeting may be adjourned to reconvene at any place designated by a Majority in Interest of the Members at the adjourned meeting.
9(c) Notice Of Meeting.
Written or printed notice stating the place, day and hour of the meeting, and the purpose or purposes for which called, shall be delivered not less than ten (10) days (or such greater number as required by law) nor more than fifty (50) days before the meeting, either personally or by mail, by or at the direction of the Managers or person calling the meeting, to each Member of record entitled to vote thereat. If mailed, such notice shall be deemed delivered when deposited in the United States mail, addressed to the Member at the Members address as it appears on the Limited Liability Companys record books, with postage prepaid. A meeting notice may also be delivered electronically via e-mail to the Members current email address as provided by the Member to the Limited Liability Company from time to time, or by facsimile to the Members current facsimile number as provided by the Member to the Limited Liability Company from time to time.
9(d) Waiver Of Notice.
(1) | A written waiver of notice signed by any Member entitled to such notice, whether before or after the meeting, shall be equivalent to the giving of notice to such Member in due time as required by law. |
(2) | Presence at or participation in any Members meeting, in person or by proxy, shall be equivalent to waiver of giving of notice of such meeting and irregularities in any notice given. |
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9(e) Voting List.
The Managers shall make, at least ten days before each Member meeting, a complete list of Members entitled to vote at such meeting, or any adjournment thereof, arranged in alphabetical order, with the address of and the Units owned by each, which list, for a period of ten days prior to such meeting, shall be kept on file at the registered office of the Limited Liability Company subject to inspection by any Member during usual business hours. Such list shall also be produced at the meeting and shall there be subject to inspection of any Member. The membership transfer books shall be prima facie evidence as to the Members entitled to examine such list or books or to vote at any Member meeting. Failure to comply with this Section shall not affect the validity of any action taken at such meeting.
9(f) Quorum.
At any Member meeting a Majority in Interest of the Members, present in person or represented by proxy, shall constitute a quorum, unless a larger number is required by law or the Articles of Organization, and in that case, the representation of the number so required shall constitute a quorum. If the holders of the Units necessary for a quorum shall fail to attend in person or by proxy at the time and place fixed for a meeting, a Majority in Interest of the Members present in person or by proxy may adjourn by announcement at the meeting, until a quorum shall be present. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally notified.
9(g) Organization.
(1) | The holders of a Majority in Interest of the Members present may appoint any Member to act as Chairman. |
(2) | The Chairman may appoint any person to act as Secretary of the meeting. |
9(h) Voting Of Membership Interests.
(1) | Unless otherwise specifically stated in this Operating Agreement or as required by law, only Members holding Units shall have a right to vote on any matters. |
(2) | Except as otherwise provided by law or this Operating Agreement, each one Unit entitled to vote shall have one vote on each matter submitted to a vote. Such vote may be cast either in person or by proxy executed and delivered as provided in Section (j) of this Article. |
(3) | The Members having the right to vote at any meeting shall only be those of record on the books of the Limited Liability Company, and those acting in a representative capacity under Section (i) of this Article, on the date of such meeting. A Member may vote interests in the Limited Liability Company pledged. |
(4) | Voting by Members may be via voice vote unless the Chairman shall order or any Member entitled to vote shall demand that voting be by ballot. In such case each, ballot shall be signed by the Member voting or in such Members name by proxy, and shall state the Units voted by such Member. |
(5) | The vote of a Majority in Interest of all of the Members entitled to vote and not just of those Members represented at the meeting and entitled to vote thereon shall be required to be the act of the Members, unless the vote of a greater number is required by law, the Articles of Organization or this Operating Agreement. |
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9(i) Inspectors Of Election.
The Managers in advance of any Member meeting may appoint inspectors to act at such meeting or any adjournment thereof. If inspectors are not appointed, the Chairman of such meeting may, and on the request of any Member or such Members proxy shall, make such appointment. If any appointed inspector fails to appear or act. the vacancy may be filled by the Managers in advance of the meeting, or at the meeting by the Chairman. The inspectors shall register proxies, determine the amount of Units, the existence of a quorum, the authenticity, validity and effect of proxies, determine all challenges and questions in connection with the vote, count and tabulate all votes, assents and consents, determine and announce the result, and do such acts proper to conduct the election or vote with fairness to all Members. No inspector need be a Member.
9(j) Proxies.
At all Member meetings, a Member entitled to vote may vote by proxy appointed in writing by the Member or by such Members duly authorized attorney-in-fact. Such proxy shall be filed with the Secretary or the Chairman before or at the time of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided therein. Each proxy for any Members meeting shall be registered with the election inspectors prior to such meeting. Registration shall be on the same date and at the same premises as the meeting and shall commence at least one hour prior to and terminate prior to the start of the meeting. Any proxies not so registered shall not be recognized, counted or tabulated as to any matters before the particular meeting.
9(k) Informal Action By Members.
Any action required or permitted by law or the Articles of Organization or this Operating Agreement to be taken at a meeting of Members, may be taken without a meeting if a consent in writing setting forth the action so taken shall be signed by all of the Members entitled to vote thereon.
ARTICLE 10. MANAGERS
10(a) General Powers.
The business and affairs of the Limited Liability Company shall be managed by the Managers. However, the Managers must receive the prior consent and approval of a Majority-In-Interest of the Members to do any of the following:
(1) | Sell, lease, exchange or otherwise dispose of all, or substantially all of the Limited Liability Companys property, with or without the Limited Liability Companys goodwill, outside of the ordinary course of the Limited Liability Companys business; |
(2) | Approve a merger, conversion or domestication involving the Limited Liability Company; or |
(3) | Amend this Operating Agreement pursuant to the provisions of Section 12(c) of this Operating Agreement. |
Further, if any Member will have any personal liability with respect to a surviving, converted or domesticated organization, approval or amendment of a plan of merger, conversion or domestication is ineffective without the approval and consent of all Members who will have any personal liability with respect to the taking of any such action.
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10(b) Specific Powers.
Included within the powers of the Managers is the authority to sign, execute and acknowledge all contracts, checks, deeds, mortgages, bonds, leases or other instruments and obligations on behalf of the Limited Liability Company which shall be signed by a majority of the Managers.
10(c) Number, Tenure And Qualifications.
The number of Managers shall be as determined under Section (d) of Article 1. Each Manager shall hold office until a successor shall have been elected and qualifies, or until death, resignation or removal. Managers need not be residents of the State of Colorado, nor Members of the Limited Liability Company.
10(d) Quorum And Manner Of Acting.
A majority of the number of Managers fixed in the manner provided by Section (d) of Article I shall constitute a quorum; but if at any meeting there be less than a quorum present, a majority of the Managers present may adjourn the meeting without notice until a quorum shall be present. At all meetings of Managers, even though a quorum be present, the act of a majority of the Managers and not just of a majority of the Managers present shall be required to be the act of the Managers.
10(e) Resignation.
Any Manager may resign by written notice to the other Managers or, if there be no such individuals, then to each of the Members. Such resignation shall take effect upon receipt of notice thereof or at such later date as specified therein; and, unless otherwise specified therein, acceptance of such resignation shall not be necessary to make it effective.
10(f) Removal.
A Manager shall be subject to removal at a meeting of the Members by the vote of a Majority in Interest of the Members.
10(g) Vacancies.
Any vacancy among the Managers may be filled by a vote of the majority in interest of the Members. A Manager elected to fill a vacancy shall be elected until the election of a successor.
10(h) Number Of Managers Increased.
If the number of Managers be increased, the new Manager shall be selected by vote of a majority of Managers then in office, even if less than a quorum. Any Manager so elected shall serve until election of a successor.
10(i) Compensation Of Managers.
The Managers shall be entitled to be reimbursed for expenses for attendance at any Managers meeting, and the Managers may provide that the Limited Liability Company shall pay each Manager compensation for services as fixed by the Managers. Nothing herein shall preclude any Manager from serving the Limited Liability Company in any other capacity and receiving compensation therefor. The Managers may provide for, or delegate authority to an appropriate committee to provide for, reasonable pensions, disability or death benefits, and other benefits or payments, to Managers, officers and employees and to their estates, families, dependents or beneficiaries for services rendered by such persons to the Limited Liability Company.
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10(j) Place Of Meetings, Etc.
Except as provided in the following Section, the Managers may hold their meetings and keep the books and records of the Limited Liability Company (except those records required by law to be kept at its principal office) at such place or places within or without the State of Colorado, as the Managers determine.
10(k) Meeting.
Meetings may be held at any time or place specified in a notice given as hereinafter provided for meetings of the Managers or in a consent and waiver of notice signed by all Managers.
10(1) Regular Meetings.
Regular meetings of the Managers shall be held without need for notice thereof at such place and time as the Managers shall fix and determine.
10(m) Special Meetings; Notice.
(1) | Special meetings of the Managers shall be held whenever called by one-third of the Managers in office. |
(2) | Notice of each such meeting shall be mailed to each Manager, at the Managers address as it appears on the books of the Limited Liability Company, at least five (5) days before the meeting, delivered personally or by telephone not later than the second day before the meeting. Each notice shall state the time and place of the meeting. A meeting notice may also be delivered electronically via e-mail to the Managers current email address as provided by the Manager to the Limited Liability Company from time to time, or by facsimile to the Managers current facsimile number as provided by the Manager to the Limited Liability Company from time to time. Unless otherwise indicated in the notice, any and all business may be transacted at a special meeting. At any meeting at which every Manager is present, even without any notice, any business may be transacted. |
10(n) Substitutes For Notice.
A written waiver of notice signed by a Manager, whether before or after the meeting, shall be equivalent to the giving of notice in due time as required by this Operating Agreement. Attendance of a Manager at a meeting shall constitute a waiver of notice, except where the Manager attends for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened.
10(o) Managers Assent Presumed.
A Manager who is present at a Managers meeting shall be presumed to have assented to any action taken thereat unless the Managers dissent is entered in the minutes or the Manager shall file his written dissent thereto with the Secretary of the meeting before adjournment thereof or shall forward such dissent by registered or certified mail to the other Managers immediately after the adjournment of the meeting. Such right to dissent shall not apply to a Manager who voted in favor of such action.
10(p) Order Of Business.
At Manager meetings, business shall be transacted in such order as the Managers determine, and the senior Manager (in point of service) shall preside.
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10(q) Action Without Meeting.
Any action required or permitted by law or the Articles of Organization or this Operating Agreement to be taken at any meeting of the Managers may be taken without a meeting if a consent in writing setting forth the action so taken shall be signed by all of the Managers then in office.
10(r) Committees.
The Managers, by vote of a majority of the number of Managers fixed in the manner provided by Section (d) of Article 1, may establish one or more committees, each committee to consist of such number of Managers elected by the Managers, to serve at the will of the Managers and to have the powers and duties delegated to it by the Managers. Each such committee may set rules governing the conduct of its activities.
ARTICLE 11. OFFICERS
11(a) Executive Officers.
The Managers may appoint executive officers, including a President, one or more Vice-Presidents, a Secretary and a Treasurer. None of the officers need be Managers or Members. One person may hold the offices and perform the duties of any two or more of said offices.
11(b) Election And Term Of Office.
Executive officers may be chosen by the Managers at any meeting. Each such officer shall hold office until the next Managers meeting and until a successor shall have been duly chosen and shall qualify or until death, resignation or removal.
11(c) Removal.
Any officer or agent may be removed by the Managers whenever in their judgment the best interests of the Limited Liability Company will be served thereby, but without prejudice to the contract rights, if any, of such person. Election or appointment of an officer or agent shall not in itself create contract rights.
11(d) Resignations.
Any officer may resign by written notice thereof to the Managers. Such resignation shall take effect upon receipt thereof or at any later time specified therein; and, unless otherwise specified therein, acceptance thereof shall not be necessary to make it effective.
11(e) Vacancies.
A vacancy in any office may be filled by appointment by the Managers.
11(f) Powers and Duties of the President.
If appointed by the Managers, the President shall have general charge of and direct the operations of the Limited Liability Company, subject to the control of the Managers, and shall keep the Managers fully informed and shall consult with them concerning the business of the Limited Liability Company. If appointed, the President shall have authority to sign, execute and acknowledge all contracts, checks, deeds, mortgages, bonds, leases or other obligations on behalf of the Limited Liability Company as the President may deem necessary or proper in the course of the Limited Liability Companys regular business, or which shall be authorized by the Managers. The President may sign in the name of the Limited Liability Company reports and all other documents or instruments which are necessary or proper in the course of the Limited Liability Companys business. The President shall perform all duties incident to the office, as herein defined, and all such other duties as from time to time may be assigned by the Managers.
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The limited liability company may appoint more than one person to serve as the President and, if more than one person is appointed to serve as President, each shall be denominated as a co-President and each shall have the powers and duties set forth above.
11(g) Powers and Duties of the Vice President.
If one or more Vice-Presidents are appointed by the Managers, in the absence of the President or in the event of the Presidents death, inability or refusal to act, the Vice-President (or if more than one), the senior Vice-President in length of service shall perform the duties of the President, and when so acting, shall have all powers of and be subject to all restrictions upon the President. Each Vice-President shall perform such duties and have such authority as may be assigned to such Vice-President by the President or by the Managers.
11(h) Powers and Duties of the Secretary.
If appointed by the Managers, the Secretary shall (a) keep minutes of all meetings; (b) attend to serving all notices of the Limited Liability Company; (c) be custodian of the Members ownership books and such other books, records and papers as the Managers direct; (d) keep a record showing the names of all Members, their post office addresses as furnished by them, and their Units, and at least ten days before each Members meeting, prepare a list of Members entitled to vote thereat arranged in alphabetical order; (e) sign in the name of the Limited Liability Company all contracts authorized by the Managers or the President; and (f) in general, perform all duties incident to the office and such other duties as may be assigned by the President or the Managers.
11(i) Powers and Duties of the Treasurer.
If appointed by the Managers, the Treasurer shall (a) have custody of and be responsible for all moneys and securities of the Limited Liability Company, keep full and accurate records and accounts of the transactions and financial condition of the Limited Liability Company, and see that all expenditures are duly authorized and evidenced by proper receipts and vouchers; (b) deposit in the name of the Limited Liability Company in such depository or depositories approved by the Managers, all moneys that come into the Treasurers hands for the Limited Liability Companys account; (c) make a full report of the financial condition of the Limited Liability Company at annual Member meetings or at any meeting of the Managers; and (d) in general, perform such duties as may be assigned by the President or by the Managers. The Treasurers books and accounts shall be open during business hours to the inspection of any Manager. The Treasurer shall, if required by the Managers, give bond in such form and with such sureties as shall be required by the Managers.
11(j) Other Officers.
The Managers may appoint such other officers as are necessary or appropriate in order to conduct the Limited Liability Companys business operations.
11(k) Assistants And Acting Officers.
The Managers or any officer, duly authorized by the Managers, may appoint any person to act as assistant to any officer, or to perform the duties of such officer whenever it is impracticable for such officer to act personally, and such assistant or acting officer may perform all the duties of the office to which appointed as assistant, except as such power may be otherwise defined or restricted by the Managers or the appointing officer.
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11(l) Salaries.
The salaries of any officers shall be fixed by the Managers, and no officer shall be prevented from receiving such salary because he or she is also a Manager of the Limited Liability Company.
ARTICLE 12. BUY-SELL PROVISION
The Company and Members may enter into a separate Buy-Sell Agreement.
ARTICLE 13. MISCELLANEOUS PROVISIONS
13(a) Application Of Colorado Law.
This Operating Agreement, and the application of interpretation hereof, shall be governed exclusively by its terms and by the laws of the State of Colorado, and specifically the Colorado Limited Liability Company Act.
13(b) Waiver Of Action For Partition.
Each Member irrevocably waives during the term of the Limited Liability Company any right that it may have to maintain any action for partition with respect to the property of the Limited Liability Company.
13(c) Amendments.
The Articles of Organization and/or this Operating Agreement shall be subject to amendment or alteration in whole or in part or new Articles of Organization or an Operating Agreement may be adopted by a unanimous vote of the Members.
13(d) Certificates.
If the Managers determine to issue certificates, every Member shall be entitled to a certificate or certificates in such form as the Managers shall prescribe. No certificate shall be issued for any interest in the Limited Liability Company until payment is received for such interest. The Managers may make such rules and regulations, not inconsistent with the Articles of Organization and this Operating Agreement, concerning the issue, transfer and registration of certificates. Any assignment or transfer of certificates permitted by such rules and regulations shall not be construed to grant any right to participate in the management of the business and affairs of the Limited Liability Company or to become a substitute Member except as provided in Section (b) of Article 6.
13(e) Execution Of Additional Instruments.
Each Member hereby agrees to execute such other and further statements of interest and holdings, designations, powers of attorney and other instruments necessary to comply with any laws, rules or regulations.
13(f) Construction.
Whenever the singular number is used in this Operating Agreement and when required by the context, the same shall include the plural, and the masculine gender shall include the feminine and neuter genders and vice versa.
13(g) Headings.
The headings in this Operating Agreement are inserted for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent or intent of this Operating Agreement or any provision hereof.
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13(h) Waivers.
The failure of any party to seek redress for violation of or to insist upon the strict performance of any covenant or condition of this Operating Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation.
13(i) Rights And Remedies Cumulative.
The rights and remedies provided by this Operating Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive the right to use any or all other remedies, Said rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise.
13(j) Severability.
If any provision of this Operating Agreement or the application thereof to any person or circumstance shall be invalid, illegal or unenforceable to any extent, the remainder of this Operating Agreement and the application thereof shall not be affected and shall be enforceable to the fullest extent permitted by law.
13(k) Heirs, Successors And Assigns.
Each and all of the covenants, terms, provisions and agreements herein contained shall be binding upon and inure to the benefit of the parties hereto and, to the extent permitted by this Operating Agreement, their respective heirs, legal representatives, successors and assigns.
13(l) Creditors.
None of the provisions of this Operating Agreement shall be for the benefit of or enforceable by any creditor of the Limited Liability Company.
13(m) Counterparts.
This Operating Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.
13(n) Annual Reports.
The Managers shall cause an annual report to be sent to the Members not later than 75 days after the close of each taxable year, which report shall include a balance sheet, operating statement, cash flow statement and statement of distribution of funds to the Members for such year.
13(o) Loans From Members.
In the event that the Limited Liability Companys funds are not sufficient to meet its costs, expenses, obligations, liabilities and charges, any Member may, as permitted by a majority vote of the Managers, advance funds to the Limited Liability Company, Such loans shall not constitute a contribution to the capital of the Limited Liability Company or be credited to the investment of the Member or Members or entitle such Member or Members to any increase in a share of Limited Liability Company allocations. Loans in accordance with this paragraph shall be a debt due from the Limited Liability Company to such Member or Members and shall be, together with accrued interest thereon, reimbursed to the Member or Members making such loans in accordance with the terms of any such loans and, to the extent applicable, prior to any other distribution to the Members, whether such distribution be in connection with the dissolution of the Limited Liability Company or otherwise. Such loans shall bear a reasonable rate of interest.
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13(p) No Right OF Members To Receive Property Other Than Cash In Return For Contributions.
No Member shall have any right to demand or receive property other than cash in return for his or her contribution to the capital of the Limited Liability Company; provided, however, a distribution upon dissolution and termination of the Limited Liability Company may, as provided in this Operating Agreement or as required by law, be in a form other than cash.
13(q) Entire Agreement.
This Operating Agreement constitutes the entire operating agreement for the Limited Liability Company and supersedes all prior agreements, negotiations and understandings, written or oral, related to the subject matter hereof. The parties expressly intend that this Operating Agreement supersede, replace and control over that certain First Amended and Restated Operating Agreement of the Limited Liability Company dated November 23, 2010.
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IN WITNESS WHEREOF, the Members have executed this Operating Agreement effective as of April 15, 2016
MEREDITH CORPORATION, sole Member and sole owner of all classes of Units of the Limited Liability Company | ||
By: | /s/ John S. Zieser | |
Print Name: John S. Zieser | ||
Title: Chief Development Officer, General Counsel and Secretary |
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Exhibit 3.23
State of Delaware
Secretary of State
Division of Corporations
Delivered 01:03 PM 12/30/2014
FILED 01:03 PM 12/30/2014
SRV 141599615 - 3906141 FILE
CERTIFICATE OF MERGER
OF
SMI MERGER SUB, INC.
WITH AND INTO
SELECTABLE MEDIA INC.
* * * * * * *
Pursuant to Section 251 of the General Corporation Law of the State of Delaware (the DGCL), the undersigned corporation does hereby certify that:
1. The constituent corporations (the Constituent Corporations) participating in the merger herein certified (the Merger) are:
a. SMI Merger Sub, Inc., which is incorporated under the laws of the State of Delaware (Merger Sub); and
b. Selectable Media Inc., which is incorporated under the laws of the State of Delaware (Selectable).
2. An Agreement and Plan of Merger, dated as of December 19, 2014, by and among Meredith Corporation, an Iowa corporation (Purchaser), Merger Sub, Selectable, the Controlling Sellers (as defined in the Merger Agreement) and the representative of the Controlling Sellers named therein (the Merger Agreement), has been approved, adopted, certified, executed and acknowledged by each of the Constituent Corporations in accordance with Section 251 and 228 of the DGCL.
3. The name of the surviving corporation in the Merger is Selectable Media Inc.
4. The certificate of incorporation of the surviving corporation at the effective time of the Merger shall be amended and restated as set forth on Exhibit A hereto, and as so amended and restated, shall be the certificate of incorporation of the surviving corporation until thereafter amended as provided therein or pursuant to the provisions of the laws of the State of Delaware.
5. The Merger shall be effective upon the filing of this Certificate of Merger with the Secretary of the State of Delaware.
6. An executed copy of the Merger Agreement is on file at an office of the aforesaid surviving corporation, the address of which is as follows:
Selectable Media Inc.
c/o Meredith Corporation
1716 Locust Street
Des Moines, IA 50309
Attn: John Zieser
7. A copy of the Merger Agreement will be furnished by the aforesaid surviving corporation, on request, and without cost, to any stockholder of either of the Constituent Corporations.
IN WITNESS WHEREOF, Selectable Media Inc. has caused this Certificate to be executed by its duly authorized officer this 30th day of December, 2014.
SELECTABLE MEDIA INC. | ||
By: | /s/ Matthew Minoff | |
Name: Matthew Minoff | ||
Title: President and CEO |
SIGNATURE PAGE TO CERTIFICATE OF MERGER
EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SELECTABLE MEDIA INC.
ARTICLE I
The name of this corporation is Selectable Media Inc.
ARTICLE II
The address of the registered office of this corporation in the State of Delaware is 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.
ARTICLE III
The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.
ARTICLE IV
The total number of shares which the corporation shall have the authority to issue is One Hundred (100) shares of common stock, no par value.
ARTICLE V
Except as otherwise provided in this Certificate of Incorporation, in furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, repeal, alter, amend and rescind any or all of the Bylaws of this corporation.
ARTICLE VI
The number of directors of this corporation shall be determined in the manner set forth in the Bylaws of this corporation.
ARTICLE VII
Elections of directors need not be by written ballot unless the Bylaws of this corporation shall so provide.
ARTICLE VIII
Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws of this corporation may provide. The books of this corporation may be kept (subject to any provision contained in the statutes) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the Bylaws of this corporation.
ARTICLE IX
A director of this corporation shall not be personally liable to this corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the directors duty of loyalty to this corporation or its stockholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law, or (iv) for any transaction from which the director derived any improper personal benefit. If the General Corporation Law is amended after approval by the stockholders of this Article IX to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of this corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law as so amended.
Any amendment, repeal or modification of the foregoing provisions of this Article IX by the stockholders of this corporation shall not adversely affect any right or protection of a director of this corporation existing at the time of, or increase the liability of any director of this corporation with respect to any acts or omissions of such director occurring prior to, such amendment, repeal or modification.
ARTICLE X
This corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
ARTICLE XI
To the fullest extent permitted by applicable law, this corporation is authorized to provide indemnification of (and advancement of expenses to) directors, officers, employees and agents of this corporation (and any other persons to which General Corporation Law permits this corporation to provide indemnification) through Bylaw provisions, agreements with such persons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of the General Corporation Law, subject only to limits created by applicable General Corporation Law (statutory or non-statutory), with respect to actions for breach of duty to this corporation, its stockholders, and others.
Any amendment, repeal or modification of the foregoing provisions of this Article XI shall not adversely affect any right or protection of a director, officer, employee, agent or other person existing at the time of, or increase the liability of any such person with respect to any acts or omissions of such person occurring prior to, such amendment, repeal or modification.
ARTICLE XII
This corporation renounces any interest or expectancy of this corporation in, or in being offered an opportunity to participate in, an Excluded Opportunity. An Excluded Opportunity is any matter, transaction or interest that is presented to, or acquired, created or developed by, or which otherwise comes into the possession of, (i) any director of this corporation who is not an employee of this corporation or any of its subsidiaries, or (ii) any holder of Preferred Stock or any partner, member, director, stockholder, employee or agent of any such holder, other than someone who is an employee of this corporation or any of its subsidiaries (collectively, Covered Persons), unless such matter, transaction or interest is presented to, or acquired, created or developed by, or otherwise comes into the possession of, a Covered Person expressly and solely in such Covered Persons capacity as a director of this corporation.
ARTICLE XIII
This Certificate shall become effective as of its filing with the Delaware Secretary of State.
Exhibit 3.24
BYLAWS
OF
SMI MERGER SUB, INC.
TABLE OF CONTENTS
ARTICLE I. GENERAL PROVISIONS |
1 | |||||
1. |
Principal Office In Delaware | 1 | ||||
2. |
Registered Office | 1 | ||||
3. |
Other Offices | 1 | ||||
4. |
Number Of Directors | 1 | ||||
5. |
Annual Meetings | 1 | ||||
6. |
Fiscal Year | 1 | ||||
ARTICLE II. MEETINGS OF SHAREHOLDERS |
2 | |||||
1. |
Annual Meeting | 2 | ||||
2. |
Special Meetings | 2 | ||||
3. |
Place Of Meeting | 2 | ||||
4. |
Notice Of Meeting | 2 | ||||
5. |
Waiver Of Notice | 2 | ||||
6. |
Voting List | 3 | ||||
7. |
Quorum | 3 | ||||
8. |
Organization | 3 | ||||
9. |
Voting Of Shares | 3 | ||||
10. |
Voting By Representative | 4 | ||||
11. |
Inspectors Of Election | 4 | ||||
12. |
Proxies | 4 | ||||
13. |
Informal Action By Shareholders | 5 | ||||
ARTICLE III. BOARD OF DIRECTORS |
5 | |||||
1. |
General Powers | 5 | ||||
2. |
Number, Tenure And Qualifications | 5 | ||||
3. |
Quorum And Manner Of Acting | 5 | ||||
4. |
Resignation | 5 | ||||
5. |
Removal | 5 | ||||
6. |
Vacancies | 6 | ||||
7. |
Number Of Directors Increased | 6 | ||||
8. |
Compensation Of Directors | 6 | ||||
9. |
Place Of Meetings, Etc. | 6 | ||||
10. |
Annual Meeting | 6 | ||||
11. |
Regular Meetings | 6 | ||||
12. |
Special Meetings; Notice | 6 | ||||
13. |
Substitutes For Notice | 7 | ||||
14. |
Directors Assent Presumed | 7 | ||||
15. |
Order Of Business | 7 | ||||
16. |
Action Without Meeting | 7 | ||||
17. |
Committees | 7 |
i
ARTICLE IV. OFFICERS |
8 | |||||
1. |
Executive Officers | 8 | ||||
2. |
Election And Term Of Office | 8 | ||||
3. |
Removal | 8 | ||||
4. |
Resignations | 8 | ||||
5. |
Vacancies | 8 | ||||
6. |
Powers And Duties Of The President | 8 | ||||
7. |
Powers And Duties Of The Vice-Presidents | 9 | ||||
8. |
Powers And Duties Of The Secretary | 9 | ||||
9. |
Powers And Duties Of The Treasurer | 9 | ||||
10. |
Assistant Secretaries And Assistant Treasurers | 9 | ||||
11. |
Other Assistants And Acting Officers | 9 | ||||
12. |
Salaries | 10 | ||||
13. |
General Manager | 10 | ||||
ARTICLE V. SHARES AND THEIR TRANSFER |
10 | |||||
1. |
Certificates For Shares | 10 | ||||
2. |
Execution Of Certificates | 10 | ||||
3. |
Share Record | 10 | ||||
4. |
Cancellation | 10 | ||||
5. |
Transfers Of Stock | 10 | ||||
6. |
Regulations | 11 | ||||
7. |
Lost, Destroyed, Or Mutilated Certificates | 11 | ||||
8. |
Closing Of Transfer Books | 11 | ||||
ARTICLE VI. WRITTEN INSTRUMENTS, LOANS, CHECKS AND DEPOSITS |
11 | |||||
1. |
Written Instruments | 11 | ||||
2. |
Loans | 12 | ||||
3. |
Checks, Drafts, Etc. | 12 | ||||
4. |
Deposits | 12 | ||||
ARTICLE VII. MISCELLANEOUS PROVISIONS |
12 | |||||
1. |
Corporate Seal | 12 | ||||
2. |
Voting Of Stocks Owned By The Corporation | 12 | ||||
3. |
Dividends | 12 | ||||
4. |
Shareholders Right To Information | 12 | ||||
5. |
Conducting Of Meetings | 13 | ||||
ARTICLE VIII. SPECIAL PROVISIONS |
13 | |||||
1. |
Indemnification; Third Party Actions | 13 | ||||
2. |
Indemnification; Derivative Actions | 13 | ||||
3. |
Indemnification; Further Provisions | 14 | ||||
ARTICLE IX. AMENDMENTS |
14 |
ii
BYLAWS
OF
SMI MERGER SUB, INC.
ARTICLE I. GENERAL PROVISIONS
1. Principal Office In Delaware.
The principal office of SMI Merger Sub, Inc. (hereinafter called the Corporation) in the State of Delaware shall be located at such place as designated by the Board of Directors of the Corporation from time to time.
2. Registered Office.
The registered office of the Corporation is located at Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801
3. Other Offices.
The Corporation may have places of business or other offices, either within or without the State of Delaware, as the Board may determine or as shall be appropriate for the conduct of its business.
4. Number Of Directors.
The initial number of the Board of Directors shall be one (1). The Board of Directors shall have such powers and be subject to such duties as are provided in these Bylaws. After shares are issued, only the shareholders may change the range for the size of the Board of Directors and may change from a variable-range size board to a fixed-size board. The Board of Directors shall have such powers and be subject to such duties as are provided in these Bylaws.
5. Annual Meetings.
The annual meeting of the shareholders shall be held on the first Monday in the month of April in each year, at 10 oclock A.M., at such place as shall be provided in these Bylaws. The annual meeting of the Board of Directors shall be held immediately after the adjournment of the annual meeting of the shareholders and at the same place where said meeting of shareholders finally adjourned unless otherwise provided in section 10 of Article III.
6. Fiscal Year.
The fiscal year of the corporation shall end at the close of business on the last day of June of each year.
ARTICLE II. MEETINGS OF SHAREHOLDERS
1. Annual Meeting.
The annual meeting of the shareholders shall be held at the date and time as set forth in section 5 of Article I for the purpose of electing directors and for such other business as may come before the meeting. If the annual meeting date shall be a legal holiday, the meeting shall be held on the next succeeding business day at the same time and place. If the election of directors shall not be held on the day designated herein for such annual meeting, or at any adjournment thereof, the Board shall cause the election to be held at a special shareholder meeting as soon thereafter as conveniently may be.
2. Special Meetings.
Special shareholder meetings, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the President or the Board, and shall be called by the President at the written request of the holders of not less than one-tenth of the outstanding shares entitled to vote at the meeting. Such request shall state the purpose or purposes of the meeting.
3. Place Of Meeting.
The Board may designate any place, either within or without the State of Delaware, for any annual meeting or for any special meeting called by the Board. A waiver of notice signed by all shareholders entitled to vote thereat may designate any place, either within or without the State of Delaware, as the place of the holding of such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the registered office of the Corporation in the State of Delaware, but any meeting may be adjourned to reconvene at any place designated by vote of a majority of the shares represented thereat.
4. Notice Of Meeting.
Written or printed notice stating the place, day and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which called, shall be delivered not less than ten days (or such greater number as required by law) nor more than fifty days before the meeting, either personally or by mail, by or at the direction of the President, or the officer or person calling the meeting, to each shareholder of record entitled to vote thereat. If mailed, such notice shall be deemed delivered when deposited in the United States mail, addressed to the shareholder at the shareholders address as it appears on the stock record books, with postage prepaid.
5. Waiver Of Notice.
(a) A written waiver of notice signed by any shareholder entitled to such notice, whether before or after the meeting, shall be equivalent to the giving of notice to such shareholder in due time as required by law and these Bylaws.
(b) Presence at or participation in any shareholders meeting, in person or by proxy, shall be equivalent to waiver of giving of notice of such meeting and irregularities in any notice given.
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6. Voting List.
The person having charge of the stock transfer books shall make, at least ten days before each shareholder meeting, a complete list of shareholders entitled to vote at such meeting, or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each, which list, for a period of ten days prior to such meeting, shall be kept on file at the registered office of the Corporation subject to inspection by any shareholder during usual business hours. Such list shall also be produced at the meeting and shall there be subject to inspection of any shareholder. The stock transfer books shall be prima facie evidence as to the shareholders entitled to examine such list or books or to vote at any shareholder meeting. Failure to comply with this section shall not affect the validity of any action taken at such meeting.
7. Quorum.
At any shareholder meeting a majority of the shares entitled to vote, present in person or represented by proxy, shall constitute a quorum, unless a larger number is required by law or the Articles of Incorporation, and in that case, the representation of the number so required shall constitute a quorum. If the holders of the number of shares necessary for a quorum shall fail to attend in person or by proxy at the time and place fixed for an annual or special meeting, a majority in interest of the shareholders present in person or by proxy may adjourn by announcement at the meeting, until a quorum shall be present. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally notified.
8. Organization.
(a) The President, or in the Presidents absence the senior (in point of service) Vice President present shall call meetings of the shareholders to order and shall act as Chairman. In the absence of any of the above, the holders of a majority of the shares present may appoint any shareholder to act as Chairman.
(b) The Secretary shall act as secretary at all shareholder meetings. In the absence of the Secretary, the Chairman may appoint any person to act as secretary of the meeting.
9. Voting Of Shares.
(a) Except as otherwise provided by law or these Bylaws, each outstanding share of stock entitled to vote thereon shall have one vote on each matter submitted to a vote, and at each election of directors shall be entitled to vote the number of shares owned by the shareholder for as many persons as there are directors to be elected. Such vote may be cast either in person or by proxy executed and delivered as provided in Section 12 of this Article.
(b) The shareholders having the right to vote at any meeting shall only be those of record on the stock books of the Corporation, and those acting in a representative capacity under Section 10 of this Article, on the date fixed pursuant to Section 8 of Article V.
(c) Neither treasury shares nor shares held by another corporation, if a majority of the shares entitled to vote for the election of directors of such other corporation is held by this Corporation, shall be voted at any meeting or counted in determining the total number of outstanding shares at any given time.
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(d) Voting by shareholders may be viva voce unless the Chairman shall order or any shareholder shall demand that voting be by ballot. In such case each ballot shall be signed by the shareholder voting, or in such shareholders name by proxy, and shall state the number of shares voted by such shareholder.
(e) If a quorum is present, the vote of the majority of the shares represented at the meeting and entitled to vote thereon shall be the act of the shareholders, unless the vote of a greater number is required by law, the Articles of Incorporation or these Bylaws.
10. Voting By Representative.
(a) Shares held by an administrator, executor, guardian or conservator may be voted by such person, either in person or by proxy, without transfer into such persons name.
(b) Shares held by or under the control of a receiver may be voted by such receiver without transfer into such receivers name upon appropriate order of the court appointing such receiver.
(c) Shares held in the name of a trustee may be voted by such trustee, either in person or by proxy, upon transfer into such trustees name.
(d) A shareholder may vote shares pledged until transferred into the pledgees name and thereafter the pledgee shall be entitled to vote such shares.
11. Inspectors Of Election.
The Board in advance of any shareholder meeting may appoint inspectors to act at such meeting or any adjournment thereof. If inspectors are not appointed, the Chairman of such meeting may, and on the request of any shareholder or such shareholders proxy, shall make such appointment. If any appointed inspector fails to appear or act, the vacancy may be filled by the Board in advance of the meeting, or at the meeting by the Chairman. The inspectors shall register proxies, determine the number of shares outstanding, the voting power of each, the shares represented, the existence of a quorum, the authenticity, validity and effect of proxies, determine all challenges and questions in connection with the vote, count and tabulate all votes, assents and consents, determine and announce the result, and do such acts proper to conduct the election or vote with fairness to all shareholders. No inspector need be a shareholder.
12. Proxies.
At all shareholder meetings, a shareholder entitled to vote may vote by proxy appointed in writing by the shareholder or by such shareholders duly authorized attorney-in-fact. Such proxy shall be filed with the Secretary or the Chairman before or at the time of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided therein. Each proxy for any shareholders meeting shall be registered with the election inspectors prior to such meeting. Registration shall be on the same date and at the same premises as the meeting and shall commence at least one hour prior to and terminate prior to the start of the meeting. Any proxies not so registered shall not be recognized, counted or tabulated as to any matters before the particular meeting.
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13. Informal Action By Shareholders.
Any action required or permitted by law or the Articles of Incorporation or these Bylaws to be taken at a meeting of shareholders may be taken without a meeting if a consent in writing setting forth the action so taken shall be signed by the holders of outstanding shares having not less that 90% of the votes entitled to be cast at a shareholders meeting. Prompt notice of the taking of any such corporate action by consent shall be given to those shareholders of the corporation who have not signed a written consent approving of the action so taken.
ARTICLE III. BOARD OF DIRECTORS
1. General Powers.
The business and affairs of the Corporation shall be managed by the Board of Directors, herein sometimes referred to as the Board.
2. Number, Tenure And Qualifications.
The number of directors shall be as determined in section 4 of Article I. Each director shall hold office until the next succeeding annual meeting and until a successor shall have been elected and qualifies, or until death, resignation or removal. Directors need not be residents of the State of Delaware, nor shareholders of the Corporation.
3. Quorum And Manner Of Acting.
A majority of the directors fixed by section 4 of Article I shall constitute a quorum; but if at any meeting there be less than a quorum present, a majority of the directors present may adjourn the meeting without notice until a quorum shall be present. At all meetings of directors, a quorum being present, the act of the majority of the directors present shall be the act of the Board.
4. Resignation.
Any director may resign by written notice to the President, or to the Secretary. Such resignation shall take effect upon receipt of notice thereof or at such later date as specified therein; and, unless otherwise specified therein, acceptance of such resignation shall not be necessary to make it effective.
5. Removal.
A director shall be subject to removal at a special meeting of the shareholders by the vote of a majority of the voting shares then outstanding.
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6. Vacancies.
Any vacancy in the Board may be filled by vote of a majority of the remaining directors, though less than a quorum. A director elected to fill a vacancy shall be elected for the unexpired term of the directors predecessor, and until the election of a successor.
7. Number Of Directors Increased.
If the number of directors be increased, the new directorship shall be filled by vote of a majority of directors then in office, even if less than a quorum. Any director so elected shall serve until election of a successor.
8. Compensation Of Directors.
The directors shall be entitled to be reimbursed for expenses for attendance at any Board meeting and the Board may provide that the Corporation shall pay each director, except officers who are directors, compensation for services as fixed by the Board. Nothing herein shall preclude any director from serving the Corporation or any subsidiary in any other capacity and receiving compensation therefor. The Board may provide for, or delegate authority to an appropriate committee to provide for, reasonable pensions, disability or death benefits, and other benefits or payments, to directors, officers and employees and to their estates, families, dependents or beneficiaries for services rendered by such persons to the Corporation.
9. Place Of Meetings, Etc.
Except as provided in the following section, the Board may hold its meetings and keep the books and records of the Corporation (except the shareholder record which must be kept at its registered office, or principal place of business) at such place or places within or without the State of Delaware, as the Board determines.
10. Annual Meeting.
Immediately after the final adjournment of each annual shareholder meeting, the Board shall meet for the purpose of election of officers and the transaction of other business. Notice of such meeting need not be given. Such meeting may be held at any other time or place specified in a notice given as hereinafter provided for special meetings of the Board or in a consent and waiver of notice signed by all directors.
11. Regular Meetings.
Regular meetings of the Board shall be held without need for notice thereof at such place and time as the Board shall fix and determine.
12. Special Meetings; Notice.
(a) Special meetings of the Board shall be held whenever called by the President, or one-third of the directors in office.
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(b) Notice of each such meeting shall be mailed to each director, at the directors address as it appears on the books of the Corporation, at least five days before the meeting, or shall be sent to the director at such place by telegraph, cable, radio or wireless, or delivered personally or by telephone not later than the second day before the meeting. Each notice shall state the time and place of the meeting. Unless otherwise indicated in the notice, any and all business may be transacted at a special meeting. At any meeting at which every director is present, even without any notice, any business may be transacted.
13. Substitutes For Notice.
A written waiver of notice signed by a director, whether before or after the meeting, shall be equivalent to the giving of notice in due time as required by these Bylaws. Attendance of a director at a meeting shall constitute a waiver of notice, except where the director attends for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened.
14. Directors Assent Presumed.
A director who is present at a Board meeting shall be presumed to have assented to any action taken thereat unless the directors dissent is entered in the minutes or the director shall file such written dissent thereto with the secretary of the meeting before adjournment thereof or shall forward such dissent by registered or certified mail to the Secretary of the Corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action.
15. Order Of Business.
(a) At Board meetings, business shall be transacted in such order as the Board determines.
(b) At Board meetings, the President, or in the Presidents absence the senior Vice-President (in point of service) present, or in the absence of all Vice-Presidents, the senior director (in point of service) shall preside.
16. Action Without Meeting.
Any action required or permitted by law or the Articles of Incorporation or these Bylaws to be taken at any meeting of the Board may be taken without a meeting if a consent in writing setting forth the action so taken shall be signed by all of the directors then in office.
17. Committees.
The Board, by vote of a majority of the number of directors fixed by section 4 of Article I, may establish one or more committees, each committee to consist of such number of directors elected by the Board, to serve at the will of the Board and to have the powers and duties delegated to it by the Board. Each such committee may set rules governing the conduct of its activities.
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ARTICLE IV. OFFICERS
1. Executive Officers.
The executive officers may include a President, one or more Vice-Presidents, a Secretary and a Treasurer. None of the officers need be directors. One person may hold the offices and perform the duties of any two or more of said offices.
2. Election And Term Of Office.
The executive officers shall be chosen by the Board at its annual meeting. Each such officer shall hold office until the next succeeding annual Board meeting and until a successor shall have been duly chosen and shall qualify or until death, resignation or removal.
3. Removal.
Any officer or agent may be removed by the Board whenever in its judgment the best interests of the Corporation will be served thereby, but without prejudice to the contract rights, if any, of such person. Election or appointment of an officer or agent shall not in itself create contract rights. The officers and agents appointed under sections 10 and 11 of this Article may be removed by the Board or by any superior officer or agent upon whom the power to appoint has been conferred by the Board.
4. Resignations.
Any officer may resign by written notice thereof to the President or to the Secretary. Such resignation shall take effect upon receipt thereof or at any later time specified therein; and, unless otherwise specified therein, acceptance thereof shall not be necessary to make it effective.
5. Vacancies.
A vacancy in any office may be filled for the unexpired portion of the term in the manner prescribed in these Bylaws for the election or appointment to such office for such term.
6. Powers And Duties Of The President.
Subject to the control of the Board itself, the President shall have general charge of and direct the operations of the Corporation. The President shall keep the Board fully informed and shall consult with them concerning the business of the Corporation. The President shall have authority to sign, execute and acknowledge all contracts, checks, deeds, mortgages, bonds, leases or other obligations on behalf of the Corporation as the President may deem necessary or proper in the course of the Corporations regular business, or which shall be authorized by the Board. The President may sign in the name of the Corporation reports and all other documents or instruments which are necessary or proper in the course of the Corporations business. The President shall perform all duties incident to the office, as herein defined, and all such other duties as from time to time may be assigned by the Board.
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7. Powers And Duties Of The Vice-Presidents.
In the absence of the President or in the event of the Presidents death, inability or refusal to act, the Vice-President (or if more than one), the senior Vice-President in length of service shall perform the duties of the President, and when so acting, shall have all powers of and be subject to all restrictions upon the President. Each Vice-President shall perform such duties and have such authority as may be assigned to such Vice-President by the President or by the Board.
8. Powers And Duties Of The Secretary.
The Secretary shall (a) keep minutes of all meetings; (b) attend to serving all notices of the Corporation; (c) be custodian of the corporate seal, if any, the stock certificate books and such other books, records and papers as the Board directs; (d) keep a stock record showing the names of all shareholders, their post office addresses as furnished by them, and the shares of stock held by them, and at least ten days before each shareholders meeting, prepare a list of shareholders entitled to vote thereat arranged in alphabetical order; (e) sign in the name of the Corporation all contracts authorized by the Board or the President; and (f) in general, perform all duties incident to the office and such other duties as may be assigned by the President or the Board.
9. Powers And Duties Of The Treasurer.
The Treasurer shall (a) have custody of and be responsible for all moneys and securities of the Corporation, keep full and accurate records and accounts of the transactions and financial condition of the Corporation, and see that all expenditures are duly authorized and evidenced by proper receipts and vouchers; (b) deposit in the name of the Corporation in such depository or depositories approved by the Board, all moneys that come into the Treasurers hands for the Corporations account; (c) make a full report of the financial condition of the Corporation at annual shareholder meetings or at any meeting of the Board; and (d) in general, perform such duties as may be assigned by the President or by the Board. The Treasurers books and accounts shall be open during business hours to the inspection of any director. The Treasurer shall, if required by the Board, give bond in such form and with such sureties as shall be required by the Board.
10. Assistant Secretaries And Assistant Treasurers.
There shall be such number, if any, of Assistant Secretaries and Assistant Treasurers as the Board may authorize and appoint, or as appointed by an officer upon whom such authority has been conferred by the Board. The Assistant Secretaries may attest the signature of the President or Vice-Presidents. The Assistant Treasurers shall, if required by the Board, give bonds in such form and with such sureties as the Board shall determine. The Assistant Secretaries and Assistant Treasurers, shall perform such other duties as shall be assigned to them by the Secretary, or the Treasurer, respectively, or by the President or the Board.
11. Other Assistants And Acting Officers.
The Board or any officer, duly authorized by the Board, may appoint any person to act as assistant to any officer, or to perform the duties of such officer whenever it is impracticable for such officer to act personally, and such assistant or acting officer may perform all the duties of the office to which appointed as assistant, except as such power may be otherwise defined or restricted by the Board or the appointing officer.
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12. Salaries.
The salaries of the officers shall be fixed by the Board, and no officer shall be prevented from receiving such salary because he is also a director of the Corporation.
13. General Manager.
The Board may employ and fix the salary of a general manager to conduct the management of the Corporations business. An officer of the Corporation or any other person may serve as general manager. The general manager shall manage the regular business and affairs of the Corporation, and shall have such other powers and duties as the Board shall specify.
ARTICLE V. SHARES AND THEIR TRANSFER
1. Certificates For Shares.
Every shareholder shall be entitled to a certificate or certificates, in such form as the Board prescribes, certifying the number and class of shares owned. No certificate shall be issued for any share until such share is fully paid.
2. Execution Of Certificates.
The share certificates shall be numbered in the order issued and signed by the President, or any Vice-President, and the Treasurer, or an Assistant Treasurer or the Secretary, or an Assistant Secretary, and the corporate seal (if one be adopted) shall be affixed thereto.
3. Share Record.
A record shall be kept by the Secretary, or by any other person designated by the Board, of the names and addresses of all shareholders and the number and class of shares held by each and the respective dates thereof and in case of cancellation, the respective dates of cancellation. Said record shall be kept at the registered office or principal place of business of the Corporation.
4. Cancellation.
Every certificate surrendered shall be cancelled, and no new certificate or certificates issued in exchange for any existing certificate until such existing certificate shall have been so cancelled, except as provided in Section 7 of this Article.
5. Transfers Of Stock.
Transfers of shares shall be made only on the books of the Corporation by the record holder thereof, or by his or her attorney authorized by power of attorney duly executed and filed with the Secretary, and on surrender of the certificate or certificates for such shares properly endorsed and the payment of all taxes thereon. The person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof for all purposes as regards the Corporation; provided, however, whenever any transfer of shares shall be made for collateral security, such fact, if known, shall be so expressed in the entry of transfer.
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6. Regulations.
The Board may make such rules and regulations not inconsistent with the Articles of Incorporation or these Bylaws, concerning the issue, transfer and registration of certificates for stock, including the appointment of transfer clerks, transfer agents, or registrars, and may require all certificates to bear the signature or signatures of any of them. The Board may at any time terminate the employment of any transfer clerk or agent of registrar.
7. Lost, Destroyed, Or Mutilated Certificates.
The Board may require the owner of any lost, stolen, mutilated or destroyed certificate, or such persons legal representatives, to give a bond in such sum and in such form as it may direct with such surety or sureties satisfactory to the Board, to indemnify the Corporation against any claim that may be made against it on account of the alleged loss, theft, mutilation or destruction of any such certificate or the issuance of any new certificate. Proper evidence of such loss, theft, mutilation or destruction shall be procured for the Board, if required. The Board may authorize the issuance of such new certificates without any bond when, in its judgment, it is proper to do so. However, the Board may refuse to replace any lost certificate save upon court order.
8. Closing Of Transfer Books.
The Board may direct that the stock transfer books be closed for a period not exceeding fifty days preceding the date of any shareholder meeting or in order to make a determination of shareholders for any proper purpose. However, if the stock transfer books be closed for purposes of determining shareholders entitled to notice of or to vote at a shareholder meeting, such books shall be closed for at least ten days immediately preceding such meeting. In lieu of closing the stock transfer books, the Board may fix in advance a record date for any such determination, such date to be not more than fifty days, and, in case of a shareholder meeting, not less than ten days prior to the date on which the particular shareholder action is to be taken. If the stock transfer books are not closed and no record date is fixed, the date on which notice of the meeting is mailed or the date on which the resolution of the Board declaring any dividend is adopted, as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any shareholder meeting has been made, such determination shall apply to any adjournment thereof.
ARTICLE VI. WRITTEN INSTRUMENTS, LOANS, CHECKS AND DEPOSITS
1. Written Instruments.
All deeds and mortgages made by the Corporation and all other written contracts and agreements to which the Corporation is a party shall be executed in its name by the President, or by such other officer or officers, agent or agents as authorized by a resolution of the Board.
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2. Loans.
No loans shall be contracted on behalf of the Corporation, and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the Board. Such authority may be general or confined to specific instances.
3. Checks, Drafts, Etc.
All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers, agent or agents of the Corporation and in such manner as shall be determined by the Board.
4. Deposits.
All corporate funds not otherwise employed shall be deposited to the credit of the Corporation in such banks, trust companies or other depositories as the Board may select.
ARTICLE VII. MISCELLANEOUS PROVISIONS
1. Corporate Seal.
The Corporation shall have no corporate seal.
2. Voting Of Stocks Owned By The Corporation.
In the absence of a resolution of the Board to the contrary, the President or any Vice-President acting within the scope of such persons authority are authorized to attend, vote, or grant discretionary proxies to be used at any meeting of shareholders of any corporation in which this Corporation owns shares of stock, and to execute a waiver of notice of any such meeting. The Board may designate any officer or person as a proxy or attorney-in-fact to vote shares in any other corporation in which this Corporation may own shares of stock.
3. Dividends.
Subject to limitations imposed by law, the Board may, out of funds legally available therefor, declare dividends as it deems expedient. Before declaring any dividend, there may be set apart out of any funds available for dividends, such sum or sums as the Board in its discretion deems proper or in the interests of the Corporation.
4. Shareholders Right To Information.
(a) Any person who has been a shareholder of record for at least six months immediately preceding such persons demand or who is the holder of record of at least five percent of the outstanding shares of the Corporation, upon written demand stating the purpose thereof, shall have the right to examine, in person, or by agent or attorney, at any reasonable time, for any proper purpose, the books and records of account, minutes and record of shareholders, and to make extracts therefrom.
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(b) Upon the written request of any shareholder, the Corporation shall mail to such shareholder its most recent financial statement.
5. Conducting Of Meetings.
All meetings shall be conducted pursuant to Roberts Rules of Order, Revised, except to the extent that other procedural requirements are set forth by law, the Articles of Incorporation, or the Bylaws.
ARTICLE VIII. SPECIAL PROVISIONS
1. Indemnification; Third Party Actions.
The Corporation, to the fullest extent permitted by Delaware law, shall indemnify 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 proceedings, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (such serving as a director, officer, employee or agent of the Corporation or at the request of the Corporation referred to herein as serving on behalf of or at the Corporations request), against expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he 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 his or her 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 he 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 his or her conduct was unlawful.
2. Indemnification; Derivative Actions.
The Corporation shall, to the fullest extent permitted by Delaware law, indemnify any person who was or is a party or is threatened to be made a party of 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 he is or was serving on behalf of or at the Corporations request, against expenses (including attorneys fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and 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 for negligence or misconduct in the performance of his or her duty to the Corporation unless and only to the extent that the Court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability, such person is fairly and reasonably entitled to indemnification for such expenses which such court shall deem proper.
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3. Indemnification; Further Provisions.
If a director, officer, employee, or agent of the Corporation has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in Section 1 or 2, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in connection therewith. Any indemnification (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that the indemnification of such person is proper because he has met the applicable standard of conduct set forth in Section 1 and Section 2; such determination shall be made (1) by the Board by a majority vote of a quorum consisting of directors not parties to such action, suit or proceedings or (2) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (3) by the shareholders. Expenses incurred in defending a civil or criminal action, suit, or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized in the manner provided in this Section 3 upon receipt of an undertaking by or on behalf of such person to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified as authorized herein. The indemnification provided herein shall not be exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of shareholders or disinterested directors, or otherwise, and shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. The Board shall have power to purchase and maintain insurance on behalf of any person who is or was serving on behalf of or at the Corporations request against any liability asserted against him and incurred by him in any such capacity or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions hereof.
ARTICLE IX. AMENDMENTS
These Bylaws shall be subject to amendment, alteration or repeal in whole or in part or new Bylaws may be adopted by the vote of the majority of the directors then in office at any meeting of the Board; provided, however, that notice of intention to make, amend or repeal the Bylaws in whole or in part, or to adopt new Bylaws, shall have been given in the notice of such meeting, unless all directors then in office shall unanimously vote in favor of any such amendment, alteration or repeal, or shall consent thereto as provided in Section 16 of Article III.
John Zieser, President and Secretary |
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EXHIBIT 3.25
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
BIZINSIGHTS HOLDING CORPORATION
BizInsights Holding Corporation, a corporation duly organized and existing under the General Corporation Law of the State of Delaware (the Corporation), DOES HEREBY CERTIFY AS FOLLOWS:
FIRST: The name of the corporation is BizInsights Holding Corporation. The original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on July 28, 2016.
SECOND: The Amended and Restated Certificate of Incorporation has been duly adopted in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware and shall be effective as of September 6, 2016.
THIRD: The original Certificate of Incorporation is hereby amended and restated in its entirety to read as follows:
1. The name of the Corporation is: BIZRATE INSIGHTS INC.
2. The address of the registered office of the Corporation in the State of Delaware is c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of the registered agent of the Corporation at such address is The Corporation Trust Company.
3. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock that the Corporation shall have authority to issue is one hundred (100), consisting of one hundred (100) shares of Common Stock, par value $0.001 per share.
5. The board of directors of the Corporation shall have the power to make, adopt, alter, amend or repeal the by-laws of the Corporation. The election of directors of the Corporation need not be by written ballot.
6. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the directors duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of Delaware, or (iv) for
any transaction from which the director derived an improper personal benefit. If the General Corporation Law of Delaware is amended after approval by the stockholders of this Section to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of Delaware as so amended.
IN WITNESS WHEREOF, said Corporation has caused this Amended and Restated Certificate of Incorporation to be signed by Jeffrey J. Bairstow, its Executive Vice President, Finance, as of the 6th day of September, 2016.
By: | /s/ Jeffrey J. Bairstow | |
Jeffrey J. Bairstow | ||
Executive Vice President, Finance |
Exhibit 3.26
BY-LAWS
OF
BIZRATE INSIGHTS INC.
(Incorporated under the Laws of the State of Delaware)
As Adopted as of September 6, 2016
BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
Section 3. Notice of Meetings. Notice of each meeting of the stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such stockholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such stockholder at his or her address as it appears on the stock record of the Corporation or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the stockholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
Section 4. Quorum and Manner of Acting. If stockholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the stockholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until stockholders holding the amount of stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of stockholders holding the number of shares of stock of
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the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy stockholders holding the number of shares of stock of the Corporation required in respect of such other matter.
Section 5. Organization of Meetings. At each meeting of the stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
(a) the Chairman of the Board, or, if he or she is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat. The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by the majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
Section 7. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him or her and registered in his or her name on the stock record of the Corporation:
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(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or
(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he or she shall in writing so notify the secretary of the meeting prior to the voting of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his or her proxy if there be such proxy, and shall state the number of shares voted.
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Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
Section 9. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and
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place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his or her discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his or her election and until his or her successor shall be elected and qualified or until his or her earlier death or resignation or removal in the manner hereinafter provided.
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Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
(c) Special Meetings. Special Meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a type-written notice thereof to such director personally or by
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depositing such notice in the United States mail, postage prepaid, directed to such director at his or her residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. The purposes of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
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(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he or she is not present or if no person holds such office, any director chosen by a majority or the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his or her serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him or her on account of his or her attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 6. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
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Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board caused by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his or her successor shall be elected and shall qualify or until his or her earlier death or resignation or removal in the manner set forth herein.
ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he or she remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
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In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or she or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including the power and authority to declare dividends and to authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
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ARTICLE V
Officers
Section 1. Election, Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice Presidents, or any or all of the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one or more Assistant Treasurers, or any or all of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal and Vacancies. Any officer may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
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A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected he or she shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he or she shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the stockholders at which they shall be present, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he or she shall preside at meetings of the Executive Committee at which he or she shall be present; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
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(d) President. If a President is appointed or elected he or she shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He or she shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice Chairman of the Board is appointed or elected and is present.
(e) Vice Presidents. If any Vice President or Vice Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice-Presidents.
(f) Secretary. If a Secretary is appointed or elected he or she shall attend and keep the records of all meetings of the stockholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
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(g) Treasurer. If a Treasurer is appointed or elected he or she shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
(h) Controller. If a controller is appointed or elected he or she shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened,
15
pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a fifty percent (50%) or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such Proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer,
16
employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
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ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
ARTICLE VIII
Execution and Delivery of Documents; Deposits;
Proxies: Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the
18
Corporation. Such delegation may he resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities in Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he or she may deem necessary or proper in order that the Corporation may exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of Delaware as the proper officers of the Corporation may from time to time determine.
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ARTICLE IX
Certificates; Stock Record; Transfer and Registration
New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him or her in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice-Chairman, the President or a Vice-President of the Corporation and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he or she were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for exchange or transfer shall be canceled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so canceled, except in cases provided for in Section 4 of this Article.
Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
20
Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle I of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his or her attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
Section 4. New Certificates.
(a) Lost. Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle I. of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he or she has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
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Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
Section 6. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
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ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
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TABLE OF CONTENTS
Article |
Page | |||||
I. |
Offices | 1 | ||||
II. |
Meetings of Stockholders | 1 | ||||
Section 1 - Annual Meetings | 1 | |||||
Section 2 - Special Meetings | 1 | |||||
Section 3 - Notice of Meetings | 2 | |||||
Section 4 - Quorum and Manner of Acting | 2 | |||||
Section 5 - Organization of Meetings | 3 | |||||
Section 6 - Order of Business | 3 | |||||
Section 7 - Voting | 3 | |||||
Section 8 - Consent in Lieu of Meeting | 5 | |||||
Section 9 - List of Stockholders | 5 | |||||
Section 10 - Inspectors | 6 | |||||
III. |
Board of Directors | 6 | ||||
Section 1 - General Powers | 6 | |||||
Section 2 - Number and Term of Office | 6 | |||||
Section 3 - Election | 7 | |||||
Section 4 - Meetings | 7 | |||||
Section 5 - Compensation | 9 | |||||
Section 6 - Resignation, Removal and Vacancies | 9 | |||||
IV. |
Committees | 10 | ||||
Section 1 - Number, Appointment, Term of Office, etc. | 10 | |||||
Section 2 - Functions and Powers | 11 | |||||
Section 3 - Rules | 11 | |||||
V. |
Officers | 12 | ||||
Section 1 - Election, Appointment and Term of Office | 12 | |||||
Section 2 - Resignation, Removal and Vacancies | 12 | |||||
Section 3 - Duties and Functions | 13 | |||||
VI. |
Indemnification | 15 | ||||
Section 1 - Right to Indemnification | 15 | |||||
Section 2 - Insurance, Contracts and Funding | 16 | |||||
Section 3 - Indemnification Not Exclusive Right | 17 | |||||
Section 4 - Indemnification of Employees and Agents | 17 |
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VII. |
Waiver of Notices; Places of Meetings |
18 | ||||
Section 1 - Waiver of Notices |
18 | |||||
Section 2 - Place of Meetings |
18 | |||||
VIII. |
Execution and Delivery of Documents; Deposits; Proxies, Books and Records |
18 | ||||
Section 1 - Execution and Delivery of Documents; Delegation |
18 | |||||
Section 2 - Deposits |
19 | |||||
Section 3 - Proxies in Respect of Stock or Other Securities in Other Corporations |
19 | |||||
Section 4 - Books and Records |
19 | |||||
IX. |
Certificates; Stock Record; Transfer and Registration; New Certificates; Record Date, etc. |
20 | ||||
Section 1 - Certificates for Stock |
20 | |||||
Section 2 - Stock Record |
20 | |||||
Section 3 - Transfer and Registration of Stock |
21 | |||||
Section 4 - New Certificates |
21 | |||||
Section 5 - Regulations |
22 | |||||
Section 6 - Fixing Date for Determination of Stockholders of Record |
22 | |||||
X. |
Seal |
22 | ||||
Section 1 - Seal |
22 | |||||
XI. |
Fiscal Year |
23 | ||||
Section 1 - Fiscal Year |
23 | |||||
XII. |
Amendments |
23 | ||||
Section 1 - Amendments |
23 | |||||
XIII. |
Subject to Law |
23 | ||||
Section 1 - Subject to Law |
23 |
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Exhibit 3.27
RESTATED CERTIFICATE OF INCORPORATION
OF
BOOK-OF-THE-MONTH CLUB, INC.
(Under Section 807 of the Business Corporation Law)
It is hereby certified as follows:
1. | The name of the Corporation is Book-of-the-Month Club, Inc. (the Corporation). The name under which the Corporation originally was incorporated was Time Book Club, Inc. |
2. | The Certificate of Incorporation of the Corporation was filed by the New York State Department of State on August 5, 1977. |
3. | The Certificate of Incorporation, as previously amended and supplemented by certificates filed pursuant to law, is hereby amended to effect the following amendments and changes authorized by Section 803 of the Business Corporation Law of the State of New York (the BCL), and restated pursuant to Section 807 of the BCL: |
a) | The Certificate of Incorporation shall be amended to amend the current Article TWO to describe the general business purpose or purposes of the Corporation. |
b) | The Certificate of Incorporation shall be amended to amend the current Article EIGHT by deleting any reference to when the Corporation shall file its first New York State franchise tax return. |
c) | The Certificate of Incorporation shall be amended to add a new Article NINTH to eliminate the liability of the officers and directors of the Corporation to the fullest extent permitted by law and to provide for the indemnification of officers and directors. |
d) | The Certificate of Incorporation shall be amended to add a new Article TENTH to describe the general requirements to further amend the Certificate of Incorporation. |
4. | The text of the Certificate of Incorporation as amended and changed heretofore is hereby restated, pursuant to Section 807 of the BCL, without further amendments or changes, to read as herein set forth in full: |
FIRST: The name of the corporation (hereinafter referred to as the Corporation) is Book-of-the-Month Club, Inc.
1
SECOND: The Corporation is formed for the following purpose or purposes:
To engage in any lawful act or activity for which corporations may be organized under the BCL, provided that the Corporation is not formed to engage in any act or activity requiring the consent or approval of any state official, department, board, agency or other body without such consent or approval first being obtained.
To have, in furtherance of corporate purposes, all of the powers conferred upon corporations organized under the BCL, subject to any limitations thereof contained in this Certificate of Incorporation or in the laws of the State of New York.
THIRD: The office of the Corporation is to be located in the County of New York, State of New York.
FOURTH: The aggregate number of shares of all classes of capital stock that the Corporation shall have authority to issue shall be one thousand (1,000) shares of Common Stock, $1.25 par value per share.
FIFTH: The Secretary of State is designated as the agent of the Corporation upon whom process against the Corporation may be served. The post office address to which the Secretary of State shall mail a copy of any process against the Corporation served upon him is: c/o C T Corporation System, 111 Eighth Avenue, New York, New York 10011.
SIXTH: The name and address of the registered agent which is to be the agent of the Corporation upon whom process against it may be served, are C T CORPORATION SYSTEM, 111 Eighth Avenue, New York, New York 10011.
SEVENTH: The duration of the Corporation is to be perpetual.
EIGHTH: The Corporation shall account for tax purposes on a calendar year basis.
NINTH: To the fullest extent from time to time permitted by law, no director of the Corporation shall be personally liable to any extent to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director.
Each person who is or was or had agreed to become a director or officer of the Corporation, and each such person who is or was serving or who had agreed to serve at the request of the Corporation as a director, officer, partner, member, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise (including the heirs, executor, administrators or estate of such person), shall be indemnified by the Corporation to the fullest extent permitted from time to time by applicable law.
TENTH: From time to time any of the provisions of this Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of New York at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Corporation by this Certificate of Incorporation are granted, subject to the provisions of this Article TENTH.
2
This restated certificate of incorporation was authorized pursuant to Section 803(a) of the Business Corporation Law of the State of New York by written consent of the Board of Directors of the Corporation pursuant to Section 708(b) of the Business Corporation Law of the State of New York, whereby the Board duly adopted a resolution setting forth the proposed amendment to the certificate of incorporation of the Corporation, declared said restatement to be advisable and submitted said restatement to the sole shareholder of the Corporation for consideration thereof. The sole shareholder of the corporation by written consent pursuant to Section 615(a) of the Business Corporation Law of the State of New York consented to the above restatement of the Corporations certificate of incorporation.
3
IN WITNESS WHEREOF, said Corporation has caused this certificate to be signed by Lauren Ezrol Klein, its Assistant Secretary, as of the 24th day of April, 2014.
/s/ Lauren Ezrol Klein | ||
By: |
Lauren Ezrol Klein | |
Title: |
Assistant Secretary |
4
Restated Certificate of Incorporation
OF
Book-Of-The-Month Club, Inc.
Under Section 807 of the Business Corporation Law
Filed by:
Time Inc.
1271 Avenue of the Americas
New York, NY 10020
Exhibit 3.28
BY-LAWS
OF
BOOK-OF-THE-MONTH CLUB, INC.
(Incorporated under the Laws of the State of New York)
As Adopted as of April 24, 2014
TABLE OF CONTENTS
Article |
Page | |||||
I. |
Offices | 1 | ||||
II. |
Meetings of Shareholders | 1 | ||||
Section 1 - Annual Meetings | 1 | |||||
Section 2 - Special Meetings | 1 | |||||
Section 3 - Notice of Meetings | 2 | |||||
Section 4 - Quorum and Manner of Acting | 2 | |||||
Section 5 - Organization of Meetings | 3 | |||||
Section 6 - Order of Business | 3 | |||||
Section 7 - Voting | 3 | |||||
Section 8 - Consent in Lieu of Meeting | 5 | |||||
Section 9 - List of Shareholders | 5 | |||||
Section 10 - Inspectors | 6 | |||||
III. |
Board of Directors | 6 | ||||
Section 1 - General Powers | 6 | |||||
Section 2 - Number and Term of Office | 6 | |||||
Section 3 - Election | 7 | |||||
Section 4 - Meetings | 7 | |||||
Section 5 - Compensation | 9 | |||||
Section 6 - Resignation, Removal and Vacancies | 9 | |||||
IV. |
Committees | 10 | ||||
Section 1 - Number, Appointment, Term of Office, etc. | 10 | |||||
Section 2 - Functions and Powers | 11 | |||||
Section 3 - Rules | 11 | |||||
V. |
Officers | 12 | ||||
Section 1 - Election, Appointment and Term of Office | 12 | |||||
Section 2 - Resignation, Removal and Vacancies | 12 | |||||
Section 3 - Duties and Functions | 12 | |||||
VI. |
Indemnification | 15 | ||||
Section 1 - Right to Indemnification | 15 | |||||
Section 2 - Insurance, Contracts and Funding | 16 | |||||
Section 3 - Indemnification Not Exclusive Right | 17 | |||||
Section 4 - Indemnification of Employees and Agents | 17 |
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VII. |
Waiver of Notices; Places of Meetings | 17 | ||
Section 1 - Waiver of Notices | 17 | |||
Section 2 - Place of Meetings | 18 | |||
VIII. |
Execution and Delivery of Documents; Deposits; Proxies, Books and Records | 18 | ||
Section 1 - Execution and Delivery of Documents; Delegation | 18 | |||
Section 2 - Deposits | 18 | |||
Section 3 - Proxies in Respect of Stock or Other Securities in Other Corporations | 19 | |||
Section 4 - Books and Records | 19 | |||
IX. |
Certificates; Stock Record; Transfer and Registration; New Certificates; Record Date, etc. | 19 | ||
Section 1 - Certificates for Stock | 19 | |||
Section 2 - Stock Record | 20 | |||
Section 3 - Transfer and Registration of Stock | 20 | |||
Section 4 - New Certificates | 21 | |||
Section 5 - Regulations | 21 | |||
Section 6 - Fixing Date for Determination of Shareholders of Record | 21 | |||
X. |
Seal | 22 | ||
Section 1 - Seal | 22 | |||
XI. |
Fiscal Year | 22 | ||
Section 1 - Fiscal Year | 22 | |||
XII. |
Amendments | 22 | ||
Section 1 - Amendments | 22 | |||
XIII. |
Subject to Law | 23 | ||
Section 1 - Subject to Law | 23 |
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BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of New York. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Shareholders
Section 1. Annual Meetings. The annual meeting of the shareholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the shareholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
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Section 3. Notice of Meetings. Notice of each meeting of the shareholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each shareholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such shareholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such shareholder at his or her address as it appears on the stock record of the Corporation or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the shareholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
Section 4. Quorum and Manner of Acting. If shareholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the shareholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the shareholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until shareholders holding the amount of stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of shareholders holding the number of shares of stock of
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the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy shareholders holding the number of shares of stock of the Corporation required in respect of such other matter.
Section 5. Organization of Meetings. At each meeting of the shareholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
(a) the Chairman of the Board, or, if he or she is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the shareholders present in person or by proxy and entitled to vote thereat.
The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the shareholders shall be determined by the chairman of the meeting, but such order of business may be changed by the majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
Section 7. Voting. Each shareholder shall, at each meeting of the shareholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him or her and registered in his or her name on the stock record of the Corporation:
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(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of shareholders who shall be entitled to receive notice of and to vote at such meeting; or
(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining shareholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the shareholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for a longer period. The attendance at any meeting of a shareholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he or she shall in writing so notify the secretary of the meeting prior to the voting of the proxy. At all meetings of the shareholders all matters shall be decided by the vote of a majority in voting interest of the shareholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the shareholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the shareholder voting, or by his or her proxy if there be such proxy, and shall state the number of shares voted.
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Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of shareholders of the Corporation, or any action which may be taken at any annual or special meeting of such shareholders, may be taken at any annual or special meeting of such shareholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those shareholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
Section 9. List of Shareholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the shareholders, a complete list of the shareholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any shareholder who is present. The stock record shall be the only evidence as to who are the shareholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the shareholders.
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Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his or her discretion, appoint two or more inspectors, who need not be shareholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his or her election and until his or her successor shall be elected and qualified or until his or her earlier death or resignation or removal in the manner hereinafter provided.
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Section 3. Election. At each annual meeting of the shareholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be shareholders of the Corporation or residents of the State of New York.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
(c) Special Meetings. Special Meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof Such notice shall be given not less than one day before the date of the meeting to each director by delivering a type-written notice thereof to such director personally or by
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depositing such notice in the United States mail, postage prepaid, directed to such director at his or her residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. The purposes of a meeting of the Board or any committee thereof need not be specified in the notice thereof
(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
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(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he or she is not present or if no person holds such office, any director chosen by a majority or the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his or her serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him or her on account of his or her attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 6. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
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Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board caused by any such removal may be filled by the shareholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his or her successor shall be elected and shall qualify or until his or her earlier death or resignation or removal in the manner set forth herein.
ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he or she remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
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In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or she or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including the power and authority to declare dividends and to authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the shareholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the shareholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
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ARTICLE V
Officers
Section 1. Election, Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice Presidents, or any or all of the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one or more Assistant Treasurers, or any or all of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of shareholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal and Vacancies. Any officer may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
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(a) Chairman. If a Chairman of the Board is appointed or elected he or she shall be a member of the Board; shall preside at meetings of the Board and of the shareholders at which he or she shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the shareholders at which they shall be present, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he or she shall preside at meetings of the Executive Committee at which he or she shall be present; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
(d) President. If a President is appointed or elected he or she shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He or she shall preside at meetings of the Board and the shareholders unless a Chairman or a Vice Chairman of the Board is appointed or elected and is present.
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(e) Vice Presidents. If any Vice President or Vice Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice-Presidents.
(f) Secretary. If a Secretary is appointed or elected he or she shall attend and keep the records of all meetings of the shareholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
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(g) Treasurer. If a Treasurer is appointed or elected he or she shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
(h) Controller. If a controller is appointed or elected he or she shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a fifty percent (50%) or greater equity interest; (c) a not-for-profit corporation if such service is
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at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such Proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
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Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or shareholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
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Section 2. Place of Meetings. Any meeting of the shareholders, the Board or committee may be held within or outside the State of New York.
ARTICLE VIII
Execution and Delivery of Documents; Deposits;
Proxies: Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such delegation may be resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
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Section 3. Proxies in Respect of Stock or Other Securities in Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he or she may deem necessary or proper in order that the Corporation may exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of New York as the proper officers of the Corporation may from time to time determine.
ARTICLE IX
Certificates; Stock Record; Transfer and Registration
New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him or her in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice-Chairman, the President or a Vice-President of the Corporation and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case
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any officer or authorized agent who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he or she were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for exchange or transfer shall be canceled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so canceled, except in cases provided for in Section 4 of this Article.
Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by the New York Uniform Commercial Code, as amended from time to time.
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his or her attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
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Section 4. New Certificates.
(a) Lost. Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by New York Uniform Commercial Code, as amended from time to time.
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he or she has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
Section 6. Fixing Date for Determination of Shareholders of Record. In order that the Corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board may fix, in advance, a
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record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of shareholders entitled to notice of or to vote at a meeting of the shareholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the words New York.
ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
22
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
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EXHIBIT 3.29
CERTIFICATE OF MERGER
OF
SUNSET MEDIA, INC.,
a Delaware Corporation
with and into
COZI INC.,
a Delaware Corporation
Pursuant to Section 251 of the Delaware General Corporation Law (the DGCL), the undersigned corporation executed the following Certificate of Merger.
1. | The name of each constituent corporation is Sunset Media, Inc., a Delaware corporation and Cozi Inc., a Delaware corporation. |
2. | The Agreement of Merger has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations. |
3. | The name of the surviving corporation is Cozi Inc., a Delaware corporation. |
4. | As of the effective time of the merger, the amended and restated certificate of incorporation of the surviving corporation in effect immediately prior to the merger shall be amended and restated to read in its entirety as set forth on Exhibit A attached hereto, and, as so amended and restated, shall be the certificate of incorporation of the surviving corporation. |
5. | This Certificate of Merger shall become effective at the time of filing with the Secretary of State of the State of Delaware. |
6. | The Agreement of Merger is on file at 506 2nd Avenue, Suite 800, Seattle, Washington 98104-2328, the place of business of the surviving corporation. |
7. | A copy of the Agreement of Merger will be furnished by the surviving corporation on request, without cost, to any stockholder of the constituent corporations. |
IN WITNESS WHEREOF, the surviving corporation has caused this certificate to be signed by an authorized officer, the 2nd of June, 2014.
COZI INC. | ||
By: | /s/ Robert Cape | |
Name: Robert Cape | ||
Title: CEO |
Exhibit A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
COZI 1NC.
*****
1. | The name of the corporation is Cozi Inc. |
2. | The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. |
3. | The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. |
4. | This Company is authorized to issue one class of shares to be designated Common Stock. The total number of shares of Common Stock which the corporation shall have authority to issue is One Thousand (1,000) and the par value of each of such shares is One Dollar and No Cents ($1.00) amounting in the aggregate to One Thousand Dollars and No Cents ($1,000.00). |
5. | The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot. |
6. | A director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the directors duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of Delaware, or (iv) for any transaction from which the director derived any improper personal benefit. |
7. | The corporation shall indemnify its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware. |
Exhibit 3.30
BY-LAWS
OF
COZI INC.
(Incorporated under the Laws of the State of Delaware)
As Adopted as of June 2, 2014
TABLE OF CONTENTS
Page | ||||||
Article |
||||||
I |
Offices | 1 | ||||
Section 1 - Offices | 1 | |||||
II |
Meetings of Stockholders | 1 | ||||
Section 1 - Annual Meetings | 1 | |||||
Section 2 - Special Meetings | 2 | |||||
Section 3 - Notice of Meetings | 2 | |||||
Section 4 - Quorum and Manner of Acting | 3 | |||||
Section 5 - Organization of Meetings | 3 | |||||
Section 6 - Order of Business | 4 | |||||
Section 7 - Voting | 4 | |||||
Section 8 - Consent in Lieu of Meeting | 6 | |||||
Section 9 - List of Stockholders | 7 | |||||
Section 10 Inspectors | 8 | |||||
III |
Board of Directors | 8 | ||||
Section 1 - General Powers | 8 | |||||
Section 2 - Number and Term of Office | 8 | |||||
Section 3 Election | 9 | |||||
Section 4 Meetings | 9 | |||||
Section 5 Compensation | 12 | |||||
Section 6 - Resignations, Removal and Vacancies | 13 | |||||
IV |
Committees | 14 | ||||
Section 1 - Number, Appoint, Term of Office, etc. | ||||||
Section 2 - Function and Powers | 14 | |||||
Section 3 - Rules | 15 | |||||
V |
Officers | 16 | ||||
Section 1 - Election, Appointment and Term of Office | 16 | |||||
Section 2 - Removal, Resignation and Vacancies | 16 | |||||
Section 3 - Duties and Functions | 17 |
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VI |
Indemnification | 21 | ||||
Section 1 - Right to Indemnification | 21 | |||||
Section 2 - Insurance, Contracts and Funding | 22 | |||||
Section 3 - Indemnification Not Exclusive Right | 23 | |||||
Section 4 - Indemnification of Employees and Agents | 23 | |||||
VII |
Waiver of Notices; Places of Meetings | 24 | ||||
Section 1 - Waiver of Notices | 24 | |||||
Section 2 - Place of Meetings | 24 | |||||
VIII |
Execution and Delivery of Documents; Deposits; Proxies, Books and Records | 25 | ||||
Section 1 - Execution and Delivery of Documents | 25 | |||||
Section 2 - Deposits | 25 | |||||
Section 3 - Proxies in Respect of Stock or Other Securities in Other Corporations | 26 | |||||
Section 4 - Books and Records | 26 | |||||
IX |
Certificates; Stock Record; Transfer and Registration | 27 | ||||
Section 1 - Certificates for Stock | 27 | |||||
Section 2 - Stock Record | 27 | |||||
Section 3 - Transfer and Registration of Stocks | 28 | |||||
Section 4 - New Certificates | 28 | |||||
Section 5 - Regulations | 29 | |||||
Section 6 - Fixing Date for Determination of Stockholders of Record 29 | 30 | |||||
X |
Seal | 30 | ||||
Section 1 - Seal | 30 | |||||
XI |
Fiscal Year | 30 | ||||
Section 1 - Fiscal Year | 30 |
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XII |
Amendments | 31 | ||||
Section 1 - Amendments | 31 | |||||
XIII |
Subject to Law | 31 | ||||
Section 1 - Subject to Law | 31 |
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BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
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Section 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
Section 3. Notice of Meetings. Notice of each meeting of the stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such stockholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such stockholder at his address as it appears on the stock record of the Corporation or by transmitting notice thereof to him at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the stockholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
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Section 4. Quorum and Manner of Acting. If stockholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the stockholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until stockholders holding the amount of stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of stockholders holding the number of shares of stock of the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy stockholders holding the number of shares of stock of the Corporation required in respect of such other matter.
Section 5. Organization of Meetings. At each meeting of the stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
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(a) the Chairman of the Board, or, if he is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat.
The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by a majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
Section 7. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him and registered in his name on the stock record of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or
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(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for deter-mining stockholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he shall in writing so notify the
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secretary of the meeting prior to voting of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his proxy if there be such proxy, and shall state the number of shares voted.
Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
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Section 9. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
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Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his election and until his successor shall be elected and qualified or until his earlier death or resignation or removal in the manner hereinafter provided.
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Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
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(c) Special Meetings. Special meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a type-written notice thereof to such director personally or by depositing such notice in the United States mail, postage prepaid, directed to such director at his residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him at such address by telegraph, cable or other form or recorded communication. The purposes of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
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(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he is not present or if no person holds such office, any director chosen by a majority of the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
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(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him on account of his attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
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Section 6. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board cause by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his successor shall be elected and shall qualify or until his earlier death or resignation or removal in the manner herein.
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ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
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Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including, the power and authority to declare dividends and to authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
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ARTICLE V
Officers
Section 1. Election and Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice-Presidents, or any or all the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one or more Assistant Treasurers, or any or all of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal and Vacancies. Any officer may resign at any time by giving written notice of his resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effect shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
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Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected he shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the stockholders, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
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(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he shall preside at meetings of the Executive Committee; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
(d) President. If a President is appointed or elected he shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice-Chairman of the Board is appointed or elected and is present.
(e) Vice-Presidents. If any Vice President or Vice Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice Presidents
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(f) Secretary. If a Secretary is appointed or elected he shall attend and keep the records of all meetings of the stockholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
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(g) Treasurer. If a Treasurer is appointed or elected he shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
(h) Controller. If a Controller is appointed or elected he shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
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ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a 50 percent or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including
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attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
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Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
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ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
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ARTICLE VIII
Execution and Delivery of Documents; Deposits;
Proxies; Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such delegation may be by resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
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Section 3. Proxies in Respect of Stock or Other Securities of Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he may deem necessary or proper in order that the Corporation may exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of Delaware as the proper officers of the Corporation may from time to time determine.
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ARTICLE IX
Certificates; Stock Record; Transfer and Registration;
New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the Board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice-Chairman, the President or a Vice-President of the Corporation and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for or exchange or transfer shall be cancelled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so cancelled, except in cases provided for in Section 4 of this Article.
Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
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Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
Section 4. New Certificates.
(a) Lost, Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
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(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate. .
Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
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Section 6. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix, in advance, a record date, which shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
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ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
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Exhibit 3.31
CERTIFICATE OF INCORPORATION
OF
ENTERTAINMENT WEEKLY INC.
1. The name of the corporation is:
Entertainment Weekly Inc.
2. The address of its registered office in the State of Delaware is 229 South State Street, in the City of Dover, County of Kent. The name of its registered agent at such address is The Prentice-Hall Corporation System, Inc.
3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall have authority to issue is One Hundred (100) and the par value of each of such shares is One Dollar ($1.00). All such shares are of one class and are shares of Common Stock.
5. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot.
6. The name and mailing address of the incorporator is:
Janice M. Cannon
Time Incorporated
1271 Avenue of the Americas
New York, New York 10020
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 20th day of July, 1989.
/s/ Janice M. Cannon |
Janice M. Cannon |
Exhibit 3.32
BY-LAWS
OF
ENTERTAINMENT WEEKLY INC.
(Incorporated under the Laws of the State of Delaware)
As adopted August 8, 1989
TABLE OF CONTENTS
Article |
Page | |||||
I |
Offices | 1 | ||||
Section 1 Offices | 1 | |||||
II |
Meetings of Stockholders | 1 | ||||
Section 1 Annual Meetings | 1 | |||||
Section 2 Special Meetings | 1 | |||||
Section 3 Notice of Meetings | ||||||
Section 4 Quorum and Manner of Acting | ||||||
Section 5 Organization of Meetings | ||||||
Section 6 Order of Business | 2 | |||||
Section 7 Voting | 2 | |||||
Section 8 Consent in Lieu of Meeting | 4 | |||||
Section 9 List of Stockholders | 5 | |||||
Section 10 Inspectors | 6 | |||||
III |
Board of Directors | 7 | ||||
Section 1 General Powers | 7 | |||||
Section 2 Number and Term of Office | 7 | |||||
Section 3 Election | 7 | |||||
Section 4 Meetings | 8 | |||||
Section 5 Compensation | 11 | |||||
Section 6 Resignations, Removal and Vacancies | 11 | |||||
IV |
Committees | 13 | ||||
Section 1 Number, Appoint, Term of Office, etc. | 13 | |||||
Section 2 Function and Powers | 13 | |||||
Section 3 Rules | 14 | |||||
V |
Officers | 15 | ||||
Section 1 Election, Appointment and Term of Office | 15 | |||||
Section 2 Removal, Resignation and Vacancies | 15 | |||||
Section 3 Duties and Functions | 16 |
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VI |
Indemnification | 20 | ||||
Section 1 Right to Indemnification | 20 | |||||
Section 2 Insurance, Contracts and Funding | 22 | |||||
Section 3 Indemnification Not Exclusive Right | 22 | |||||
Section 4 Indemnification of Employees and Agents | 22 | |||||
VII |
Waiver of Notices; Places of Meetings | 23 | ||||
Section 1 Waiver of Notices | 23 | |||||
Section 2 Place of Meetings | 24 | |||||
VIII |
Execution and Delivery of Documents; Deposits; Proxies, Books and Records | 24 | ||||
Section 1 Execution and Delivery of Documents | 24 | |||||
Section 2 Deposits | 25 | |||||
Section 3 Proxies in Respect of Stock or Other Securities in Other Corporations | 25 | |||||
Section 4 Books and Records | 26 | |||||
IX |
Certificates; Stock Record; Transfer and Registration | |||||
Section 1 Certificates for Stock | ||||||
Section 2 Stock Record | ||||||
Section 3 Transfer and Registration of Stocks | ||||||
Section 4 New Certificates | ||||||
Section 5 Regulations | 27 | |||||
Section 6 Fixing Date for Determination of Stockholders of Record | 27 | |||||
X |
Seal | 28 | ||||
Section 1 Seal | 28 | |||||
XI |
Fiscal Year | 28 | ||||
Section 1 Fiscal Year | 28 |
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XII |
Amendments | 28 | ||||
Section 1 Amendments | 28 | |||||
XIII |
Subject to Law | 29 | ||||
Section 1 Subject to Law | 29 |
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BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote
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(a) the Chairman of the Board, or, if he is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat.
The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by a majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
Section 7. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him and registered in his name on the stock record of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or
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(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from
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its date unless such proxy provides for a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he shall in writing so notify the secretary of the meeting prior to voting of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot on a vote by ballot, each ballot shall be signed by the stockholder voting, or by his proxy if there be such proxy, and shall state the number of shares voted.
Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders or the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than
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the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
Section 9. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
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Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been perform by the inspectors.
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ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his election and until his successor shall be elected and qualified or until his earlier death or resignation or removal in the manner hereinafter provided.
Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
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Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
(c) Special Meetings. Special meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a type-written notice thereof to such director personally or by depositing such notice in the United States mail, postage prepaid, directed to such director at his residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him at such address by telegraph, cable or other form or recorded communication. The purposes or a meeting of the Board or any committee thereof need not be specified in the notice thereof.
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(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
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(g) Organization of Meeting. At Board, the Chairman of the Board, the Chairman of the Board or if he is not present or if no person holds such office, any director chosen by a majority of the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
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Section 5. Compensation. Each director, in consideration of his serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburses each director or member of a committee for any expenses incurred by him on account of his attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 6. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
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Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board cause by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause, by vote of a majority of the whole Board.
In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his successor shall be elected and shall qualify or until his earlier death or resignation or removal in the manner herein.
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ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
In the absence or in case the disqualification of a member or members of any such Committee, the member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including, the power and authority to declare dividends and to authorize the issuance of stock of the Corporation, and may
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authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
ARTICLE V
Officers
Section 1. Election and Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board
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or one or more Vice Chairman of the Board or a President or one or more Vice-Presidents, or any or all the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one or more Assistant Treasurers or any or all of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal and Vacancies. Any officer may resign at any time by giving written notice of his resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
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A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected he shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the stockholders, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
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(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he shall preside at meetings of the Executive Committee; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
(d) President. If a President is appointed or elected he shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice-Chairman of the Board is appointed or elected and is present.
(e) Vice-Presidents. If any Vice President or Vice Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior Executive, Assistant and all other categories or types of Vice Presidents
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(f) Secretary. If a Secretary is appointed or elected he shall attend and keep the records of all meetings of the stockholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
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(g) Treasurer. If a Treasurer is appointed or elected he shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
(h) Controller. If a Controller is appointed or elected he shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
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ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a 50 percent or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without
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limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification was provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in
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Section 1 of this Article or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit ok the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of the Corporation and who is or was involved in any manner (including, without limitation, as a
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party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express. purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
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Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
ARTICLE VIII
Execution and Delivery of Documents; Deposits;
Proxies; Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such delegation may be by resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
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Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation bye registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
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Section 4. New Certificates.
(a) Lost, Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
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Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
Section 6. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix, in advance, a record date, which shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
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ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
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ARTICLE XII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
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Exhibit 3.33
Certificate Of Incorporation
Of
TI SPORTS INC.
1. The name of the Corporation is: TI SPORTS INC.
2. The address of the registered office of the Corporation in the State of Delaware is c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of the registered agent of the Corporation at such address is The Corporation Trust Company.
3. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the Corporation shall have authority to issue is One Hundred (100) and the par value of each of such shares is One Cent ($.01). All such shares are of one class and are shares of Common Stock.
5. The board of directors of the Corporation shall have the power to make, adopt, alter, amend or repeal the by-laws of the Corporation. The election of directors of the Corporation need not be by written ballot.
6. The name and mailing address of the incorporator of the Corporation are:
Lauren Ezrol Klein
Time Inc.
1271 Avenue of the Americas
New York, New York 10020
7. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the directors duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of Delaware, or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law of Delaware is amended after approval by the stockholders of this Section to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of Delaware as so amended.
THE UNDERSIGNED, being the sole incorporator of the Corporation, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, does hereby sign this Certificate of Incorporation this 7th day of May, 2015.
/s/ Lauren Ezrol Klein |
Lauren Ezrol Klein |
Sole Incorporator |
CERTIFICATE OF AMENDMENT OF
THE CERTIFICATE OF INCORPORATION OF
TI SPORTS INC.
TI Sports Inc., a corporation duly organized and existing under the General Corporation Law of the State of Delaware (the Corporation), DOES HEREBY CERTIFY THAT:
FIRST: That by action without a meeting pursuant to Section 141(f) of the General Corporation Law of the State of Delaware, the Board of Directors of the Corporation duly adopted a resolution setting forth a proposed amendment to the Certificate of Incorporation of the Corporation, declared said amendment advisable and submitted said amendment to the sole stockholder of the Corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that paragraph 1 of the Certificate of Incorporation of the Corporation be amended so as to read in its entirety as follows:
1. The name of the corporation is: FanSided Inc.
SECOND: That thereafter, pursuant to the resolution of its Board of Directors, the sole stockholder of the Corporation by written consent pursuant to Section 228 of the General Corporation Law of Delaware consented to the above amendment to the Corporations Certificate of Incorporation.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Corporation has caused this Certificate to be signed by Lauren Ezrol Klein, its Assistant Secretary, as of the 21st day of May, 2015.
By: | /s/Lauren Ezrol Klein | |
Lauren Ezrol Klein | ||
Assistant Secretary |
Exhibit 3.34
BY-LAWS
OF
TI SPORTS INC.
(Incorporated under the Laws of the State of Delaware)
As Adopted as of May 7, 2015
BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
Section 3. Notice of Meetings. Notice of each meeting of the stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such stockholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such stockholder at his or her address as it appears on the stock record of the Corporation or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the stockholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
Section 4. Quorum and Manner of Acting. If stockholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the stockholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until stockholders holding the amount of stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of stockholders holding the number of shares of stock of the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy stockholders holding the number of shares of stock of the Corporation required in respect of such other matter.
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Section 5. Organization of Meetings. At each meeting of the stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
(a) the Chairman of the Board, or, if he or she is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat.
The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by the majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
Section 7. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him or her and registered in his or her name on the stock record of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or
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(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he or she shall in writing so notify the secretary of the meeting prior to the voting of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his or her proxy if there be such proxy, and shall state the number of shares voted.
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Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
Section 9. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
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Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his or her discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his or her election and until his or her successor shall be elected and qualified or until his or her earlier death or resignation or removal in the manner hereinafter provided.
Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
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Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
(c) Special Meetings. Special Meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a type-written notice thereof to such director personally or by depositing such notice in the United States mail, postage prepaid, directed to such director at his or her residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. The purposes of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
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(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he or she is not present or if no person holds such office, any director chosen by a majority or the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
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(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his or her serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him or her on account of his or her attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 6. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
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Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board caused by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his or her successor shall be elected and shall qualify or until his or her earlier death or resignation or removal in the manner set forth herein.
ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he or she remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or she or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
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Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including the power and authority to declare dividends and to authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
ARTICLE V
Officers
Section 1. Election, Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given
11
them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice Presidents, or any or all of the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one or more Assistant Treasurers, or any or all of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal and Vacancies. Any officer may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
12
(a) Chairman. If a Chairman of the Board is appointed or elected he or she shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he or she shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the stockholders at which they shall be present, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he or she shall preside at meetings of the Executive Committee at which he or she shall be present; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
(d) President. If a President is appointed or elected he or she shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He or she shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice Chairman of the Board is appointed or elected and is present.
13
(e) Vice Presidents. If any Vice President or Vice Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice-Presidents.
(f) Secretary. If a Secretary is appointed or elected he or she shall attend and keep the records of all meetings of the stockholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
14
(g) Treasurer. If a Treasurer is appointed or elected he or she shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
(h) Controller. If a controller is appointed or elected he or she shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation;
15
(b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a fifty percent (50%) or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such Proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
16
Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such
17
notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
ARTICLE VIII
Execution and Delivery of Documents; Deposits;
Proxies; Books and Records
Section 1. Execution and Delivery of Documents, Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such delegation may be resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
18
Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities in Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he or she may deem necessary or proper in order that the Corporation may exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of Delaware as the proper officers of the Corporation may from time to time determine.
ARTICLE IX
Certificates; Stock Record; Transfer and Registration;
New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him or her in the
19
Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice-Chairman, the President or a Vice-President of the Corporation and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he or she were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for exchange or transfer shall be canceled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so canceled, except in cases provided for in Section 4 of this Article.
Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
20
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his or her attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
Section 4. New Certificates.
(a) Lost, Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he or she has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
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Section 6. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine
22
ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
23
TABLE OF CONTENTS
Article |
Page | |||||
I. |
Offices | 1 | ||||
II. |
Meetings of Stockholders | 1 | ||||
Section 1 - Annual Meetings | 1 | |||||
Section 2 - Special Meetings | 1 | |||||
Section 3 - Notice of Meetings | 2 | |||||
Section 4 - Quorum and Manner of Acting | 2 | |||||
Section 5 - Organization of Meetings | 3 | |||||
Section 6 - Order of Business | 3 | |||||
Section 7 - Voting | 3 | |||||
Section 8 - Consent in Lieu of Meeting | 5 | |||||
Section 9 - List of Stockholders | 5 | |||||
Section 10 - Inspectors | 6 | |||||
III. |
Board of Directors | 6 | ||||
Section 1 - General Powers | 6 | |||||
Section 2 - Number and Term of Office | 6 | |||||
Section 3 - Election | 7 | |||||
Section 4 - Meetings | 7 | |||||
Section 5 - Compensation | 9 | |||||
Section 6 - Resignation, Removal and Vacancies | 9 | |||||
IV. |
Committees | 10 | ||||
Section 1 - Number, Appointment, Term of Office, etc. | 10 | |||||
Section 2 - Functions and Powers | 11 | |||||
Section 3 - Rules | 11 | |||||
V. |
Officers | 12 | ||||
Section 1 - Election, Appointment and Term of Office | 12 | |||||
Section 2 - Resignation, Removal and Vacancies | 12 | |||||
Section 3 - Duties and Functions | 13 | |||||
VI. |
Indemnification | 15 | ||||
Section 1 - Right to Indemnification | 15 | |||||
Section 2 - Insurance, Contracts and Funding | 16 | |||||
Section 3 - Indemnification Not Exclusive Right | 17 | |||||
Section 4 - Indemnification of Employees and Agents | 17 | |||||
VII. |
Waiver of Notices; Places of Meetings | 18 |
-i-
Section 1 - Waiver of Notices |
18 | |||||
Section 2 - Place of Meetings |
18 | |||||
VIII. |
Execution and Delivery of Documents; Deposits; Proxies; Books and Records |
18 | ||||
Section 1 - Execution and Delivery of Documents; Delegation |
18 | |||||
Section 2 - Deposits |
19 | |||||
Section 3 - Proxies in Respect of Stock or Other Securities in Other |
||||||
Corporations |
19 | |||||
Section 4 - Books and Records |
19 | |||||
IX. |
Certificates; Stock Record: Transfer and Registration; New Certificates; Record Date, etc. |
20 | ||||
Section 1 - Certificates for Stock |
20 | |||||
Section 2 - Stock Record |
20 | |||||
Section 3 - Transfer and Registration of Stock |
21 | |||||
Section 4 - New Certificates |
21 | |||||
Section 5 - Regulations |
22 | |||||
Section 6 - Fixing Date for Determination of Stockholders of Record |
22 | |||||
X. |
Seal |
22 | ||||
Section 1 - Seal |
22 | |||||
XI. |
Fiscal Year |
23 | ||||
Section 1 - Fiscal Year |
23 | |||||
XII. |
Amendments |
23 | ||||
Section 1 - Amendments |
23 | |||||
XIII. |
Subject to Law |
23 | ||||
Section 1 - Subject to Law |
23 |
-ii-
Exhibit 3.35
STATE OF DELAWARE SECRETARY OF STATE 02/05 DIVISION OF CORPORATIONS FILED 02:00 PM 05/11/2001 010229215 - 3391116 |
CERTIFICATE OF INCORPORATION
OF
HEALTH PUBLISHING, INC.
* * * * *
1. The name of the corporation is: Health Publishing, Inc.
2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, The name of its registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall have authority to issue is one thousand (1,000), and the par value of each of such shares is one dollar ($1.00) amounting in the aggregate to one thousand dollars ($1,000.00).
5. The name and mailing address of each incorporator is as follows:
NAME |
MAILING ADDRESS | |
B. Rushton | 1201 Peachtree St., N.E. | |
Atlanta, GA 30361 | ||
M. Proffitt | 1201 Peachtree St., N.E. | |
Atlanta, GA 30361 | ||
D. Morris | 1201 Peachtree St., N.E. | |
Atlanta, GA 30361 |
The name and mailing address of each person who is to serve as a director until the first annual meeting of the stockholders or until a successor is elected and qualified, is as follows:
NAME |
MAILING ADDRESS | |
Tom Angelillo | 2100 Lakeshore Drive | |
Birmingham, AL 35209 | ||
Jeanetta Keller | 2100 Lakeshore Drive | |
Birmingham, AL 35209 | ||
Scott Sheppard | 2100 Lakeshore Drive | |
Birmingham, AL 35209 |
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the real and personal property of the corporation.
To set apart out of any of the funds of the corporation available for dividends a reserve or reserves for any proper purpose and to abolish any such reserve in the manner in which it was created.
To designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. The by-laws may provide that in the absence or disqualification of a member of a committee, the member or members present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the board of directors, or in the by-laws of the corporation, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or
authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the Delaware General Corporation Law to be submitted to stockholders for approval or (ii) adopting, amending or repealing any bylaw of the corporation.
When and as authorized by the stockholders in accordance with law, to sell, lease or exchange all or substantially all of the property and assets of the corporation, including its good will and Its corporate franchises, upon such terms and conditions and for such consideration, which may consist in whole or in part of money or property including shares of stock in, and/or other securities of, any other corporation or corporations, as its board of directors shall deem expedient and for the best interests of the corporation.
8. Elections of directors need not be by written ballot unless the by-laws of the corporation shall provide.
Meetings of stockholders may be held within or without the State of Delaware, as the by-laws may provide. The books of the corporation may be kept (subject to any provision contained in the statutes) outside the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the by-laws of the corporation.
Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and /or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation.
9. The corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, In the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
10. A director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director except for liability (i) for any breach of the directors duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived any improper personal benefit.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this Certificate, hereby declaring and certifying that this is our act and deed and the facts herein stated are true, and accordingly have hereunto set our hands this 11th day of May, 2001.
/s/ B. Rushton |
B. Rushton, Incorporator |
/s/ M. Proffitt |
M. Proffitt, Incorporator |
/s/ D. Morris |
D. Morris, Incorporator |
State of Delaware Secretary of State Division of Corporations Delivered 08:56 PM 05/12/2010 FILED 08:18 PM 05/12/2010 SRV 100501716 - 3391116 FILE |
CERTIFICATE OF OWNERSHIP
AND MERGER OF
HEALTH MEDIA VENTURES INC.
INTO
HEALTH PUBLISHING, INC.
Pursuant to Section 253 of the General Corporation Law of Delaware, the undersigned, the duly elected and acting Assistant Secretary of Health Publishing, Inc., a Delaware corporation (the Corporation), does hereby certify the following information relating to the merger (the Merger) of Health Media Ventures Inc., a Delaware corporation (the Subsidiary). with and into the Corporation.
FIRST: The Corporation was incorporated in Delaware on May 11, 2001.
SECOND: The Corporation owns all of the issued and outstanding shares of capital stock of the Subsidiary, which was incorporated in Delaware on September 10, 2007.
THIRD: The Subsidiary is hereby merged with and into the Corporation.
FOURTH: That by action without a meeting pursuant to Section 141(f) of the General Corporation Law, the Board of Directors of the Corporation duly adopted resolutions attached hereto as Exhibit A in connection with the Merger, of which the Corporation shall be the surviving corporation (the Surviving Corporation).
FIFTH: The name of the Surviving Corporation shall be: Health Media Ventures inc.
SIXTH: this Certificate of Merger shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Ownership and Merger as of the 12th day of May, 2010.
HEALTH PUBLISHING, INC. | ||
By | /s/ Lauren E. Klein | |
Lauren E. Klein | ||
Assistant Secretary |
EXHIBIT A
RESOLUTIONS
THE MERGER
RESOLVED, on this 11th day of May. 2010, that Subsidiary be. and hereby is, merged with and into the Corporation (the Merger-), with the Corporation being the surviving corporation of the Merger (the Surviving Corporation ); and further
RESOLVED, that the effective time of the Merger (the Effective Time) shall be. and hereby is, upon the filing of the Certificate of Ownership and Merger with the Secretary of the State of Delaware: and further
RESOLVED, that, on this 11th day of May, the Merger is advisable and in the best interest of the Corporation, and that at the Effective Time, the Surviving Corporation shall assume all of the Subsidiarys liabilities and obligations, the identity, existence, rights, privileges, powers, franchises, properties, and assets, and the identity and separate existence of the Subsidiary shall cease, and all rights, privileges, powers, franchises, properties and assets of Subsidiary shall be vested in this Corporation: and further
RESOLVED, that at the Effective Time of the Merger, the name of the Surviving Corporation be. and hereby is, changed to: Health Media Ventures Inc. and further
RESOLVED, that from the Effective Time, and thereafter until amended as provided by law, the Certificate of Incorporation of the Surviving Corporation shall be the Certificate of Incorporation of the Corporation, subject to the change of the Surviving Corporation s name to Health Media Ventures Inc., and the bylaws of the Surviving Corporation shall be the bylaws of the Corporation, as effect at the Effective Time: and further
RESOLVED, that the officers of the Corporation be, and each of them hereby is, directed to prepare and execute the Certificate of Ownership and Merger pursuant to Section 253 of the General Corporation Law of the State of Delaware to merge the Subsidiary with and into the Corporation, and to file the same in the office of the Secretary of State of the State of Delaware: and further
RESOLVED, that the foregoing resolutions may be amended or terminated by this Board of Directors at any time prior to the Effective Time of the filing of the aforementioned Certificate of Ownership and Merger with the Secretary of State of the Stale of Delaware: and further
RESOLVED. that the officers of the Corporation be. and each of them hereby is, authorized to take all such actions and to execute and deliver all such agreements instruments and documents, in the name and on behalf of the Corporation, and to pay or cause to be paid all expenses, as they or any of them shall deem necessary or appropriate to accomplish the purposes of the foregoing resolutions: and that the execution and delivery of such agreements, instruments and documents and the doing or performing of any such actions, shall be conclusive evidence that the same is authorized hereby.
Exhibit 3.36
BY-LAWS
OF
HEALTH PUBLISHING, INC.
A Delaware Corporation
TABLE OF CONTENTS
Article |
Page | |||||
I | Offices | 1 | ||||
Section 1 - Offices |
1 | |||||
II | Meetings of Stockholders |
1 | ||||
Section 1 - Annual Meetings |
1 | |||||
Section 2 - Special Meetings |
1 | |||||
Section 3 - Notice of Meetings |
1 | |||||
Section 4 - Quorum and Manner of Acting |
2 | |||||
Section 5 - Organization of Meetings |
2 | |||||
Section 6 - Order of Business |
2 | |||||
Section 7 - Voting |
3 | |||||
Section 8 - Consent in Lieu of Meeting |
4 | |||||
Section 9 - List of Stockholders |
4 | |||||
Section 10 - Inspectors |
4 | |||||
III | Board of Directors |
|||||
Section 1 - General Powers |
5 | |||||
Section 2 - Number and Term of Office |
5 | |||||
Section 3 - Election |
5 | |||||
Section 4 - Meetings |
5 | |||||
Section 5 - Compensation |
7 | |||||
Section 6 - Resignation, Removal and Vacancies |
7 | |||||
IV | Committees |
|||||
Section 1 - Number, Appointment, Term of Office, etc. |
8 | |||||
Section 2 - Functions and Powers |
8 | |||||
Section 3 - Rules |
9 | |||||
V | Officers |
|||||
Section 1 - Election and Appointment and Term of Office |
9 | |||||
Section 2 - Resignation, Removal and Vacancies |
9 | |||||
Section 3 - Duties and Functions |
10 | |||||
VI | Indemnification |
|||||
Section 1 - Right to Indemnification |
12 | |||||
Section 2 - Insurance, Contracts and Funding |
13 | |||||
Section 3 - Indemnification Not Exclusive Right |
13 | |||||
Section 4 - Indemnification of Employees and Agents |
13 | |||||
VII | Waiver of Notices: Place of Meetings |
|||||
Section 1 - Waiver of Notices |
14 | |||||
Section 2 - Place of Meetings |
14 |
VIII | Execution and Delivery of Documents; Deposits; Proxies; Books and Records |
|||||
Section 1 - Execution and Delivery of Documents; Delegation |
14 | |||||
Section 2 - Deposits |
15 | |||||
Section 3 - Proxies in Respect of Stock or Other Securities Of Other Corporations |
15 | |||||
Section 4 - Books and Records |
15 | |||||
IX | Certificates: Stock Record; Transfer and Registration; New Certificates; Record Date; etc. |
|||||
Section 1 - Certificates for Stock |
15 | |||||
Section 2 - Stock Record |
16 | |||||
Section 3 - Transfer and Registration of Stock |
16 | |||||
Section 4 - New Certificates |
16 | |||||
Section 5 - Regulations |
17 | |||||
Section 6 - Fixing Date for Determination of Stockholders of Record |
17 | |||||
X | Seal |
|||||
Section 1 - Seal |
17 | |||||
XI | Fiscal Year |
|||||
Section 1 - Fiscal Year |
17 | |||||
XII | Amendments |
|||||
Section 1 - Amendments |
18 | |||||
XIII | Subject to Law |
|||||
Section 1 - Subject to Law |
18 |
BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote, of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
Section 3. Notice of Meetings. Notice of each meeting of the stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such stockholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such stockholder at his address as it appears on the stock record of the corporation or by transmitting notice thereof to him at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the stockholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
Section 4. Quorum and Manner of Acting. If stockholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the stockholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until stockholders holding the amount of stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of stockholders holding the number of shares of stock of the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy stockholders holding the number of shares of stock of the Corporation required in respect of such other matter.
Section 5. Organization of Meetings. At each meeting of the stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
(a) the Chairman of the Board, or if he is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat.
The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by a majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
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Section 7. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him and registered in his name on the stock record of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date of the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or
(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he shall in writing so notify the secretary of the meeting prior to voting of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his proxy if there be such proxy, and shall state the number of shares voted.
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Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
Section 9. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
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Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his election and until his successor shall be elected and qualified or until his earlier death or resignation or removal in the manner hereinafter provided.
Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
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(c) Special Meetings. Special meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a typewritten notice thereof to such director personally or by depositing such notice in the United States mail, postage prepaid, directed to such director at his residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him at such address by telegraph, cable or other form or recorded communication. The purpose of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
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(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he is not present or if no person holds such office, any director chosen by a majority of the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof, may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him on account of his attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 6. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
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Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board cause by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his successor shall be elected and shall qualify or until his earlier death or resignation or removal in the manner herein.
ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filled at any time by the vote of a majority of the whole Board.
In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
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Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including, the power and authority to declare dividends and to authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
ARTICLE V
Officers
Section 1. Election and Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice Presidents or any or all the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one or more Assistant Treasurers, or any or all of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation. Removal, and Vacancies. Any officer may resign at any time by giving written notice of his resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
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Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected, he shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he shall be present; shall perform such duties as are incident to the office of the Chairman of Board; and shall perform such other duties as may from time to time be prescribed by the board.
(b) Vice Chairman. If any Vice Chairman or Vice Chairmen of the Board are appointed or elected, they shall be members of the Board; shall preside at meetings of the Board and of the stockholders, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected, he shall preside at meetings of the Executive Committee; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
(d) President. If a President is appointed or elected he shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice Chairman of the Board is appointed or elected and is present.
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(e) Vice Presidents. If any Vice President or Vice Presidents are appointed or elected, they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice Presidents.
(f) Secretary. If a Secretary is appointed or elected, he shall attend and keep the records of all meetings of the stockholders and Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
(g) Treasurer. If a Treasurer is appointed or elected, he shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him by the President, if one is appointed or elected, or the Board, One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
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(h) Controller. If Controller is appointed or elected he shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a 50 percent or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
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Section 2. Insurance. Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered
Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
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ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
ARTICLE VIII
Execution and Delivery of Documents; Deposits; Proxies; Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such delegation may be by resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
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Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities of Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he may deem necessary or proper in order that the Corporation any exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of Delaware as the proper officers of the Corporation may from time to time determine.
ARTICLE IX
Certificates; Stock Record; Transfer and Registration; New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the Board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice Chairman, the President or a Vice President of the Corporation and by the Treasurer, and Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for or exchange or transfer shall be canceled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so canceled, except in cases provided for in Section 4 of this Article.
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Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
Section 4. New Certificates.
(a) Lost Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
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(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates of stock of the Corporation.
Section 6. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix, in advance, a record date, which shall not be more than 60 or less than 10 days before the date of such meeting, nor more than 60 days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
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ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
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Exhibit 3.37
State of Delaware Secretary of State Division of Corporations Delivered 03:40 PM 10/14/2015 FILED 03:40 PM 10/14/2015 SR 20150506605 - File Number 5443906 |
CERTIFICATE OF MERGER
OF
PH MERGER SUB INC.
a Delaware Corporation
with and into
HELLO GIGGLES, INC.,
a Delaware Corporation
Pursuant to Section 251 of the Delaware General Corporation Law (the DGCL), the undersigned corporation executed the following Certificate of Merger.
1. | The name of each constituent corporation is PH Merger Sub Inc., a Delaware corporation, and Hello Giggles, Inc., a Delaware corporation. |
2. | The Agreement of Merger has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations. |
3. | The name of the surviving corporation is Hello Giggles, Inc., a Delaware corporation. |
4. | As of the effective time of the merger, the amended and restated certificate of incorporation of the surviving corporation in effect immediately prior to the merger shall be amended and restated to read in its entirety as set forth on Exhibit A attached hereto, and, as so amended and restated, shall be the certificate of incorporation of the surviving corporation. |
5. | This Certificate of Merger shall become effective at the time of filing with the Secretary of State of the State of Delaware. |
6. | The Agreement of Merger is on file at 626 Wilshire Blvd., Suite 850, Los Angeles, California 90017, the place of business of the surviving corporation. |
7. | A copy of the Agreement of Merger will be furnished by the surviving corporation on request, without cost, to any stockholder of the constituent corporations. |
IN WITNESS WHEREOF, the surviving corporation has caused this certificate to be signed by an authorized officer, the 14th of October, 2015.
HELLO GIGGLES, INC. | ||
By: | /s/ Sophia Rossi | |
Name: Sophia Rossi | ||
Title: CEO |
Exhibit A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
HELLO GIGGLES, INC.
* * * * *
1. | The name of the corporation is Hello Giggles, Inc. |
2. | The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle 19801. The name of its registered agent at such address is The Corporation Trust Company. |
3. | The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. |
4. | This Company is authorized to issue one class of shares to be designated Common Stock. The total number of shares of Common Stock which the corporation shall have authority to issue is One Hundred (100) and the par value of each of such shares is One Cent ($0.01) amounting in the aggregate to One Dollar and No Cents ($ 1.00). |
5. | The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot. |
6. | A director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the directors duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of Delaware, or (iv) for any transaction from which the director derived any improper personal benefit. |
7. | The corporation shall indemnify its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware. |
Exhibit 3.38
BY-LAWS
OF
HELLO GIGGLES, INC.
(Incorporated under the Laws of the State of Delaware)
As Adopted as of October 14, 2015
BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
Section 3. Notice of Meetings. Notice of each meeting of the stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such stockholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such stockholder at his or her address as it appears on the stock record of the Corporation or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the stockholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
Section 4. Quorum and Manner of Acting. If stockholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the stockholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until stockholders holding the amount of stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of stockholders holding the number of shares of stock of the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy stockholders holding the number of shares of stock of the Corporation required in respect of such other matter.
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Section 5. Organization of Meetings. At each meeting of the stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
(a) the Chairman of the Board, or, if he or she is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat.
The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by the majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
Section 7. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him or her and registered in his or her name on the stock record of the Corporation:
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(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or
(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he or she shall in writing so notify the secretary of the meeting prior to the voting of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his or her proxy if there be such proxy, and shall state the number of shares voted.
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Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
Section 9. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
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Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his or her discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his or her election and until his or her successor shall be elected and qualified or until his or her earlier death or resignation or removal in the manner hereinafter provided.
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Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
(c) Special Meetings. Special Meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a type-written notice thereof to such director personally or by
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depositing such notice in the United States mail, postage prepaid, directed to such director at his or her residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. The purposes of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he or she is not present or if no person holds such office, any director chosen by a majority or the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
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(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his or her serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him or her on account of his or her attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 6. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
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Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board caused by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his or her successor shall be elected and shall qualify or until his or her earlier death or resignation or removal in the manner set forth herein.
ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he or she remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
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In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or she or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including the power and authority to declare dividends and to authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
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ARTICLE V
Officers
Section 1. Election, Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice Presidents, or any or all of the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one or more Assistant Treasurers, or any or all of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal and Vacancies. Any officer may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
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A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected he or she shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he or she shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the stockholders at which they shall be present, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he or she shall preside at meetings of the Executive Committee at which he or she shall be present; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
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(d) President. If a President is appointed or elected he or she shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He or she shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice Chairman of the Board is appointed or elected and is present.
(e) Vice Presidents. If any Vice President or Vice Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice-Presidents.
(f) Secretary. If a Secretary is appointed or elected he or she shall attend and keep the records of all meetings of the stockholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
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(g) Treasurer. If a Treasurer is appointed or elected he or she shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
(h) Controller. If a controller is appointed or elected he or she shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened,
15
pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a fifty percent (50%) or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such Proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
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Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
17
ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
ARTICLE VIII
Execution and Delivery of Documents; Deposits;
Proxies; Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the
18
Corporation. Such delegation may be resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities in Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he or she may deem necessary or proper in order that the Corporation may exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of Delaware as the proper officers of the Corporation may from time to time determine.
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ARTICLE IX
Certificates; Stock Record; Transfer and Registration;
New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him or her in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice-Chairman, the President or a Vice-President of the Corporation and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he or she were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for exchange or transfer shall be canceled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so canceled, except in cases provided for in Section 4 of this Article.
Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
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Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his or her attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
Section 4. New Certificates.
(a) Lost, Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he or she has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
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Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
Section 6. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
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ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
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TABLE OF CONTENTS
Article |
Page | |||||
I. |
Offices |
1 | ||||
II. |
Meetings of Stockholders |
1 | ||||
Section 1 - Annual Meetings |
1 | |||||
Section 2 - Special Meetings |
1 | |||||
Section 3 - Notice of Meetings |
2 | |||||
Section 4 - Quorum and Manner of Acting |
2 | |||||
Section 5 - Organization of Meetings |
3 | |||||
Section 6 - Order of Business |
3 | |||||
Section 7 - Voting |
3 | |||||
Section 8 - Consent in Lieu of Meeting |
5 | |||||
Section 9 - List of Stockholders |
5 | |||||
Section 10 - Inspectors |
6 | |||||
III. |
Board of Directors |
6 | ||||
Section 1 - General Powers |
6 | |||||
Section 2 - Number and Term of Office |
6 | |||||
Section 3 - Election |
7 | |||||
Section 4 - Meetings |
7 | |||||
Section 5 - Compensation |
9 | |||||
Section 6 - Resignation, Removal and Vacancies |
9 | |||||
IV. |
Committees |
10 | ||||
Section 1 - Number, Appointment, Term of Office, etc. |
10 | |||||
Section 2 - Functions and Powers |
11 | |||||
Section 3 - Rules |
11 | |||||
V. |
Officers |
12 | ||||
Section 1 - Election, Appointment and Term of Office |
12 | |||||
Section 2 - Resignation, Removal and Vacancies |
12 | |||||
Section 3 - Duties and Functions |
13 | |||||
VI. |
Indemnification |
15 | ||||
Section 1 - Right to Indemnification |
15 | |||||
Section 2 - Insurance, Contracts and Funding |
16 | |||||
Section 3 - Indemnification Not Exclusive Right |
17 | |||||
Section 4 - Indemnification of Employees and Agents |
17 |
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VII. |
Waiver of Notices; Places of Meetings |
18 | ||||
Section 1 - Waiver of Notices |
18 | |||||
Section 2 - Place of Meetings |
18 | |||||
VIII. |
Execution and Delivery of Documents; Deposits; Proxies, Books and Records |
18 | ||||
Section 1 - Execution and Delivery of Documents; Delegation |
18 | |||||
Section 2 - Deposits |
19 | |||||
Section 3 - Proxies in Respect of Stock or Other Securities in Other Corporations |
19 | |||||
Section 4 - Books and Records |
19 | |||||
IX. |
Certificates; Stock Record; Transfer and Registration; New Certificates; Record Date, etc. |
20 | ||||
Section 1 - Certificates for Stock |
20 | |||||
Section 2 - Stock Record |
20 | |||||
Section 3 - Transfer and Registration of Stock |
21 | |||||
Section 4 - New Certificates |
21 | |||||
Section 5 - Regulations |
22 | |||||
Section 6 - Fixing Date for Determination of Stockholders of Record |
22 | |||||
X. |
Seal |
22 | ||||
Section 1 - Seal |
22 | |||||
XI. |
Fiscal Year |
23 | ||||
Section 1 - Fiscal Year |
23 | |||||
XII. |
Amendments |
23 | ||||
Section 1 - Amendments |
23 | |||||
XIII. |
Subject to Law |
23 | ||||
Section 1 - Subject to Law |
23 |
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Exhibit 3.39
STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 04:00 PM 03/24/1997 971095837 - 2726862 |
CERTIFICATE OF INCORPORATION
OF
MNI ACQUISITION INC.
1. The name of the Corporation is: MNI ACQUISITION INC.
2. The address of the registered office of the Corporation in the State of Delaware is c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of the registered agent of the Corporation at such address is The Corporation Trust Company.
3. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the Corporation shall have authority to issue is One Thousand (1,000) and the par value of each of such shares is one Cent ($.01). All such shares are of one class and are shares of Common Stock.
5. The board of directors of the Corporation shall have the power to make, adopt, alter, amend or repeal the by laws of the Corporation. The election of directors of the Corporation need not be by written ballot.
6. The name and mailing address of the incorporator of the Corporation are:
Lauren B. Ezrol
Time Inc.
1271 Avenue of the Americas
New York, New York 10020
THE UNDERSIGNED, being the sole incorporator of the Corporation, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, does hereby sign this Certificate of Incorporation this 24th day of March, 1997.
/s/ Lauren B. Ezrol |
Lauren B. Ezrol |
Sole Incorporator |
STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 01:00 PM 04/02/1997 9711069472726862 |
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
MNI ACQUISITION INC.
MNI Acquisition Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the Corporation) , DOES HEREBY CERTIFY:
FIRST: That by action without a meeting pursuant to Section 141(f) of the General Corporation Law of the State of Delaware, the Board of Directors of the Corporation duly adopted a resolution setting forth a proposed amendment to the certificate of Incorporation of the Corporation, declared said amendment to be advisable and submitted said amendment to the sole stockholder of the Corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that paragraph 1 of the Certificate of Incorporation of the Corporation be amended so as to read in its entirety as follows:
1. The name of the corporatione is: Media Networks, Inc.
SECOND: That, thereafter, pursuant to the resolution of its Board of Directors, the sole stockholder of the Corporation by written consent pursuant to Section 228 of the General Corporation Law of Delaware consented to the above amendment to the Corporations Certificate of Incorporation.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Corporation has caused this certificate to be signed by Richard I. Friedman, its Assistant Secretary, as of the 1st day of April, 1997.
/s/ Richard I. Friedman |
Richard I. Friedman |
Assistant Secretary |
State of Delaware Secretary of State Division of Corporations Delivered 06:47 PM 12/18/2012 FILED 06:47 PM12/18/2012 SRV 121359936 - 2726862 FILE |
CERTIFICATE OF MERGER
MERGING
TARGETED MEDIA, INC.
INTO
MEDIA NETWORKS, INC.
UNDER SECTION 251 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
The undersigned corporation DOES HEREBY CERTIFY THAT:
FIRST: The name and state of incorporation of each of the constituent corporations are as follows:
Name | State | |
Targeted Media, Inc. |
Delaware | |
Media Networks, Inc. |
Delaware |
SECOND: An agreement of merger has been approved, adopted, executed and acknowledged by each of the constituent corporations in accordance with the requirements of Section 251(c) of the General Corporation Law of the State of Delaware.
THIRD: The name of the surviving corporation of the merger is Media Networks, Inc., a Delaware corporation.
FOURTH: The Certificate of Incorporation of the surviving corporation shall be amended as reflected below: FIRST: The name of the corporation is MNI Targeted Media Inc.
FIFTH: The Certificate of Incorporation of Media Networks, Inc., a Delaware corporation, which is surviving the merger, shall continue in full force and effect as the Certificate of Incorporation for the surviving corporation.
SIXTH: The executed agreement of merger is on file at an office of the surviving corporation, the address of which is 1271 Avenue of the Americas, New York, NY 10020.
SEVENTH: A copy of the agreement of merger will be furnished by the surviving corporation, on request and without cost, to any stockholder of any constituent corporation.
EIGHTH: This Certificate of Merger shall become effective upon the 1st day of January, 2013.
IN WITNESS WHEREOF, this Certificate of Merger has been signed as of the 18th day of December, 2012.
MEDIA NETWORKS, INC. | ||
By | /s/ Robert Reif | |
Robert Reif President |
Exhibit 3.40
BY-LAWS
OF
MEDIA NETWORKS, INC.
(Incorporated under the Laws of the State of Delaware)
As Adopted as of March 24, 1997
TABLE OF CONTENTS
Article |
Page | |||||
I |
Offices | 1 | ||||
Section 1 - Offices | 1 | |||||
II |
Meetings of Stockholders | 1 | ||||
Section 1 - Annual Meetings | ||||||
Section 2 - Special Meetings | 1 | |||||
Section 3 - Notice of Meetings | 2 | |||||
Section 4 - Quorum and Manner of Acting | 2 | |||||
Section 5 - Organisation of Meetings | 3 | |||||
Section 6 - Order of Business | 4 | |||||
Section 7 - Voting | 4 | |||||
Section 8 - Consent in Lieu of Meeting | 6 | |||||
Section 9 - List of Stockholders | 7 | |||||
Section 10 - Inspectors | 8 | |||||
III |
Board of Directors | 8 | ||||
Section 1 - General Powers | 8 | |||||
Section 2 - Number and Term of Office | 8 | |||||
Section 3 - Election | 9 | |||||
Section 4 - Meetings | 9 | |||||
Section 5 - Compensation | 12 | |||||
Section 6 - Resignations, Removal and Vacancies | 12 | |||||
IV |
Committees | 14 | ||||
Section 1 - Number, Appoint, Term of Office, etc. | 14 | |||||
Section 2 - Function and Powers | 14 | |||||
Section 3 - Rules | 15 | |||||
V |
Officers | 15 | ||||
Section 1 - Election, Appointment and Term of Office | 15 | |||||
Section 2 - Removal, Resignation and Vacancies | 16 | |||||
Section 3 - Duties and Functions | 17 |
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VI |
Indemnification | 20 | ||||
Section 1 - Right to Indemnification | 20 | |||||
Section 2 - Insurance, Contracts and Funding | 22 | |||||
Section 3 - Indemnification Not Exclusive Right | 22 | |||||
Section 4 - Indemnification of Employees and Agents | 22 | |||||
VII |
Waiver of Notices; Places of Meetings | 23 | ||||
Section 1 - Waiver of Notices | 23 | |||||
Section 2 - Place of Meetings | 24 | |||||
VIII |
Execution and Delivery of Documents; Deposits; Proxies, Books and Records | 24 | ||||
Section 1 - Execution and Delivery of Documents | 24 | |||||
Section 2 - Deposits | 25 | |||||
Section 3 - Proxies in Respect of Stock or Other Securities in Other Corporations | 25 | |||||
Section 4 - Books and Records | 25 | |||||
IX |
Certificates; Stock Record; Transfer and Registration | 26 | ||||
Section 1 - Certificates for Stock | 26 | |||||
Section 2 - Stock Record | 27 | |||||
Section 3 - Transfer and Registration of Stocks | 27 | |||||
Section 4 - New Certificates | 28 | |||||
Section 5 - Regulations | 28 | |||||
Section 6 - Fixing Date for Determination of Stockholders of Record | 29 | |||||
X |
Seal | 29 | ||||
Section 1 - Seal | 29 | |||||
XI |
Fiscal Year | 30 | ||||
Section 1 - Fiscal Year | 30 | |||||
XII |
Amendments | 30 | ||||
Section 1 - Amendments | 30 | |||||
XIII |
Subject to Law | 30 | ||||
Section 1 - Subject to Law | 30 |
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BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
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Section 3. Notice of Meetings. Notice of each meeting of the stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such stockholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such stockholder at his address as it appears on the stock record of the Corporation or by transmitting notice thereof to him at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the stockholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
Section 4. Quorum and Manner of Acting. If stockholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any
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meeting of the stockholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until stockholders holding the amount of stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of stockholders holding the number of shares of stock of the corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy stockholders holding the number of shares of stock of the Corporation required in respect of such other matter.
Section 5. Organization of Meetings. At each meeting of the stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
(a) the Chairman of the Board, or, if he is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
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(b) any officer of the Corporation designated by a majority in voting interest of the stock holders present in person or by proxy and entitled to vote thereat.
The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by a majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
Section 7. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by his and registered in his name on the stock record of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or
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(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for
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a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he shall in writing so notify the secretary of the meeting prior to voting of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his proxy if there be such proxy, and shall state the number of shares voted.
Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice
-6-
of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
Section 9. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
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Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the Inspectors.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation
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shall hold office until the annual meeting after his election and until his successor shall be elected and qualified or until his earlier death or resignation or removal in the manner hereinafter provided.
Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held than the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
(c) Special Meetings. Special meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
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(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a type-written notice thereof to such director personally or by depositing such notice in the United States mail, postage prepaid, directed to such director at his residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him at such address by telegraph, cable or other form or recorded communication. The purposes of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
(e) Time and Place of Meetings. Regular meeting of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
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(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he is not present or if no person holds such office, any director chosen by a majority of the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent
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thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
(i) Action by Communications Equipment. The Directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him on account of his attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 6. Resignation, Remova1 and Vacancies. Any director may resign at any time by giving written notice of his resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it
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shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board cause by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his successor shall be elected and shall qualify or until his earlier death or resignation or removal in the manner herein.
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ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including, the power and authority to declare dividends and to
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authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
ARTICLE V
Officers
Section 1. Election and Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice-Presidents, or any or all the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one ore more Assistant Treasurers, or any or all
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of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal and Vacancies. Any officer may resign at any time by giving written notice of his resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effect shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
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Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected he shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairman of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the stockholders, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he shall preside at meetings of the Executive Committee; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with then or as the Board or the Executive Committee may from time to time determine.
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(d) President. If a President is appointed or elected he shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice-Chairman of the Board is appointed or elected and is present.
(e) Vice-Presidents. If any Vice President or Vice Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice Presidents.
(f) Secretary. If a Secretary is appointed or elected he shall attend and keep the records of all meetings of the stockholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the
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Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
(g) Treasurer. If a Treasurer is appointed or elected he shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
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(h) Controller. If a Controller is appointed or elected he shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the
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Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a 50 percent or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
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Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or
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was an employee or agent of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of
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objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
ARTICLE VIII
Execution and Delivery of Documents; Deposits; Proxies; Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such delegation may be by resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
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Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities of Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he may deem necessary or proper in order that the Corporation may exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of Delaware as the proper officers of the Corporation may from time to time determine.
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ARTICLE IX
Certificates; Stock Record; Transfer and Registration;
New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the Board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice-Chairman, the President or a Vice-President of the Corporation and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for or exchange or transfer shall be cancelled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so cancelled, except in cases provided for in Section 4 of this Article.
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Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
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Section 4. New Certificates.
(a) Lost, Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
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Section 6. Fixing Date for Determination of Stock-holders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix, in advance, a record date, which shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
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ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
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Exhibit 3.41
STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 12/30/1998 981508708 2986570 |
CERTIFICATE OF FORMATION
OF
NEWSUB MAGAZINE SERVICES LLC
This Certificate of Formation of NewSub Magazine Services LLC (hereinafter called the Company) is being executed by the undersigned, an authorized person, for the purpose of forming a limited liability company under the provisions and subject to the requirements of the Delaware Limited Liability Act.
1. The name of the Company is: NEWSUB MAGAZINE SERVICES LLC
2. The address of the registered office and the name and the address of the registered agent of the limited liability company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are Lexis Document Services Inc., 30 Old Rudnick Lane, Suite 100, Dover, DE 19901, County of Kent.
Executed on December 30, 1998.
/s/ Harry E. Peden, III |
Harry E. Peden, III |
Authorized Person |
57187
CERTIFICATE OF AMENDMENT
OF
NEWSUB MAGAZINE SERVICES LLC
1. | The name of the limited liability company is NewSub Magazine Services LLC. |
2. | The Certificate of Formation of the limited liability company is hereby amended as follows: |
The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the city of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.
3. | This Certificate of Amendment shall be effective on July 20, 2000. |
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment of NewSub Magazine Services LLC Certificate of Formation this 6th day of July, 2000.
/s/ Michael Loeb |
Michael Loeb, Chairman, |
President and CEO |
STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 04:30 PM 07/18/2000 001364357 2986570 |
Exhibit 3.42
LIMITED LIABILITY COMPANY AGREEMENT
OF
NEWSUB MAGAZINE SERVICES LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT (the Agreement) of NewSub Magazine Services LLC (the Company) is effective as of the 31st day of December, 1998 (the Effective Date), by and between each of the Persons (as hereinafter defined) executing this Agreement as Members (as hereinafter defined) as of the Effective Date, and each Person subsequently admitted as a Member of the Company.
RECITAL
The Members desire to form a limited liability company in accordance with the provisions of the Delaware Limited Liability Company Act, as amended from time to time, and any successor statute (the Act), and desire to enter into a written agreement pursuant to the Act governing the affairs of the Company and the conduct of its business. Accordingly, in consideration of the mutual covenants contained herein, the Members agree as follows:
ARTICLE I
1.1 Defined Terms. As used herein, the following terms shall have the meanings set forth below:
Additional Member shall mean a Person who has acquired Units from the Company after the Effective Date and been admitted as a Member of the Company pursuant to Section 9.2 hereof.
Adjusted Capital Account Deficit shall mean, with respect to any Member, the deficit balance, if any, in such Members Capital Account as of the end of the relevant Fiscal Year after giving effect to the following adjustments: (a) credit to such Capital Account any amounts that such Member is obligated to restore pursuant to the penultimate sentences of Treasury Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5); and (b) debit to such Capital Account the items described in Treasury Regulations Sections 1.704-l(b)(2)(ii)(d)(4), (5) and (6). This definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Section 1.704-l(b)(2)(ii)(d) of the Treasury Regulations and shall be interpreted consistently therewith.
Affiliate shall mean, with respect to any Person, (i) any Person directly or indirectly controlling, controlled by or under common control with such Person and (ii) any officer or director of such Person. For purposes of this definition, the term controls, is controlled by, or is under common control with shall mean possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person or entity, whether through the ownership of voting securities, by contract or otherwise.
57145 |
Agreed Value shall mean the fair market value of contributed property, as determined by the majority of the Board using any reasonable method of valuation.
Assignee shall mean a transferee of Units who has not been admitted as a Substitute Member.
Bankruptcy shall mean, with respect to any Person, the occurrence of any of the following events: (a) the filing by such Person of a petition in bankruptcy or for relief under applicable bankruptcy laws; (b) the filing against such Person of any such petition (unless such petition is dismissed within ninety (90) days from the date of filing thereof); (c) entry against such Person of an order for relief under applicable bankruptcy laws; (d) written admission by such Person of its inability to pay its debts as they mature, or an assignment by such Person for the benefit of creditors; or (e) appointment of a trustee, conservator or receiver for the property or affairs of such Person.
Board shall mean the Board of Managers of the Company as described in Article IV hereof, consisting of those Managers who are elected by the Members from time to time (or, with respect to Managers appointed to fill vacancies on the Board, by a majority of the remaining Managers) to serve on the Board pursuant to Article IV hereof.
Business Day shall mean each day of the calendar year other than a Saturday, a Sunday or a day on which banks are required or authorized to close in the State of Connecticut.
Capital Account shall mean the account maintained for a Member or Assignee determined in accordance with Article V hereof.
Capital Contribution shall mean any contribution of cash or property to the Company or the obligation to contribute cash, property or services to the Company made by or on behalf of a Member.
Certificate of Formation shall mean the certificate of formation of the Company filed in the Office of the Secretary of State of the State of Delaware pursuant to the Act and through which the Company has been formed.
Chief Executive Officer shall mean the Person elected by the Board from time to time to hold such office pursuant to Section 4.5 hereof.
Chief Financial Officer shall mean the Person elected by the Board from time to time to hold such office pursuant to Section 4.6 hereof.
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Code shall mean the Internal Revenue Code of 1986, as amended from time to time (or any corresponding provisions of succeeding law).
Company Minimum Gain shall have the meaning of partnership minimum gain set forth in Treasury Regulations Sections 1.704-2(b)(2) and 1.704-2(d).
Depreciation shall mean, for each Taxable Year, an amount equal to the depreciation, amortization, or other cost recovery deduction allowable with respect to an asset for such Taxable Year, except that if the Gross Asset Value of an asset differs from its adjusted basis for federal income tax purposes at the beginning of such Taxable Year, Depreciation shall be an amount which bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization, or other cost recovery deduction for such Taxable Year bears to such beginning adjusted tax basis; provided, however, that if the adjusted basis for federal income tax purposes of an asset at the beginning of such Taxable Year is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the Board.
Distribution shall mean a transfer of cash or property by the Company to a Member on account of Units as described in Article VI hereof.
Gross Asset Value shall mean, with respect to any asset, the assets adjusted basis for federal income tax purposes, except as follows:
(a) The initial Gross Asset Value of any asset contributed by a Member to the Company shall be the fair market value of such asset as determined by the Board at the time it is accepted by the Company, unreduced by any liability secured by such asset, as determined by the Board.
(b) The Gross Asset Values of all Company assets shall be adjusted to equal their respective fair market values, unreduced by any liabilities secured by such assets, as determined by the Board as of the following times: (i) the acquisition of additional Units by any new or existing Member in exchange for a Capital Contribution; (ii) the Distribution by the Company to a Member of an amount of cash or property as consideration for Units; and (iii) the liquidation of the Company within the meaning of Treasury Regulations Section 1.7041(b)(2)(ii)(g).
(c) The Gross Asset Value of any asset of the Company distributed to any Member shall be adjusted to equal the fair market value of such asset, unreduced by any liability secured by such asset, on the date of Distribution as determined by the Board.
(d) The Gross Asset Value of the Company assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Section 734(b) or 743(b) of the Code; but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m) and paragraph (f) of the definition of Net Profits and Net Losses.
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If the Gross Asset Value of an asset has been determined or adjusted pursuant to paragraphs (a), (b) or (d) of this definition, such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset for purposes of computing Net Profits and Net Losses.
Initial Members shall mean those Persons who have executed this Agreement as of the Effective Date.
Majority of Members shall mean Members owning a majority of the issued and outstanding Units.
Manager shall mean each Person elected by the Members as a Manager pursuant to Section 4.1(b) hereof and each Person appointed by the Board to serve as a Manager pursuant to Section 4.1(c) hereof to fill a vacancy on the Board. A Manager need not be a Member.
Member shall mean an Initial Member, Substitute Member or Additional Member, as the case may be; and Members shall mean the Initial Members, Substitute Members and Additional Members, collectively.
Member Minimum Gain shall mean a Members share of Company Minimum Gain as set forth in Treasury Regulations Section 1.704-2(g) and member nonrecourse debt minimum gain as described in Treasury Regulations Section 1.704-2(i).
Member Nonrecourse Debt shall have the meaning of partner nonrecourse debt as set forth in Treasury Regulations Section 1.704-2(b)(4).
Member Nonrecourse Deductions shall have the meaning of partner nonrecourse deductions as set forth in Treasury Regulations Section 1.704-2(i).
Net Profits and Net Losses shall mean, for any Taxable Year or other period, an amount equal to the Companys taxable income or loss for such year or period, determined in accordance with Section 703(a) of the Code (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Section 703(a)(1) of the Code shall be included in taxable income or loss), with the following adjustments:
(a) Any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Net Profits or Net Losses shall be added to such taxable income or loss;
57145 | -4- |
(b) Any expenditures of the Company described in Section 705(a)(2)(B) of the Code or treated as Code Section 705(a)(2)(B) expenditures pursuant to Section 1.704-1(b)(2)(iv)(i) of the Regulations and not otherwise taken into account in computing Net Profits or Net Losses shall be subtracted from such taxable income or loss;
(c) In the event the Gross Asset Value of any Company asset is adjusted pursuant to paragraphs (b) or (c) of the definition of Gross Asset Value, the amount of such adjustment shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Net Profits or Net Losses;
(d) Gain or loss resulting from any disposition of property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Gross Asset Value of property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Gross Asset Value;
(e) In lieu of depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation with respect to each asset of the Company for such Taxable Year, computed in accordance with the definition of Depreciation above;
(f) To the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Section 734(b) or 743(b) of the Code is required pursuant to Treasury Regulations 1.704-1(b)(2)(iv)(m)(4) to be taken into account in determining Capital Accounts as a result of a Distribution other than in complete liquidation of a Members Units, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases the basis of the asset) from the disposition of the asset and shall be taken into account for purposes of computing Net Profits or Net Losses; and
(g) Notwithstanding any other provision of this subsection, any items of income, gain, loss or deduction which are specifically allocated shall not be taken into account in computing Net Profits or Net Losses.
Nonrecourse Deductions shall have the meaning set forth in Treasury Regulations Section 1.704-2(b)(1).
Permitted Transfer shall have the meaning set forth in Section 8.1 hereof.
Permitted Transferee shall mean, with respect to any Member, (i) a spouse, child or other descendant of such Member or a trust for the benefit thereof or (ii) upon the death of such Member, such Members personal representative, executor, administrator, testamentary trustees, legatees or beneficiaries.
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Person shall mean an individual, trust, estate, partnership, limited liability company or any other incorporated or unincorporated entity permitted to be a member of a limited liability company under the Act.
Regulations shall mean, except where the context indicates otherwise, the permanent and temporary regulations of the Department of the Treasury promulgated under the Code, as such regulations may be lawfully changed from time to time (including corresponding provisions of succeeding regulations).
Substitute Member shall mean an Assignee who has been admitted to all of the rights of membership pursuant to Section 9.3 hereof.
Taxable Year shall mean the taxable year of the Company as determined for federal income tax purposes.
Transfer shall mean, as a noun, any voluntary or involuntary transfer, sale, assignment, pledge, encumbrance or other disposition; and, as a verb, voluntarily or involuntarily to sell, assign, transfer, grant, give away, hypothecate, pledge, encumber or otherwise dispose of, and shall include any transfer by will, gift or intestate succession.
Unit shall mean an equity interest in the Company as described in Section 5.1 hereof.
ARTICLE II
The Limited Liability Company
2.1 Formation. The Company has been formed as a limited liability company pursuant to the provisions of the Act. A Certificate of Formation for the Company has been filed in the Office of the Secretary of State of the State of Delaware in conformity with the Act. The Company and, if required, each of the Members shall execute or cause to be executed from time to time all other instruments, certificates, notices and documents and shall do or cause to be done all such acts and things (including keeping books and records and making publications or periodic filings) as may now or hereafter be required for the formation, valid existence and, when appropriate, termination of the Company as a limited liability company under the laws of the State of Delaware.
2.2 Name. The name of the Company shall be NewSub Magazine Services LLC and its business shall be carried on in such name with such variations and changes as the Board shall determine or deem necessary to comply with requirements of the jurisdictions in which the Companys operations are conducted.
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2.3 Business Purposes. The Company is formed for the purposes of engaging in the business of marketing and selling magazine subscriptions and engaging in any other lawful business, purpose or activity for which limited liability companies may be formed under the Act.
2.4 Company Powers. The Company and the Board (acting on behalf of the Company), shall possess and may exercise all of the powers and privileges granted by the Act or by any other law or by this Agreement, together with any powers incidental thereto, so far as such powers and privileges are necessary or convenient to the conduct, promotion or attainment of the business purposes of the Company specified in Section 2.3 hereof, including, without limitation, the power:
(a) to acquire, hold, manage, own, sell, transfer, convey, assign, exchange, license, pledge or otherwise dispose of the Companys interest in assets or any property held by the Company, including, without limitation, interests in technology, intellectual property rights and other proprietary processes, products or services;
(b) to establish, have, maintain or close one or more offices within or without the State of Delaware and in connection therewith to rent or acquire office space and to engage personnel;
(c) to open, maintain and close bank and brokerage accounts, including the power to draw checks or other orders for the payment of moneys, and to invest such funds as are temporarily not otherwise required for Company purposes;
(d) to bring and defend actions and proceedings at law or in equity or before any governmental, administrative or other regulatory agency, body or commission;
(e) to hire consultants, custodians, attorneys, accountants and such other agents, officers and employees of the Company as it may deem necessary or advisable, and to authorize each such agent and employee to act for and on behalf of the Company;
(f) to make all elections, investigations, evaluations and decisions, binding the Company thereby, that may, in the sole judgment of the Board, be necessary or appropriate to further the business purposes of the Company;
(g) to enter into, perform and carry out contracts and agreements of every kind necessary or incidental to the accomplishment of the Companys business purposes, and to take or omit to take such other action in connection with the business of the Company as may be necessary or desirable to further the business purposes of the Company; and
(h) to carry on any other activities necessary to, in connection with, or incidental to any of the foregoing or the Companys business.
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2.5 Registered Office and Agent. The location of the registered office of the Company shall be 30 Old Rudnick Lane, Suite 1001, Dover, Delaware 19901. The Companys registered agent at such address shall be LEXIS Document Services, Inc. The Board may, from time to time, change the Companys registered office or registered agent, and shall forthwith amend the Certificate of Formation to reflect such change.
2.6 Term. The existence of the Company commenced on the date of the filing of the Certificate of Formation in the Office of the Secretary of State of the State of Delaware in accordance with the Act and, subject to the provisions of Articles X and XI below, the Company shall have perpetual existence.
2.7 Principal Place of Business. The principal place of business of the Company shall be located at Four High Ridge Park, Stamford, Connecticut 06905 or at such other location as the Board may, from time to time, select.
2.8 Title to Company Property. Legal title to all property of the Company shall be held, vested and conveyed in the name of the Company and no real or other property of the Company shall be deemed to be owned by the Members individually. The Units of each Member shall constitute personal property.
2.9 Business Transactions of the Members and Managers with the Company. In accordance with Section 18-107 of the Act, each Member and Manager may lend money to, borrow money from, act as a surety, guarantor or endorser for, guarantee or assume one or more obligations of, provide collateral for, and transact other business with, the Company and, subject to applicable law, shall have the same rights and obligations with respect to any such matter as a Person who is not a Member or Manager.
2.10 Fiscal Year. The fiscal year of the Company (the Fiscal Year) for financial statement purposes shall end on December 31 of each year, or such other date as may be determined by the Board from time to time.
ARTICLE III
The Members
3.1 The Members. The name, address, Capital Contribution of, and number of Units held by, each Member are set forth on each Members execution page hereof, and in the books and records of the Company, which books and records shall be amended from time to time to reflect the admission of an Additional Member or Substitute Member, an additional Capital Contribution or acquisition of additional Units by an existing Member, or the cessation of a Member pursuant to Section 9.4 hereof.
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3.2 Member Meetings.
(a) Actions by the Members; Meetings. The Members may vote, approve a matter or take any action by the vote of Members at a meeting, in person or by proxy, or without a meeting by the written consent of Members pursuant to subparagraph (c) below. Meetings of the Members may be called by the Board and shall be held upon at least five (5) days prior written notice of the time and place of such meeting given by the Board. Notice of any meeting may be waived by any Member before or after any meeting. Meetings of the Members may be conducted in person or by conference telephone facilities.
(b) Special Meetings. A special meeting of Members shall be called at any time by the Board and shall be called by the Board at the request in writing of a Majority of the Members entitled to vote at such meeting. Any such request shall state the purpose or purposes of the proposed meeting. Business transacted at any special meeting of Members shall be confined to the purposes set forth in the notice thereof.
(c) Action by Written Consent. Any action required or permitted under the Act or this Agreement to be taken by the Members, and any action otherwise referred to the Members for their approval by the Board, may be taken by the Members without a meeting if authorized by the written consent of a Majority of Members. In no instance where action is authorized by written consent shall a meeting of Members be called or notice be given. However, a copy of the action taken by written consent shall be sent promptly to all Members and filed with the records of the Company.
(d) Quorum; Voting. For any meeting of Members, the presence in person or by proxy of a Majority of Members shall constitute a quorum for the transaction of any business. Except as otherwise provided in this Agreement, the affirmative vote of a Majority of Members shall constitute approval of any action. Except as set forth in this Agreement, each Member shall be entitled to vote on all matters upon which Members have the right to vote ratably in proportion to the number of Units held by such Member. If, however, a quorum shall not be present or represented at any meeting of Members, the Members entitled to vote thereat, present in person or represented by proxy, shall have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified.
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(e) Record Date: For the purpose of determining the Members entitled to notice of, or to vote at any meeting of Members of any adjournment thereof or to express consent or dissent from any proposal without a meeting, or for the purpose of determining the Members entitled to receive payment of any distribution or the allotment of any rights, or for the purpose of any other action, the Board may fix, in advance, a date as the record date for any such determination of Members. Such date shall not be more than fifty no less than ten days before the date of any meeting nor more than fifty days prior to any action taken without a meeting, the payment of any distribution or the allotment of any rights, or any other action.
(f) Person Recognized as Member. The Company shall be entitled to treat the holder of record of any Unit as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such Unit on the part of any other Person whether or not it shall have express or other notice thereof, except as otherwise provided by the Act.
3.3 No Liability of Members. All debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Member shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member.
3.4 Power to Bind the Company. No Member (acting in its capacity as such) shall have any authority to bind the Company to any third party with respect to any matter except pursuant to a resolution expressly authorizing such action which resolution is duly adopted by the Board by the affirmative vote required for such matter pursuant to this Agreement or the Act.
ARTICLE IV
Management of the Company
4.1 Management By Board of Managers.
(a) General; Number of Managers: Subject to such matters as are expressly reserved hereunder or under the Act to the Members for decision, the business and affairs of the Company shall be managed by a Board of Managers which shall be responsible for policy-setting, approving the overall direction of the Company and making all decisions affecting the business and affairs of the Company. The Board shall consist of at least one (1) but not more than nine (9) Managers, the exact number of Managers to be determined from time to time by resolution of the Board. The initial Board shall consist of three (3) Managers (Initial Managers), namely Michael Loeb, Jay Walker and William E. Ford.
(b) Election; Removal; Resignations: Each Manager (other than the Initial Managers) shall be elected by a Majority of Members and shall serve until his or her successor has been duly elected and qualified, or until his or her earlier removal, resignation, death or disability. A Majority of Members may remove any Manager from the Board or from any other capacity with the Company at any time, with or without cause. A Manager may resign at any time upon written notice to the Board. The resignation shall take effect upon receipt of notice or at such later date as specified in such notice. The acceptance of the resignation is not necessary to make it effective.
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(c) Vacancies: Any vacancy occurring on the Board as a result of the resignation, removal, death or disability of a Manager or an increase in the size of the Board shall be filled by a majority of the remaining Managers. A Manager chosen to fill a vacancy resulting from the resignation, removal, death or disability of a Manager shall serve the unexpired term of his or her predecessor in office.
4.2 Meetings of the Board.
(a) The Board shall meet at such times as determined by the Board to be necessary for the management of the Companys business. Meetings of the Board may be called by the Chairman of the Board or any two Managers on at least two (2) days prior written notice of the time and place of such meeting. A majority of Managers shall constitute a quorum for the transaction of business by the Board.
(b) Notice of any Board meeting may be waived by any Manager before or after such meeting.
(c) All actions of the Board shall require the affirmative vote of a majority of the Managers then in office.
(d) Meetings of the Board may be conducted in person or by conference telephone facilities. Any action required or permitted to be taken at any meeting of the Board may be taken without a meeting if a majority of the Managers then in office consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board.
4.3 Power to Bind Company. No Manager (acting in his or her capacity as such) shall have any authority to bind the Company with respect to any matter except pursuant to a resolution expressly authorizing such action which resolution is duly adopted by the Board by the affirmative vote required for such matter pursuant to this Agreement or the Act.
4.4 Officers and Related Persons. The Board shall have the authority to appoint and terminate officers of the Company, including, without limitation, the Chief Executive Officer and Chief Financial Officer, and retain and terminate employees agents and consultants of the Company and to delegate such duties to any such officers, employees, agents and consultants as the Board deems appropriate, including the power, acting individually or jointly, to represent and bind the Company in all matters, in accordance with the scope of their respective duties.
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4.5 Chief Executive Officer. There shall be a Chief Executive Officer of the Company who shall be elected by the Board and serve as such until the earlier of his or her death, resignation or removal by the Board, with or without cause. The Chief Executive Officer shall have the responsibility for managing the day-to-day business operations and affairs of the Company and supervising its other officers, subject to the direction, supervision and control of the Board. In general, the Chief Executive Officer shall have such other powers and perform such other duties as usually pertain to the office of the Chief Executive Officer, and as from time to time may be assigned to him or her by the Board, including, without limitation, the authority to appoint and terminate officers of the Company and retain and terminate employees of the Company to whom the Chief Executive Officer may delegate his or her duties.
4.6 Chief Financial Officer. There shall be a Chief Financial Officer of the Company who shall be elected by the Board and serve as such until the earlier of his or her death, resignation or removal by the Board, with or without cause. In general, the Chief Financial Officer shall have such powers and perform such duties as usually pertain to the office of Chief Financial Officer, and as from time to time may be assigned to him or her by the Board.
4.7 Committees. The Board may designate one or more committees, each committee to consist of one or more of the Managers of the Company. The Board may designate one or more Managers as alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any absent or disqualified member. Any committee, to the extent permitted by law and provided in the resolution establishing 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 Company (including, but not limited to, the power and authority to issue Units, restricted Units, options to acquire Units, Unit appreciation rights and Phantom Units). Each committee shall keep regular minutes and report to the Board when required.
ARTICLE V
Capital Structure and Contributions
5.1 Authorized Units. Subject to the provisions of this Agreement, the Company is authorized to issue equity interests in the Company designated as Units at varying prices per Unit as the Board shall approve. The total number of Units which the Company shall have authority to issue is one million (1,000,000) Units. Other than as set forth in Section 6.1 hereof, each Unit shall be identical in all respects (including with regard to the rights of Members to vote, to receive Distributions from time to time and to receive Distributions on liquidation of the Company) with each other Unit.
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5.2 Issuance of Units.
(a) The Company is authorized to issue Units in exchange for either Capital Contributions or the provision of services (together, Unit Consideration), as determined by the Board or a duly authorized committee thereof. The number of Units issued to the Initial Members and the address for notice purposes hereunder of each Member are listed on such Members execution page hereof, and in the books and records of the Company, which books and records shall be amended from time to time by the Board as required to reflect issuances of Units to new Members, changes in the number of Units held by Members and to reflect the addition or withdrawal of Members. The number of Units held by each Member shall not be affected by either (a) any issuance by the Company of Units to other Members or (b) any change in the Capital Account of such Member (other than such changes to reflect additional Unit Consideration from such Member in exchange for new Units). If Units are certificated, the Board shall maintain a Unit ledger.
(b) The Company is authorized to issue options to purchase Units, restricted Units, Unit appreciation rights and Phantom Units, on such terms may be determined by the Board or a duly authorized committee thereof. Fractional Units may be issued for pro rata Unit Consideration, as determined by the Board.
5.3 Certificates. Upon the determination of the Board, the issued and outstanding Units may be represented by certificates. Each such certificate shall bear the following legend:
THE UNITS REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO, AND MAY NOT BE TRANSFERRED, SOLD, PLEDGED, ENCUMBERED, HYPOTHECATED OTHERWISE DISPOSED OF (TRANSFERRED) WITHOUT COMPLYING WITH, THE PROVISIONS OF THE LIMITED LIABILITY COMPANY AGREEMENT DATED AS OF DECEMBER 31, 1998 BY AND AMONG THE MEMBERS OF THE COMPANY, A COPY OF WHICH IS ON FILE WITH THE COMPANY. IN ADDITION TO THE RESTRICTIONS ON TRANSFER SET FORTH IN SUCH AGREEMENT, NO TRANSFER OF THE UNITS REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND REGULATIONS IN EFFECT THEREUNDER (THE ACT) AND ALL APPLICABLE STATE SECURITIES LAWS OR (B) IF SUCH TRANSFER IS EXEMPT FROM THESE PROVISIONS OF THE ACT AND, IF REQUIRED BY THE COMPANY, THE COMPANY HAS BEEN FURNISHED WITH AN OPINION OF COUNSEL FOR THE HOLDER OF THE UNITS REPRESENTED BY THIS
57145 | -13- |
CERTIFICATE. WHICH OPINION AND COUNSEL SHALL BE REASONABLY SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT THE PROVISIONS OF CLAUSE (A) OR (B) ABOVE HAVE BEEN SATISFIED AND THAT THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL OF THE PROVISIONS OF THE AFORESAID AGREEMENT.
5.4 Capital Contributions. No interest shall accrue on any Capital Contribution and no Member shall have the right to withdraw or be repaid any Capital Contribution, except as provided in this Agreement. If any Member withdraws from the Company pursuant to Section 9.5 hereof, such Member shall remain obligated for any unpaid Capital Contributions and shall not be entitled to a return of its Capital Contribution. The value of any Additional Members Capital Contribution and the terms upon which such Capital Contribution shall be made shall be as agreed upon by the Board and set forth in such Members Subscription Agreement, if any.
5.5 Additional Contributions. From time to time, the Board may determine that the Company requires additional capital and may request each Member to make an additional Capital Contribution in an amount determined by the Board.
5.6 Maintenance of Capital Accounts.
(a) The Company shall establish and maintain Capital Accounts for each Member and Assignee in accordance with the following provisions:
(i) to each Members Capital Account there shall be credited (A) such Members Capital Contributions, (B) such Members distributive share of Net Profits and any items in the nature of income or gain which are specially allocated, and (C) the amount of any Company liabilities assumed by such Member which are secured by any property distributed to such Member; and
(ii) to each Members Capital Account there shall be debited (A) the amount of money and the Gross Asset Value of any property distributed to such Member pursuant to any provision of this Agreement, (B) such Members distributive share of Net Losses and any items in the nature of expenses or losses which are specially allocated and (C) the amount of any liabilities of such Member assumed by the Company or which are secured by any Property contributed by such Member to the Company.
(b) Immediately prior to the actual or deemed Distribution of property of the Company (other than the Distribution of cash) upon a dissolution and liquidation of the Company, the Capital Accounts of the Members shall be adjusted (consistent with the provisions hereof and Treasury Regulations under Section 704 of the Code) upward or downward to reflect any unrealized gain or unrealized loss attributable to property of the Company, as if such unrealized gain or
57145 | -14- |
unrealized loss had been recognized upon an actual sale of each asset immediately prior to such Distribution and had been allocated to the Members at such time. In determining such unrealized gain or unrealized loss, the fair market value of the property of the Company as of any date of determination shall be reasonably determined by the Board or, if applicable, any liquidating trustee appointed by the Court of Chancery. This provision is intended to meet the requirements of Treasury Regulations Section 1.704-l(b)(2)(iv)(f).
(c) This Section and other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulations Section 1.704-1(b), and shall be interpreted and applied in a manner consistent with such Treasury Regulations. Notwithstanding that a particular adjustment is not set forth in this Section, the Capital Accounts of the Members shall be adjusted as required by, and in accordance with, the capital account maintenance rules of Treasury Regulations Section 1.704-1(b).
5.7 Negative Capital Accounts. No Member shall be required to make up an Adjusted Capital Account Deficit nor pay to any Member the amount of any such deficit in any such account.
5.8 Sale or Exchange of Units. In the event of a Transfer of some or all of a Members Units, the Capital Account of the Transferring Member (as hereinafter defined) shall become the capital account of the Assignee, to the extent it relates to the Members Units so Transferred.
ARTICLE VI
Allocations of Profits and Losses; Distributions
6.1 Allocations of Net Profits and Net Losses from Operations. Net Profits and Net Losses shall be allocated among the Members ratably in proportion to their respective number of Units. Notwithstanding the foregoing, no item of loss or deduction of the Company shall be allocated to a Member if such allocation would result in a negative balance in such members Adjusted Capital Account. Such loss or deduction shall be allocated first among the Members with positive balances in their Capital Accounts in proportion to (and to the extent of) such positive balances and thereafter in accordance with their respective number of Units in the Company as determined under Section 1.704-1(b)(3) of the Treasury Regulations.
6.2 Distributions. The Board shall determine, in its sole and absolute discretion, profits available for distribution to Members and the amount to be distributed to Members, and shall authorize and distribute to the Members pro rata in proportion to the number of Units held by each Member, the determined amount when, as and if declared by the Board. Available profits, as referred to herein, shall mean the net profits of the Company after appropriate provision for expenses and liabilities, including liabilities that are not deductible for federal income tax purposes, as determined by the Board, and such reserves for capital expenditures and research and development as determined by the Board, in its sole and absolute discretion.
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6.3 Withholding Taxes. The Company is authorized to withhold from Distributions to a Member, or with respect to allocations to a Member, and to pay over to a federal, state or local government, any amounts required to be withheld pursuant to the Code, or any provisions of any other federal, state or local law. Any amounts so withheld shall be treated as having been distributed to such Member pursuant to this Article VI for all purposes of this Agreement, and shall be offset against the amounts otherwise distributable to such Member.
6.4 Limitations on Distributions. No Distribution to Members shall be declared or paid unless, after giving effect to such Distribution, the fair value of all assets of the Company exceeds all liabilities of the Company, other than liabilities to Members on account of their Capital Accounts.
6.5 Qualified Income Offset. If any Member unexpectedly receives any adjustments, allocations or distributions described in Treasury Regulations Section 1.704-l(b)(2)(ii)(d)(4), (5) or (6), items of Company income and gain shall be specially allocated to each such Member in an amount and manner sufficient to eliminate, to the extent required by the Treasury Regulations, the Adjusted Capital Account Deficit of such Member as quickly as possible, provided that an allocation pursuant to this Section 6.5 shall be made only if and to the extent that such Member would have an Adjusted Capital Account Deficit after all other allocations provided for in this Section 6.5 have been tentatively made as if this Section 6.5 were not in the Agreement.
6.6 Book/Tax Disparities. In the case of contributed property, items of income, gain, loss, deduction and credit, as determined for federal income tax purposes, shall be allocated first in a manner consistent with the requirements of Section 704(c) of the Code to take into account the difference between the Agreed Value of such property and its adjusted tax basis at the time of contribution. The method under Section 704(c) of the Code and the Treasury Regulations thereunder shall be determined by the majority of the Board.
6.7 Allocation of Nonrecourse Deductions. Items of loss, deduction and Section 705(a)(2)(B) expenditures attributable under Section 1.704-2(c) of the Treasury Regulations to increases in the Company Minimum Gain shall be allocated, as provided in Section 1.704-2(e) of the Treasury Regulations, to the Members pro rata in proportion to the relative number of Units held by each Member.
6.8 Allocation of Member Nonrecourse Deductions. Notwithstanding the provisions of Section 6.7, items of loss, deduction and Section 705(a)(2)(B) expenditures attributable under Section 1.704-2(i) of the Treasury Regulations to Member Nonrecourse Debt shall (prior to any allocation pursuant to Section 6.7) be allocated, as provided in Section 1.704-2(i) of the Treasury Regulations, to the Members in accordance with the ratios in which they bear the economic risk of loss for such debt for purposes of Section 1.752-2 of the Treasury Regulations.
57145 | -16- |
6.9 Minimum Gain Chargeback. In the event that there is a net decrease in the Company Minimum Gain during a Taxable Year, the minimum gain chargeback described in Sections 1.704-2(f) and (g) of the Treasury Regulations shall apply.
6.10 Member Minimum Gain Chargeback. If during a Taxable Year there is a net decrease in Member Nonrecourse Debt Minimum Gain, any Member with a share of that Member Nonrecourse Debt Minimum Gain (determined under Section 1.704-2(i)(5) of the Treasury Regulations) as of the beginning of the year must be allocated items of income and gain for the year (and, if necessary, for succeeding years) equal to that Members share of such net decrease in accordance with Section 1.704-2(i) of the Treasury Regulations.
ARTICLE VII
Accounts
7.1 Books. The Board shall cause to be maintained complete and accurate books of account of the Companys affairs at the Companys principal place of business. Such books shall be kept on such method of accounting as the Board shall select.
7.2 Reports. The books of account of the Company shall be closed after the close of each Fiscal Year, and there shall be prepared and sent to each Member a statement of the profits and losses of the Company for that period and a statement of such Members distributive share of income and expense for income tax reporting purposes.
7.3 Federal Tax Matters. NewSub Services, Inc. shall be the Tax Matters Member, who shall be considered the tax matters partner for purposes of Section 6231 of the Code. The Tax Matters Member shall cause to be prepared and shall sign all tax returns of the Company, make any tax elections for the Company allowed under the Code or the tax laws of any state or other jurisdiction having taxing jurisdiction over the Company and monitor any governmental tax authority in any audit that such authority may conduct of the Companys books and records or other documents.
7.4 Special Basis Adjustment. The Tax Matters Member shall, without any further consent of the Members being required (except as specifically required herein), have discretion to make an election for federal income tax purposes to adjust the basis of property pursuant to Sections 754, 734 (b) and 743 (b) of the Code, or comparable provisions of state, local or foreign law, in connection with Transfers of Units and Company Distributions.
57145 | -17- |
ARTICLE VIII
Transfers of Units
8.1 Prohibition. No Member may Transfer all or any portion of its Units other than (i) to a Permitted Transferee or (ii) upon the written consent of the Board (each of (i) and (ii) above shall be referred to herein as a Permitted Transfer). Any attempted Transfer of Units, other than in strict accordance with this Article VIII, shall be null and void and the purported transferee shall have no rights as a Member or Assignee hereunder. Notwithstanding any other provision of this Article VIII, all restrictions on Transfer contained in this Agreement shall automatically become null and void immediately upon the consummation of a public offering of Units or any other equity security of the Company or any successor entity pursuant to an effective registration statement under the Securities Act of 1933, as amended.
8.2 Conditions to Permitted Transfers. A Member shall be entitled to make a Permitted Transfer of all or any portion of its Units only upon satisfaction of each of the following conditions:
(a) such Transfer does not cause a termination of the Company for federal or state income tax purposes;
(b) such Transfer does not require the registration or qualification of such Units pursuant to any applicable federal or state securities laws;
(c) such Transfer does not result in a violation of applicable laws; and
(d) the Board receives written instruments that are in a form satisfactory to the Board, as determined in its sole and absolute discretion (including, without limitation, (i) copies of any instruments of Transfer, (ii) such Assignees consent to be bound by this Agreement as an Assignee, and (iii) if requested by the Board, an opinion of counsel to such Assignee, in form and substance reasonably acceptable to the Board, to the effect that the conditions set forth in Subsections(a), (b) and (c) above have been satisfied).
8.3 Effect of Transfers. Upon any Permitted Transfer, the Assignee of the Units Transferred shall be entitled to receive the Distributions and allocations of income, gain, loss, deduction, credit or similar items to which the Transferring Member would be entitled with respect to such Units, and shall not be entitled to exercise any of the other rights of a Member with respect to the Transferring Members Units, including, without limitation, the right to vote, unless and until such Assignee is admitted to the Company as a Substitute Member pursuant to Section 9.3 hereof.
57145 | -18- |
ARTICLE IX
Additional and Substitute Members:
Withdrawal of Members
9.1 Admissions: Withdrawals. No Person shall be admitted to the Company as a Member (other than the Initial Members) except in accordance with Section 9.2 or 9.3 hereof. Except as otherwise specifically set forth in Section 9.5 hereof, no Member shall be entitled to withdraw from the Company. Any purported admission or withdrawal which is not in accordance with this Article IX shall be null and void. Upon admission of any Additional or Substitute Member, or upon any Member ceasing to be a Member, the books and records of the Company shall be revised accordingly to reflect such admission.
9.2 Admission of Additional Members. A Person shall become an Additional Member pursuant to the terms of this Agreement only if and when each of the following conditions is satisfied:
(a) the Board, in its sole and absolute discretion, determines the nature and amount of the Unit Consideration to be made by such Person;
(b) the Board has received, on behalf of the Company, such Persons Unit Consideration as so determined;
(c) the Board consents in writing to such admission, which consent may be given or withheld in its sole and absolute discretion; and
(d) the Board receives written instruments (including, without limitation, such Persons consent to be bound by this Agreement as a Member) that are in a form satisfactory to the Board, as determined in its sole and absolute discretion.
9.3 Admission of Assignees as Substitute Members. An Assignee of all or any portion of a Members Units shall become a Substitute Member of the Company only if and when of the following conditions are satisfied:
(a) the Board consents in writing to such admission, which consent may be given or withheld, or made subject to such conditions as are determined by the Board, in its sole and absolute discretion; and
(b) the Board receives written instruments (including, without limitation, such Assignees consent to be bound by this Agreement as a Member) that are in a form satisfactory to the Board, as determined in its sole and absolute discretion.
57145 | -19- |
9.4 Cessation of Member.
(a) Events Resulting in Cessation of Member. Any Member shall cease to be a Member of the Company upon the earliest to occur of any of the following events:
(i) such Members withdrawal from the Company pursuant to Section 9.5 hereof;
(ii) as to any Member that is not an individual, the filing of a certificate of dissolution, or its equivalent, for such Member, or
(iii) the Bankruptcy of such Member.
(b) Effect of Cessation of a Member: Upon any Member ceasing to be a Member pursuant to Subsection (a) above, such Member or its successor in interest shall become an Assignee of its Units, entitled to receive the Distributions and allocations of income, gain, loss, deduction, credit or similar item to which such Member would have been entitled and shall not be entitled to exercise any of the other rights of a Member in, or have any duties or other obligations of a Member with respect to, such Units. No such Member shall have a right to a return of its Capital Contribution.
9.5 Withdrawal of Members.
(a) Withdrawal Upon Transfer. If a Member has Transferred all of its Units in one or more Permitted Transfers then such Member shall withdraw from the Company on the date upon which each Assignee of such Units has been admitted as a Substitute Member in accordance with Section 9.3 hereof, and such Member shall no longer be entitled to exercise any rights or powers of a Member under this Agreement.
(b) Voluntary Withdrawal. In addition to a withdrawal pursuant to Subsection (a) above, each Member shall have the right to withdraw from the Company at any time, but only upon the consent of the Board, by providing written notice of withdrawal to the Board. A withdrawing Member shall have no right to a return of its Capital Contribution.
57145 | -20- |
ARTICLE X
Events of Dissolution
The Company shall be dissolved upon the occurrence of either of the following events (each, an Event of Dissolution):
(a) A Majority of Members votes for dissolution; or
(b) A judicial dissolution of the Company pursuant to Section 18-802 of the Act.
No other event, including the retirement, withdrawal, insolvency, liquidation, dissolution, insanity, resignation, expulsion, Bankruptcy, death, incapacity or adjudication of incompetency of a Member, shall cause the dissolution of the Company.
ARTICLE XI
Termination
11.1 Liquidation. In the event that an Event of Dissolution shall occur, the Company shall be liquidated and its affairs shall be wound up. All proceeds from such liquidation shall be distributed as set forth below, in accordance with the provisions of Section 18-804 of the Act:
(a) to creditors, including Members who are creditors to the extent permitted by law, in satisfaction of the Companys liabilities; and
(b) to Members in accordance with their positive Capital Account balances, taking into account all Capital Account adjustments for the Companys Taxable Year in which the liquidation occurs. Liquidation proceeds shall be paid within 60 days of the end of the Companys Taxable Year or, if later, within 90 days after the date of liquidation. Such Distributions shall be in cash or property (which need not be distributed proportionately) or partly in both, as determined by the Board.
11.2 Final Accounting. In the event of the dissolution of the Company, prior to any liquidation, a proper accounting shall be made to the Members from the date of the last previous accounting to the date of dissolution.
11.3 Cancellation of Certificate. Upon the completion of the Distribution of the Companys assets upon dissolution, the Company shall be terminated, all Units shall be canceled and the Board shall cause the Company to execute and file a Certificate of Cancellation in accordance with Section 18-203 of the Act.
57145 | -21- |
ARTICLE XII
Exculpation and Indemnification
12.1 Exculpation. Notwithstanding any other provisions of this Agreement, whether express or implied, or obligation or duty at law or in equity, none of the Managers or Members, or any officers, directors, stock holders, partners, employees, representatives, consultants or agents of either of the foregoing, nor any officer, employee, representative, consultant or agent of the Company or any of its Affiliates (individually, a Covered Person and, collectively, the Covered Persons) shall be liable to the Company or any other Person for any act or omission (in relation to the Company and the conduct of its business, the Agreement, any related document or any transaction contemplated hereby or thereby) taken or omitted in good faith by a Covered Person and in the reasonable belief that such act or omission was in or was not contrary to the best interests of the Company; provided that such act or omission does not constitute fraud, willful misconduct, bad faith, or gross negligence.
12.2 Indemnification. To the fullest extent permitted by law, the Company shall indemnify and hold harmless each Manager, Member and officer of the Company and each officer or director of any Member (individually, an Indemnified Person and, collectively, the Indemnified Persons) from and against any and all losses, claims, demands, liabilities, expenses, judgments, fines, settlements and other amounts arising from any and all actions, suits or proceedings, whether civil, criminal, administrative or investigative (Claims), in which such Indemnified Person may be involved, or threatened to be involved, as a party or otherwise, by reason of its management of the affairs of the Company or which relates to or arises out of the Company or its property, business or affairs. An Indemnified Person shall not be entitled to indemnification under this Section 12.2 with respect to any Claim in which it has engaged in fraud, willful misconduct, bad faith or gross negligence. Expenses incurred by an Indemnified Person in investigating or defending any Claim shall be paid by the Company in advance of the final disposition of such Claim upon receipt by the Company of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall be ultimately determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized by this Section 12.2. The Company, upon a determination by the Board, may, but shall not be obligated to, provide indemnification to any employees, representatives, agents or consultants of the Company to the same extent provided to Indemnified Persons pursuant to this Section 12.2.
57145 | -22- |
ARTICLE XIII
Amendment to Agreement
Amendments to this Agreement shall be approved in writing upon consent of a Majority of the Members. An amendment shall become effective as of the date specified in the Members approval or, if none is specified as of the date of such approval, as otherwise provided in the Act.
ARTICLE XIV
General Provisions
14.1 Notices. Unless otherwise specifically provided in this Agreement, all notices and other communications required or permitted to be given hereunder shall be in writing and shall be (i) delivered by hand, (ii) delivered by a nationally recognized commercial overnight delivery service, (iii) mailed postage prepaid by first class mail or (iv) by telecopier, in any such case directed or addressed to each Member at the address or telecopy number set forth on such Members execution page hereof. Such notices shall be effective; (a) in the case of hand deliveries when received; (b) in the case of an overnight delivery service, on the next business day after being placed in the possession of such delivery service, with delivery charges prepaid; (c) in the case of mail, seven (7) days after deposit in the postal system, first class mail, postage prepaid; and (d) in the case of facsimile notices, when electronic indication of receipt is received. Any Member may change its address and telecopy number by written notice to the Company.
14.2 Entire Agreement etc. This Agreement constitutes the entire agreement among the Members hereto relating to the subject matter hereof and supersedes all prior contracts, agreements and understandings between them. No course of prior dealings among the Members shall be relevant to supplement or explain any term used in this Agreement. Acceptance or acquiescence in a course of performance rendered under this Agreement shall not be relevant to determine the meaning of this Agreement even though the accepting or the acquiescing party has knowledge of the nature of the performance and an opportunity for objection. No provisions of this Agreement may be waived, amended or modified orally, but only by an instrument in writing executed by the waiving party. No waiver of any terms or conditions of this Agreement in one instance shall operate as a waiver of any other term or condition or as a waiver in any other instance.
14.3 Construction Principles. As used in this Agreement, words an any gender shall be deemed to include all other genders. The singular shall be deemed to include the plural and vice versa. The captions and article and section headings in this Agreement are inserted for convenience of reference only and are not intended to have significance for the interpretation of or construction of the provisions of this Agreement.
57145 | -23- |
14.4 Counterparts. This Agreement may be executed in two or more counterparts by the parties hereto, each of which when so executed will be an original, but all of which together will constitute one and the same instrument.
14.5 Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, such provision shall be ineffective to the extent of such invalidity or unenforceability; provided, however, that the remaining provisions will continue in full force without being impaired or invalidated in any way unless such invalid or unenforceable provision or clause shall be so significant as to materially affect the Members expectations regarding this Agreement. Otherwise, the Members agree to replace any invalid or unenforceable provision with a valid provision which most closely approximates the intent and economic effect of the invalid or unenforceable provision.
14.6 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to the principles of conflicts of laws thereof.
14.7 Binding Effect. This Agreement shall be binding upon, and inure to the benefit of the Members.
14.8 Additional Documents and Acts. Each Member agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions, and conditions of this Agreement and of the transactions contemplated hereby.
14.9 No Third-Party Beneficiary. This Agreement is made solely for the benefit of the parties hereto and no other person shall have any rights, interest, or claims hereunder or otherwise be entitled to any benefits under or on account of this Agreement as a third-party beneficiary or otherwise.
14.10 Limited Liability Company. The parties to this Agreement agree to form a limited liability company and do not intend to form a partnership under the laws of the State of Delaware or any other laws; provided, however, that, to the extent permitted by U.S. law, the Company will be treated as a partnership for U.S. federal, state and local income tax purposes.
[SIGNATURE PAGES FOLLOW]
57145 | -24- |
Exhibit 3.43
STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 11:30 AM 04/26/2000 001213227 3216715 |
CERTIFICATE OF INCORPORATION
OF
NSSI HOLDINGS INC.
1. The name of the Corporation is: NSSI Holdings Inc.
2. The address of the registered office of the Corporation in the state of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of the registered agent of the Corporation at such address is The Corporation Trust Company.
3. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the Corporation shall have authority to issue is One Thousand (1,000) and the par value of each of such shares is One Cent ($.01). All such shares are of one class and are shares of Common Stock.
5. The board of directors of the Corporation shall have the power to make, adopt, alter, amend or repeal the by-laws of the Corporation. The election of directors of the Corporation need not be by written ballot.
6. The name and mailing address of the incorporator of the Corporation are:
Lauren B. Ezrol
Time Inc.
1271 Avenue of the Americas
New York, New York 10020
7. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the directors duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions
31791
not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of Delaware, or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law of Delaware is amended after approval by the stockholders of this Section to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of Delaware as so amended.
THE UNDERSIGNED, being the sole incorporator of the Corporation, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, does hereby sign this Certificate of Incorporation this 26th day of April, 2000.
/s/ Lauren B. Ezrol |
Lauren B. Ezrol |
Sole Incorporator |
31791
TOTAL P.03
Exhibit 3.44
BY-LAWS
OF
NSSI HOLDINGS INC.
(Incorporated under the Laws of the State of Delaware)
As Adopted as of April 26, 2000
31795 |
TABLE OF CONTENTS
Article |
Page | |||||
I | Offices | 1 | ||||
II | Meetings of Stockholders | 1 | ||||
Section 1 - Annual Meetings | 1 | |||||
Section 2 - Special Meetings | 1 | |||||
Section 3 - Notice of Meetings | 2 | |||||
Section 4 - Quorum and Manner of Acting | 2 | |||||
Section 5 - Organization of Meetings | 3 | |||||
Section 6 - Order of Business | 3 | |||||
Section 7 - Voting | 3 | |||||
Section 8 - Consent in Lieu of Meeting | 5 | |||||
Section 9 - List of Stockholders | 5 | |||||
Section 10 - Inspectors | 6 | |||||
III | Board of Directors | 7 | ||||
Section 1 - General Powers | 7 | |||||
Section 2 - Number and Term of Office | 7 | |||||
Section 3 - Election | 7 | |||||
Section 4 - Meetings | 7 | |||||
Section 5 - Compensation | 10 | |||||
Section 6 - Resignation, Removal and Vacancies | 10 | |||||
IV | Committees | 11 | ||||
Section 1 - Number, Appointment, Term of Office, etc. | 11 | |||||
Section 2 - Functions and Powers | 12 | |||||
Section 3 - Rules | 12 | |||||
V | Officers | 12 | ||||
Section 1 - Election, Appointment and Term of Office | 12 | |||||
Section 2 - Resignation, Removal and Vacancies | 13 | |||||
Section 3 - Duties and Functions | 14 | |||||
VI | Indemnification | 16 | ||||
Section 1 - Right to Indemnification | 16 | |||||
Section 2 - Insurance, Contracts and Funding | 17 | |||||
Section 3 - Indemnification Not Exclusive Right | 18 | |||||
Section 4 - Indemnification of Employees and Agents | 18 |
31795 | i |
VII | Waiver of Notices: Places of Meetings | 19 | ||||
Section 1 - Waiver of Notices | 19 | |||||
Section 2 - Place of Meetings | 19 | |||||
VIII | Execution and Delivery of Documents; Deposits; Proxies, Books and Records | 19 | ||||
Section 1 - Execution and Delivery of Documents; Delegation | 19 | |||||
Section 2 - Deposits | 20 | |||||
Section 3 - Proxies in Respect of Stock or Other Securities in Other Corporations | 20 | |||||
Section 4 - Books and Records | 21 | |||||
IX | Certificates: Stock Record; Transfer and Registration; New Certificates; Record Date, etc. | 21 | ||||
Section 1 - Certificates for Stock | 21 | |||||
Section 2 - Stock Record | 22 | |||||
Section 3 - Transfer and Registration of Stock | 22 | |||||
Section 4 - New Certificates | 23 | |||||
Section 5 - Regulations | 23 | |||||
Section 6 - Fixing Date for Determination of Stockholders of Record | 23 | |||||
X | Seal | 24 | ||||
XI | Fiscal Year | 24 | ||||
XII | Amendments | 24 | ||||
XIII | Subject to Law | 25 |
31795 | ii |
BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
31795 |
Section 3. Notice of Meetings. Notice of each meeting of the stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such stockholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such stockholder at his or her address as it appears on the stock record of the Corporation or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting the purpose or purposes for which the meeting is called. Notice of any adjoumed meeting of the stockholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
Section 4. Quorum and Manner of Acting. If stockholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the stockholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until stockholders holding the amount of
31795 | 2 |
stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of stockholders holding the number of shares of stock of the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy stockholders holding the number of shares of stock of the Corporation required in respect of such other matter.
Section 5. Organization of Meetings. At each meeting of the stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
(a) the Chairman of the Board, or, if he or she is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any Officer of the Corporation designated by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat.
The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by the majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
31795 | 3 |
Section 7. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him or her and registered in his or her name on the stock record of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or
(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he or she shall in writing so notify the secretary of the meeting prior to the voting
31795 | 4 |
of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his or her proxy if there be such proxy, and shall state the number of shares voted.
Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
Section 9. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders
31795 | 5 |
entitled to vote thereat, 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, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board. the chairman of the meeting may, in its or his or her discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
31795 | 6 |
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his or her election and until his or her successor shall be elected and qualified or until his or her earlier death or resignation or removal in the manner hereinafter provided.
Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
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(c) Special Meetings. Special Meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a type-written notice thereof to such director personally or by depositing such notice in the United States mail, postage prepaid, directed to such director at his or her residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. The purposes of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
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(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he or she is not present or if no person holds such office, any director chosen by a majority or the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
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(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his or her serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him or her on account of his or her attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 6. Resignation. Removal and Vacancies. Any director may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board caused by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
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In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his or her successor shall be elected and shall qualify or until his or her earlier death or resignation or removal in the manner set forth herein.
ARTICLE IV
Committees
Section 1. Number. Appointment. Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he or she remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or she or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
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Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including the power and authority to declare dividends and to authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
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ARTICLE V
Officers
Section 1. Election. Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice Presidents, or any or all of the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one or more Assistant Treasurers, or any or all of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation Removal and Vacancies. Any officer may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
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Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected he or she shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he or she shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the stockholders at which they shall be present, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he or she shall preside at meetings of the Executive Committee at which he or she shall be present; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
(d) President. If a President is appointed or elected he or she shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He or she shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice Chairman of the Board is appointed or elected and is present.
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(e) Vice Presidents. If any Vice President or Vice Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice- Presidents.
(f) Secretary. If a Secretary is appointed or elected he or she shall attend and keep the records of all meetings of the stockholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law, shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall
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be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
(g) Treasurer. If a Treasurer is appointed or elected he or she shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
(h) Controller. If controller is appointed or elected he or she shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
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ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a fifty percent (50%) or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such Proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
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Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of
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the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
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ARTICLE VIII
Execution and Delivery of Documents; Deposits;
Proxies; Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such delegation may be resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities in Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and
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rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he or she may deem necessary or proper in order that the Corporation may exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of Delaware as the proper officers of the Corporation may from time to time determine.
ARTICLE IX
Certificates: Stock Record: Transfer and Registration:
New Certificates: Record Date: etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him or her in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice-Chairman, the President or a Vice-President of the Corporation and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a
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certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he or she were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for exchange or transfer shall be canceled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so canceled, except in cases provided for in Section 4 of this Article.
Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date hereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his or her attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
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Section 4. New Certificates.
(a) Lost, Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he or she has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
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Section 6. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
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ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
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Exhibit 3.45
State of Delaware Division of Corporations |
Certificate Of Incorporation
Of
SI DIGITAL GAMES, INC.
1. The name of the Corporation is: SI DIGITAL GAMES, INC.
2. The address of the registered office of the Corporation in the State of Delaware is c/o The Corporation Trust Company. 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of the registered agent of the Corporation at such address is The Corporation Trust Company.
3. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the Corporation shall have authority to issue is One Hundred (100) and the par value of each of such shares is One Cent ($.01). All such shares are of one class and are shares of Common Stock.
5. The board of directors of the Corporation shall have the power to make, adopt, alter. amend or repeal the by-laws of the Corporation. The election of directors of the Corporation need not be by written ballot.
6. The name and mailing address of the incorporator of the Corporation are:
Lauren Ezrol Klein
Time Inc.
1271 Avenue of the Americas
New York, New York 10020
7. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the directors duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law. (iii) under Section 174 of the General Corporation Law of Delaware, or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law of Delaware is amended after approval by the stockholders of this Section to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of Delaware as so amended.
263715
THE UNDERSIGNED, being the sole incorporator of the Corporation, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, does hereby sign this Certificate of Incorporation this 14th day of March, 2014.
/s/ Lauren Ezrol Klein |
Lauren Ezrol Klein |
Sole Incorporator |
263715
Exhibit 3.46
BY-LAWS
OF
SI DIGITAL GAMES, INC.
(Incorporated under the Laws of the State of Delaware)
As Adopted as of March 14th, 2014
TABLE OF CONTENTS
Article |
Page | |||||
I. | Offices | 1 | ||||
II. | Meetings of Stockholders | 1 | ||||
Section 1 - Annual Meetings | 1 | |||||
Section 2 - Special Meetings | 1 | |||||
Section 3 - Notice of Meetings | 2 | |||||
Section 4 - Quorum and Manner of Acting | 2 | |||||
Section 5 - Organization of Meetings | 3 | |||||
Section 6 - Order of Business | 3 | |||||
Section 7 - Voting | 3 | |||||
Section 8 - Consent in Lieu of Meeting | 5 | |||||
Section 9 - List of Stockholders | 5 | |||||
Section 10 - Inspectors | 6 | |||||
III. | Board of Directors | 6 | ||||
Section 1 - General Powers | 6 | |||||
Section 2 - Number and Term of Office | 6 | |||||
Section 3 - Election | 7 | |||||
Section 4 - Meetings | 7 | |||||
Section 5 - Compensation | 9 | |||||
Section 6 - Resignation, Removal and Vacancies | 9 | |||||
IV. | Committees | 10 | ||||
Section 1 - Number, Appointment, Term of Office, etc. | 10 | |||||
Section 2 - Functions and Powers | 11 | |||||
Section 3 - Rules | 11 | |||||
V. | Officers | 12 | ||||
Section 1 - Election, Appointment and Term of Office | 12 | |||||
Section 2 - Resignation, Removal and Vacancies | 12 | |||||
Section 3 - Duties and Functions | 13 | |||||
VI. | Indemnification | 15 | ||||
Section 1 - Right to Indemnification | 15 | |||||
Section 2 - Insurance, Contracts and Funding | 16 |
263717 | -i- |
Section 3 - Indemnification Not Exclusive Right | 17 | |||
Section 4 - Indemnification of Employees and Agents | 17 | |||
VII. | Waiver of Notices; Places of Meetings | 18 | ||
Section 1 - Waiver of Notices | 18 | |||
Section 2 - Place of Meetings | 18 | |||
VIII. | Execution and Delivery of Documents; Deposits; Proxies, Books and Records | 18 | ||
Section 1 - Execution and Delivery of Documents; Delegation | 18 | |||
Section 2 - Deposits | 19 | |||
Section 3 - Proxies in Respect of Stock or Other Securities in Other Corporations | 19 | |||
Section 4 - Books and Records | 19 | |||
IX. | Certificates; Stock Record; Transfer and Registration; New Certificates; Record Date, etc. | 20 | ||
Section 1 - Certificates for Stock | 20 | |||
Section 2 - Stock Record | 20 | |||
Section 3 - Transfer and Registration of Stock | 21 | |||
Section 4 - New Certificates | 21 | |||
Section 5 - Regulations | 22 | |||
Section 6 - Fixing Date for Determination of Stockholders of Record | 22 | |||
X. | Seal | 22 | ||
Section 1 - Seal | 22 | |||
XI. | Fiscal Year | 23 | ||
Section 1 - Fiscal Year | 23 | |||
XII. | Amendments | 23 | ||
Section 1 - Amendments | 23 | |||
XIII. | Subject to Law | 23 | ||
Section 1 - Subject to Law | 23 |
263717 | -ii- |
BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of lncorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall he designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
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Section 3. Notice of Meetings. Notice of each meeting of the stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such stockholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such stockholder at his or her address as it appears on the stock record of the Corporation or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the stockholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
Section 4. Quorum and Manner of Acting. If stockholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the stockholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until stockholders holding the amount of stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of stockholders holding the number of shares of stock of the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy stockholders holding the number of shares of stock of the Corporation required in respect of such other matter.
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Section 5. Organization of Meetings. At each meeting of the stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
(a) the Chairman of the Board, or, if he or she is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat.
The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by the majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
Section 7. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him or her and registered in his or her name on the stock record of the Corporation:
(a) on the dare fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or
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(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he or she shall in writing so notify the secretary of the meeting prior to the voting of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his or her proxy if there be such proxy, and shall state the number of shares voted.
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Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
Section 9. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and
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place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his or her discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his or her election and until his or her successor shall be elected and qualified or until his or her earlier death or resignation or removal in the manner hereinafter provided.
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Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
(c) Special Meetings. Special Meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a type-written notice thereof to such director personally or by
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depositing such notice in the United States mail, postage prepaid, directed to such director at his or her residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. The purposes of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he or she is not present or if no person holds such office, any director chosen by a majority or the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
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(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his or her serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him or her on account of his or her attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 6. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
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Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board caused by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his or her successor shall be elected and shall qualify or until his or her earlier death or resignation or removal in the manner set forth herein.
ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he or she remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
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In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or she or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including the power and authority to declare dividends and to authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
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ARTICLE V
Officers
Section 1. Election, Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice Presidents, or any or all of the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one or more Assistant Treasurers, or any or all of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal and Vacancies. Any officer may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
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A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected he or she shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he or she shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the stockholders at which they shall be present, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he or she shall preside at meetings of the Executive Committee at which he or she shall be present; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
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(d) President. If a President is appointed or elected he or she shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He or she shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice Chairman of the Board is appointed or elected and is present.
(e) Vice Presidents. If any Vice President or Vice Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice-Presidents.
(f) Secretary. If a Secretary is appointed or elected he or she shall attend and keep the records of all meetings of the stockholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
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(g) Treasurer. If a Treasurer is appointed or elected he or she shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
(h) Controller. If a controller is appointed or elected he or she shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal,
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administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a fifty percent (50%) or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such Proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
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Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
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ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
ARTICLE VIII
Execution and Delivery of Documents; Deposits;
Proxies; Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such
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delegation may be resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities in Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he or she may deem necessary or proper in order that the Corporation may exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of Delaware as the proper officers of the Corporation may from time to time determine.
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ARTICLE IX
Certificates; Stock Record; Transfer and Registration;
New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him or her in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice-Chairman, the President or a Vice-President of the Corporation and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he or she were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for exchange or transfer shall be canceled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so canceled, except in cases provided for in Section 4 of this Article.
Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
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Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his or her attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
Section 4. New Certificates.
(a) Lost, Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he or she has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
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Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
Section 6. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
263717 | 22 |
ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
263717 | 23 |
Exhibit 3.47
20,000 [ILLEGIBLE] To 205,000 [ILLEGIBLE]
RESTATED CERTIFICATE OF INCORPORATION
OF
THE PROGRESSIVE FARMER COMPANY
28844-27
FILED
OCT 27 1972 10 A.M.
[ILLEGIBLE STAMP]
00161
RESTATED
CERTIFICATE OF INCORPORATION
OF
THE PROGRESSIVE FARMER COMPANY
The undersigned, being the president of The Progressive Farmer Company, whose original certificate of incorporation was filed with the Secretary of State of Delaware under the name of Progressive Farmer-Ruralist Company on June 17, 1930, hereby makes this certificate for the purpose of restating and amending such original certificate of incorporation, as subsequently amended, and hereby declares that this restated certificate of incorporation of The Progressive Farmer Company, including the amendments contained herein, has been proposed by the directors of The Progressive Farmer Company and adopted by the stockholders of The Progressive Farmer Company in accordance with the provisions of Sections 242 and 245 and other applicable sections of the General Corporation Law of the State of Delaware:
FIRST: The name of the corporation is The Progressive Farmer Company.
SECOND: The address of its registered office in the State of Delaware is No. 100 West Tenth Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.
THIRD: The nature of the business or purpose to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.
00162
FOURTH: The total number of shares of stock which the corporation shall have authority to issue is 205,000, all of which shall be shares of common stock without par value. The corporation has issued and outstanding 18,727 shares of common stock without par value and issued and held in the treasury of the corporation 1,145 shares of common stock without par value. Upon the filing of this restated certificate of incorporation, the capital stock of the corporation shall be reclassified through a recapitalization, pursuant to which the number of shares of common stock outstanding and held in the treasury of the corporation shall be increased by a 10-for-1 stock split, the shares of common stock remaining without par value. Upon the filing of this restated certificate of incorporation, the number of outstanding shares of common stock of the corporation shall be increased to 187,270 and the number of shares of common stock held in the treasury of the corporation shall be increased to 11,450. The capital of the corporation shall not be reduced under or by reason of this restated certificate of incorporation.
FIFTH: The corporation is to have perpetual existence.
SIXTH: In furtherance and not in limitation of the powers conferred by statute, the board of directors is expressly authorized:
(a) To make, alter or repeal the by-laws of the corporation.
(b) To authorize and cause to be executed mortgages and liens upon the real and personal property of the corporation.
(c) To set apart out of any of the funds of the corporation available for dividends a reserve or reserves for any proper purpose and to abolish any such reserve in the manner in which it was created.
(d) At any time, and from time to time when authorized by resolution of the board of directors, and without any action by its stockholders, the board of directors may cause the corporation to issue or sell any shares of its capital stock of any class, whether such shares are issued or sold out of the unissued shares
00163
-2-
thereof authorized by the certificate of incorporation, as from time to time amended, or out of shares of its capital stock acquired by it after the issue thereof; the board of directors also may cause the corporation to issue and sell its obligations, secured or unsecured, and in bearer or registered or such other form, and including such provisions as to redeemability, convertibility or otherwise, as the board of directors, in its sole discretion, may determine, and mortgage or pledge, as security therefore, any property of the corporation, real or personal including after-acquired property; and the board of directors may cause the corporation to issue or grant warrants or options, in bearer or registered or such other form as the board of directors may determine, for the purchase of shares of its capital stock of any class, within such period of time, or without limit as to time, and at such price per share, as the board of directors may determine. Any options or warrants issued or granted pursuant to the last sentence may be issued or granted separately or in connection with the issue of any bonds, debentures, notes or other evidences of indebtedness or in connection with other shares of the capital stock of any class of the corporation. The board of directors may cause the corporation to issue and sell shares of its capital stock of any class, including warrants and options, and to issue and sell its obligations for such consideration as may from time to time be fixed by the board of directors, and the corporation may receive in payment, in whole or in part, for any such securities issued or sold by it, cash, labor done, personal property or real property or leases thereof. In the absence of actual fraud in the transaction, the judgment of the board of directors as to the value of the labor, personal property or real property or leases thereof so received shall be conclusive.
(e) By a majority of the whole board, to designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. The by-laws may provide that in the absence or
00164
-3-
disqualification of a member of a committe, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the board of directors, or in the by-laws of the corporation, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or by-laws expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock.
(f) When and as authorized by the stockholders in accordance with law, to sell, lease or exchange all or substantially all of the property and assets of the corporation, including its good will and its corporate franchises, upon such terms and conditions and for such consideration, which may consist in whole or in part of money or property including shares of stock in, and/or other securities of, any other corporation or corporations, as its board of directors shall deem expedient and for the best interests of the corporation.
SEVENTH: Whenever a compromise or arrangement is proposed between the corporation and its creditors or any class of them and/or between the corporation and its stockholders or any class of them, any court of equitable Jurisdiction within the State of Delaware may on the application in a summary way of the corporation or of any creditor or stockholder thereof, or on the application of any receiver or receivers appointed for the corporation under the provisions
00165
-4-
of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for the corporation under the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of the corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of the corporation, as the case may be, and also on the corporation.
EIGHTH: Meetings of stockholders may be held within or without the State of Delaware, as the by-laws may provide. The books of the corporation may be kept (subject to any provision contained in the General Corporation Law of the State of Delaware) outside the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the by-laws of the corporation. Election of directors need not be by written ballot unless the by-laws of the corporation shall so provide.
NINTH: The corporation reserves the right to amend, alter, change or repeal any provision contained in this restated certificate of incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
IN WITNESS WHEREOF, the undersigned, being the duly authorized president of The Progressive Farmer Company, has executed this certificate by and on behalf of The Progressive Farmer Company, and the duly authorized secretary
00166
-5-
of The Progressive Farmer Company has attested the execution of this certificate and has affixed the corporate seal hereto, all on the 23rd day of October, 1972.
THE PROGRESSIVE FARMER COMPANY | ||
By: | /s/ Emory Cunningham | |
Its President |
[CORPORATE SEAL]
ATTEST: | ||
By: | /s/ Eugene B. Butler | |
Its Secretary |
00167
-6-
284427
Dec 1, 1980
FILED
DEC 2, 2000, 8:30 AM
[ILLEGIBLE STAMP]
00168
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
THE PROGRESSIVE FARMER COMPANY
In accordance with the provisions of Sections 103 and 242 of the General Corporation law of the State of Delaware, The Progressive Farmer Company, a corporation organized and existing under the laws of the State of Delaware, does hereby certify as follows:
1. That the Restated Certificate of Incorporation of The Progressive Farmer Company, as heretofore filed shall, upon the filing and recording of this Certificate of Amendment, be amended as follows:
Article FIRST. shall be amended to read as follows:
FIRST. The name of the corporation is Southern Progress Corporation.
2. That such amendment has been duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said The Progressive Farmer Company has caused this certificate to be signed by Vernon C. Owens, Jr., its Executive Vice President, its corporate seal hereunto affixed, and attested by Eugene B. Butler, its Secretary, as of the 29th day of November, 1980.
THE PROGRESSIVE FARMER COMPANY | ||
By: | /s/ Vernon C. Owens, Jr. | |
Its Executive Vice President |
By: | /s/ Eugene B. Butler | |
Its Secretary |
00169
THE CORPORATION TRUST COMPANY |
![]() |
DATE SUBMITTED November 30, 1982
Pursuant to counsels instructions,
submitted for filing by:
The Corporation Trust Company | FILE DATE November 30, 1982 | |||
P. A Wright : erm | TIME 10 a.m. | |||
FILERS NO. 00010 |
NAME OF COMPANY Southern Progress Corporation | ||
FILE NUMBER 2844-27 | ||
TYPE OF DOCUMENT CERTIFICATE OF AMENDMENT | SECTION NO. 242 |
CHANGES NAME |
||
CHANGES AGENT/OFFICE |
||
STOCK $ 205.000 NPV |
||
TO $ 2.100.000 NPV |
||
FRANCHISE TAX $ |
RECEIVED | Filing Fee Tax | $ | 4,687.50 | |||
NOV 30 [ILLEGIBLE STAMP] | Receiving and Indexing | $ | ||||
DIVISION OF CORPORATIONS | NO. 4 Certified Copies | $ | ||||
NO. PAGES ( If prepared by the Division of Corp.) | $ | |||||
OTHER state tax $ 4,687,50 ok. | $ | |||||
OTHER | $ | |||||
TOTAL | $ |
00170 | urgent |
CERTIFICATE OF AMENDMENT |
10 A.M. FILED NOV 30 1982 [ILLEGIBLE STAMP] | |
OF | ||
CERTIFICATE OF INCORPORATION | ||
OF | ||
SOUTHERN PROGRESS CORPORATION |
In accordance with the provisions of Section 242 of the General Corporation law of the State of Delaware, Southern Progress Corporation, a corporation organized and existing under the laws of the State of Delaware, does hereby certify as follows:
1. That Article Fourth of the Restated Certificate of Incorporation of Southern Progress Corporation, as heretofore filed, shall upon the filing and recording of this Certificate of Amendment, be amended as follows:
FOURTH: The total number of shares of stock which the corporation shall have authority to issue is 2,100,000, all of which shall be shares of common stock without par value.
2. That such amendment has been duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Southern Progress Corporation has caused this certificate to be signed by Emory Cunningham, its President, its corporate seal hereunto affixed, and attested by Eugene B. Butler, its Secretary, as of the 29th day of November, 1982.
SOUTHERN PROGRESS CORPORATION | ||
By | /s/ Emory Cunningham | |
Its President |
By | /s/ Eugene B. Butler | |
Its Secretary |
[CORPORATE SEAL]
00171
8500860002 | ||
DATE SUBMITTED 3/27/85 |
||
FILED BY: [ILLEGIBLE] | FILE DATE 3/27/85 | |
TIME 9:05 A.M | ||
FILERS NO. | ||
Southen Progress Corporation | ||
NAME OF COMPANY Sid Corporation 20550.66 | ||
FILE NUMBER | 284427 | |
TYPE OF DOCUMENT Merger | SECTION NO. 251 | |
CHANGES NAME |
||
CHANGES AGENT/OFFICE |
||
STOCK $ |
Closed/Invoiced | |
TO $ |
MAR 27 1985 | |
Franchise Tax $ 30 |
RECEIVED Filling Fee Tax | $ | 20.00 | ||
MAR 27 1985 Receiving and Indexing | $ | |||
DIVISION OF NO. 7 Certified Copies | $ | |||
CORPORATIONS NO. PAGES (If prepared by the Division of Corp.) | $ | |||
OTHER | $ | |||
OTHER | $ | |||
TOTAL | $ |
[ILLEGIBLE STAMP]
465412
[ILLEGIBLE]
WAITING
CERTIFICATE OF NUMBER | 9:05 AM | |
OF | FILED | |
SID CORPORATION | MAR 27 | |
INTO | [ILLEGIBLE] | |
SOUTHERN PROGRESS CORPORATION | ||
UNDER SECTION 251 OF THE GENERAL CORPORATION LAW | ||
OF THE STATE OF DELWARE |
Pursuant to Section 251(c) of the General Corporation Law of the State of Delaware, Southern Progress Corporation, a Delaware corporation, hereby certifies the following information relating to the merger of Sid Corporation, a Delaware corporation (SID), with and into Southern Progress Corporation (the Merger);
1. The names and state of incorporation of SID and Southern Progress Corporation (the Constituent Corporations) are:
Name | State of Incorporation | |
Southern Progress Corporation | Delaware | |
Sid Corporation | Delaware |
2. An Agreement and Plan of Merger dated as of February 21, 1985, among Time Incorporated, a Delaware corporation, SID and Southern Progress Corporation (the Merger Agreement), setting forth the terms and conditions of the Merger, has been approved, adopted, certified, executed and acknowledged by each of the Constituent Corporations in accordance with the provisions of Section 251(c) of the General Corporation Law of the State of Delaware.
3. Southern Progress Corporation is the surviving corporation in the Merger.
4. Pursuant to the Merger Agreement, ARTICLE FOURTH of the Restated Certificate of Incorporation of Southern Progress Corporation, the surviving corporation, is amended at the effective time of the Merger to read in its entirety as follows:
FOURTH: The total number of shares which the Corporation shall have authority to issue is 100 shares of the par value $1.00 per share. All such shares shall be a single class and shall be designated Common Stock.
5. An executed Merger Agreement is on file at the principal place of business of the surviving: corporation, 820 Shades Creek Parkway, Birmingham, Alabama 35209.
6. A copy of the Merger Agreement will be furnished by the surviving corporation, on request and without cost, to any stockholder of either of the Constituent Corporations.
IN WITNESS WHEREOF, this Certificate of Merger has been executed on the 25th day of March, 1985.
SOUTHERN PROGRESS CORPORATION | ||
By: | /s/ Emory Cunningham | |
Emory Cunningham Chairman of the Board and Chief Executive Officer |
Attest: | /s/ Eugene B. Butler | |
Eugene B. Butler Secretary |
00002
Certificate of Merger of the SID CORPORATION, merging with and into the SOUTHERN PROGRESS CORPORATION, under the name of SOUTHERN PROGRESS CORPORATION, as received and filed in this office the twenty-seventh day of March, A.D. 1985, at 9:05 oclock A.M.
00003
COMMAND: DSP SCREEN: TAX FILE. NO. 2055066 | YEAR INDEX | |
CORP: STAT=M D20550-66 SID CORPORATION |
SCREEN: TAX/ |
******* | TAX HISTORY | ******* |
YEAR | TAXES | INTEREST | PENALTY | CHECK | CHGS | PETITION /EXTENSIC DATES & STATUS | ||||||
1985 DUE |
30.00 | |||||||||||
ADJUSTMENT | ||||||||||||
PAID | 30.00 | |||||||||||
FRANCHISE TAX BALANCE: | 0.00 | |
COMMAND: DSP SCREEN: FEF FILE NO: 9021376 | REQ #: 850860002 INDEX: | |
AGENT: STAT 1 A90213-76 POTTER, ANDERSON & CORROON, ESQS | SCREEN:FEF/FEP |
******* | DOCUMENT FILING CHARGES | ******* |
SEQ CORPORATION | FILING FEE | MISCELLANEOUS |
DOC DESCRIPTION | RCVNG/INDEX | FRANCHISE |
01 |
0284427 | SOUTHERN PROGRESS CORPORATION 20.00 | ||||
0251A | MERGER OF DELAWARE CORPORATION 25.00 | |||||
02 |
0284427 | SOUTHERN PROGRESS CORPORATION 70.00 | ||||
6025A | CERTIFICATE OF MERGER | |||||
03 |
2055066 | SID CORPORATION | ||||
0251A | MERGER OF DELAWARE CORPORATIONS | 30.00 | ||||
TOTAL CHARGES :145.00 |
SERVICE REQUEST BALANCE: | 45.00 | ||||
COMMAND DSP SCREEN: FEP FILE NO: 9021376 | REQ #: 850860002 INDEX | |
AGENT: STAF =1 A90213-76 POTTER, ANDERSON & CORROON, ESQS | SCREEN: FEP/SRV |
******* | SERVICE REQUEST PAYMENT RECORD | ******* |
STATUS: CLOSED : INVOICE | LAST CHANGED 03/27/1985 BY CLW |
PAYMENTS RECEIVED
SEQ | TYPE | CHECK # | AMOUNT | STATUS | BATCH | DATE | FROM | SRN | ||||||||
01 | CASH | 1997 | 70.00 | D DEPOSITED | 9315 | 03/28/1985 | ||||||||||
02 | CASH | 1998 | 30.00 | D DEPOSITED | 9315 | 03/28/1985 | ||||||||||
TOTAL PAYMENTS: | 100.00 | SERVICE RQST | BALANCE | 45.00 |
COMMENTS:
00004
9902120323
DATE SUBMITTED July 31, 1989 | ||
FILED BY: THE PRENTICE-HALL CORPORATION | FILE DATE July 31, 1989 | |
SYSTEM. INC. Deb | TIME 9 AM | |
RICHARD/JSH * NY | ||
Job # 28-89-30224 | FILERS NO. 9000012 | |
NAME OF COMPANY SOUTHERN PROGRESS CORPORATION | ||
RESERVATION # | FILE NUMBER 02844-27 (CT to pH) | |
TYPE OF DOCUMENT Change of Registered Agent | SECTION NO. 0133 | |
CHANGES NAME | ||
CHANGES AGENT/OFFICE CT to PH STOCK $ |
||
TO $ | ||
FRANCHISE TAX | $ | |
Filing Fee Tax | $ 5 | |
Receiving and Indexing | $ 25 | |
No. 3 Certified Copies | $ 30 | |
No. PAGES (If Prepared by the Division of Corp.) | $ | |
OTHER | $ | |
OTHER | $ | |
SPECIAL SERVICES | $ | |
SPECIAL SERVICES | $ | |
TOTAL | $ | |
15 | ||
3 | ||
18 | ||
DO NOT USE |
Closed/lnvoice
AUG 15 1989
Division of Corporation
SECRETARY OF STATE
2301524-26
902120323
FILED
JUL, 31 1989
9 AM
SECRETARY OF STATE
CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE
AND OF REGISTERED AGENT
It is hereby certified that:
1. | The name of the corporation (hereinafter called the corporation) is SOUTHERN PROGRESS CORPORATION |
2. | The registered office of the corporation within the State of Delaware is hereby changed to 229 South State Street, City of Dover 19901, County of Kent. |
3. | The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. |
4. | The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. |
Signed on May 30, 1989.
/s/ James Nelson | ||
James Nelson, Exec, Vice -President |
Attest: |
/s/ Betty Robb Freeman |
Betty Robb Freeman, Assistant Secretary |
DEL.-C.A.-D.
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 10:00 AM 09/05/1997
9712962480284427
CERTIFICATE OF CHANGE OF REGISTERED AGENT
AND
REGISTERED OFFICE
Southern Progress Corporation a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
The present registered agent of the corporation is THE PRENTICE HALL CORPORATION SYSTEM, INC. and the present registered office of the corporation is in the county of New Castle.
The Board of Directors of THE COMPANY adopted the following resolutions as of the 1st day of July, 1997.
RESOLVED, that the registered office of the Corporation in the State of Delaware be, and it hereby is, changed to The Corporation Trust Company. Corporation Trust Center, 1209 Orange Street, in the City of Wilmington. County of New Castle; and further
RESOLVED, that the authorization of the present registered agent of the Corporation in the State of Delaware be, and it hereby is withdrawn and that The Corporation Trust Company be, and it hereby is, appointed the registered agent of the Corporation in the State of Delaware at the address of the Corporations registered office.
IN WITNESS WHEREOF, THE COMPANY has caused this statement to be signed by Richard I. Friedman, its Assistant Secretary, as of this 31st day of July, 1997.
By: | Richard I. Friedman | |
Richard I. Friedman | ||
Assistant Secretary |
Exhibit 3.48
EXHIBIT A
BY-LAWS
OF
SOUTHERN PROGRESS CORPORATION
A Delaware Corporation
TABLE OF CONTENTS
Article |
Page | |||||||
I |
Offices | 1 | ||||||
Section 1 | - | Offices | 1 | |||||
II |
Meetings of Stockholders | 1 | ||||||
Section 1 | - | Annual Meetings | 1 | |||||
Section 2 | - | Special Meetings | 1 | |||||
Section 3 | - | Notice of Meetings | 1 | |||||
Section 4 | - | Quorum and Manner of Acting | 2 | |||||
Section 5 | - | Organization of Meetings | 2 | |||||
Section 6 | - | Order of Business | 2 | |||||
Section 7 | - | Voting | 3 | |||||
Section 8 | - | Consent in Lieu of Meeting | 4 | |||||
Section 9 | - | List of Stockholders | 4 | |||||
Section 10 | - | Inspectors | 5 | |||||
III |
Board of Directors | |||||||
Section 1 | - | General Powers | 5 | |||||
Section 2 | - | Number and Term of Office | 5 | |||||
Section 3 | - | Election | 5 | |||||
Section 4 | - | Meetings | 5 | |||||
Section 5 | - | Compensation | 7 | |||||
Section 6 | - | Resignation, Removal and Vacancies | 7 | |||||
IV |
Committees | |||||||
Section 1 | - | Number, Appointment, Term of Office, etc. | 8 | |||||
Section 2 | - | Functions and Powers | 9 | |||||
Section 3 | - | Rules | 9 | |||||
V |
Officers | |||||||
Section 1 | - | Election and Appointment and Term of Office | 9 | |||||
Section 2 | - | Resignation, Removal and Vacancies | 9 | |||||
Section 3 | - | Duties and Functions | 10 | |||||
VI |
Indemnification | |||||||
Section 1 | - | Right to Indemnification | 12 | |||||
Section 2 | - | Insurance, Contracts and Funding | 13 | |||||
Section 3 | - | Indemnification Not Exclusive Right | 13 | |||||
Section 4 | - | Indemnification of Employees and Agents | 13 | |||||
VII |
Waiver of Notices: Place of Meetings | |||||||
Section 1 | - | Waiver of Notices | 14 | |||||
Section 2 | - | Place of Meetings | 14 |
VIII | Execution and Delivery of Documents; Deposits; Proxies; Books and Records | |||||||
Section 1 | - | Execution and Delivery of Documents; Delegation | 14 | |||||
Section 2 | - | Deposits | 15 | |||||
Section 3 | - | Proxies in Respect of Stock or Other Securities Of Other Corporations | 15 | |||||
Section 4 | - | Books and Records | 15 | |||||
IX | Certificates: Stock Record: Transfer and Registration; New Certificates; Record Date; etc. | |||||||
Section 1 | - | Certificates for Stock | 15 | |||||
Section 2 | - | Stock Record | 16 | |||||
Section 3 | - | Transfer and Registration of Stock | 16 | |||||
Section 4 | - | New Certificates | 16 | |||||
Section 5 | - | Regulations | 17 | |||||
Section 6 | - | Fixing Date for Determination of Stockholders of Record | 17 | |||||
X | Seal | |||||||
Section 1 | - | Seal | 17 | |||||
XI | Fiscal Year | |||||||
Section 1 | - | Fiscal Year | 17 | |||||
XII | Amendments | |||||||
Section 1 | - | Amendments | 18 | |||||
XIII | Subject to Law | |||||||
Section 1 | - | Subject to Law | 18 |
BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote, of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
Section 3. Notice of Meetings. Notice of each meeting of the stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such stockholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such stockholder at his address as it appears on the stock record of the corporation or by transmitting notice thereof to him at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the stockholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
Section 4. Quorum and Manner of Acting. If stockholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the stockholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until stockholders holding the amount of stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of stockholders holding the number of shares of stock of the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy stockholders holding the number of shares of stock of the Corporation required in respect of such other matter.
Section 5. Organization of Meetings. At each meeting of the stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
(a) the Chairman of the Board, or if he is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat.
The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by a majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
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Section 7. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him and registered in his name on the stock record of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date of the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or
(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he shall in writing so notify the secretary of the meeting prior to voting of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his proxy if there be such proxy, and shall state the number of shares voted.
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Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
Section 9. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
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Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his election and until his successor shall be elected and qualified or until his earlier death or resignation or removal in the manner hereinafter provided.
Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
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(c) Special Meetings. Special meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any tow directors.
(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a typewritten notice thereof to such director personally or by depositing such notice in the United States mail, postage prepaid, directed to such director at his residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him at such address by telegraph cable or other form or recorded communication. The purpose of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
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(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he is not present or if no person holds such office, any director chosen by a majority of the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof, may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him on account of his attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 6. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
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Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board cause by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his successor shall be elected and shall qualify or until his earlier death or resignation or removal in the manner herein.
ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filled at any time by the vote of a majority of the whole Board.
In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
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Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including, the power and authority to declare dividends and to authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
ARTICLE V
Officers
Section 1. Election and Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice Presidents, or any or all the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one or more Assistant Treasures, or any or all of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal, and Vacancies. Any officer may resign at any time by giving written notice of his resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
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Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected, he shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he shall be present; shall perform such duties as are incident to the office of the Chairman of Board; and shall perform such other duties as may from time to time be prescribed by the board.
(b) Vice Chairman. If any Vice Chairman or Vice Chairmen of the Board are appointed or elected, they shall be members of the Board; shall preside at meetings of the Board and of the stockholders, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected, he shall preside at meetings of the Executive Committee; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
(d) President. If a President is appointed or elected he shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice Chairman of the Board is appointed or elected and is present.
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(e) Vice Presidents. If any Vice President or Vice Presidents are appointed or elected, they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice Presidents.
(f) Secretary. If a Secretary is appointed or elected, he shall attend and keep the records of all meetings of the stockholders and Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
(g) Treasurer. If a Treasurer is appointed or elected, he shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
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(h) Controller. If Controller is appointed or elected he shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a 50 percent or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of
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an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered
Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
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ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
ARTICLE VIII
Execution and Delivery of Documents; Deposits; Proxies; Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such delegation may be by resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
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Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities of Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he may deem necessary or proper in order that the Corporation any exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of Delaware as the proper officers of the Corporation may from time to time determine.
ARTICLE IX
Certificates; Stock Record; Transfer and Registration; New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the Board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice Chairman, the President or a Vice President of the Corporation and by the Treasurer, and Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he
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were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for or exchange or transfer shall be canceled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so canceled, except in cases provided for in Section 4 of this Article.
Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
Section 4. New Certificates.
(a) Lost. Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
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(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates of stock of the Corporation.
Section 6. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix, in advance, a record date, which shall not be more than 60 or less than 10 days before the date of such meeting, nor more than 60 days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
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ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
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Exhibit 3.49
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 02:00 PM 07/17/2000
001360148 - 3260543
CERTIFICATE OF INCORPORATION
OF
MDSC CORPORATION
FIRST The name of the Corporation is: MDSC Corporation.
SECOND The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.
THIRD The nature of the business or purposes to be conducted or promoted by the Corporation is as follows:
To engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
FOURTH The total number of shares of stock which the Corporation shall have authority to issue is 3,000 shares of Common Stock, $1.00 par value per share.
The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the General Corporation Law of Delaware.
FIFTH The name and mailing address of the sole incorporator are as follows:
NAME |
MAILING ADDRESS | |
Jonathan A. Siegel |
c/o Synapse Group, Inc. 4 High Ridge Park Stamford, CT 06905 |
SIXTH In furtherance of and not in limitation of powers conferred by statute, it is further provided:
1. | Election of directors need not be by written ballot. |
2. | The Board of Directors is expressly authorized to adopt, amend or repeal the By-Laws of the Corporation. |
SEVENTH Except to the extent that the General Corporation Law of Delaware prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability. No amendment to or repeal of this provision shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment.
EIGHTH The Corporation shall to the fullest extent permitted by Section 145 of the General Corporation Law of Delaware, as amended from time to time, indemnify each 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, by reason of the fact that he is or was, or has agreed to become, a director or officer of the Corporation, or is or was serving, or has agreed to serve, at the request of the Corporation, as a director, officer or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (including any employee benefit plan) (all such persons being referred to hereafter as an Indemnitee), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by or on behalf of an Indemnitee in connection with such action, suit or proceeding and any appeal therefrom.
As a condition precedent to his right to be indemnified, the Indemnitee must notify the Corporation in writing as soon as practicable of any action, suit, proceeding or investigation involving him for which indemnity will or could be sought. With respect to any action, suit, proceeding or investigation of which the Corporation is so notified, the Corporation will be entitled to participate therein at its own expense and/or to assume the defense thereof at its own expense, with legal counsel reasonably acceptable to the Indemnitee.
In the event that the Corporation does not assume the defense of any action, suit, proceeding or investigation of which the Corporation receives notice under this Article, the Corporation shall pay in advance of the final disposition of such matter any expenses (including attorneys fees) incurred by an Indemnitee in defending a civil or criminal action, suit, proceeding or investigation or any appeal therefrom; provided, however, that the payment of such expenses incurred by an Indemnitee in advance of the final disposition of such matter shall be made only upon receipt of an undertaking by or on behalf of the Indemnitee to repay all amounts so advanced in the event that it shall ultimately be determined that the Indemnitee is not entitled to be indemnified by the Corporation as authorized in this Article, which undertaking shall be accepted without reference to the financial ability of the Indemnitee to make such repayment; and further provided that no such advancement of expenses shall be made if it is determined that (i) the Indemnitee did not act in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Corporation, or (ii) with respect to any criminal action or proceeding, the Indemnitee had reasonable cause to believe his conduct was unlawful.
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The Corporation shall not indemnify an Indemnitee seeking indemnification in connection with a proceeding (or part thereof) initiated by such Indemnitee unless the initiation thereof was approved by the Board of Directors of the Corporation. In addition, the Corporation shall not indemnify an Indemnitee to the extent such Indemnitee is reimbursed from the proceeds of insurance, and in the event the Corporation makes any indemnification payments to an Indemnitee and such Indemnitee is subsequently reimbursed from the proceeds of insurance, such Indemnitee shall promptly refund such indemnification payments to the Corporation to the extent of such insurance reimbursement.
All determinations hereunder as to the entitlement of an Indemnitee to indemnification or advancement of expenses shall be made in each instance by (a) a majority vote of the directors of the Corporation consisting of persons who are not at that time parties to the action, suit or proceeding in question (disinterested directors), whether or not a quorum, (b) a majority vote of a quorum of the outstanding shares of stock of all classes entitled to vote for directors, voting as a single class, which quorum shall consist of stockholders who are not at that time parties to the action, suit or proceeding in question, (c) independent legal counsel (who may, to the extent permitted by law, be regular legal counsel to the Corporation), or (d) a court of competent jurisdiction.
The indemnification rights provided in this Article (i) shall not be deemed exclusive of any other rights to which an Indemnitee may be entitled under any law, agreement or vote of stockholders or disinterested directors or otherwise, and (ii) shall inure to the benefit of the heirs, executors and administrators of the Indemnitees. The Corporation may, to the extent authorized from time to time by its Board of Directors, grant indemnification rights to other employees or agents of the Corporation or other persons serving the Corporation and such rights may be equivalent to, or greater or less than, those set forth in this Article.
NINTH The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute and this Certificate of Incorporation, and all rights conferred upon stockholders herein are granted subject to this reservation.
EXECUTED the 13th day of July, 2000.
/s/ Jonathan A. Siegel |
Jonathan A. Siegel |
Incorporator |
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STATE OF DELAWARE
CERTIFICATE of AMENDMENT of
CERTIFICATE of INCORPORATION
MDSC Corporation, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That, by written consent to action in lieu of a meeting, the Board of Directors of MDSC CORPORATION duly adopted resolutions setting forth a proposed amendment of the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
Resolved, that it is advisable that the name of this corporation be changed to Synapse Direct, Inc. and that accordingly Article FIRST of the Certificate of Incorporation of the Corporation shall be amended to read as follows:
The name of the Corporation is: Synapse Direct, Inc.
SECOND: That thereafter, pursuant to resolution of its Board of Directors, by means of a written consent to action in lieu of a meeting of the sole stockholder of said corporation, the necessary number of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
FOURTH: That the capital of said corporation shall not be reduced under or by reason of said amendment.
IN WITNESS WHEREOF, said MDSC Corporation has caused this certificate to be signed by Jonathan A. Siegel, an Authorized Officer, this 17th day of November, A.D. 2004.
State of Delaware Secretary of State Division of Corporations Delivered 08:00 AM 11/29/2004 FILED 08:00 AM 11/29/2004 SRV 040852094 - 3260543 FILE |
By: /s/ Jonathan A. Siegel Jonathan A. Siegel Executive Vice President, General Counsel and Assistant Secretary |
State of Delaware Secretary of State Division of Corporations Delivered 08:00 AM 03/07/2011 FILED 08:00 AM 03/07/2011 SRV 110270320 - 3260543 FILE |
STATE OF DELAWARE
CERTIFICATE FOR RENEWAL
AND REVIVAL OF CHARTER
The corporation organized under the laws of the State of Delaware, the charter of which was voided for non-payment of taxes and/or for failure to file a complete annual report, now desires to procure a restoration, renewal and revival of its charter pursuant to Section 312 of the General Corporation Law of the State of Delaware, and hereby certifies as follows:
1. The name of the corporation is Synapse Direct, Inc.,
2. The Registered Office of the corporation in the State of Delaware is located at 1209 Orange Street (street), in the City of Wilmington, County of New Castle Zip Code 19801. The name of the Registered Agent at such address upon whom process against this Corporation may be served is The Corporation Trust Company.
3. The date of filing of the Corporations original Certificate of Incorporation in Delaware was 07/17/2000.
4. The renewal and revival of the charter of this corporation is to be perpetual.
5. The corporation was duly organized and carried on the business authorized by its charter until the 1st day of March A.D. 2010, at which time its charter became inoperative and void for non-payment of taxes and/or failure to file a complete annual report and the certificate for renewal and revival is filed by authority of the duly elected directors of the corporation in accordance with the laws of the State of Delaware.
By: | /s/ John Kinney | |
Authorized Officer | ||
Name: | John Kinney | |
Print or Type | ||
Exhibit 3.50
BY-LAWS
OF
MDSC CORPORATION
BY-LAWS
TABLE OF CONTENTS
Page | ||||||
ARTICLE 1 - Stockholders |
4 | |||||
1.1 |
Place of Meetings | 4 | ||||
1.2 |
Annual Meeting | 4 | ||||
1.3 |
Special Meetings | 4 | ||||
1.4 |
Notice of Meetings | 4 | ||||
1.5 |
Voting List | 5 | ||||
1.6 |
Quorum | 5 | ||||
1.7 |
Adjournments | 5 | ||||
1.8 |
Voting and Proxies | 5 | ||||
1.9 |
Action at Meeting | 5 | ||||
1.10 |
Action without Meeting | 6 | ||||
ARTICLE 2 - Directors |
6 | |||||
2.1 |
General Powers | 6 | ||||
2.2 |
Number; Election and Qualification | 6 | ||||
2.3 |
Enlargement of the Board | 6 | ||||
2.4 |
Tenure | 6 | ||||
2.5 |
Vacancies | 7 | ||||
2.6 |
Resignation | 7 | ||||
2.7 |
Regular Meetings | 7 | ||||
2.8 |
Special Meetings | 7 | ||||
2.9 |
Notice of Special Meetings | 7 | ||||
2.10 |
Meetings by Telephone Conference Calls | 7 | ||||
2.11 |
Quorum | 8 | ||||
2.12 |
Action at Meeting | 8 | ||||
2.13 |
Action by Consent | 8 | ||||
2.14 |
Removal | 8 | ||||
2.15 |
Committees | 8 | ||||
2.16 |
Compensation of Directors | 9 | ||||
ARTICLE 3 - Officers |
9 | |||||
3.1 |
Enumeration | 9 | ||||
3.2 |
Election | 9 | ||||
3.3 |
Qualification | 9 | ||||
3.4 |
Tenure | 9 | ||||
3.5 |
Resignation and Removal | 9 | ||||
3.6 |
Vacancies | 10 |
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3.7 |
Chairman of the Board and Vice-Chairman of the Board | 10 | ||||
3.8 |
President | 10 | ||||
3.9 |
Vice Presidents | 10 | ||||
3.10 |
Secretary and Assistant Secretaries | 10 | ||||
3.11 |
Treasurer and Assistant Treasurers | 11 | ||||
3.12 |
Salaries | 11 | ||||
ARTICLE 4 - Capital Stock |
11 | |||||
4.1 |
Issuance of Stock | 11 | ||||
4.2 |
Certificates of Stock | 12 | ||||
4.3 |
Transfers | 12 | ||||
4.4 |
Lost, Stolen or Destroyed Certificates | 13 | ||||
4.5 |
Record Date | 13 | ||||
ARTICLE 5 - General Provisions |
13 | |||||
5.1 |
Fiscal Year | 13 | ||||
5.2 |
Corporate Seal | 14 | ||||
5.3 |
Waiver of Notice | 14 | ||||
5.4 |
Voting of Securities | 14 | ||||
5.5 |
Evidence of Authority | 14 | ||||
5.6 |
Certificate of Incorporation | 14 | ||||
5.7 |
Transactions with Interested Parties | 14 | ||||
5.8 |
Severability | 15 | ||||
5.9 |
Pronouns | 15 | ||||
ARTICLE 6 - Amendments |
15 | |||||
6.1 |
By the Board of Directors | 15 | ||||
6.2 |
By the Stockholders | 15 |
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BY-LAWS
OF
MDSC CORPORATION
ARTICLE 1 - Stockholders
1.1 Place of Meetings. All meetings of stockholders shall be held at such place within or without the State of Delaware as may be designated from time to time by the Board of Directors or the President or, if not so designated, at the registered office of the corporation.
1.2 Annual Meeting. The annual meeting of stockholders for the election of directors and for the transaction of such other business as may properly be brought before the meeting shall be held on a date to be fixed by the Board of Directors or the President (which date shall not be a legal holiday in the place where the meeting is to be held) at the time and place to be fixed by the Board of Directors or the President and stated in the notice of the meeting. If no annual meeting is held in accordance with the foregoing provisions, the Board of Directors shall cause the meeting to be held as soon thereafter as convenient. If no annual meeting is held in accordance with the foregoing provisions, a special meeting may be held in lieu of the annual meeting, and any action taken at that special meeting shall have the same effect as if it had been taken at the annual meeting, and in such case all references in these By-laws to the annual meeting of the stockholders shall be deemed to refer to such special meeting.
1.3 Special Meetings. Special meetings of stockholders may be called at any time by the President or by the Board of Directors. Business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes stated in the notice of meeting.
1.4 Notice of Meetings. Except as otherwise provided by law, written notice of each meeting of stockholders, whether annual or special, shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder entitled to vote at such meeting. The notices of all meetings shall state the place, date and hour of the meeting. The notice of a special meeting shall state, in addition, the purpose or purposes for which the meeting is called. If mailed, notice is given when deposited in the United States mail, postage prepaid, directed to the stockholder at his address as it appears on the records of the corporation.
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1.5 Voting List. The officer who has charge of the stock ledger of the corporation shall prepare, 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, during ordinary business hours, for a period of at least 10 days prior to the meeting, at a place within the city where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time of the meeting, and may be inspected by any stockholder who is present.
1.6 Quorum. Except as otherwise provided by law, the Certificate of Incorporation or these By-laws, the holders of a majority of the shares of the capital stock of the corporation issued and outstanding and entitled to vote at the meeting, present in person or represented by proxy, shall constitute a quorum for the transaction of business.
1.7 Adjournments. Any meeting of stockholders may be adjourned to any other time and to any other place at which a meeting of stockholders may be held under these By-laws by the stockholders present or represented at the meeting and entitled to vote, although less than a quorum, or, if no stockholder is present, by any officer entitled to preside at or to act as Secretary of such meeting. It shall not be necessary to notify any stockholder of any adjournment of less than 30 days if the time and place of the adjourned meeting are announced at the meeting at which adjournment is taken, unless after the adjournment a new record date is fixed for the adjourned meeting. At the adjourned meeting, the corporation may transact any business which might have been transacted at the original meeting.
1.8 Voting and Proxies. Each stockholder shall have one vote for each share of stock entitled to vote held of record by such stockholder and a proportionate vote for each fractional share so held, unless otherwise provided in the Certificate of Incorporation. Each stockholder of record entitled to vote at a meeting of stockholders, or to express consent or dissent to corporate action in writing without a meeting, may vote or express such consent or dissent in person or may authorize another person or persons to vote or act for him by written proxy executed by the stockholder or his authorized agent and delivered to the Secretary of the corporation. No such proxy shall be voted or acted upon after three years from the date of its execution, unless the proxy expressly provides for a longer period.
1.9 Action at Meeting. When a quorum is present at any meeting, the holders of shares of stock representing a majority of the votes cast on a matter (or if there are two or more classes of stock entitled to vote as separate classes, then in the case of each such class, the holders of shares of stock of that class representing a majority of the votes cast on a matter) shall decide any matter to be voted upon by the stockholders at such meeting, except when a different vote is required by express provision of law, the Certificate of Incorporation or these By-Laws. When a quorum is present at any meeting, any election by stockholders shall be determined by a plurality of the votes cast on the election.
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1.10 Action without Meeting. Any action required or permitted to be taken at any annual or special meeting of stockholders of the corporation may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote on such action were present and voted. Prompt notice of the taking of corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.
ARTICLE 2 - Directors
2.1 General Powers. The business and affairs of the corporation shall be managed by or under the direction of a Board of Directors, who may exercise all of the powers of the corporation except as otherwise provided by law or the Certificate of Incorporation. In the event of a vacancy in the Board of Directors, the remaining directors, except as otherwise provided by law, may exercise the powers of the full Board until the vacancy is filled.
2.2 Number; Election and Qualification. The number of directors which shall constitute the whole Board of Directors shall be determined by resolution of the stockholders or the Board of Directors, but in no event shall be less than one. The number of directors may be decreased at any time and from time to time either by the stockholders or by a majority of the directors then in office, but only to eliminate vacancies existing by reason of the death, resignation, removal or expiration of the term of one or more directors. The directors shall be elected at the annual meeting of stockholders by such stockholders as have the right to vote on such election. Directors need not be stockholders of the corporation.
2.3 Enlargement of the Board. The number of directors may be increased at any time and from time to time by the stockholders or by a majority of the directors then in office.
2.4 Tenure. Each director shall hold office until the next annual meeting and until his successor is elected and qualified, or until his earlier death, resignation or removal.
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2.5 Vacancies. Unless and until filled by the stockholders, any vacancy in the Board of Directors, however occurring, including a vacancy resulting from an enlargement of the Board, may be filled by vote of a majority of the directors then in office, although less than a quorum, or by a sole remaining director. A director elected to fill a vacancy shall be elected for the unexpired term of his predecessor in office, and a director chosen to fill a position resulting from an increase in the number of directors shall hold office until the next annual meeting of stockholders and until his successor is elected and qualified, or until his earlier death, resignation or removal.
2.6 Resignation. Any director may resign by delivering his written resignation to the corporation at its principal office or to the President or Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event.
2.7 Regular Meetings. Regular meetings of the Board of Directors may be held without notice at such time and place, either within or without the State of Delaware, as shall be determined from time to time by the Board of Directors; provided that any director who is absent when such a determination is made shall be given notice of the determination. A regular meeting of the Board of Directors may be held without notice immediately after and at the same place as the annual meeting of stockholders.
2.8 Special Meetings. Special meetings of the Board of Directors may be held at any time and place, within or without the State of Delaware, designated in a call by the Chairman of the Board, President, two or more directors, or by one director in the event that there is only a single director in office.
2.9 Notice of Special Meetings. Notice of any special meeting of directors shall be given to each director by the Secretary or by the officer or one of the directors calling the meeting. Notice shall be duly given to each director (i) by giving notice to such director in person or by telephone at least 48 hours in advance of the meeting, (ii) by sending a telegram or telex, or delivering written notice by hand, to his last known business or home address at least 48 hours in advance of the meeting, or (iii) by mailing written notice to his last known business or home address at least 72 hours in advance of the meeting. A notice or waiver of notice of a meeting of the Board of Directors need not specify the purposes of the meeting.
2.10 Meetings by Telephone Conference Calls. Directors or any members of any committee designated by the directors may participate in a meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation by such means shall constitute presence in person at such meeting.
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2.11 Quorum. A majority of the total number of the whole Board of Directors shall constitute a quorum at all meetings of the Board of Directors. In the event one or more of the directors shall be disqualified to vote at any meeting, then the required quorum shall be reduced by one for each such director so disqualified; provided, however, that in no case shall less than one-third (1/3) of the number so fixed constitute a quorum. In the absence of a quorum at any such meeting, a majority of the directors present may adjourn the meeting from time to time without further notice other than announcement at the meeting, until a quorum shall be present.
2.12 Action at Meeting. At any meeting of the Board of Directors at which a quorum is present, the vote of a majority of those present shall be sufficient to take any action, unless a different vote is specified by law, the Certificate of Incorporation or these By-Laws.
2.13 Action by Consent. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee of the Board of Directors may be taken without a meeting, if all members of the Board or committee, as the case may be, consent to the action in writing, and the written consents are filed with the minutes of proceedings of the Board or committee.
2.14 Removal. Except as otherwise provided by the General Corporation Law of Delaware, any one or more or all of the directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors, except that the directors elected by the holders of a particular class or series of stock may be removed without cause only by vote of the holders of a majority of the outstanding shares of such class or series.
2.15 Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members of the committee present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors and subject to the provisions of the General Corporation Law of the State of Delaware, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation and may authorize the seal of the corporation to be affixed to all papers which may require it. Each such committee shall keep minutes and make such reports as the Board of Directors may from time to time request. Except as the Board of Directors may otherwise determine, any committee may make rules for the conduct of its business, but unless otherwise provided by the directors or in such rules, its business shall be conducted as nearly as possible in the same manner as is provided in these By-laws for the Board of Directors.
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2.16 Compensation of Directors. Directors may be paid such compensation for their services and such reimbursement for expenses of attendance at meetings as the Board of Directors may from time to time determine. No such payment shall preclude any director from serving the corporation or any of its parent or subsidiary corporations in any other capacity and receiving compensation for such service.
ARTICLE 3 - Officers
3.1 Enumeration. The officers of the corporation shall consist of a President, a Secretary, a Treasurer and such other officers with such other titles as the Board of Directors shall determine, including a Chairman of the Board, a Vice-Chairman of the Board, and one or more Vice Presidents, Assistant Treasurers, and Assistant Secretaries. The Board of Directors may appoint such other officers as it may deem appropriate.
3.2 Election. The President, Treasurer and Secretary shall be elected annually by the Board of Directors at its first meeting following the annual meeting of stockholders. Other officers may be appointed by the Board of Directors at such meeting or at any other meeting.
3.3 Qualification. No officer need be a stockholder. Any two or more offices may be held by the same person.
3.4 Tenure. Except as otherwise provided by law, by the Certificate of Incorporation or by these By-laws, each officer shall hold office until his successor is elected and qualified, unless a different term is specified in the vote choosing or appointing him, or until his earlier death, resignation or removal.
3.5 Resignation and Removal. Any officer may resign by delivering his written resignation to the corporation at its principal office or to the President or Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event.
Any officer may be removed at any time, with or without cause, by vote of a majority of the entire number of directors then in office.
Except as the Board of Directors may otherwise determine, no officer who resigns or is removed shall have any right to any compensation as an officer for any period following his resignation or removal, or any right to damages on account of such removal, whether his compensation be by the month or by the year or otherwise, unless such compensation is expressly provided in a duly authorized written agreement with the corporation.
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3.6 Vacancies. The Board of Directors may fill any vacancy occurring in any office for any reason and may, in its discretion, leave unfilled for such period as it may determine any offices other than those of President, Treasurer and Secretary. Each such successor shall hold office for the unexpired term of his predecessor and until his successor is elected and qualified, or until his earlier death, resignation or removal.
3.7 Chairman of the Board and Vice-Chairman of the Board. The Board of Directors may appoint a Chairman of the Board and may designate the Chairman of the Board as Chief Executive Officer. If the Board of Directors appoints a Chairman of the Board, he shall perform such duties and possess such powers as are assigned to him by the Board of Directors. If the Board of Directors appoints a Vice-Chairman of the Board, he shall, in the absence or disability of the Chairman of the Board, perform the duties and exercise the powers of the Chairman of the Board and shall perform such other duties and possess such other powers as may from time to time be vested in him by the Board of Directors.
3.8 President. The President shall, subject to the direction of the Board of Directors, have general charge and supervision of the business of the corporation. Unless otherwise provided by the Board of Directors, he shall preside at all meetings of the stockholders and, if he is a director, at all meetings of the Board of Directors. Unless the Board of Directors has designated the Chairman of the Board or another officer as Chief Executive Officer, the President shall be the Chief Executive Officer of the corporation. The President shall perform such other duties and shall have such other powers as the Board of Directors may from time to time prescribe.
3.9 Vice Presidents. Any Vice President shall perform such duties and possess such powers as the Board of Directors or the President may from time to time prescribe. In the event of the absence, inability or refusal to act of the President, the Vice President (or if there shall be more than one, the Vice Presidents in the order determined by the Board of Directors) shall perform the duties of the President and when so performing shall have all the powers of and be subject to all the restrictions upon the President. The Board of Directors may assign to any Vice President the title of Executive Vice President, Senior Vice President or any other title selected by the Board of Directors.
3.10 Secretary and Assistant Secretaries. The Secretary shall perform such duties and shall have such powers as the Board of Directors or the President may from time to time prescribe. In addition, the Secretary shall perform such duties and have such powers as are incident to the office of the secretary, including without limitation the duty and power to give notices of all meetings of stockholders and special meetings of the Board of Directors, to attend all meetings of stockholders and the Board of Directors and keep a record of the proceedings, to maintain a stock ledger and prepare lists of stockholders and their addresses as required, to be custodian of corporate records and the corporate seal and to affix and attest to the same on documents.
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Any Assistant Secretary shall perform such duties and possess such powers as the Board of Directors, the President or the Secretary may from time to time prescribe. In the event of the absence, inability or refusal to act of the Secretary, the Assistant Secretary, (or if there shall be more than one, the Assistant Secretaries in the order determined by the Board of Directors) shall perform the duties and exercise the powers of the Secretary.
In the absence of the Secretary or any Assistant Secretary at any meeting of stockholders or directors, the person presiding at the meeting shall designate a temporary secretary to keep a record of the meeting.
3.11 Treasurer and Assistant Treasurers. The Treasurer shall perform such duties and shall have such powers as may from time to time be assigned to him by the Board of Directors or the President. In addition, the Treasurer shall perform such duties and have such powers as are incident to the office of treasurer, including without limitation the duty and power to keep and be responsible for all funds and securities of the corporation, to deposit funds of the corporation in depositories selected in accordance with these By-laws, to disburse such funds as ordered by the Board of Directors, to make proper accounts of such funds and to render as required by the Board of Directors statements of all such transactions and of the financial condition of the corporation.
The Assistant Treasurers shall perform such duties and possess such powers as the Board of Directors, the President or the Treasurer may from time to time prescribe. In the event of the absence, inability or refusal to act of the Treasurer, the Assistant Treasurer, (or if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors) shall perform the duties and exercise the powers of the Treasurer.
3.12 Salaries. Officers of the corporation shall be entitled to such salaries, compensation or reimbursement as shall be fixed or allowed from time to time by the Board of Directors.
ARTICLE 4 - Capital Stock
4.1 Issuance of Stock. Unless otherwise voted by the stockholders and subject to the provisions of the Certificate of Incorporation, the whole or any part of any unissued balance of the authorized capital stock of the corporation or the whole or any part of any unissued balance of the authorized capital stock of the corporation held in its treasury may be issued, sold, transferred or otherwise disposed of by vote of the Board of Directors in such manner, for such consideration and on such terms as the Board of Directors may determine.
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4.2 Certificates of Stock. Every holder of stock of the corporation shall be entitled to have a certificate, in such form as may be prescribed by law and by the Board of Directors, certifying the number and class of shares owned by him in the corporation. Each such certificate shall be signed by, or in the name of the corporation by, the Chairman or Vice-Chairman, if any, of the Board of Directors, or the President or a Vice President, and the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the corporation. Any or all of the signatures on the certificate may be a facsimile.
Each certificate for shares of stock which are subject to any restriction on transfer pursuant to the Certificate of Incorporation, the By-laws, applicable securities laws or any agreement among any number of shareholders or among such holders and the corporation shall have conspicuously noted on the face or back of the certificate either the full text of the restriction or a statement of the existence of such restriction.
If the corporation shall be authorized to issue more than one class of stock or more than one series of any class, the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of each certificate representing shares of such class or series of stock, provided that in lieu of the foregoing requirements there may be set forth on the face or back of each certificate representing shares of such class or series of stock a statement that the corporation will furnish without charge to each stockholder who so requests a copy of the full text of the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.
4.3 Transfers. Except as otherwise established by rules and regulations adopted by the Board of Directors, and subject to applicable law, shares of stock may be transferred on the books of the corporation by the surrender to the corporation or its transfer agent of the certificate representing such shares properly endorsed or accompanied by a written assignment or power of attorney properly executed, and with such proof of authority or the authenticity of signature as the corporation or its transfer agent may reasonably require. Except as may be otherwise required by law, by the Certificate of Incorporation or by these By-laws, the corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect to such stock, regardless of any transfer, pledge or other disposition of such stock until the shares have been transferred on the books of the corporation in accordance with the requirements of these By-laws.
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4.4 Lost, Stolen or Destroyed Certificates. The corporation may issue a new certificate of stock in place of any previously issued certificate alleged to have been lost, stolen, or destroyed, upon such terms and conditions as the Board of Directors may prescribe, including the presentation of reasonable evidence of such loss, theft or destruction and the giving of such indemnity as the Board of Directors may require for the protection of the corporation or any transfer agent or registrar.
4.5 Record Date. The Board of Directors may fix in advance a date as a record date for the determination of the stockholders entitled to notice of or to vote at any meeting of stockholders or to express consent (or dissent) to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action. Such record date shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 10 days after the date of adoption of a record date for a written consent without a meeting, nor more than 60 days prior to any other action to which such record date relates.
If no record date is fixed, 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 before the day on which notice is given, or if notice is waived, at the close of business on the day before the day on which the meeting is held. The record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is necessary, shall be the day on which the first written consent is properly delivered to the corporation. The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating to such purpose.
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 of Directors may fix a new record date for the adjourned meeting.
ARTICLE 5 - General Provisions
5.1 Fiscal Year. Except as from time to time otherwise designated by the Board of Directors, the fiscal year of the corporation shall begin on the first day of January in each year and end on the last day of December in each year.
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5.2 Corporate Seal. The corporate seal shall be in such form as shall be approved by the Board of Directors.
5.3 Waiver of Notice. Whenever any notice whatsoever is required to be given by law, by the Certificate of Incorporation or by these By-laws, a waiver of such notice either in writing signed by the person entitled to such notice or such persons duly authorized attorney, or by telegraph, cable or any other available method, whether before, at or after the time stated in such waiver, or the appearance of such person or persons at such meeting in person or by proxy, shall be deemed equivalent to such notice.
5.4 Voting of Securities. Except as the directors may otherwise designate, the President or Treasurer may waive notice of, and act as, or appoint any person or persons to act as, proxy or attorney-in-fact for this corporation (with or without power of substitution) at, any meeting of stockholders or shareholders of any other corporation or organization, the securities of which may be held by this corporation.
5.5 Evidence of Authority. A certificate by the Secretary, or an Assistant Secretary, or a temporary Secretary, as to any action taken by the stockholders, directors, a committee or any officer or representative of the corporation shall as to all persons who rely on the certificate in good faith be conclusive evidence of such action.
5.6 Certificate of Incorporation. All references in these By-laws to the Certificate of Incorporation shall be deemed to refer to the Certificate of Incorporation of the corporation, as amended and in effect from time to time.
5.7 Transactions with Interested Parties. No contract or transaction between the corporation and one or more of the directors or officers, or between the corporation and any other corporation, partnership, association, or other organization in which one or more of the directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or a committee of the Board of Directors which authorizes the contract or transaction or solely because his or their votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum;
(2) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or
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(3) The contract or transaction is fair as to the corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee of the Board of Directors, or the stockholders.
Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.
5.8 Severability. Any determination that any provision of these By-laws is for any reason inapplicable, illegal or ineffective shall not affect or invalidate any other provision of these By-laws.
5.9 Pronouns. All pronouns used in these By-laws shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or persons may require.
ARTICLE 6 - Amendments
6.1 By the Board of Directors. These By-laws may be altered, amended or repealed or new by-laws may be adopted by the affirmative vote of a majority of the directors present at any regular or special meeting of the Board of Directors at which a quorum is present.
6.2 By the Stockholders. These By-laws may be altered, amended or repealed or new by-laws may be adopted by the affirmative vote of the holders of a majority of the shares of the capital stock of the corporation issued and outstanding and entitled to vote at any regular meeting of stockholders, or at any special meeting of stockholders, provided notice of such alteration, amendment, repeal or adoption of new by-laws shall have been stated in the notice of such special meeting.
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Exhibit 3.51
STATE OF DELAWARE SECRETARY OF STATE | ||||
DIVISION OF CORPORATIONS FILED 10:00 AM 12/20/2002 020790516 3147816 |
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SYNAPSE GROUP, INC.
(Pursuant to Sections 242 and 245 of the General Corporation Law of the State of Delaware)
The undersigned President and Chief Executive Officer of Synapse Group, Inc., a Delaware corporation (the Corporation), hereby certifies as follows:
1. | The present name of the Corporation is Synapse Group, Inc., which is the name under which the Corporation was originally incorporated in Delaware; and the date of filing the original Certificate of Incorporation of the Corporation with the Secretary of State of the State of Delaware is December 22, 1999. |
2. | An Amended and Restated Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on December 12, 2001, amending and restating the Restated Certificate of Incorporation of the Corporation. |
3. | An Amended and Restated Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on December 17, 2001, further amending and restating the Amended and Restated Certificate of Incorporation of the Corporation, |
4. | This Amended and Restated Certificate of Incorporation further amends and restates the Amended and Restated Certificate of Incorporation of the Corporation now in effect. |
5. | This Amended and Restated Certificate of Incorporation was duly adopted pursuant to Sections 242 and 245 (and by the written consent of the Corporations stockholders in accordance with Section 228) of the General Corporation Law of the State of Delaware to read as follows: |
FIRST. The name of the Corporation is:
Synapse Group, Inc.
SECOND. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or promoted by the Corporation is as follows:
To engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the DGCL).
FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is 7,000 shares. All such shares are of one class and are shares of Common Stock, $10 par value per share.
FIFTH. In recognition that the ultimate parent of the Corporation as of the date hereof (Parent) and affiliates of Parent (other than the Corporation and any of its direct or indirect subsidiaries (the Subsidiaries)) (collectively, Parent Affiliates), and employees, officers, directors and agents of Parent and Parent Affiliates that are also officers or directors of the Corporation or its Subsidiaries (Parent Officers), are and will continue to be interested or involved, directly or indirectly, in businesses, opportunities, transactions or activities relating to the marketing of magazines, magazine subscriptions and other products, including, without limitation, directly or through partnership marketing with third parties (e.g. retailers, ticket sellers, television direct marketers, internet sites, banks and airlines) and through various methods (e.g. inbound telemarketing, outbound telemarketing, billing insertions, fundraising and points programs), and including, without limitation, businesses, opportunities, transactions and activities that are similar to or competitive with those engaged in by the Corporation (Other Parent Businesses), the provisions of this Article V are set forth to define the conduct of certain affairs of the Corporation as they may involve Other Parent Businesses.
Except as otherwise explicitly agreed between the Corporation and any of Parent or any Parent Affiliate, none of Parent, any Parent Affiliate or any Parent Officer shall be prevented or otherwise restricted in any way from having, undertaking or pursuing such Other Parent Businesses or any transaction related thereto in any manner they deem appropriate and receiving and enjoying profits or other compensation therefrom or otherwise acting, in each case, in a manner that Parent, any Parent Affiliate or any Parent Officer believes to be in their best interests without regard to the interests of the Corporation, its Subsidiaries or the stockholders of the Corporation, and the Corporation, its Subsidiaries and the stockholders of the Corporation hereby renounce any interest or expectancy of the Corporation or its Subsidiaries in, or in being offered an opportunity to participate in, the Other Parent Businesses or any transaction related thereto, including, without limitation, any such opportunities that the Corporation, its Subsidiaries or one or more of its officers, directors or stockholders are presented with or otherwise become aware of None of the Corporation, its Subsidiaries or any of the stockholders of the Corporation shall have any right to object to, or share or participate in, such Other Parent Businesses or any transaction related thereto, and accordingly, none of Parent, any Parent Affiliate or any Parent Officer shall have any obligation to the Corporation, its Subsidiaries or any of the stockholders of the Corporation in connection with Parents, any Parent Affiliates, or any Parent Officers participation in such Other Parent Businesses, all irrespective of the effects upon the Corporation, its Subsidiaries or any of the stockholders of the Corporation. None of Parent or any Parent Affiliate shall be liable to the Corporation, its Subsidiaries or its stockholders for breach of any fiduciary or other duty by reason of such Other Parent Businesses or of such persons participation therein.
SIXTH. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the directors duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of Delaware, or (iv) for
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any transaction from which the director derived an improper personal benefit. If the General Corporation Law of Delaware is amended after approval by the stockholders of this Section to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of Delaware as so amended.
SEVENTH. The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Incorporation, in the manner now or hereafter prescribed by statute and this Amended and Restated Certificate of Incorporation, and all rights conferred upon stockholders herein are granted subject to this reservation.
EXECUTED at Stamford, Connecticut, on December 20, 2002.
/s/ Michael Loeb |
Michael Loeb, President and |
Chief Executive Officer |
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State of Delaware Secretary of State Division of Corporations Delivered 08:00 AM 03/07/2011 FILED 08:00 AM 03/07/2011 SRV 110270342 3147816 FILE |
STATE OF DELAWARE
CERTIFICATE FOR RENEWAL
AND REVIVAL OF CHARTER
The corporation organized under the laws of the State of Delaware, the charter of which was voided for non-payment of taxes and/or for failure to file a complete annual report, now desires to procure a restoration, renewal and revival of its charter pursuant to Section 312 of the General Corporation Law of the State of Delaware, and hereby certifies as follows:
1. The name of the corporation is Synapse Group, Inc.
2. The Registered Office of the corporation in the State of Delaware is located at 1209 Orange Street (street), in the City of Wilmington, County of New Castle Zip Code 19801. The name of the Registered Agent at such address upon whom process against this Corporation may be served is The Corporation Trust Company.
3. The dale of filing of the Corporations original Certificate of Incorporation in Delaware was 12/22/1999.
4. The renewal and revival of the charter of this corporation is to be perpetual.
5. The corporation was duly organized and carried on the business authorized by its charter until the 1st day of March A.D 2010, at which time its charter became inoperative and void for non-payment of taxes and/or failure to file a complete annual report and the certificate for renewal and revival is filed by authority of the duly elected directors of the corporation in accordance with the laws of the State of Delaware.
By: | /s/ John Kinney | |
Authorized Officer | ||
Name: | John Kinney | |
Print or Type |
Exhibit 3.52
BY-LAWS
OF
SYNAPSE GROUP, INC.
(Incorporated under the Laws of the State of Delaware)
As Adopted as of September 14, 2006
TABLE OF CONTENTS
Article |
Page | |||||
I. |
Offices | 1 | ||||
II. |
Meetings of Stockholders | 1 | ||||
Section 1 - Annual Meetings | 1 | |||||
Section 2 - Special Meetings | 1 | |||||
Section 3 - Notice of Meetings | 2 | |||||
Section 4 - Quorum and Manner of Acting | 2 | |||||
Section 5 - Organization of Meetings | 3 | |||||
Section 6 - Order of Business | 3 | |||||
Section 7 - Voting | 3 | |||||
Section 8 - Consent in Lieu of Meeting | 5 | |||||
Section 9 - List of Stockholders | 5 | |||||
Section 10 - Inspectors | 6 | |||||
III. |
Board of Directors | 6 | ||||
Section 1 - General Powers | 6 | |||||
Section 2 - Number and Term of Office | 6 | |||||
Section 3 - Election | 7 | |||||
Section 4 - Meetings | 7 | |||||
Section 5 - Compensation | 9 | |||||
Section 6 - Resignation, Removal and Vacancies | 9 | |||||
IV. |
Committees | 10 | ||||
Section 1 - Number, Appointment, Term of Office, etc. | 10 | |||||
Section 2 - Functions and Powers | 11 | |||||
Section 3 - Rules | 11 | |||||
V. |
Officers | 12 | ||||
Section 1 - Election, Appointment and Term of Office | 12 | |||||
Section 2 - Resignation, Removal and Vacancies | 12 | |||||
Section 3 - Duties and Functions | 13 | |||||
VI. |
Indemnification | 15 | ||||
Section 1 - Right to Indemnification | 15 | |||||
Section 2 - Insurance, Contracts and Funding | 16 | |||||
Section 3 - Indemnification Not Exclusive Right | 17 | |||||
Section 4 - Indemnification of Employees and Agents | 17 |
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VII. |
Waiver of Notices; Places of Meetings | 18 | ||||
Section 1 - Waiver of Notices | 18 | |||||
Section 2 - Place of Meetings | 18 | |||||
VIII. |
Execution and Delivery of Documents; Deposits; Proxies. Books and Records | 18 | ||||
Section 1 - Execution and Delivery of Documents; Delegation | 18 | |||||
Section 2 - Deposits | 19 | |||||
Section 3 - Proxies in Respect of Stock or Other Securities in Other Corporations | 19 | |||||
Section 4 - Books and Records | 19 | |||||
IX. |
Certificates; Stock Record; Transfer and Registration; New Certificates; Record Date, etc. | 20 | ||||
Section 1 - Certificates for Stock | 20 | |||||
Section 2 - Stock Record | 20 | |||||
Section 3 - Transfer and Registration of Stock | 21 | |||||
Section 4 - New Certificates | 21 | |||||
Section 5 - Regulations | 22 | |||||
Section 6 - Fixing Date for Determination of Stockholders of Record | 22 | |||||
X. |
Seal | 22 | ||||
Section 1 - Seal | 22 | |||||
XI. |
Fiscal Year | 23 | ||||
Section 1 - Fiscal Year | 23 | |||||
XII. |
Amendments | 23 | ||||
Section 1 - Amendments | 23 | |||||
XIII. |
Subject to Law | 23 | ||||
Section 1 - Subject to Law | 23 |
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BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
Section 3. Notice of Meetings. Notice of each meeting of the stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such stockholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such stockholder at his or her address as it appears on the stock record of the Corporation or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the stockholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
Section 4. Quorum and Manner of Acting. If stockholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the stockholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until stockholders holding the amount of stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of stockholders holding the number of shares of stock of the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy stockholders holding the number of shares of stock of the Corporation required in respect of such other matter.
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Section 5. Organization of Meetings. At each meeting of the stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
(a) the Chairman of the Board, or, if he or she is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat.
The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by the majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
Section 7. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him or her and registered in his or her name on the stock record of the Corporation:
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(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or
(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he or she shall in writing so notify the secretary of the meeting prior to the voting of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his or her proxy if there be such proxy, and shall state the number of shares voted.
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Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
Section 9. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
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Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his or her discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his or her election and until his or her successor shall be elected and qualified or until his or her earlier death or resignation or removal in the manner hereinafter provided.
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Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
(c) Special Meetings. Special Meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a type-written notice thereof to such director personally or by depositing such notice in the United States mail, postage prepaid, directed to such director at his or her residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. The purposes of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
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(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he or she is not present or if no person holds such office, any director chosen by a majority or the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
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(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his or her serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him or her on account of his or her attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 6. Resignation. Removal and Vacancies. Any director may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
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Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board caused by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his or her successor shall be elected and shall qualify or until his or her earlier death or resignation or removal in the manner set forth herein.
ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he or she remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
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In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or she or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including the power and authority to declare dividends and to authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all paper which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
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ARTICLE V
Officers
Section 1. Election, Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice Presidents, or any or all of the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one or more Assistant Treasurers, or any or all of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal and Vacancies. Any officer may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
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A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected he or she shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he or she shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the stockholders at which they shall be present, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he or she shall preside at meetings of the Executive Committee at which he or she shall be present; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
(d) Chief Executive Officer. If a Chief Executive Officer is appointed or elected he or she shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He or she shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice Chairman of the Board is appointed or elected and is present.
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(e) President and Vice Presidents. If any President or one or more Vice Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the Chief Executive Officer if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice-Presidents.
(f) Secretary. If a Secretary is appointed or elected he or she shall attend and keep the records of all meetings of the stockholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the Chief Executive Officer, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall be assigned to him or her by the Chief Executive Officer, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the Chief Executive Officer, if one is appointed or elected, or the Board may direct.
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(g) Treasurer. If a Treasurer is appointed or elected he or she shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him or her by the Chief Executive Officer, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the Chief Executive Officer, if one is appointed or elected, or the Board may direct.
(h) Controller. If a controller is appointed or elected he or she shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him or her by the Chief Executive Officer, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the Chief Executive Officer, if one is appointed or elected, or the Board may direct.
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ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a fifty percent (50%) or greater equity interest; (c) a not- for- profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitie. Any right of an Indemnitie to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitie in connection with such Proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
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Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
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ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
ARTICLE VIII
Execution and Delivery of Documents; Deposits;
Proxies; Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including
18
authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such delegation may be resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities in Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he or she may deem necessary or proper in order that the Corporation may exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of Delaware as the proper officers of the Corporation may from time to time determine.
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ARTICLE IX
Certificates: Stock Record; Transfer and Registration;
New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him or her in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice-Chairman, the Chief Executive Officer, President or a Vice-President of the Corporation and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he or she were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for exchange or transfer shall be canceled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so canceled, except in cases provided for in Section 4 of this Article.
Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
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Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his or her attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
Section 4. New Certificates.
(a) Lost, Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he or she has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
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Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
Section 6. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
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ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
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Exhibit 3.53
STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 02:30 PM 11/13/2002 020700917 3583549 |
CERTIFICATE OF INCORPORATION
OF
RETAIL MARKETING SERVICES CORPORATION
1. The name of the Corporation is: Retail Marketing Services Corporation.
2. The address of the registered office of the Corporation in the State of Delaware is c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of the registered agent of the Corporation at such address is The Corporation Trust Company.
3. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the Corporation shall have authority to issue is (1,000) and the par value of each of such shares is One Cent ($. 01). All such shares are of one class and are shares of Common Stock.
5. The board of directors of the Corporation shall have the power to make, adopt, alter, amend or repeal the by-laws of the Corporation. The election of directors of the Corporation need not be by written ballot.
6. The name and mailing address of the incorporator of the Corporation are:
Jonathan A. Siegel
Synapse Group, Inc.
4 High Ridge Park
Stamford, CT 07905
7. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the directors duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of Delaware, or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law of Delaware is amended after approval by the stockholders of this Section to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of Delaware as so amended.
THE UNDERSIGNED, being the sole incorporator of the Corporation, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, does hereby sign this Certificate of Incorporation this 6th day of November, 2002.
/s/ Jonathan A. Siegel |
Jonathan A. Siegel |
Sole Incorporator |
STATE OF DELAWARE
CERTIFICATE of AMENDMENT of
CERTIFICATE of INCORPORATION
Retail Marketing Services Corporation, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware.
DOES HEREBY CERTIFY:
FIRST: That, by written consent to action in lieu of a meeting, the Board of Directors of Retail Marketing Services Corporation duly adopted resolutions setting forth a proposed amendment of the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said Corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that it is advisable that the name of this Corporation be changed to Synapse Retail Ventures, Inc. and that accordingly Article FIRST of the Certificate of Incorporation of the Corporation shall be amended to read as follows:
The name of the Corporation is: Synapse Retail Ventures, Inc.
SECOND: That thereafter, pursuant to resolution of its Board of Directors and by means of a written consent to action in lieu of a meeting of the sole stockholder of said Corporation, the necessary number of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
FOURTH: That the capital of said corporation shall not be reduced under or by reason of said amendment.
IN WITNESS WHEREOF, said Retail Marketing Services Corporation has caused this certificate to be signed by Jonathan A. Siegel, an Authorized Officer, this 27 day of February, A.D. 2004.
By: | /s/ Jonathan A. Siegel | |
Jonathan A. Siegel | ||
Executive Vice President, | ||
Corporate General Counsel and | ||
Assistant Secretary |
State of Delaware Secretary of State Division of Corporations Delivered 01:09 PM 03/03/2004 FILED 12:52 PM 03/03/2004 SRV 040161803 - 3583549 FILE |
State of Delaware Secretary of State Division of Corporations Delivered 08:00 AM 03/07/2011 FILED 08:00 AM 03/07/2011 SRV 110270280 3583549 FILE |
STATE OF DELAWARE
CERTIFICATE FOR RENEWAL
AND REVIVAL OF CHARTER
The corporation organized under the laws of the State of Delaware, the charter of which was voided for non-payment of taxes and/or for failure to file a complete annual report, now desires to procure a restoration, renewal and revival of its charter pursuant to Section 312 of the General Corporation Law of the State of Delaware, and hereby certifies as follows:
1. The name of the corporation is Synapse Retail Ventures, Inc.
2. The Registered Office of the corporation in the State of Delaware is located at 1209 Orange Street (street), in the City of Wilmington, County of New Castle Zip Code 1980). The name of the Registered Agent at such address upon whom process against this Corporation may be served is The Corporation Trust Company.
3. The date of filing of the Corporations original Certificate of Incorporation in Delaware was 11/13/2002.
4. The renewal and revival of the charter of this corporation is to be perpetual.
5. The corporation was duly organized and carried on the business authorized by its charter until the 1st day of March A.D. 2010, at which time its charter became inoperative and void for non-payment of taxes and/or failure to file a complete annual report and the certificate for renewal and revival is filed by authority of the duly elected directors of the corporation in accordance with the laws of the State of Delaware.
By: | /s/ John Kinney | |
Authorized Officer |
Name: | John Kinney | |
Print or Type |
Exhibit 3.54
BY-LAWS
OF
RETAIL MARKETING SERVICES CORPORATION
(Incorporated under the Laws of the State of Delaware)
As Adopted as of November 13, 2002
TABLE OF CONTENTS
Article | Page | |||||
I | Offices | 1 | ||||
II | Meetings of Stockholders | 1 | ||||
Section 1 - Annual Meetings | 1 | |||||
Section 2 - Special Meetings | 1 | |||||
Section 3 - Notice of Meetings | 2 | |||||
Section 4 - Quorum and Manner of Acting | 2 | |||||
Section 5 - Organization of Meetings | 3 | |||||
Section 6 - Order of Business | 3 | |||||
Section 7 Voting | 3 | |||||
Section 8 - Consent in Lieu of Meeting | 4 | |||||
Section 9 - List of Stockholders | 5 | |||||
Section 10 Inspectors | 5 | |||||
III | Board of Directors | 6 | ||||
Section 1 - General Powers | 6 | |||||
Section 2 - Number and Term of Office | 6 | |||||
Section 3 - Election | 6 | |||||
Section 4 Meetings | 6 | |||||
Section 5 Compensation | 8 | |||||
Section 6 - Resignation, Removal and Vacancies | 9 | |||||
IV | Committees | 9 | ||||
Section 1 - Number, Appointment, Term of Office, etc. | 9 | |||||
Section 2 - Functions and Powers | 10 | |||||
Section 3 Rules | 10 | |||||
V | Officers | 11 | ||||
Section 1 - Election, Appointment and Term of Office | 11 | |||||
Section 2 - Resignation, Removal and Vacancies | 11 | |||||
Section 3 - Duties and Functions | 12 | |||||
VI | Indemnification | 15 | ||||
Section 1 - Right to Indemnification | 15 | |||||
Section 2 - Insurance, Contracts and Funding | 16 | |||||
Section 3 - Indemnification Not Exclusive Right | 16 | |||||
Section 4 - Indemnification of Employees and Agents | 16 |
xxiii |
VII | Waiver of Notices; Places of Meetings | 17 | ||
Section 1 - Waiver of Notices | 17 | |||
Section 2 - Place of Meetings | 17 | |||
VIII | Execution and Delivery of Documents; Deposits; Proxies, Books and Records | 17 | ||
Section 1 - Execution and Delivery of Documents; Delegation | 17 | |||
Section 2 - Deposits | 18 | |||
Section 3 - Proxies in Respect of Stock or Other Securities in Other Corporations | 18 | |||
Section 4 - Books and Records | 18 | |||
IX | Certificates; Stock Record; Transfer and Registration; New Certificates; Record Date, etc. | 19 | ||
Section 1 - Certificates for Stock | 19 | |||
Section 2 - Stock Record | 19 | |||
Section 3 - Transfer and Registration of Stock Section 4 - New Certificates |
20 | |||
20 | ||||
Section 5 - Regulations Section 6 - Fixing Date for Determination of Stockholders of Record |
21 | |||
21 | ||||
X | Seal | 21 | ||
XI | Fiscal Year | 21 | ||
XII | Amendments | 22 | ||
XIII | Subject to Law | 22 |
xxiv |
BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
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Section 3. Notice of Meetings. Notice of each meeting of the stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such stockholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such stockholder at his or her address as it appears on the stock record of the Corporation or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the stockholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
Section 4. Quorum and Manner of Acting. If stockholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the stockholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until stockholders holding the amount of stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of stockholders holding the number of shares of stock of the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy stockholders holding the number of shares of stock of the Corporation required in respect of such other matter.
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Section 5. Organization of Meetings. At each meeting of the stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
(a) | the Chairman of the Board, or, if he or she is not present or if no person holds such office, any officer of the Corporation designated by the Board; or |
(b) | any officer of the Corporation designated by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat. |
The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by the majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
Section 7. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him or her and registered in his or her name on the stock record of the Corporation:
(a) | on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or |
(b) | if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining stockholders entitled |
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to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he or she shall in writing so notify the secretary of the meeting prior to the voting of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his or her proxy if there be such proxy, and shall state the number of shares voted. |
Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be
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necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
Section 9. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his or her discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
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ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his or her election and until his or her successor shall be elected and qualified or until his or her earlier death or resignation or removal in the manner hereinafter provided.
Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
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(c) Special Meetings. Special Meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a type-written notice thereof to such director personally or by depositing such notice in the United States mail, postage prepaid, directed to such director at his or her residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. The purposes of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
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(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he or she is not present or if no person holds such office, any director chosen by a majority or the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writings or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his or her serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him or her on account of his or her attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
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Section 6. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board caused by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his or her successor shall be elected and shall qualify or until his or her earlier death or resignation or removal in the manner set forth herein.
ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he or she remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
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(i) | In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or she or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member. |
Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including the power and authority to declare dividends and to authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
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ARTICLE V
Officers
Section 1. Election, Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice Presidents, or any or all of the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one or more Assistant Treasurers, or any or all of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal and Vacancies. Any officer may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
(i) | Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer. |
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(a) | A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office. |
Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) | Chairman. If a Chairman of the Board is appointed or elected he or she shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he or she shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board. |
(b) | Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the stockholders at which they shall be present; unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board. |
(c) | Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he or she shall preside at meetings of the Executive Committee at which he or she shall be present; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine. |
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(d) | President. If a President is appointed or elected he or she shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He or she shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice Chairman of the Board is appointed or elected and is present. |
(e) | Vice Presidents. If any Vice President or Vice Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice-Presidents. |
(f) | Secretary. If a Secretary is appointed or elected he or she shall attend and keep the records of all meetings of the stockholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the Corporation and of all contracts, deeds, documents and other corporate |
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papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct. |
(g) | Treasurer. If a Treasurer is appointed or elected he or she shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct. |
(h) | Controller. If a controller is appointed or elected he or she shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct. |
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ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a fifty percent (50%) or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or
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officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such Proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or
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agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
ARTICLE VII
Waiver of Notices: Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
ARTICLE VIII
Execution and Delivery of Documents; Deposits;
Proxies: Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of
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money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such delegation may be resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities in Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he or she may deem necessary or proper in order that the Corporation may exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of Delaware as the proper officers of the Corporation may from time to time determine.
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ARTICLE IX
Certificates; Stock Record; Transfer and Registration; New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him or her in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice-Chairman, the President or a Vice-President of the Corporation and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he or she were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for exchange or transfer shall be canceled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so canceled, except in cases provided for in Section 4 of this Article.
Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
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Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his or her attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
Section 4. New Certificates.
(a) Lost, Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he or she has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
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Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
Section 6. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
xxi |
ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
xxii |
Exhibit 3.55
CERTIFICATE OF INCORPORATION
OF
SYNAPSE SUB 1, INC.
FIRST The name of the Corporation is: Synapse Sub 1, Inc.
SECOND The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.
THIRD The nature of the business or purposes to be conducted or promoted by the Corporation is as follows:
To engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
FOURTH The total number of shares of stock which the Corporation shall have authority to issue is 3,000 shares of Common Stock, $1.00 par value per share.
The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the General Corporation Law of Delaware.
FIFTH The name and mailing address of the sole incorporator are as follows:
NAME | MAILING ADDRESS | |
Jonathan A. Siegel | c/o Synapse Group, Inc. 4 High Ridge Park Stamford, CT 06905 |
SIXTH In furtherance of and not in limitation of powers conferred by statute, it is further provided:
1. Election of directors need not be by written ballot.
2. The Board of Directors is expressly authorized to adopt, amend or repeal the By-Laws of the Corporation.
STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 04:00 PM 07/06/2000 001342934 3218670 |
SEVENTH Except to the extent that the General Corporation Law of Delaware prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability. No amendment to or repeal of this provision shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment.
EIGHTH The Corporation shall, to the fullest extent permitted by Section 145 of the General Corporation Law of Delaware, as amended from time to time, indemnify each 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, by reason of the fact that he is or was, or has agreed to become, a director or officer of the Corporation, or is or was serving, or has agreed to serve, at the request of the Corporation, as a director, officer or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (including any employee benefit plan) (all such persons being referred to hereafter as an Indemnitee), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by or on behalf of an Indemnitee in connection with such action, suit or proceeding and any appeal therefrom.
As a condition precedent to his right to be indemnified, the Indemnitee must notify the Corporation in writing as soon as practicable of any action, suit, proceeding or investigation involving him for which indemnity will or could be sought. With respect to any action, suit, proceeding or investigation of which the Corporation is so notified, the Corporation will be entitled to participate therein at its own expense and/or to assume the defense thereof at its own expense, with legal counsel reasonably acceptable to the Indemnitee.
In the event that the Corporation does not assume the defense of any action, suit, proceeding or investigation of which the Corporation receives notice under this Article, the Corporation shall pay in advance of the final disposition of such matter any expenses (including attorneys fees) incurred by an Indemnitee in defending a civil or criminal action, suit, proceeding or investigation or any appeal therefrom; provided, however, that the payment of such expenses incurred by an Indemnitee in advance of the final disposition of such matter shall be made only upon receipt of an undertaking by or on behalf of the Indemnitee to repay all amounts so advanced in the event that it shall ultimately be determined that the Indemnitee is not entitled to be indemnified by the Corporation as authorized in this Article, which undertaking shall be accepted without reference to the financial ability of the Indemnitee to make such repayment; and further provided that no such advancement of expenses shall be made if it is determined that (i) the Indemnitee did not act in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Corporation, or (ii) with respect to any criminal action or proceeding, the Indemnitee had reasonable cause to believe his conduct was unlawful.
- 2 -
The Corporation shall not indemnify an Indemnitee seeking indemnification in connection with a proceeding (or part thereof) initiated by such Indemnitee unless the initiation thereof was approved by the Board of Directors of the Corporation. In addition, the Corporation shall not indemnify an Indemnitee to the extent such Indemnitee is reimbursed from the proceeds of insurance, and in the event the Corporation makes any indemnification payments to an Indemnitee and such Indemnitee is subsequently reimbursed from the proceeds of insurance, such Indemnitee shall promptly refund such indemnification payments to the Corporation to the extent of such insurance reimbursement.
All determinations hereunder as to the entitlement of an Indemnitee to indemnification or advancement of expenses shall be made in each instance by (a) a majority vote of the directors of the Corporation consisting of persons who are not at that time parties to the action, suit or proceeding in question (disinterested directors), whether or not a quorum, (b) a majority vote of a quorum of the outstanding shares of stock of all classes entitled to vote for directors, voting as a single class, which quorum shall consist of stockholders who are not at that time parties to the action, suit or proceeding in question, (c) independent legal counsel (who may, to the extent permitted by law, be regular legal counsel to the Corporation), or (d) a court of competent jurisdiction.
The indemnification rights provided in this Article (i) shall not be deemed exclusive of any other rights to which an Indemnitee may be entitled under any law, agreement or vote of stockholders or disinterested directors or otherwise, and (ii) shall inure to the benefit of the heirs, executors and administrators of the Indemnitees. The Corporation may, to the extent authorized from time to time by its Board of Directors, grant indemnification rights to other employees or agents of the Corporation or other persons serving the Corporation and such rights may be equivalent to, or greater or less than, those set forth in this Article.
NINTH The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute and this Certificate of Incorporation, and all rights conferred upon stockholders herein are granted subject to this reservation.
EXECUTED the 30th day of June, 2000
/s/ Jonathan A. Siegel |
Jonathan A. Siegel Incorporator |
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
SYNAPSE SUB 1, INC.
Pursuant to Section 242 of the
Corporation Law of the State of Delaware
Synapse Sub 1, Inc. (the Corporation), organized and existing under and by virtue of the General Corporation Law of the State of Delaware, does hereby certify:
That the Board of Directors of the Corporation duly adopted a resolution, pursuant to Section 242 of the General Corporation Law of the State of Delaware, setting forth an amendment to the Certificate of Incorporation of the Corporation and declaring said amendment to be advisable. The stockholders of the Corporation duly approved said proposed amendment by written consent in accordance with Sections 228 and 242 of the General Corporation Law of the State of Delaware. The resolution setting forth the amendment is as follows:
RESOLVED: | That the Certificate of Incorporation of the Corporation be and hereby is amended by deleting Article First and substituting therefor the following: |
Article First. The name of the corporation is: Magazine Direct, Inc.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be signed by Michael Loeb, its President this 17th day of July, 2000.
SYNAPSE SUB I. INC. | ||
By: | /s/ Michael Loeb | |
Michael Loeb | ||
President |
STATE OF DELAWARE | ||||
SECRETARY OF STATE | ||||
DIVISION OF CORPORATIONS | ||||
FILED 03:30 PM 07/18/2000 | ||||
001363118 3218670 |
STATE OF DELAWARE
CERTIFICATE of AMENDMENT of
CERTIFICATE of INCORPORATION
Magazine Direct, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That, by written consent to action in lieu of a meeting, the Board of Directors of MAGAZINE DIRECT, INC. duly adopted resolutions setting forth a proposed amendment of the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
Resolved, that it is advisable that the name of this corporation be changed to Synapse Ventures, Inc. and that accordingly Article FIRST of the Certificate of Incorporation of the Corporation shall be amended to read as follows:
The name of the Corporation is: Synapse Ventures, Inc.
SECOND: That thereafter, pursuant to resolution of its Board of Directors, and by means of a written consent to action in lieu of a meeting of the sole stockholder of said corporation, the necessary number of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
FOURTH: That the capital of said corporation shall not be reduced under or by reason of said amendment.
IN WITNESS WHEREOF, said Magazine Direct, Inc. has caused this certificate to be signed by Jonathan A. Siegel, an Authorized Officer, this 17th day of November, A.D. 2004.
By: | /s/ Jonathan A. Siegel | |
Jonathan A. Siegel | ||
Executive Vice President, | ||
General Counsel and | ||
Assistant Secretary |
State of Delaware | ||||
Secretary of State | ||||
Division of Corporations | ||||
Delivered 08:00 AM 11/29/2004 | ||||
FILED 08:00 AM 11/29/2004 | ||||
SRV 040852101 3218670 FILE |
STATE OF DELAWARE
CERTIFICATE FOR RENEWAL
AND REVIVAL OF CHARTER
The corporation organized under the laws of the State of Delaware, the charter of which was voided for non-payment of taxes and/or for failure to file a complete annual report, now desires to procure a restoration, renewal and revival of its charter pursuant to Section 312 of the General Corporation Law of the State of Delaware, and hereby certifies as follows:
1. The name of the corporation is Synapse Ventures, Inc.
2. The Registered Office of the corporation in the State of Delaware is located at 1209 Orange Street (street), in the City of Wilmington, County of New Castle Zip Code 19801. The name of the Registered Agent at such address upon whom process against this Corporation may be served is The Corporation Trust Company.
3. The date of filing of the Corporations original Certificate of Incorporation in Delaware was 07/06/2000.
4. The renewal and revival of the charter of this corporation is to be perpetual.
5. The corporation was duly organized and carried on the business authorized by its charter until the 1st day of March A.D. 2010, at which time its charter became inoperative and void for non-payment of taxes and/or failure to file a complete annual report and the certificate for renewal and revival is filed by authority of the duly elected directors of the corporation in accordance with the laws of the State of Delaware.
By: | /s/ John Kinney | |
Authorized Officer | ||
Name: | John Kinney | |
Print or Type |
State of Delaware | ||||
Secretary of State | ||||
Division of Corporations | ||||
Delivered 08:00 AM 03/07/2011 | ||||
FILED 08:00 AM 03/07/2011 | ||||
SRV 110270292 3218670 FILE |
Exhibit 3.56
BY-LAWS
OF
SYNAPSE SUB 1, INC.
BY-LAWS
TABLE OF CONTENTS
Page | ||||||
ARTICLE 1 - Stockholders |
4 | |||||
1.1 |
Place of Meetings | 4 | ||||
1.2 |
Annual Meeting | 4 | ||||
1.3 |
Special Meetings | 4 | ||||
1.4 |
Notice of Meetings | 4 | ||||
1.5 |
Voting List | 5 | ||||
1.6 |
Quorum | 5 | ||||
1.7 |
Adjournments | 5 | ||||
1.8 |
Voting and Proxies | 5 | ||||
1.9 |
Action at Meeting | 5 | ||||
1.10 |
Action without Meeting | 6 | ||||
ARTICLE 2 - Directors |
6 | |||||
2.1 |
General Powers | 6 | ||||
2.2 |
Number; Election and Qualification | 6 | ||||
2.3 |
Enlargement of the Board | 6 | ||||
2.4 |
Tenure | 6 | ||||
2.5 |
Vacancies | 7 | ||||
2.6 |
Resignation | 7 | ||||
2.7 |
Regular Meetings | 7 | ||||
2.8 |
Special Meetings | 7 | ||||
2.9 |
Notice of Special Meetings | 7 | ||||
2.10 |
Meetings by Telephone Conference Calls | 7 | ||||
2.11 |
Quorum | 8 | ||||
2.12 |
Action at Meeting | 8 | ||||
2.13 |
Action by Consent | 8 | ||||
2.14 |
Removal | 8 | ||||
2.15 |
Committees | 8 | ||||
2.16 |
Compensation of Directors | 9 | ||||
ARTICLE 3 - Officers |
9 | |||||
3.1 |
Enumeration | 9 | ||||
3.2 |
Election | 9 | ||||
3.3 |
Qualification | 9 | ||||
3.4 |
Tenure | 9 | ||||
3.5 |
Resignation and Removal | 9 | ||||
3.6 |
Vacancies | 10 |
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3.7 |
Chairman of the Board and Vice-Chairman of the Board | 10 | ||||
3.8 |
President | 10 | ||||
3.9 |
Vice Presidents | 10 | ||||
3.10 |
Secretary and Assistant Secretaries | 10 | ||||
3.11 |
Treasurer and Assistant Treasurers | 11 | ||||
3.12 |
Salaries | 11 | ||||
ARTICLE 4 - Capital Stock |
11 | |||||
4.1 |
Issuance of Stock | 11 | ||||
4.2 |
Certificates of Stock | 12 | ||||
4.3 |
Transfers | 12 | ||||
4.4 |
Lost, Stolen or Destroyed Certificates | 13 | ||||
4.5 |
Record Date | 13 | ||||
ARTICLE 5 - General Provisions |
13 | |||||
5.1 |
Fiscal Year | 13 | ||||
5.2 |
Corporate Seal | 14 | ||||
5.3 |
Waiver of Notice | 14 | ||||
5.4 |
Voting of Securities | 14 | ||||
5.5 |
Evidence of Authority | 14 | ||||
5.6 |
Certificate of Incorporation | 14 | ||||
5.7 |
Transactions with Interested Parties | 14 | ||||
5.8 |
Severability | 15 | ||||
5.9 |
Pronouns | 15 | ||||
ARTICLE 6 - Amendments |
15 | |||||
6.1 |
By the Board of Directors | 15 | ||||
6.2 |
By the Stockholders | 15 |
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BY-LAWS
OF
SYNAPSE SUB 1, INC.
ARTICLE 1 - Stockholders
1.1 Place of Meetings. All meetings of stockholders shall be held at such place within or without the State of Delaware as may be designated from time to time by the Board of Directors or the President or, if not so designated, at the registered office of the corporation.
1.2 Annual Meeting. The annual meeting of stockholders for the election of directors and for the transaction of such other business as may properly be brought before the meeting shall be held on a date to be fixed by the Board of Directors or the President (which date shall not be a legal holiday in the place where the meeting is to be held) at the time and place to be fixed by the Board of Directors or the President and stated in the notice of the meeting. If no annual meeting is held in accordance with the foregoing provisions, the Board of Directors shall cause the meeting to be held as soon thereafter as convenient. If no annual meeting is held in accordance with the foregoing provisions, a special meeting may be held in lieu of the annual meeting, and any action taken at that special meeting shall have the same effect as if it had been taken at the annual meeting, and in such case all references in these By-laws to the annual meeting of the stockholders shall be deemed to refer to such special meeting.
1.3 Special Meetings. Special meetings of stockholders may be called at any time by the President or by the Board of Directors. Business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes stated in the notice of meeting.
1.4 Notice of Meetings. Except as otherwise provided by law, written notice of each meeting of stockholders, whether annual or special, shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder entitled to vote at such meeting. The notices of all meetings shall state the place, date and hour of the meeting. The notice of a special meeting shall state, in addition, the purpose or purposes for which the meeting is called. If mailed, notice is given when deposited in the United States mail, postage prepaid, directed to the stockholder at his address as it appears on the records of the corporation.
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1.5 Voting List. The officer who has charge of the stock ledger of the corporation shall prepare, 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, during ordinary business hours, for a period of at least 10 days prior to the meeting, at a place within the city where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time of the meeting, and may be inspected by any stockholder who is present.
1.6 Quorum. Except as otherwise provided by law, the Certificate of Incorporation or these By-laws, the holders of a majority of the shares of the capital stock of the corporation issued and outstanding and entitled to vote at the meeting, present in person or represented by proxy, shall constitute a quorum for the transaction of business.
1.7 Adjournments. Any meeting of stockholders may be adjourned to any other time and to any other place at which a meeting of stockholders may be held under these By-laws by the stockholders present or represented at the meeting and entitled to vote, although less than a quorum, or, if no stockholder is present, by any officer entitled to preside at or to act as Secretary of such meeting. It shall not be necessary to notify any stockholder of any adjournment of less than 30 days if the time and place of the adjourned meeting are announced at the meeting at which adjournment is taken, unless after the adjournment a new record date is fixed for the adjourned meeting. At the adjourned meeting, the corporation may transact any business which might have been transacted at the original meeting.
1.8 Voting and Proxies. Each stockholder shall have one vote for each share of stock entitled to vote held of record by such stockholder and a proportionate vote for each fractional share so held, unless otherwise provided in the Certificate of Incorporation. Each stockholder of record entitled to vote at a meeting of stockholders, or to express consent or dissent to corporate action in writing without a meeting, may vote or express such consent or dissent in person or may authorize another person or persons to vote or act for him by written proxy executed by the stockholder or his authorized agent and delivered to the Secretary of the corporation. No such proxy shall be voted or acted upon after three years from the date of its execution, unless the proxy expressly provides for a longer period.
1.9 Action at Meeting. When a quorum is present at any meeting, the holders of shares of stock representing a majority of the votes cast on a matter (or if there are two or more classes of stock entitled to vote as separate classes, then in the case of each such class, the holders of shares of stock of that class representing a majority of the votes cast on a matter) shall decide any matter to be voted upon by the stockholders at such meeting, except when a different vote is required by express provision of law, the Certificate of Incorporation or these By-Laws. When a quorum is present at any meeting, any election by stockholders shall be determined by a plurality of the votes cast on the election.
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1.10 Action without Meeting. Any action required or permitted to be taken at any annual or special meeting of stockholders of the corporation may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote on such action were present and voted. Prompt notice of the taking of corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.
ARTICLE 2 - Directors
2.1 General Powers. The business and affairs of the corporation shall be managed by or under the direction of a Board of Directors, who may exercise all of the powers of the corporation except as otherwise provided by law or the Certificate of Incorporation. In the event of a vacancy in the Board of Directors, the remaining directors, except as otherwise provided by law, may exercise the powers of the full Board until the vacancy is filled.
2.2 Number; Election and Qualification. The number of directors which shall constitute the whole Board of Directors shall be determined by resolution of the stockholders or the Board of Directors, but in no event shall be less than one. The number of directors may be decreased at any time and from time to time either by the stockholders or by a majority of the directors then in office, but only to eliminate vacancies existing by reason of the death, resignation, removal or expiration of the term of one or more directors. The directors shall be elected at the annual meeting of stockholders by such stockholders as have the right to vote on such election. Directors need not be stockholders of the corporation.
2.3 Enlargement of the Board. The number of directors may be increased at any time and from time to time by the stockholders or by a majority of the directors then in office.
2.4 Tenure. Each director shall hold office until the next annual meeting and until his successor is elected and qualified, or until his earlier death, resignation or removal.
- 6 -
2.5 Vacancies. Unless and until filled by the stockholders, any vacancy in the Board of Directors, however occurring, including a vacancy resulting from an enlargement of the Board, may be filled by vote of a majority of the directors then in office, although less than a quorum, or by a sole remaining director. A director elected to fill a vacancy shall be elected for the unexpired term of his predecessor in office, and a director chosen to fill a position resulting from an increase in the number of directors shall hold office until the next annual meeting of stockholders and until his successor is elected and qualified, or until his earlier death, resignation or removal.
2.6 Resignation. Any director may resign by delivering his written resignation to the corporation at its principal office or to the President or Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event.
2.7 Regular Meetings. Regular meetings of the Board of Directors may be held without notice at such time and place, either within or without the State of Delaware, as shall be determined from time to time by the Board of Directors; provided that any director who is absent when such a determination is made shall be given notice of the determination. A regular meeting of the Board of Directors may be held without notice immediately after and at the same place as the annual meeting of stockholders.
2.8 Special Meetings. Special meetings of the Board of Directors may be held at any time and place, within or without the State of Delaware, designated in a call by the Chairman of the Board, President, two or more directors, or by one director in the event that there is only a single director in office.
2.9 Notice of Special Meetings. Notice of any special meeting of directors shall be given to each director by the Secretary or by the officer or one of the directors calling the meeting. Notice shall be duly given to each director (i) by giving notice to such director in person or by telephone at least 48 hours in advance of the meeting, (ii) by sending a telegram or telex, or delivering written notice by hand, to his last known business or home address at least 48 hours in advance of the meeting, or (iii) by mailing written notice to his last known business or home address at least 72 hours in advance of the meeting. A notice or waiver of notice of a meeting of the Board of Directors need not specify the purposes of the meeting.
2.10 Meetings by Telephone Conference Calls. Directors or any members of any committee designated by the directors may participate in a meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation by such means shall constitute presence in person at such meeting.
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2.11 Quorum. A majority of the total number of the whole Board of Directors shall constitute a quorum at all meetings of the Board of Directors. In the event one or more of the directors shall be disqualified to vote at any meeting, then the required quorum shall be reduced by one for each such director so disqualified; provided, however, that in no case shall less than one-third (1/3) of the number so fixed constitute a quorum. In the absence of a quorum at any such meeting, a majority of the directors present may adjourn the meeting from time to time without further notice other than announcement at the meeting, until a quorum shall be present.
2.12 Action at Meeting. At any meeting of the Board of Directors at which a quorum is present, the vote of a majority of those present shall be sufficient to take any action, unless a different vote is specified by law, the Certificate of Incorporation or these By-Laws.
2.13 Action by Consent. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee of the Board of Directors may be taken without a meeting, if all members of the Board or committee, as the case may be, consent to the action in writing, and the written consents are filed with the minutes of proceedings of the Board or committee.
2.14 Removal. Except as otherwise provided by the General Corporation Law of Delaware, any one or more or all of the directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors, except that the directors elected by the holders of a particular class or series of stock may be removed without cause only by vote of the holders of a majority of the outstanding shares of such class or series.
2.15 Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members of the committee present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors and subject to the provisions of the General Corporation Law of the State of Delaware, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation and may authorize the seal of the corporation to be affixed to all papers which may require it. Each such committee shall keep minutes and make such reports as the Board of Directors may from time to time request. Except as the Board of Directors may otherwise determine, any committee may make rules for the conduct of its business, but unless otherwise provided by the directors or in such rules, its business shall be conducted as nearly as possible in the same manner as is provided in these By-laws for the Board of Directors.
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2.16 Compensation of Directors. Directors may be paid such compensation for their services and such reimbursement for expenses of attendance at meetings as the Board of Directors may from time to time determine. No such payment shall preclude any director from serving the corporation or any of its parent or subsidiary corporations in any other capacity and receiving compensation for such service.
ARTICLE 3 - Officers
3.1 Enumeration. The officers of the corporation shall consist of a President, a Secretary, a Treasurer and such other officers with such other titles as the Board of Directors shall determine, including a Chairman of the Board, a Vice-Chairman of the Board, and one or more Vice Presidents, Assistant Treasurers, and Assistant Secretaries. The Board of Directors may appoint such other officers as it may deem appropriate.
3.2 Election. The President, Treasurer and Secretary shall be elected annually by the Board of Directors at its first meeting following the annual meeting of stockholders. Other officers may be appointed by the Board of Directors at such meeting or at any other meeting.
3.3 Qualification. No officer need be a stockholder. Any two or more offices may be held by the same person.
3.4 Tenure. Except as otherwise provided by law, by the Certificate of Incorporation or by these By-laws, each officer shall hold office until his successor is elected and qualified, unless a different term is specified in the vote choosing or appointing him, or until his earlier death, resignation or removal.
3.5 Resignation and Removal. Any officer may resign by delivering his written resignation to the corporation at its principal office or to the President or Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event.
Any officer may be removed at any time, with or without cause, by vote of a majority of the entire number of directors then in office.
Except as the Board of Directors may otherwise determine, no officer who resigns or is removed shall have any right to any compensation as an officer for any period following his resignation or removal, or any right to damages on account of such removal, whether his compensation be by the month or by the year or otherwise, unless such compensation is expressly provided in a duly authorized written agreement with the corporation.
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3.6 Vacancies. The Board of Directors may fill any vacancy occurring in any office for any reason and may, in its discretion, leave unfilled for such period as it may determine any offices other than those of President, Treasurer and Secretary. Each such successor shall hold office for the unexpired term of his predecessor and until his successor is elected and qualified, or until his earlier death, resignation or removal.
3.7 Chairman of the Board and Vice-Chairman of the Board. The Board of Directors may appoint a Chairman of the Board and may designate the Chairman of the Board as Chief Executive Officer. If the Board of Directors appoints a Chairman of the Board, he shall perform such duties and possess such powers as are assigned to him by the Board of Directors. If the Board of Directors appoints a Vice-Chairman of the Board, he shall, in the absence or disability of the Chairman of the Board, perform the duties and exercise the powers of the Chairman of the Board and shall perform such other duties and possess such other powers as may from time to time be vested in him by the Board of Directors.
3.8 President. The President shall, subject to the direction of the Board of Directors, have general charge and supervision of the business of the corporation. Unless otherwise provided by the Board of Directors, he shall preside at all meetings of the stockholders and, if he is a director, at all meetings of the Board of Directors. Unless the Board of Directors has designated the Chairman of the Board or another officer as Chief Executive Officer, the President shall be the Chief Executive Officer of the corporation. The President shall perform such other duties and shall have such other powers as the Board of Directors may from time to time prescribe.
3.9 Vice Presidents. Any Vice President shall perform such duties and possess such powers as the Board of Directors or the President may from time to time prescribe. In the event of the absence, inability or refusal to act of the President, the Vice President (or if there shall be more than one, the Vice Presidents in the order determined by the Board of Directors) shall perform the duties of the President and when so performing shall have all the powers of and be subject to all the restrictions upon the President. The Board of Directors may assign to any Vice President the title of Executive Vice President, Senior Vice President or any other title selected by the Board of Directors.
3.10 Secretary and Assistant Secretaries. The Secretary shall perform such duties and shall have such powers as the Board of Directors or the President may from time to time prescribe. In addition, the Secretary shall perform such duties and have such powers as are incident to the office of the secretary, including without limitation the duty and power to give notices of all meetings of stockholders and special meetings of the Board of Directors, to attend all meetings of stockholders and the Board of Directors and keep a record of the proceedings, to maintain a stock ledger and prepare lists of stockholders and their addresses as required, to be custodian of corporate records and the corporate seal and to affix and attest to the same on documents.
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Any Assistant Secretary shall perform such duties and possess such powers as the Board of Directors, the President or the Secretary may from time to time prescribe. In the event of the absence, inability or refusal to act of the Secretary, the Assistant Secretary, (or if there shall be more than one, the Assistant Secretaries in the order determined by the Board of Directors) shall perform the duties and exercise the powers of the Secretary.
In the absence of the Secretary or any Assistant Secretary at any meeting of stockholders or directors, the person presiding at the meeting shall designate a temporary secretary to keep a record of the meeting.
3.11 Treasurer and Assistant Treasurers. The Treasurer shall perform such duties and shall have such powers as may from time to time be assigned to him by the Board of Directors or the President. In addition, the Treasurer shall perform such duties and have such powers as are incident to the office of treasurer, including without limitation the duty and power to keep and be responsible for all funds and securities of the corporation, to deposit funds of the corporation in depositories selected in accordance with these By-laws, to disburse such funds as ordered by the Board of Directors, to make proper accounts of such funds, and to render as required by the Board of Directors statements of all such transactions and of the financial condition of the corporation.
The Assistant Treasurers shall perform such duties and possess such powers as the Board of Directors, the President or the Treasurer may from time to time prescribe. In the event of the absence, inability or refusal to act of the Treasurer, the Assistant Treasurer, (or if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors) shall perform the duties and exercise the powers of the Treasurer.
3.12 Salaries. Officers of the corporation shall be entitled to such salaries, compensation or reimbursement as shall be fixed or allowed from time to time by the Board of Directors.
ARTICLE 4 - Capital Stock
4.1 Issuance of Stock. Unless otherwise voted by the stockholders and subject to the provisions of the Certificate of Incorporation, the whole or any part of any unissued balance of the authorized capital stock of the corporation or the whole or any part of any unissued balance of the authorized capital stock of the corporation held in its treasury may be issued, sold, transferred or otherwise disposed of by vote of the Board of Directors in such manner, for such consideration and on such terms as the Board of Directors may determine.
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4.2 Certificates of Stock. Every holder of stock of the corporation shall be entitled to have a certificate, in such form as may be prescribed by law and by the Board of Directors, certifying the number and class of shares owned by him in the corporation. Each such certificate shall be signed by, or in the name of the corporation by, the Chairman or Vice-Chairman, if any, of the Board of Directors, or the President or a Vice President, and the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the corporation. Any or all of the signatures on the certificate may be a facsimile.
Each certificate for shares of stock which are subject to any restriction on transfer pursuant to the Certificate of Incorporation, the By-laws, applicable securities laws or any agreement among any number of shareholders or among such holders and the corporation shall have conspicuously noted on the face or back of the certificate either the full text of the restriction or a statement of the existence of such restriction.
If the corporation shall be authorized to issue more than one class of stock or more than one series of any class, the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of each certificate representing shares of such class or series of stock, provided that in lieu of the foregoing requirements there may be set forth on the face or back of each certificate representing shares of such class or series of stock a statement that the corporation will furnish without charge to each stockholder who so requests a copy of the full text of the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.
4.3 Transfers. Except as otherwise established by rules and regulations adopted by the Board of Directors, and subject to applicable law, shares of stock may be transferred on the books of the corporation by the surrender to the corporation or its transfer agent of the certificate representing such shares properly endorsed or accompanied by a written assignment or power of attorney properly executed, and with such proof of authority or the authenticity of signature as the corporation or its transfer agent may reasonably require. Except as may be otherwise required by law, by the Certificate of Incorporation or by these By-laws, the corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect to such stock, regardless of any transfer, pledge or other disposition of such stock until the shares have been transferred on the books of the corporation in accordance with the requirements of these By-laws.
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4.4 Lost, Stolen or Destroyed Certificates. The corporation may issue a new certificate of stock in place of any previously issued certificate alleged to have been lost, stolen, or destroyed, upon such terms and conditions as the Board of Directors may prescribe, including the presentation of reasonable evidence of such loss, theft or destruction and the giving of such indemnity as the Board of Directors may require for the protection of the corporation or any transfer agent or registrar.
4.5 Record Date. The Board of Directors may fix in advance a date as a record date for the determination of the stockholders entitled to notice of or to vote at any meeting of stockholders or to express consent (or dissent) to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action. Such record date shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 10 days after the date of adoption of a record date for a written consent without a meeting, nor more than 60 days prior to any other action to which such record date relates.
If no record date is fixed, 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 before the day on which notice is given, or, if notice is waived, at the close of business on the day before the day on which the meeting is held. The record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is necessary, shall be the day on which the first written consent is properly delivered to the corporation. The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating to such purpose.
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 of Directors may fix a new record date for the adjourned meeting.
ARTICLE 5 - General Provisions
5.1 Fiscal Year. Except as from time to time otherwise designated by the Board of Directors, the fiscal year of the corporation shall begin on the first day of January in each year and end on the last day of December in each year.
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5.2 Corporate Seal. The corporate seal shall be in such form as shall be approved by the Board of Directors.
5.3 Waiver of Notice. Whenever any notice whatsoever is required to be given by law, by the Certificate of Incorporation or by these By-laws, a waiver of such notice either in writing signed by the person entitled to such notice or such persons duly authorized attorney, or by telegraph, cable or any other available method, whether before, at or after the time stated in such waiver, or the appearance of such person or persons at such meeting in person or by proxy, shall be deemed equivalent to such notice.
5.4 Voting of Securities. Except as the directors may otherwise designate, the President or Treasurer may waive notice of, and act as, or appoint any person or persons to act as, proxy or attorney-in-fact for this corporation (with or without power of substitution) at, any meeting of stockholders or shareholders of any other corporation or organization, the securities of which may be held by this corporation.
5.5 Evidence of Authority. A certificate by the Secretary, or an Assistant Secretary, or a temporary Secretary, as to any action taken by the stockholders, directors, a committee or any officer or representative of the corporation shall as to all persons who rely on the certificate in good faith be conclusive evidence of such action.
5.6 Certificate of Incorporation. All references in these By-laws to the Certificate of Incorporation shall be deemed to refer to the Certificate of Incorporation of the corporation, as amended and in effect from time to time.
5.7 Transactions with Interested Parties. No contract or transaction between the corporation and one or more of the directors or officers, or between the corporation and any other corporation, partnership, association, or other organization in which one or more of the directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or a committee of the Board of Directors which authorizes the contract or transaction or solely because his or their votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum;
(2) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or
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(3) The contract or transaction is fair as to the corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee of the Board of Directors, or the stockholders.
Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.
5.8 Severability. Any determination that any provision of these By-laws is for any reason inapplicable, illegal or ineffective shall not affect or invalidate any other provision of these By-laws.
5.9 Pronouns. All pronouns used in these By-laws shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or persons may require.
ARTICLE 6 - Amendments
6.1 By the Board of Directors. These By-laws may be altered, amended or repealed or new by-laws may be adopted by the affirmative vote of a majority of the directors present at any regular or special meeting of the Board of Directors at which a quorum is present.
6.2 By the Stockholders. These By-laws may be altered, amended or repealed or new by-laws may be adopted by the affirmative vote of the holders of a majority of the shares of the capital stock of the corporation issued and outstanding and entitled to vote at any regular meeting of stockholders, or at any special meeting of stockholders, provided notice of such alteration, amendment, repeal or adoption of new by-laws shall have been stated in the notice of such special meeting.
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Exhibit 3.57
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 08/27/1999
991359599 3089230
CERTIFICATE OF INCORPORATION
OF
MAGAZINEOUTLET.COM, INC.
The undersigned in order to form a corporation under and pursuant to the provisions of the General Corporation Law of the State of Delaware, does hereby certify as follows:
FIRST: The name of the corporation is:
magazineoutlet.com, Inc.
SECOND: The address of the corporations registered office in the State of Delaware is 30 Old Rudnick Lane, Suits 100, 19901, City of Dover, County of Kent, and the name of its registered agent at such address is LEXIS Document Services Inc.
THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
FOURTH: Authorized Shares. The total number of shares of stock which the corporation shall have authority to issue is 3,000. All of such shares are to be Common Stock, par value of $1.00 per share and are to be of one class.
FIFTH: The name and mailing address of the incorporator is as follows:
Harry E. Peden, III
Whitman Breed Abbott & Morgan LLP
100 Field Point Road
Greenwich, Connecticut 06830
SIXTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the corporation, and for further definition, limitation and regulation of the powers of the corporation and of its directors and stockholders:
(1) Election of directors need not be by written ballot unless the by-laws so provide.
(2) The Board of Directors shall have power, without the assent or vote of the stockholders, to make, alter, amend, change, add to, or repeal the by-laws of the corporation.
(3) Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation.
SEVENTH: The corporation shall, to the fullest extent permitted by Section 145 of the Delaware General Corporation Law, as amended from time to time, indemnify, and advance expenses to, all persons whom it may indemnify, and to whom it may advance expenses, pursuant thereto.
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EIGHTH: To the fullest extent permissible under the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended, a directors personal liability to the corporation and its shareholders for monetary damages for breach of his fiduciary duty as a director is hereby eliminated, except for liability (i) for any breach of directors duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law, (iii) for improper dividend payment or unlawful stock purchases or redemption, or (iv) for any transaction from which the director derived an improper personal benefit.
IN WITNESS WHEREOF, I have signed this certificate this 27th day of August, 1999.
/s/ Harry E. Peden, III |
Harry E. Peden, III |
Incorporator |
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 03/02/2000
001106159 3089230
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION
magazineoutlet.com, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That pursuant to a written consent of directors to action in lieu of a meeting of the Board of Directors of magazineoutlet.com, Inc., resolutions were duly adopted setting forth a proposed amendment of the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing the Article thereof numbered First so that, as amended, said Article shall be and read as follows:
The name of the corporation is SynapseConnect, Inc.
SECOND: That thereafter, pursuant to resolution of its Board of Directors, a consent of stockholders in lieu of meeting was duly executed by stockholders in accordance with Section 228 of the General Corporation Law of the State of Delaware pursuant to which stockholders holding the necessary number of shares as required by statute adopted resolutions approving the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
FOURTH: That the capital of said corporation shall not be reduced under or by reason of said amendment.
IN WITNESS WHEREOF, said magazineoutlet.com, Inc. has caused this certificate to be signed by Jonathan A. Siegel, as Authorized Officer, this 29th day of February, 2000.
By: | /s/ Jonathan A. Siegel | |
Title of Officer: | Vice President & General Counsel | |
JONATHAN A. SIEGEL |
CERTIFICATE OF CHANGE OF REGISTERED AGENT
AND
REGISTERED OFFICE
* * * * *
SYNAPSECONNECT, INC, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
The present registered agent of the corporation is LEXIS DOCUMENT SERVICES, INC. and the present registered office of the corporation is in the county of KENT.
The Board of Directors of SYNAPSECONNECT, INC. adopted the following resolution on the 6th day of July, 2000.
Resolved, that the registered office of SYNAPSECONNECT, INC. in the state of Delaware be and it hereby is changed to Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, and the authorization of the present registered agent of this corporation be and the same is hereby withdrawn, and THE CORPORATION TRUST COMPANY, shall be and is hereby constituted and appointed the registered agent of this corporation at the address of its registered office.
IN WITNESS WHEREOF, SynapseConnect, Inc. has caused this statement to be signed by Michael Loeb, its Chairman, President and CEO*, this 17th day of July, 2000.
/s/ Michael Loeb |
Chairman, President and CEO (Title) |
* | Any authorized officer or the chairman or Vice-Chairman of the Board of Directors may execute this certificate. |
STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 04:30 PM 07/18/2000 001364374 3089230 |
State of Delaware Secretary of State Division of Corporations Delivered 08:00 AM 03/07/2011 FILED 08:00 AM 03/07/2011 SRV 110270265 3089230 FILE |
STATE OF DELAWARE
CERTIFICATE FOR RENEWAL
AND REVIVAL OF CHARTER
The corporation organized under the laws of the State of Delaware, the charter of which was voided for non-payment of taxes and/or for failure to file a complete annual report, now desires to procure a restoration, renewal and revival of its charter pursuant to Section 312 of the General Corporation Law of the State of Delaware, and hereby certifies as follows:
1. The name of the corporation is Synapseconnect, Inc.
2. The Registered Office of the corporation in the State of Delaware is located at 1209 Orange Street (street), in the City of Wilmington, County of New Castle Zip Code 19801. The name of the Registered Agent at such address upon whom process against this Corporation may be served is The Corporation Trust Company.
3. The date of filing of the Corporations original Certificate of Incorporation in Delaware was 08/27/1999.
4. The renewal and revival of the charter of this corporation is to be perpetual.
5. The corporation was duly organized and carried on the business authorized by its charter until the 1st day of March A.D 2010, at which time its charter became inoperative and void for non-payment of taxes and/or failure to file a complete annual report and the certificate for renewal and revival is filed by authority of the duly elected directors of the corporation in accordance with the laws of the State of Delaware.
By: | /s/ John Kinney | |
Authorized Officer | ||
Name: | John Kinney | |
Print or Type |
Exhibit 3.58
BY-LAWS
OF
MAGAZINEOUTLET.COM, INC.
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. Annual Meeting. A meeting of stockholders shall be held annually for the election of directors and the transaction of such other business as is related to the purpose or purposes set forth in the notice of meeting on such date and at such time as may be fixed by the
Board of Directors.
SECTION 2. Special Meetings. Special meetings of the stockholders for any purpose may be called by the Board of Directors, the President or the Secretary, and shall be called by the President or the Secretary at the written request of the holders of record of a majority of the outstanding shares of the Corporation entitled to vote at such meeting. Special meetings shall be held at such time as may be fixed in the call and stated in the notices of meeting or waiver thereof. At any special meeting only such business may be transacted as is related to the purpose or purposes for which the meeting is convened.
SECTION 3. Place of Meetings. Meetings of stockholders shall be held at such place, within or without the State of Delaware or the United States of America, as may be fixed in the call and stated in the notice of meeting or waiver thereof.
SECTION 4. Notice of Meetings; Adjourned Meetings. Notice of each meeting of stockholders shall be given in writing and shall state the place, date and hour of the meeting. The purpose or purposes for which the meeting is called shall be stated in the notice of each special meeting and of each annual meeting at which any business other than the election of directors is to be transacted.
A copy of the notice of any meeting shall be given, personally or by mail, not less than ten (10) nor more than sixty (60) days before the date of the meeting, to each stockholder entitled to vote at such meeting. If mailed, such notice is given when deposited in the United States mail, with postage thereon prepaid, directed to the stockholder at his address as it appears on the
record of stockholders.
When a meeting is adjourned for less than thirty (30) days in any one adjournment, it shall not be necessary to give any notice of the adjourned meeting if the time and place to which the meeting is adjourned are announced at the meeting at which the adjournment is taken, and at the adjourned meeting any business may be transacted that might have been transacted on the original date of the meeting. When a meeting is adjourned for thirty (30) days or more, notice of the adjourned meeting shall be given as in the case of an original meeting.
SECTION 5. Waiver of Notice. The transactions of any meeting of stockholders, however called and with whatever notice, if any, are as valid as those at a meeting duly held after regular call and notice, if: (a) all the stockholders entitled to vote are present in person or by proxy and no objection to holding the meeting is made by any stockholder; or (b) a quorum is present either in person or by proxy and no objection to holding the meeting is made by anyone so present, and, either before or after the meeting, each of the persons entitled to vote, not present in person or by proxy, signed a written waiver of notice, or a consent to the holding of the meeting, or an approval of the action taken as shown by the minutes thereof.
Whenever notice is required to be given to any stockholder, a written waiver thereof signed by such stockholder, whether before or after the time thereon stated, shall be deemed equivalent to such notice. Attendance of a person at a meeting of stockholders shall constitute a waiver of notice of such meeting, except when such stockholder attends for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any meeting of stockholders need be specified in any written waiver of notice thereof.
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SECTION 6. Qualification of Voters. Except as may be otherwise provided in the Certificate of Incorporation, every stockholder of record shall be entitled to one vote on each matter submitted to a vote at a meeting of stockholders for every share standing in his name on the record of stockholders.
SECTION 7. Quorum. At any meeting of the stockholders the presence, in person or by proxy, of the holders of a majority of the shares entitled to vote thereat shall constitute a quorum for the transaction of any business. When a quorum is once present to organize a meeting, it is not broken by the subsequent withdrawal of any stockholders. The stockholders present may adjourn the meeting despite the absence of a quorum.
SECTION 8. Proxies. Every stockholder entitled to vote at a meeting of stockholders or to express consent or dissent without a meeting may authorize another person or persons to act for him by proxy. Every proxy must be executed by the stockholder or his attorney-in-fact. No proxy shall be valid after the expiration of three (3) years from the date thereof unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of the stockholder executing it, except as otherwise provided therein and as permitted by law. Except as otherwise provided in the proxy, any proxy holder may appoint in writing a substitute to act in his place.
SECTION 9. Voting. Except as otherwise required by law, directors shall be elected by a plurality of the votes cast at a meeting of stockholders by the holders of shares entitled to vote in the election. Whenever any corporate action, other than the election of directors, is to be taken by vote of the stockholders at a meeting, it shall, except as otherwise required by law or the Certificate of Incorporation, be authorized by a majority of the votes cast thereat, in person or by proxy.
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SECTION 10. Action Without a Meeting. Whenever stockholders are required or permitted to take any action at a meeting or by vote, such action may be taken without a meeting, without prior notice and without a vote, by consent in writing setting forth the action so taken, signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.
SECTION 11. Record Date. The Board of Directors is authorized to designate a day, not more than sixty (60) days nor less than ten (10) days prior to the day of holding any meeting of stockholders as the day as of which those stockholders entitled to notice of, and to vote at, such meeting shall be determined; and only stockholders of record on such day shall be entitled to notice or to vote at such meeting.
SECTION 12. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least ten 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, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held (which place shall be specified in the notice of the meeting), or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.
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SECTION 13. Inspectors of Election. The Chairman of any meeting of the stockholders may appoint one or more Inspectors of Election. Any Inspector so appointed to act at any meeting of the stockholders, before entering upon the discharge of his or her duties, shall be sworn faithfully to execute the duties of an Inspector at such meeting with strict impartiality, and according to the best of his or her ability.
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. Power of Board and Qualification of Directors. The business and affairs of the Corporation shall be managed by the Board of Directors.
SECTION 2. Number of Directors. The number of directors constituting the whole Board of Directors shall be such number as may be fixed from time to time by resolution adopted by the stockholders or by the Board.
SECTION 3. Election and Term of Directors. At each annual meeting of stockholders, directors shall be elected to serve until the next annual meeting and until their respective successors are elected and qualified.
SECTION 4. Resignations. Any director of the Corporation may resign at any time by giving written notice to the Board of Directors, the Chairman of the Board, the President or the Secretary of the Corporation. Such resignation shall take effect at the time specified therein; and unless otherwise specified therein the acceptance of such resignation shall not be necessary to make it effective.
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SECTION 5. Removal of Directors. Any or all of the directors may be removed with or without cause by vote of the stockholders.
SECTION 6. Newly Created Directorships and Vacancies. Newly created directorships resulting from an increase in the number of directors or vacancies occurring in the Board of Directors for any reason, except the removal of directors by stockholders without cause, may be filled by vote of a majority of the directors then in office, even if less than a quorum exists, or may be filled by the stockholders. Vacancies occurring as a result of the removal of directors by stockholders without cause shall be filled by the stockholders. A director elected to fill a vacancy or a newly created directorship shall be elected to hold office until the next annual meeting of stockholders.
SECTION 7. Executive and Other Committees of Directors. The Board of Directors, by resolution adopted by a majority of the whole Board, may designate from among its members an executive committee and other committees to serve at the pleasure of the Board of Directors, each consisting of one or more directors, and each of which, to the extent provided in the resolution, shall have all the authority of the Board to the full extent authorized by law, including the power or authority to declare a dividend or to authorize the issuance of stock. The Board of Directors may designate one or more directors as alternate members of any such committee, who may replace any absent member or members at any meeting of such committee.
SECTION 8. Compensation of Directors. The Board of Directors shall have authority to fix the compensation of directors for services in any capacity, or to allow a fixed sum plus expenses, if any, for attendance at meetings of the Board or of committees designated thereby.
SECTION 9. Interest of Director in a Transaction. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose, if:
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(a) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or
(b) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or
(c) The contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof, or the stockholders.
Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorized the contract or transaction.
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ARTICLE III
MEETINGS OF THE BOARD
SECTION 1. Regular Meetings. Regular meetings of the Board of Directors may be held without notice at such times and places, within or without the State of Delaware, or the United States of America, as may from time to time be fixed by the Board.
SECTION 2. Special Meetings; Notice; Waiver. Special meetings of the Board of Directors may be held at any time and place, within or without the State of Delaware or the United States of America, upon the call of the Chairman of the Board, the President or the Secretary, by oral, telegraphic or written notice, duly given to or sent or mailed to each director not less than two (2) days before such meeting. Special meetings shall be called by the Chairman of the Board, the President or the Secretary on the written request of any two directors.
Notice of a special meeting need not be given to any director who submits a signed waiver of notice whether before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to him.
A notice, or waiver of notice, need not specify the purpose of any special meeting of the Board of Directors.
SECTION 3. Quorum; Action by the Board; Adjournment. At all meetings of the Board of Directors, a majority of the whole Board shall constitute a quorum for the transaction of business, except that when the number of directors constituting the whole Board shall be an even number, one-half of that number shall constitute a quorum.
The vote of a majority of the directors present at the time of the vote, if a quorum is present at such time, shall be the act of the Board, except as may be otherwise specifically provided by law or by the Certificate of Incorporation or by these By-Laws.
A majority of the directors present, whether or not a quorum is present, may adjourn any meeting to another time and place.
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SECTION 4. Action Without a Meeting. Action taken by a majority of the directors or members of a committee without a meeting is nevertheless Board or committee action if written consent to the action in question is signed by all the directors or members of the committee, as the case may be, and filed with the minutes of the proceedings of the Board or committee, whether done before or after the action so taken.
SECTION 5. Action Taken by Conference Telephone. Members of the Board of Directors or any committee of the Corporation may participate in a meeting by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting
can hear each other.
ARTICLE IV
OFFICERS
SECTION 1. Principal and Subordinate Officers. The principal officers of the Corporation shall consist of the President and the Secretary and such other principal officers as the Board of Directors shall from time to time deem necessary. Principal officer classification shall include, if elected or appointed, Chief Executive Officer, Chief Operating Officer, Chairman of the Board of Directors, one or more Vice Chairmen of the Board of Directors, Chief Financial Officer, Chief Legal Officer, one or more Vice Presidents and the Treasurer. The subordinate officers of the Corporation shall consist of such other officers, assistant officers and agents as may be deemed necessary and elected or appointed by the Board of Directors, the President, or as may be chosen in such other manner as may be prescribed or permitted by these By-laws. Any two or more offices may be held by the same person.
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SECTION 2. Election, Term of Office and Qualifications. The Board of Directors shall elect the principal officers at its annual organizational meeting or as soon thereafter as conveniently possible. Subordinate officers not elected or appointed by the Board of Directors may be appointed by the President or such other principal officer of the Corporation to whom the Board of Directors may delegate the authority of appointment. Each officer shall hold office until his or her successor is appointed and qualified, or until his or her death, resignation or removal, whichever event shall first occur. Election or appointment of an officer shall not of itself create any contractual rights.
SECTION 3. Removal of Officers. Any officer may be removed, with or without cause, by the Board of Directors. Any subordinate officer may also be removed, with or without cause, by the President or such other principal officer of the Corporation as has been delegated the authority to appoint such subordinate officer. Any removal shall be without prejudice to the contract rights, if any, of the officer so removed.
SECTION 4. Resignation of Officers. Any officer may resign at any time by delivering written notice to the Corporation. Resignation of an officer shall be effective as of the date that the notice of resignation is delivered unless a later effective date is specified in the notice of resignation.
SECTION 5. Vacancies. Any vacancy in any office occurring by reason of the death, resignation or removal of an officer or any other cause shall be filled for the unexpired portion of the term of such officer in the manner prescribed in these By-laws for election or appointment to such office. If a resignation is made effective at a later date and the Corporation accepts the future effective date, the Board of Directors may fill the pending vacancy before the effective date if the Board of Directors provides that the successor does not take office until the effective date.
SECTION 6. The President. The President, who need not be chosen from among the directors, shall, unless provided otherwise by the Board of Directors, be the chief executive officer of the Corporation and shall have all authority for the day-to-day management of the assets, liabilities, business and operations of the Corporation, subject, however, to the control of the Board of Directors and to the restrictions or limitations imposed by any applicable law, rule, regulation or contractual provision.
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SECTION 7. The Vice Presidents. Each Vice President (if one or more Vice Presidents be elected or appointed) shall have such powers and perform such duties as the Board of Directors may prescribe or as the President may delegate to him or her. At the request of the President, any Vice President may, in the case of the Presidents absence or inability to act, temporarily act in his or her place. In the case of the death of the President, or in the case of his or her absence or inability to act without having designated a Vice President to act temporarily in his or her place, the Vice President or Vice Presidents to perform the duties of President shall be designated by the Board of Directors.
SECTION 8. The Secretary. The Secretary shall be responsible for preparing, or causing to be prepared, the minutes of the meetings of the shareholders and of the Board of Directors; shall see that all notices are duly given in accordance with the provisions of these By-laws and as required by law; shall be custodian of the records of the Corporation; and shall be responsible for authenticating the records of the Corporation. The Secretary shall perform, in general, all duties incident to the office of a Secretary and such other duties as may be assigned to him or her by the Board of Directors or the President.
SECTION 9. The Treasurer. The Treasurer (if a Treasurer be elected or appointed) shall, unless provided otherwise by the Board of Directors, be the chief financial officer; shall have charge and custody of, and be responsible for, all funds and deposit all such funds in the name of the Corporation in such banks, trust companies, or other depositaries as shall be selected by the Board of Directors; shall receive and give receipts for monies due and payable to the Corporation from any source whatsoever; and, in general, shall perform all the duties incident to the office of Treasurer and such other duties as may be assigned to him or her by the Board of Directors or the President. The
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Treasurer shall render to the President, and the Board of Directors whenever the same shall be required, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation. He or she shall, if required so to do by the Board of Directors, give the Corporation a bond in such amount and with such surety or sureties as may be ordered by the Board of Directors for the faithful performance of the duties of his or her office and for the restoration to the Corporation, in case of his or her death, resignation, retirement, or removal from office, of all books, papers, vouchers, money, and other property of whatever kin in his or her possession or under his or her control belonging to the Corporation.
SECTION 10. Additional Authority and Duties. In addition to any authority or duties expressly prescribed for any officer of the Corporation in these By-laws, such officer shall have such authority and perform such duties in the management of the Corporation as are usually incidental to the office of such officer or as are assigned or delegated to such officer from time to time by resolution of the Board of Directors not inconsistent with these By-laws.
SECTION 11. Salaries. Subject to any applicable contractual rights, the salary of each officer shall be fixed from time to time by the Board of Directors. The salaries of the subordinate officers shall be fixed, from time to time, by the Board of Directors or, in the absence of appropriate action by the Board of Directors, by the President of the Corporation. No officer shall be prevented from receiving his or her salary by reason of the fact that he or she is also a director.
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ARTICLE V
SHARE CERTIFICATES
SECTION 1. Form of Share Certificates. The shares of the Corporation shall be represented by certificates, in such form as the Board of Directors may from time to time prescribe, signed by the Chairman of the Board, a Vice Chairman of the Board, the President, or a Vice President, and by the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer, and shall be sealed with the seal of the Corporation or a facsimile thereof. The signatures of the officers upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent or registered by a registrar other than the Corporation or its employees. In case any such officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer at the date of issue.
SECTION 2. Lost Certificates. In case of the loss, theft, mutilation or destruction of a stock certificate, a duplicate certificate will be issued by the Corporation upon notification thereof and receipt of such proper indemnity as shall be prescribed by the Board of Directors.
SECTION 3. Transfer of Shares. Transfers of shares of stock shall be made upon the books of the Corporation by the registered holder (or such holders duly authorized attorney), only upon surrender of the certificate or certificates representing such shares properly endorsed with a request to register transfer of such shares and the payment of any taxes due thereon.
SECTION 4. Registered Stockholders. Except as otherwise provided by law, 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 or other distributions and to vote as such owner, and to hold such person liable for calls and assessments, and shall not be bound to recognize any equitable or legal claim to or interest in such share or shares on the part of any other person.
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ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION I. Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation and such other appropriate legend as the Board of Directors may from time to time determine.
SECTION 2. Checks and Notes. All checks and demands for money and notes or other instruments evidencing indebtedness or obligations of the Corporation shall be signed by such officer or officers or other person or persons as shall be thereunto authorized from time to time by the Board of Directors.
ARTICLE VII
AMENDMENTS
SECTION 1. By the Board of Directors. The Board of Directors shall have the power to adopt, amend or repeal these By-laws, in whole or in part, unless (a) the Certificate of Incorporation of the Corporation or the Delaware Corporation Laws reserve this power exclusively to the shareholders in whole or in part or (b) the shareholders in adopting or amending a particular By-law provide expressly that the Board of Directors may not amend or repeal such By-law.
SECTION 2. By the Shareholders. The shareholders shall have the power to adopt, amend or repeal these By-laws, in whole or in part, notwithstanding the power of the Board of Directors to also adopt, amend or repeal these By-laws. In the event of a conflict between any action taken by the Board of Directors under Section 1 of this Article and any action taken by the Shareholders under this Section 2, the action of the shareholders shall supersede the action of the Board of Directors; provided, however, that any proceedings had or actions taken by the Corporation pursuant to any By-law adopted, amended or repealed by any action of the Board of Directors prior to any conflicting action of the shareholders shall be valid in all respects.
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|
Exhibit 3.59 |
CERTIFICATE OF INCORPORATION
OF
TI INTERNATIONAL HOLDINGS INC.
1. The name of the Corporation is: TI International Holdings Inc.
2. The address of the registered office of the Corporation in the State of Delaware is c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of the registered agent of the Corporation at such address is The Corporation Trust Company.
3. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the Corporation shall have authority to issue is One Thousand (1,000) and the par value of each of such shares is One Cent ($.01). All such shares are of one class and are shares of Common Stock.
5. The board of directors of the Corporation shall have the power to make, adopt, alter, amend or repeal the by-laws of the Corporation. The election of directors of the Corporation need not be by written ballot.
6. The name and mailing address of the incorporator of the Corporation are:
Lauren B. Ezrol
Time Inc.
1271 Avenue of the Americas
New York, New York 10020
7. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the directors duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of Delaware, or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law of Delaware is amended after approval by the stockholders of this Section to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of Delaware as so amended.
THE UNDERSIGNED, being the sole incorporator of the Corporation, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, does hereby sign this Certificate of Incorporation this 22nd day of October, 1999.
/s/ Lauren B. Ezrol | ||
Lauren B. Ezrol | ||
Sole Incorporator |
Exhibit 3.60
BY-LAWS
OF
TI INTERNATIONAL HOLDINGS INC.
(Incorporated under the Laws of the State of Delaware)
As Adopted as of October 22, 1999
BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
Section 3. Notice of Meetings. Notice of each meeting of the stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such stockholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such stockholder at his or her address as it appears on the stock record of the Corporation or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the stockholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
Section 4. Quorum and Manner of Acting. If stockholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the stockholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until stockholders holding the amount of
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stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of stockholders holding the number of shares of stock of the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy stockholders holding the number of shares of stock of the Corporation required in respect of such other matter.
Section 5. Organization of Meetings. At each meeting of the stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
(a) the Chairman of the Board, or, if he or she is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat.
The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by the majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
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Section 7. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him or her and registered in his or her name on the stock record of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or
(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he or she shall in writing so notify the secretary of the meeting prior to the voting
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of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his or her proxy if there be such proxy, and shall state the number of shares voted.
Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
Section 9. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders
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entitled to vote thereat, 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, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his or her discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
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ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his or her election and until his or her successor shall be elected and qualified or until his or her earlier death or resignation or removal in the manner hereinafter provided.
Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
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(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
(c) Special Meetings. Special Meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a type-written notice thereof to such director personally or by depositing such notice in the United States mail, postage prepaid, directed to such director at his or her residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. The purposes of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
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(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he or she is not present or if no person holds such office, any director chosen by a majority or the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
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(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his or her serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him or her on account of his or her attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 6. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board caused by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
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In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his or her successor shall be elected and shall qualify or until his or her earlier death or resignation or removal in the manner set forth herein.
ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he or she remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or she or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
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Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including the power and authority to declare dividends and to authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
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ARTICLE V
Officers
Section 1. Election, Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice Presidents, or any or all of the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one or more Assistant Treasurers, or any or all of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal and Vacancies. Any officer may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
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Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected he or she shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he or she shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the stockholders at which they shall be present, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he or she shall preside at meetings of the Executive Committee at which he or she shall be present; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
(d) President. If a President is appointed or elected he or she shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He or she shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice Chairman of the Board is appointed or elected and is present.
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(e) Vice Presidents. If any Vice President or Vice Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice-Presidents.
(f) Secretary. If a Secretary is appointed or elected he or she shall attend and keep the records of all meetings of the stockholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall
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be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
(g) Treasurer. If a Treasurer is appointed or elected he or she shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
(h) Controller. If a controller is appointed or elected he or she shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
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ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a fifty percent (50%) or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such Proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
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Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of
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the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
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ARTICLE VIII
Execution and Delivery of Documents; Deposits;
Proxies; Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such delegation may be resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities in Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and
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rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he or she may deem necessary or proper in order that the Corporation may exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of Delaware as the proper officers of the Corporation may from time to time determine.
ARTICLE IX
Certificates; Stock Record; Transfer and Registration;
New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him or her in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice-Chairman, the President or a Vice-President of the Corporation and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a
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certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he or she were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for exchange or transfer shall be canceled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so canceled, except in cases provided for in Section 4 of this Article.
Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his or her attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
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Section 4. New Certificates.
(a) Lost, Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he or she has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
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Section 6. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
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ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
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![]() |
Exhibit 3.61 |
Certificate of Incorporation
of
TI LIVE EVENTS INC.
1. The name of the Corporation is: TI Live Events Inc.
2. The address of the registered office of the Corporation in the State of Delaware is c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of the registered agent of the Corporation at such address is The Corporation Trust Company.
3. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the Corporation shall have authority to issue is One Thousand (1,000) and the par value of each of such shares is One Cent ($.01). All such shares are of one class and are shares of Common Stock.
5. The board of directors of the Corporation shall have the power to make, adopt, alter, amend or repeal the by-laws of the Corporation. The election of directors of the Corporation need not be by written ballot.
6. The name and mailing address of the incorporator of the Corporation are:
Judith R. Margolin
1271 Avenue of the Americas
New York, New York 10020
7. | A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the directors duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of Delaware, or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law of Delaware is amended after approval by the stockholders of this Section to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of Delaware as so amended. |
THE UNDERSIGNED, being the sole incorporator of the Corporation, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, does hereby sign this Certificate of Incorporation this 22nd day of November, 2010.
/s/ Judith R. Margolin |
Judith R. Margolin |
Sole Incorporator |
Exhibit 3.62
BY-LAWS
OF
TI LIVE EVENTS INC.
(Incorporated under the Laws of the State of Delaware)
As Adopted as Of November 22, 2010
TABLE OF CONTENTS
Article |
Page | |||||||||
I | Offices | 1 | ||||||||
II | Meetings of Stockholders | 1 | ||||||||
Section 1 - Annual Meetings | 1 | |||||||||
Section 2 - Special Meetings | 1 | |||||||||
Section 3 - Notice of Meetings | 2 | |||||||||
Section 4 - Quorum and Manner of Acting | 2 | |||||||||
Section 5 - Organization of Meetings | 3 | |||||||||
Section 6 - Order of Business | 3 | |||||||||
Section 7 - Voting | 4 | |||||||||
Section 8 - Consent in Lieu of Meeting | 5 | |||||||||
Section 9 - List of Stockholders | 5 | |||||||||
Section 10 - Inspectors | 6 | |||||||||
III | Board of Directors | 7 | ||||||||
Section 1 - General Powers | 7 | |||||||||
Section 2 - Number and Term of Office | 7 | |||||||||
Section 3 - Election | 7 | |||||||||
Section 4 - Meetings | 7 | |||||||||
Section 5 - Compensation | 10 | |||||||||
Section 6 - Resignation, Removal and Vacancies | 10 | |||||||||
IV | Committees | 11 | ||||||||
Section 1 - Number, Appointment, Term of Office, etc. | 11 | |||||||||
Section 2 - Functions and Powers | 12 | |||||||||
Section 3 - Rules | 12 | |||||||||
V | Officers | 13 | ||||||||
Section 1 - Election, Appointment and Term of Office | 13 | |||||||||
Section 2 - Resignation, Removal and Vacancies | 13 | |||||||||
Section 3 - Duties and Functions | 14 | |||||||||
VI | Indemnification | 17 | ||||||||
Section 1 - Right to Indemnification | 17 | |||||||||
Section 2 - Insurance, Contracts and Funding | 18 | |||||||||
Section 3 - Indemnification Not Exclusive Right | 18 | |||||||||
Section 4 - Indemnification of Employees and Agents | 18 |
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VII | Waiver of Notices; Places of Meetings | 19 | ||||||||
Section 1 - Waiver of Notices | 19 | |||||||||
Section 2 - Place of Meetings | 19 | |||||||||
VIII | Execution and Delivery of Documents; Deposits; Proxies, Books and Records | 20 | ||||||||
Section 1 - Execution and Delivery of Documents; Delegation | 20 | |||||||||
Section 2 - Deposits | 20 | |||||||||
Section 3 - Proxies in Respect of Stock or Other Securities in Other Corporations | 20 | |||||||||
Section 4 - Books and Records | 21 | |||||||||
IX | Certificates; Stock Record; Transfer and Registration; New Certificates; Record Date, etc. | 21 | ||||||||
Section 1 - Certificates for Stock | 21 | |||||||||
Section 2 - Stock Record | 22 | |||||||||
Section 3 - Transfer and Registration of Stock | 22 | |||||||||
Section 4 - New Certificates | 23 | |||||||||
Section 5 - Regulations | 23 | |||||||||
Section 6 - Fixing Date for Determination of Stockholders of Record | 24 | |||||||||
X | Seal | 24 | ||||||||
XI | Fiscal Year | 24 | ||||||||
XII | Amendments | 25 | ||||||||
XIII | Subject to Law | 25 |
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BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
Section 3. Notice of Meetings. Notice of each meeting of the stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such stockholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such stockholder at his or her address as it appears on the stock record of the Corporation or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the stockholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
Section 4. Quorum and Manner of Acting. If stockholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the stockholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until stockholders holding the amount of stock
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requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of stockholders holding the number of shares of stock of the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy stockholders holding the number of shares of stock of the Corporation required in respect of such other matter.
Section 5. Organization of Meetings. At each meeting of the stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
(a) the Chairman of the Board, or, if he or she is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat.
The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 1. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by the majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
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Section 2. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him or her and registered in his or her name on the stock record of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or
(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he or she shall in writing so notify the secretary of the meeting prior to the voting
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of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his or her proxy if there be such proxy, and shall state the number of shares voted.
Section 3. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
Section 4. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders
5
entitled to vote thereat, 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, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
Section 5. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his or her discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
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ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his or her election and until his or her successor shall be elected and qualified or until his or her earlier death or resignation or removal in the manner hereinafter provided.
Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
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(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
(c) Special Meetings. Special Meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a type-written notice thereof to such director personally or by depositing such notice in the United States mail, postage prepaid, directed to such director at his or her residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. The purposes of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
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(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he or she is not present or if no person holds such office, any director chosen by a majority or the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
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(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his or her serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him or her on account of his or her attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 6. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board caused by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
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In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his or her successor shall be elected and shall qualify or until his or her earlier death or resignation or removal in the manner set forth herein.
ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he or she remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or she or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
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Section 1. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including the power and authority to declare dividends and to authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution amend these By-laws.
Section 2. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
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ARTICLE V
Officers
Section 1. Election, Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice Presidents, or any or all of the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one or more Assistant Treasurers, or any or all of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal and Vacancies. Any officer may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
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Section 1. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected he or she shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he or she shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairman of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the stockholders at which they shall be present, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he or she shall preside at meetings of the Executive Committee at which he or she shall be present; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
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(d) President. If a President is appointed or elected he or she shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He or she shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice Chairman of the Board is appointed or elected and is present.
(e) Vice Presidents. If any Vice President or Vice Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice-Presidents.
(f) Secretary. If a Secretary is appointed or elected he or she shall attend and keep the records of all meetings of the stockholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall
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be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
(g) Treasurer. If a Treasurer is appointed or elected he or she shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
(h) Controller. If a controller is appointed or elected he or she shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
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ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service directly or indirectly, a fifty percent (50%) or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such Proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
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Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of
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the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
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ARTICLE VIII
Execution and Delivery of Documents; Deposits;
Proxies; Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such delegation may be resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities in Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the
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Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he or she may deem necessary or proper in order that the Corporation may exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of Delaware as the proper officers of the Corporation may from time to time determine.
ARTICLE IX
Certificates; Stock Record; Transfer and Registration;
New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him or her in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice-Chairman, the President or a Vice-President of the Corporation and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a
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certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he or she were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for exchange or transfer shall be canceled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so canceled, except in cases provided for in Section 4 of this Article.
Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his or her attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
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Section 4. New Certificates.
(a) Lost, Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he or she has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
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Section 6. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
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ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
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Exhibit 3.63
CERTIFICATE OF INCORPORATION
OF
TI MARKETING SERVICES INC.
I, the undersigned, for the purposes of incorporating and organizing a corporation under the General Corporation Law of the State of Delaware, do execute this Certificate of Incorporation and do hereby certify as follows:
FIRST. The name of the corporation is TI Marketing Services Inc.
SECOND. The address of the corporations registered office in the State of Delaware is 1209 Orange Street, in the City of Wilmington. County of New Castle, 19801. The name of its registered agent at such address is The Corporation Trust Company.
THIRD. The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.
FOURTH. The total number of shares of stock which the corporation shall have authority to issue is 1000. All such shares are to be Common Stock, par value of $.01 per share, and are to be of one class.
FIFTH. The incorporator of the corporation is Lauren E. Klein, whose mailing address is 1271 Avenue of the Americas, New York, NY 10020.
SIXTH. Unless and except to the extent that the by-laws of the corporation shall so require, the election of directors of the corporation need not be by written ballot.
SEVENTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the corporation is expressly authorized to make, alter and repeal the by-laws of the corporation, subject to the power of the stockholders of the corporation to alter or repeal any by-law whether adopted by them or otherwise.
EIGHTH. A director of the corporation shall not be liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.
NINTH. The corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.
TENTH: The Effective Date of the Certificate of Incorporation is on January 1, 2011.
The undersigned incorporator hereby acknowledges that the foregoing Certificate of Incorporation is her act and deed on this 23 day of December, 2010.
/s/ Lauren E. Klein | ||
Lauren E. Klein | ||
Assistant Secretary |
Exhibit 3.64
AMENDED AND RESTATED BY-LAWS
OF
TI MARKETING SERVICES INC.
(Incorporated under the Laws of the State of Delaware)
As Adopted as of April 24, 2014
AMENDED AND RESTATED BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
Section 3. Notice of Meetings. Notice of each meeting of the stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such stockholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such stockholder at his or her address as it appears on the stock record of the Corporation or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the stockholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
Section 4. Quorum and Manner of Acting. If stockholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the stockholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until stockholders holding the amount of stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of stockholders holding the number of shares of stock of
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the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy stockholders holding the number of shares of stock of the Corporation required in respect of such other matter.
Section 5. Organization of Meetings. At each meeting of the stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
(a) the Chairman of the Board, or, if he or she is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat.
The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by the majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
Section 7. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him or her and registered in his or her name on the stock record of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or
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(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he or she shall in writing so notify the secretary of the meeting prior to the voting of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his or her proxy if there be such proxy, and shall state the number of shares voted.
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Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
Section 9. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and
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place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his or her discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his or her election and until his or her successor shall be elected and qualified or until his or her earlier death or resignation or removal in the manner hereinafter provided.
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Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
(c) Special Meetings. Special Meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a type-written notice thereof to such director personally or
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by depositing such notice in the United States mail, postage prepaid, directed to such director at his or her residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. The purposes of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he or she is not present or if no person holds such office, any director chosen by a majority or the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
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(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his or her serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him or her on account of his or her attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 6. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
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Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board caused by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his or her successor shall be elected and shall qualify or until his or her earlier death or resignation or removal in the manner set forth herein.
ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he or she remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
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In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or she or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including the power and authority to declare dividends and to authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
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ARTICLE V
Officers
Section 1. Election, Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice Presidents, or any or all of the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one or more Assistant Treasurers, or any or all of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal and Vacancies. Any officer may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
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A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected he or she shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he or she shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the stockholders at which they shall be present, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he or she shall preside at meetings of the Executive Committee at which he or she shall be present; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
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(d) President. If a President is appointed or elected he or she shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He or she shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice Chairman of the Board is appointed or elected and is present.
(e) Vice Presidents. If any Vice President or Vice Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice-Presidents.
(f) Secretary. If a Secretary is appointed or elected he or she shall attend and keep the records of all meetings of the stockholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
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(g) Treasurer. If a Treasurer is appointed or elected he or she shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
(h) Controller. If a controller is appointed or elected he or she shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened,
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pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a fifty percent (50%) or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such Proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
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Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
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ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
ARTICLE VIII
Execution and Delivery of Documents; Deposits;
Proxies; Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the
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Corporation. Such delegation may be resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities in Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he or she may deem necessary or proper in order that the Corporation may exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of Delaware as the proper officers of the Corporation may from time to time determine.
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ARTICLE IX
Certificates; Stock Record; Transfer and Registration;
New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him or her in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice-Chairman, the President or a Vice-President of the Corporation and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he or she were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for exchange or transfer shall be canceled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so canceled, except in cases provided for in Section 4 of this Article.
Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
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Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his or her attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
Section 4. New Certificates.
(a) Lost, Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he or she has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
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Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
Section 6. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
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ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
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TABLE OF CONTENTS
Article |
Page | |||||
I. | Offices | 1 | ||||
II. | Meetings of Stockholders | 1 | ||||
Section 1 - Annual Meetings | 1 | |||||
Section 2 - Special Meetings | 1 | |||||
Section 3 - Notice of Meetings | 2 | |||||
Section 4 - Quorum and Manner of Acting | 2 | |||||
Section 5 - Organization of Meetings | 3 | |||||
Section 6 - Order of Business | 3 | |||||
Section 7 - Voting | 3 | |||||
Section 8 - Consent in Lieu of Meeting | 5 | |||||
Section 9 - List of Stockholders | 5 | |||||
Section 10 - Inspectors | 6 | |||||
III. | Board of Directors | 6 | ||||
Section 1 - General Powers | 6 | |||||
Section 2 - Number and Term of Office | 6 | |||||
Section 3 - Election | 7 | |||||
Section 4 - Meetings | 7 | |||||
Section 5 - Compensation | 9 | |||||
Section 6 - Resignation, Removal and Vacancies | 9 | |||||
IV. | Committees | 10 | ||||
Section 1 - Number, Appointment, Term of Office, etc. | 10 | |||||
Section 2 - Functions and Powers | 11 | |||||
Section 3 - Rules | 11 | |||||
V. | Officers | 12 | ||||
Section 1 - Election, Appointment and Term of Office | 12 | |||||
Section 2 - Resignation, Removal and Vacancies | 12 | |||||
Section 3 - Duties and Functions | 13 | |||||
VI. | Indemnification | 15 | ||||
Section 1 - Right to Indemnification | 15 | |||||
Section 2 - Insurance, Contracts and Funding | 16 | |||||
Section 3 - Indemnification Not Exclusive Right | 17 | |||||
Section 4 - Indemnification of Employees and Agents | 17 |
-i-
VII. | Waiver of Notices; Places of Meetings | 18 | ||||
Section 1 - Waiver of Notices | 18 | |||||
Section 2 - Place of Meetings | 18 | |||||
VIII. | Execution and Delivery of Documents; Deposits; Proxies, Books and Records | 18 | ||||
Section 1 - Execution and Delivery of Documents; Delegation | 18 | |||||
Section 2 - Deposits | 19 | |||||
Section 3 - Proxies in Respect of Stock or Other Securities in Other Corporations | 19 | |||||
Section 4 - Books and Records | 19 | |||||
IX. | Certificates; Stock Record; Transfer and Registration; New Certificates; Record Date, etc. | 20 | ||||
Section 1 - Certificates for Stock | 20 | |||||
Section 2 - Stock Record | 20 | |||||
Section 3 - Transfer and Registration of Stock | 21 | |||||
Section 4 - New Certificates | 21 | |||||
Section 5 - Regulations | 22 | |||||
Section 6 - Fixing Date for Determination of Stockholders of Record | 22 | |||||
X. | Seal | 22 | ||||
Section 1 - Seal | 22 | |||||
XI. | Fiscal Year | 23 | ||||
Section 1 - Fiscal Year | 23 | |||||
XII. | Amendments | 23 | ||||
Section 1 - Amendments | 23 | |||||
XIII. | Subject to Law | 23 | ||||
Section 1 - Subject to Law | 23 |
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Exhibit 3.65
CERTIFICATE OF INCORPORATION
OF
QUALITY MAGAZINE SCHOOL PROFIT PLAN, INC.
A Delaware Corporation
FIRST: The name of the Corporation is QUALITY MAGAZINE SCHOOL PROFIT PLAN, INC.
SECOND: Its principal office in the State of Delaware is located in the County of Kent and the City of Dover. The name of its resident agent is The Prentice-Hall Corporation System, Inc. The street and number of said principal office and the address by street and number of said resident agent is 229 South State Street, Dover, Delaware.
THIRD: The nature of the business of the Corporation and the objects and purposes to be transacted, promoted or carried on by it are as follows:
(1) To engage in and to act as agent for others in the solicitation of orders or subscriptions for, and in the circulation and distribution generally of, magazines, books, pamphlets, newspapers, journals and other periodicals, publications and printed matter of any and all kinds; to publish music, to record records, to manufacture and distribute and to act as agent for others in the distribution of records, phonographs, tape recorders and any and all other supplies and things in any way relating thereto or used in connection therewith; to develop, operate, promote and exploit circulation, distribution and sales methods in
the publishing and music field generally by means of telephone solicitation, direct mail, personal and door-to-door canvassing, general advertising and other techniques of every kind and description; and to transact all kinds of business relating to or involving the circulation, distribution of sales by any means of periodicals, publications and printed matter of every kind and description and to conduct a general subscription business or agency.
(2) To write, edit, prepare for publication, print, publish, bind, purchase or otherwise acquire, hold, own, use, import, export, distribute, sell or otherwise dispose of and deal in or with magazines, books, pamphlets, newspapers, Journals and other periodicals and publications of any and all kinds, manuscripts, literary articles, dramatic works, musical scores, maps, cartoons, pictures, photographs, illustrations and literary, advertising and musical copy of any and all kinds; and generally to engage in the business of editors, publishers, advertising organizations, book and job printers, linotypers, electrotypers, lithographers, engravers, bookbinders and stationers.
(3) To acquire by purchase, exchange, lease, devise or otherwise, and to hold, own, maintain, manage, improve, develop and operate and to sell, transfer, mortgage, lease, assign, convey, exchange, or otherwise turn to account or dispose of and generally to deal in and with real property, wheresoever situated, any and all buildings, structures, fixtures, apparatus, equipment and facilities thereon, and any and all rights, interests and privileges therein, and any and all things and property incidental thereto or useful or capable of being used in connection therewith.
(4) To acquire by purchase, exchange, lease, devise or otherwise, and to hold, own, maintain, manage, develop and operate, and to sell, transfer, mortgage, lease, assign, convey, exchange, otherwise turn to account or dispose of and generally to deal in and with, personal property, tangible or intangible, of every kind and description, wheresoever situated, and any and all rights, interests and privileges therein.
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(5) To lend money or make advances from time to time on such terms and on such security, if any, as the Board of Directors of the Corporation may determine.
(6) To borrow money and contract debts for its corporate purposes and to make, accept, endorse, execute and issue promissory notes, bills of exchange, bonds, debentures or other obligations from time to time for the purchase of property or for any purpose in or about the business of the Corporation and if deemed proper to secure the payments of any such obligations by mortgage, pledge, deed of trust or otherwise.
(7) To purchase, hold, sell, transfer, reissue or cancel the shares of its own Capital Stock or any securities or other obligations of the Corporation in the manner and to the extent now or hereafter permitted to corporations organized under the laws of the State of Delaware; provided, that the Corporation shall not use its funds or other assets for the purchase of its own shares of stock when such use would cause any impairment of the capital of the Corporation, and provided further that shares of its own Capital Stock belonging to the Corporation shall not be voted upon directly or indirectly.
(8) To underwrite, purchase, acquire, hold, pledge, hypothecate, exchange, sell, deal in and dispose of, alone or in syndicates or otherwise in conjunction with others, stocks, bonds and other evidences of indebtedness and obligations of any corporation, association, partnership, syndicate, entity, person or governmental, municipal or public authority, domestic or foreign, and evidences of any interest in respect of any such stocks, bonds, and other evidences of indebtedness and obligations; to issue and exchange therefore its own stocks, bonds, or other obligations; and, while the owner or holder of
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any such, to exercise all the rights, powers and privileges of ownership in respect thereof; and to the extent now or hereafter permitted by law to aid by loan, subsidy, guaranty or otherwise those issuing, creating or responsible for any such stocks, bonds or other evidences of indebtedness or obligations or evidences of any interest in respect thereof.
(9) To apply for, purchase, register or in any manner to acquire and to hold, own, use, operate and introduce, and to sell, lease, assign, pledge, or in any manner dispose of, and in any manner deal with, patents, patent rights, licenses, copyrights, trade-marks, trade names and to acquire, own, use or in any manner dispose of any and all inventions, improvements and processes, labels, designs, brands or other rights, and to work, operate, or develop the same, and to carry on any similar business which may directly or indirectly effectuate these objects or any of them.
(10) To acquire and pay for in cash, stocks or bonds of the Corporation or otherwise, the good will, rights, assets and property, and to undertake or assume the whole or any part of the obligations or liabilities of any person, firm, association or corporation.
(11) To have one or more offices to carry on all or any of its operations and business, and without restriction or limit as to amount to purchase or otherwise acquire, hold, own, mortgage, sell, convey, or otherwise dispose of real or personal property of every class or description in any of the States, districts, territories or colonies of the united States and in any and all foreign countries subject to the laws of such State, district or territory, colony or country.
(12) To enter into, make, perform and carry out contracts of every sort and kind which may be necessary or convenient for the business of the Corporation or business of a similar nature with any person, corporation, private, public or municipal body politic under the government of the United States or any state, territory or colony thereof or of any foreign government.
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(13) To do all and everything necessary, suitable or proper for the accomplishment of any of the purposes, the attainment of any of the objects or the furtherance of any of the powers hereinbefore set forth, either alone or in connection with other corporations, firms, or individuals and either as principals, or agents, and to do every other act or acts, thing or things incidental or appurtenant to or growing out of or connected with the aforesaid objects, purposes or powers, or any of them.
The foregoing provisions of Article THIRD shall be construed both as purposes and powers and each as an independent purpose and power. The enumeration of specific purposes and powers shall not be held to limit or restrict in any manner the purposes and powers of the Corporation and the purposes and powers herein specified shall, except when otherwise provided in this Article THIRD, be in no wise limited or restricted by reference to or inference from the terms of any provision of this or any other Article of this Certificate of Incorporation.
FOURTH: The total number of shares of stock the Corporation shall have authority to issue is One Thousand (1,000) Shares and the par value of each of such shares is One ($1.00) Dollar. All such shares are of one class and are designated as Common Stock.
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The minimum amount of capital with which the Corporation will commence business is One Thousand ($1,000.00) Dollars.
FIFTH: The names and places of residence of the incorporators are as follows:
Names | Residences | |
John D. Garrison | 555 Park Avenue New York 22, N. Y. | |
John R. OBrien | 235 Adams Street Brooklyn, N. Y. | |
Kenneth L. Demarest | 258 Clinton Place Hackensack, N. J. |
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: The private property of the stockholders shall not be subject to the payment of corporate debts to any extent whatever.
EIGHTH: The number of directors of the Corporation shall be as from time to time fixed by, or in the manner provided in, its By-Laws and may be increased or decreased as therein provided; but the number thereof shall not be less than three. Election of directors need not be by ballot unless otherwise provided in the By-Laws.
NINTH: The Corporation shall be managed by the Board of Directors which shall exercise all powers conferred under the laws of the State of Delaware including without limitation the power:
(1) to hold meetings, to have one or more offices, and to keep the books of the Corporation, except as otherwise expressly provided by law, at such places, whether within or without the State of Delaware, as may from time to time be designated by the Board;
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(2) to make, alter, and repeal by-laws of the Corporation, subject to the power reserved by law of the stockholders to make, alter and repeal by-laws;
(3) to determine whether and to what extent and at what times and places and under what conditions and regulations, the accounts and books of the Corporation, or any of them, shall be open to the inspection of the stockholders, and no stockholder shall have any right to inspect any account, record, book or document of the Corporation except as conferred by the laws of the State of Delaware or as authorized by the Board;
(4) from time to time in such manner and upon such terms and conditions as may be determined by the Board to provide and carry out and recall, abolish, revise, Alter or change, one or more plan or plans for:
(i) the issue or the purchase and sale of its capital stock or granting of options there-for or of bonuses or awards in the form of such capital stock, to any or all of the employees,
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officers or directors of the Corporation or of any of its subsidiaries or of any corporation in which it owns, directly or indirectly, any shares of capital stock and in the affairs or prosperity of which the Board of Directors of the Corporation shall consider that the Corporation has an interest, and the payment for such stock in installments or at one time, with or without the right to vote the same pending payment therefore in full, and to the extent permitted by law, for aiding any such persons in payment for such stock by contributions, compensation for services, or otherwise;
(ii) the participation by any or all of the employees, officers or directors of the Corporation or of any of its subsidiaries or of any corporation in which it owns, directly or indirectly, any shares of capital stock and in the affairs or prosperity of which the Board of Directors of the Corporation shall consider that the Corporation has an interest, in the profits of the Corporation or of any branch, division or subsidiary thereof, as parts of the Corporations legitimate expenses; and
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(iii) the furnishing to any or all of the employees, officers or directors of the Corporation, or any of its subsidiaries, or of any corporation in which it owns, directly or indirectly, any shares of capital stock and in the affairs or prosperity of which the Board of Directors of the Corporation shall consider that the Corporation has an interest, for their benefit or the benefit of their dependents or other persons associated with them, at the expense, wholly or in part, of the Corporation, of such health, accident or life insurance benefits, or pension, retirement, bonus, incentive, welfare or other benefits, as shall in their judgment be in the interests of the Corporation;
(5) to authorize and cause to be executed mortgages, pledges, liens and charges upon the real and personal property of the Corporation;
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(6) by resolution passed by a majority of the whole Board, to designate one or more committees, each committee to consist of two or more of the directors of the Corporation, which, to the extent provided in the resolution or in the By-Laws of the Corporation, shall have and may exercise the powers of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which in the judgment of such committee may require it. Such committee or committees shall have such name or names as may be stated in the By-Laws of the Corporation or as may be determined from time to time by resolution adopted by the Board;
(7) when and as authorized by such affirmative vote of the holders of the then outstanding stock as may be required given at a stockholders meeting duly called for that purpose, to sell, lease or exchange all of the property and assets of the Corporation, including its good will and its corporate franchises, upon such terms and conditions and for such consideration, which may be in whole or in part shares of stock in, and/or other securities of, any other corporation or corporations, as the Board of Directors shall deem expedient and for the best interest of the Corporation.
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officers or directors of the Corporation or of any of its subsidiaries or of any corporation in which it owns, directly or indirectly, any shares of capital stock and in the affairs or prosperity of which the Board of Directors of the Corporation shall consider that the Corporation has an interest, and the payment for such stock in installments or at one time, with or without the right to vote the same pending payment therefor in full, and to the extent permitted by law, for aiding any such persons in payment for such stock by contributions, compensation for services, or otherwise;
(ii) the participation by any or all of the employees, officers or directors of the Corporation or of any of its subsidiaries or of any corporation in which it owns, directly or indirectly, any shares of capital stock and in the affairs or prosperity of which the Board of Directors of the Corporation shall consider that the Corporation has an interest, in the profits of the Corporation or of any branch, division or subsidiary thereof, as part of the Corporations legitimate expenses; and
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(iii) the furnishing to any or all of the employees, officers or directors of the Corporation, or any of its subsidiaries, or of any corporation in which it owns, directly or indirectly, any shares of capital stock and in the affairs or prosperity of which the Board of Directors of the Corporation shall consider that the Corporation has an interest, for their benefit or the benefit of their dependents or other persons associated with them, at the expense, wholly or in part, of the Corporation, of such health, accident or life insurance benefits, or pension, retirement, bonus, incentive, welfare or other benefits, as shall in their judgment be in the interests of the Corporation;
(5) to authorize and cause to be executed mortgages, pledges, liens and charges upon the real and personal property of the Corporation;
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(6) by resolution passed by a majority of the whole Board, to designate one or more committees, each committee to consist of two or more of the directors of the Corporation, which, to the extent provided in the resolution or in the By-Laws of the Corporation, shall have and may exercise the powers of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which in the judgment of such committee may require it. Such committee or committees shall have such name or names as may be stated in the By-Laws of the Corporation or as may be determined from time to time by resolution adopted by the Board;
(7) when and as authorized by such affirmative vote of the holders of the then outstanding stock as may be required given at a stockholders meeting duly called for that purpose, to sell, lease or exchange all of the property and assets of the Corporation, including its good will and its corporate franchises, upon such terms and conditions and for such consideration, which may be in whole or in part shares of stock in, and/or other securities of, any other corporation or corporations, as the Board of Directors shall deem expedient and for the best interest of the Corporation.
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TENTH: Each holder of Common Stock of the Corporation shall, as such holder, have the right, equally and ratably with other holders of Common Stock according to their respective aggregate holdings of Common Stock, and on such terms and conditions as the Board of Directors may determine, to purchase or subscribe for (a) any shares of Common Stock authorized by the original Certificate of Incorporation, including shares acquired by the Corporation after issue, which the Corporation may hereafter issue or sell or otherwise transfer for cash or otherwise, other than the initial shares of Common Stock issued by the Corporation, or (b) any other shares of stock or obligations or other securities which the Corporation may hereafter issue, sell or otherwise transfer, for cash or otherwise, which shall be convertible into, or exchangeable for such shares of Common Stock or to which shall be attached or appurtenant any warrant, option or other instrument that shall confer upon the holder or holders thereof the right to subscribe for or purchase or receive from the Corporation any such shares of Common Stock; provided, however, that the holder of any right hereinabove provided to purchase or subscribe for any shares of Common Stock or any other shares of stock or obligations or other securities may waive such right by notice in writing filed with the Corporation; and provided, further, that, if and to the extent
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any such right is not exercised within a reasonable time, as determined and prescribed by the Board of Directors, such shares of Common Stock or such other shares of stock or obligations or other securities may thereafter be issued and disposed of pursuant to the resolutions of the Board of Directors, adopted either before or after any offering to shareholders as contemplated herein, to such persons, firms, corporations or other entities or groups and upon such terms and conditions (but at a price, without deduction of such reasonable compensation or discount, if any, as shall be paid or allowed for the sale, underwriting, or purchase of such shares by underwriters or dealers, not less than that at which they were offered to holders of Common Stock) as may be deemed advisable by the Board of Directors in the exercise of its discretion. Except as hereinabove in this Article TENTH expressly provided, no holder of stock of the Corporation of any-class or classes, now or hereafter authorized, or of any obligation of the Corporation that shall be convertible into, or exchangeable for, any share or shares of such stock, or any warrant, option or other instrument that shall confer upon the holder thereof the right to subscribe for or purchase or receive from the Corporation any share or shares of such stock, shall, as such holder, have any right to purchase or subscribe for any shares of stock of the Corporation of any class or any obligations or other securities which the Corporation may hereafter issue or sell which shall be convertible into, or exchangeable for, or entitle the holders thereof to subscribe for or purchase or receive any shares of stock of the Corporation of any class.
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ELEVENTH: Any and all right, title, interest and claim in or to any dividends declared by the Corporation, whether in cash, stock or otherwise, which are unclaimed by the stockholder entitled thereto for a period of six years after the close of business on the payment date, shall be and be deemed to be extinguished and abandoned; and such unclaimed dividends in the possession of the Corporation, its transfer agents or other agents or depositaries, shall at such time become the absolute property of the Corporation, free and clear of any and all claims of any persons whatsoever.
TWELFTH: No contract or other transaction between the Corporation and any other corporation, and no act of the Corporation, shall in any way be affected or invalidated by the fact that any of the directors of the Corporation are pecuniarily or otherwise interested in or are directors or officers of such other corporation, and any director individually or any firm or association of which any
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director may be a member may be a party to or may be pecuniarily or otherwise interested in any contract or transaction of the Corporation, provided that the fact that he individually or such firm is so interested shall be disclosed or shall have been known to the Board or a majority thereof and that such director shall not be counted in determining the existence of a quorum at any meeting of the Board of the Corporation which shall authorize any such contract or transaction or in any vote thereat to authorize any such contract or transaction.
THIRTEENTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof, or on the application of any receiver or receivers appointed for this Corporation under the provisions of section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under the provisions of section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or
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class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this Corporation, as the case may be, and also on this Corporation.
FOURTEENTH: From time to time any of the provisions of this Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed or permitted by said laws; and all rights at any time conferred upon the stockholders of the Corporation by this certificate of Incorporation are granted subject to the provisions of this Article FOURTEENTH.
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IN WITNESS WHEREOF, the undersigned, being all of the incorporators hereinbefore named, do hereby make this certificate for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware and do hereby certify that the facts hereinbefore set forth are true and correct and have accordingly here-unto set our hands and seals this 27th day of December 1963.
/s/ John D. Garrison |
(Seal) | |
/s/ Kenneth L. Demarest |
(Seal) | |
/s/ John R. OBrien |
(Seal) |
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CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION BEFORE
PAYMENT OF ANY PART OF THE CAPITAL
or
QUALITY MAGAZINE SCHOOL PROFIT PLAN, INC.
(Pursuant to Section 241 of the General
Corporation Law of Delaware)
We, the undersigned, being all of the incorporators of QUALITY MAGAZINE SCHOOL PROFIT PLAN, INC. (herein called the Corporation), for the purpose of effecting the following amendment or amendments to the Certificate of Incorporation, the said amendment or amendments to be effective as of the date of the filing and the recording of said original Certificate of Incorporation, do hereby certify that:
FIRST: No payment of any part of the capital of the Corporation has been made.
SECOND: The original Certificate of Incorporation is hereby amended to change the name of the Corporation to THE QUALITY SCHOOL PLAN, INC.
THIRD: The original Certificate of Incorporation is hereby amended by striking out Article TENTH thereof in its entirety and by substituting in lieu thereof the following new Article:
TENTH: The holders of shares of Common Stock of the Corporation shall, as such, have the right, pro rata according to their respective holdings of Common Stock of the Corporation, at a price not less than the proposed offering price to others and on such other reasonable terms and conditions as the Board of Directors may determine, to purchase or subscribe for any of the authorized but unissued shares of Common Stock of the Corporation and for any other securities of the Corporation which shall be convertible into, or shall evidence or carry the right to purchase, shares of Common Stock of the Corporation, whether now or hereafter authorized, which may be issued for cash or otherwise.
IN WITNESS WHEREOF, we have hereunto set our respective hands and seals to this Certificate of Amendment of Certificate of Incorporation this 29th day of January, 1964.
/s/ John D. Garrison | (L.S.) | |
John D. Garrison | ||
/s/ John R. OBrien | (L.S.) | |
John R. OBrien | ||
/s/ Kenneth L. Demarest | (L.S.) | |
Kenneth L. Demarest |
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CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION
of
THE QUALITY SCHOOL PLAN, INC.
A Delaware Corporation
It is hereby certified that:
1. The name of this corporation (hereinafter called the Corporation) is THE QUALITY SCHOOL PLAN, INC.
2. The Certificate of Incorporation of the Corporation is hereby amended by striking out Article FIRST and Article FOURTH thereof and by substituting in lieu of said Article FIRST and Article FOURTH the following new Articles:
FIRST: The name of the Corporation is QSP, INC.
and
FOURTH: The total number of shares of stock the Corporation shall have the authority to issue is two million fifty thousand (2,050,000) shares and par value of each of such shares is one (1¢) cent of which one million nine hundred thousand (1,900,000) shares shall be Class A Common Stock and one hundred
and fifty thousand (150,000) shares shall be Class B Common Stock. The Class A Common Stock and the Class B Common Stock shall participate share for share in all dividends and distributions of assets upon liquidation or otherwise and shall be identical in all other respects, except that the holders of the Class B Common Stock shall have no voting power for any purpose whatsoever, except as otherwise provided by law, and the holders of the Class A Common Stock of the Corporation shall have full voting power for all purposes.
3. These amendments to the Certificate of Incorporation herein certified have been duly, adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
4. The capital of the Corporation will not be reduced under or by reason of any amendment herein certified.
Executed at New Castle, New York, October 27, 1969.
/s/ Illegible | ||||
![]() |
Vice President | |||
Attest: | ||||
/s/ Illegible | ||||
Assistant Secretary |
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RESTATED CERTIFICATE OF INCORPORATION
OF
QSP, INC.
A Delaware Corporation
It is hereby certified that:
This Corporation was originally incorporated under the name Quality Magazine School Profit Plan, Inc., and its original Certificate of Incorporation was filed with the Secretary of State on December 30, 1963. This Restated Certificate of Incorporation was duly adopted by the written consent of all of the Stockholders of the Corporation entitled to vote thereon pursuant to Section 228 and in accordance with the provisions of Sections 245/&242 of the General Corporation Law of Delaware.
FIRST: The name of the Corporation is QSP, INC.
SECOND: The location of the Registered Office of the Corporation in the State of Delaware is at 229 South State Street, City of Dover, County of Kent. The name and address of its Registered Agent in the State of Delaware upon whom process against the Corporation may be served is The Prentice-Hall Corporation System, Inc., 229 South State Street, Dover, Delaware 19901.
THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware, and may include, but not by way of limitation:
To engage in and to act as agent for others in fund raising, including the solicitation of orders or subscriptions for, and the selling and distribution generally of magazines, books and publications and printed matter of any and all kinds, of recorded music and materials of all kinds and of records, phonographs, tape recorders and recordings, audiovisual materials, programs and equipment of all kinds, musical, scientific, educational and recreational equipment and supplies of all kinds, food stuffs and confectionery goods of any and all kinds, personal supplies and services of all kinds, and merchandise and manufactured goods of any and all kinds.
The foregoing provisions of Article THIRD shall be construed each as an independent purpose and power. The enumeration of specific purposes and powers shall not be held to limit or restrict in any manner the purposes and powers of the Corporation and the purposes and powers herein specified shall be in no wise limited or restricted by reference to or inference from the terms of any provision of this or any other Article of this Certificate of Incorporation.
FOURTH: The total number of shares of stock which the Corporation shall have the authority to issue is two million fifty thousand (2,050,000) shares and par value of each of such shares is one cent (1¢) of which one million nine hundred thousand (1,900,000) shares shall be Class A Common Stock and one hundred and fifty thousand (150,000) shall be Class B Common stock. The Class A Common Stock and Class B Common Stock shall participate share for share in all dividends and
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distributions of assets upon liquidation or otherwise and shall be identical in all other respects, except that the holders of the Class B Common Stock shall have no voting power for any purpose whatsoever, except as otherwise provided by law, and the holders of the Class A Common Stock of the Corporation shall have full voting power for all purposes.
FIFTH: The number of directors of the Corporation shall be as from time to time fixed by, or in the manner provided in, its By-Laws and may be increased or decreased as therein provided; but the number thereof shall not be less than three. Election of directors need not be by ballot unless otherwise provided in the By-Laws.
SIXTH: The Corporation shall be managed by the Board of Directors which shall exercise all powers conferred under the laws of the State of Delaware including without limitation the power:
(1) to hold meetings, to have one or more offices, and to keep the books of the Corporation, except as otherwise expressly provided by law, at such places, whether within or without the State of Delaware, as may from time to time be designated by the Board;
(2) to make, alter, and repeal by-laws of the Corporation, subject to the power reserved by law of the stockholders to make, alter and repeal by-laws;
3
(3) to determine whether and to what extent and at what times and places and under what conditions and regulations, the accounts and books of the Corporation, or any of them, shall be open to the inspection of the stockholders, and no stockholder shall have any right to inspect any account, record, book or document of the Corporation except as conferred by the laws of the State of Delaware or as authorized by the Board;
(4) from time to time in such manner and upon such terms and conditions as may be determined by the Board to provide and carry out and recall, abolish, revise, alter or change, one or more plan or plans for:
(i) the issue or the purchase and sale of its capital stock or granting of options therefor or of bonuses or awards in the form of such capital stock, to any or all of the employees, officers or directors of the Corporation or of any of its subsidiaries or of any corporation in which it owns, directly or indirectly, any shares of capital stock and in the affairs or prosperity of which the Board of Directors of the Corporation shall consider that the Corporation has an interest, and the payment for such stock in installments or at one time, with or without the right to vote the same pending payment therefor in full, and to the extent permitted by law, for aiding any such persons in payment for such stock by contributions, compensation for services, or otherwise;
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(ii) the participation by any or all of the employees, officers or directors of the Corporation or of any of its subsidiaries or of any corporation in which it owns, directly or indirectly, any shares of capital stock and in the affairs or prosperity of which the Board of Directors of the Corporation shall consider that the Corporation has an interest, in the profits of the Corporation or of-any branch, division or subsidiary thereof, as part of the Corporations legitimate expenses; and
(iii) the furnishing to any or all of the employees, officers or directors of the Corporation, or any of its subsidiaries, or of any corporation in which it owns, directly or indirectly, any shares of capital stock and in the affairs or prosperity of which the Board of Directors of the Corporation shall consider
5
that the Corporation has an interest, for their benefit or the benefit of their dependents or other persons associated with them, at the expense, wholly or in part, of the Corporation, of such health, accident or life insurance benefits, or pension, retirement, bonus, incentive, welfare or other benefits, as shall in their judgment be in the interests of the Corporation;
(5) to authorize and cause to be executed mortgages, pledges, liens and charges upon the real and personal property of the Corporation;
(6) by resolution passed by a majority of the whole Board, to designate one or more committees, each committee to consist of two or more of the directors of the Corporation, which, to the extent provided in the resolution or in the By-Laws of the Corporation, shall have and may exercise the powers of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which in the judgment of such committee may require it. Such committee or committees shall have such name or names as may be stated in the By-Laws of the Corporation or as may be determined from time to time by resolution adopted by the Board;
6
(7) when and as authorized by such affirmative vote of the holders of the then outstanding stock as may be required taken at a stockholders meeting duly called for that purpose, to sell, lease or exchange all of the property and assets of the Corporation, including its good will and its corporate franchises, upon such terms and conditions and for such consideration, which may be in whole or in part shares of stock in, and/or other securities of, any other corporation or corporations, as the Board of Directors shall deem expedient and for the best interest of the Corporation.
SEVENTH: The holders of shares of Common Stock of the Corporation shall, as such, have the right, pro rata according to their respective holdings of Common Stock of the Corporation, at a price not less than the proposed offering price to others and on such other reasonable terms and conditions as the Board of Directors may determine, to purchase or subscribe for any of the authorized but unissued shares of Common Stock of the Corporation, other than the 150,000 shares of the Class B Common Stock (non-voting) of the Corporation presently available for issuance upon exercise of options granted pursuant to the Qualified Stock Option Plan of the Corporation, and for any other securities of the Corporation which shall be convertible into, or shall evidence or carry the right to purchase, shares of Common Stock of the shall have been known to the Board or a majority thereof and that such director shall not be counted in determining the existence of a quorum at any meeting of the Board of the Corporation which shall authorize any such contract or transaction or in any vote thereat to authorize any such contract or transaction.
7
TENTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof, or on the application of any receiver or receivers appointed for this Corporation under the provisions of section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under the provisions of section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors,
9
(7) when and as authorized by such affirmative vote of the holders of the then outstanding stock as may be required taken at a stockholders meeting duly called for that purpose, to sell, lease or exchange all of the property and assets of the Corporation, including its good will and its corporate franchises, upon such terms and conditions and for such consideration, which may be in whole or in part shares of stock in, and/or other securities of, any other corporation or corporations, as the Board of Directors shall deem expedient and for the best interest of the Corporation.
SEVENTH: The holders of shares of Common Stock of the Corporation shall, as such, have the right, pro rata according to their respective holdings of Common Stock of the Corporation, at a price not less than the proposed offering price to others and on such other reasonable terms and conditions as the Board of Directors may determine, to purchase or subscribe for any of the authorized but unissued shares of Common Stock of the Corporation, other than the 150,000 shares of the Class B Common Stock (non-voting) of the Corporation presently available for issuance upon exercise of options granted pursuant to the Qualified Stock Option Plan of the Corporation, and for any other securities of the Corporation which shall be convertible into, or shall evidence or carry the right to purchase, shares of Common Stock of the Corporation, whether now or hereafter authorized, which may be issued for cash or otherwise.
7
EIGHTH: Any and all right, title, interest and claim in or to any dividends declared by the Corporation, whether in cash, stock or otherwise, which are unclaimed by the stockholder entitled thereto for a period of six years after the close of business on the payment date, shall be and be deemed to be extinguished and abandoned; and such unclaimed dividends in the possession of the Corporation, its transfer agents or other agents or depositaries, shall at such time become the absolute property of the Corporation, free and clear of any and all claims of any persons whatsoever.
NINTH: No contract or other transaction between the Corporation and any other corporation, and no act of the Corporation, shall in any way be affected or invalidated by the fact that any of the directors of the Corporation are pecuniarily or otherwise interested in or are directors or officers of such other corporation, and any director individually or any firm or association of which any director may be a member may be a party to or may be pecuniarily or otherwise interested in any contract or transaction of the Corporation, provided that the fact that he individually or such firm is so interested shall be disclosed or shall have been known to the Board or a majority thereof and that such director shall not be counted in determining the existence of a quorum at any meeting of the Board of the Corporation which shall authorize any such contract or transaction or in any vote thereat to authorize any such contract or transaction.
8
TENTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof, or on the application of any receiver or receivers appointed for this Corporation under the provisions of section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under the provisions of section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors,
9
and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this Corporation, as the case may be, and also on this Corporation.
ELEVENTH: From time to time any of the provisions of this Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed or permitted by said laws; and all rights at any time conferred upon the stockholders of the Corporation by this Certificate of Incorporation are granted subject to the provisions of this Article ELEVENTH.
10
IN WITNESS WHEREOF, the undersigned, the President of the Corporation, has hereunto set his hand and affixed the seal of the Corporation to this Restated Certificate of Incorporation, duly attested by the Secretary of the Corporation, this 13th day of October 1970.
/s/ Illegible
|
Exe V. President |
ATTEST: |
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/s/ Illegible
| ||
Secretary |
11
8502250301
CERTIFICATE OF OWNERSHIP AND MERGER
of
SUNLAND PLANS, INC.
(an Alabama corporation)
into
QSP, INC.
(a Delaware corporation) |
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It is hereby certified that:
1. QSP, Inc. (hereinafter sometimes referred to as the Corporation) is a business corporation of the State of Delaware.
2. The Corporation is the owner of all of the outstanding shares of stock of Sunland Plans, Inc., which is a business corporation of the State of Alabama.
3. The laws of the jurisdiction of organization of Sunland Plans, Inc. permit the merger of a business corporation of that jurisdiction with a business corporation of another jurisdiction.
4. The Corporation hereby merges Sunland Plans, Inc. into the Corporation.
5. The following is a copy of the resolutions adopted on June 10, 1985 by the Board of Directors of the Corporation to merge the said Sunland Plans, Inc. into the Corporation.
RESOLVED that this Board of Directors hereby (i) recommends, approves and adopts, as being in the best interests of the Corporation and its shareholder, the proposed Plan of Merger between the Corporation and Sunland Plans, Inc., an Alabama corporation, in substantially the form attached hereto as Exhibit A; (ii) approves and adopts the proposed Articles of Merger between the Corporation and Sunland Plans, Inc., in substantially the form attached hereto as Exhibit B; and (iii) approves and adopts the proposed Certificate of Ownership and Merger in substantially the form attached hereto as Exhibit C;
RESOLVED that the proper officers of the Corporation be, and each of them hereby is, authorized and directed to execute and deliver such Plan of Merger, such Articles of Merger and such Certificate of Ownership and Merger;
RESOLVED that such Plan of Merger shall be submitted for approval to the shareholder of the Corporation; and
RESOLVED that the proper officers of the Corporation be, and each of them hereby is, authorized to take all such further action and to execute and deliver all such further agreements, instruments and documents, in the name and on the behalf of the Corporation and under its corporate seal or otherwise, and to pay all such expenses and taxes, as in their judgment shall be necessary, proper or advisable in order fully to carry out the intent and accomplish the purposes of the resolutions adopted hereby.
Executed on June 10, 1985.
QSP, INC. | ||
By | /s/ Illegible
| |
Its President |
Attest: |
/s/ Virginia Lawton
|
Its Secretary |
I, VIRGINIA LAWTON, Secretary of QSP, Inc., hereby certify that the attached is a true copy of a Certificate of Ownership and Merger adopted by written consent of all the members of the Board of Directors of QSP, Inc. on June 10, 1985, in lieu of a meeting, and that said Certificate is in full force and effect as of this date.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the seal of the Corporation this 10th day of June, 1985.
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/s/ Virginia Lawton
| |||||
Secretary | ||||||
EXHIBIT A
PLAN OF MERGER dated as of June 10, 1985, between QSP Holdings, Inc., a Delaware corporation (hereinafter called the Surviving Corporation), and Sunland Plans, Inc., an Alabama corporation (hereinafter called the Merging Corporation). The Surviving Corporation and the Merging Corporation are hereinafter sometimes collectively called the Constituent Corporations.
The authorized capital stock of the Surviving Corporation consists of 1,900,000 Class A Common shares, par value of $0.01 per share, of which all 1,900,000 Class A Common shares are issued and outstanding, and 150,000 Class B Common Shares, par value of $0.01 per share, none of which is issued and outstanding.
The authorized capital stock of the Merging Corporation consists of 1,000 shares of Common Stock, par value $1.00 each, of which 100 Common shares are issued and outstanding.
The Board of Directors and the stockholders of each of the Constituent Corporations have, by unanimous written consents, adopted resolutions approving and adopting this Plan of Merger.
NOW, THEREFORE, in consideration of the premises and the mutual convenants and agreements herein contained, and for the purpose of stating the terms and conditions of the merger of the Merging Corporation with and into the Surviving Corporation (hereinafter called the Merger), the mode of carrying the same into effect, the manner of converting the shares of the Merging Corporation outstanding immediately prior to the Merger and such other details and provisions as are deemed necessary or desirable, the parties hereto hereby agree as follows:
ARTICLE I
1.01. The Merger. In accordance with the provisions of the Alabama Business Corporation Act (hereinafter called the Alabama Act) and the Delaware General Corporation Law (the Delaware Act), at the Effective Time of the Merger (as defined in Section 1.02 hereof), the Merging Corporation shall be merged with and into the Surviving Corporation. Upon the Effective Time of the Merger, the name of the Surviving Corporation shall become QSP, Inc., and the separate existence of each of the Constituent Corporations shall cease and the Surviving Corporation shall continue to exist and be governed by the laws of the State of Delaware.
1.02. Effective Time of the Merger. The Effective Time of the Merger shall be the later of the dates on which a (i) a certificate of merger shall have been issued by the Secretary of State of the State of Alabama pursuant to Section 85 of the Alabama Act, or (ii) a certificate of ownership and merger shall have been filed pursuant to Sections 251(c) and 252(c) of the Delaware Act.
1.03. Effect of the Merger. At the Effective Time of the Merger:
(a) The Surviving Corporation shall possess all the property, rights, privileges, powers, immunities, purposes and franchises, and shall be subject to all the duties, liabilities, restrictions and liabilities, of the Merging Corporation.
(b) (i) All the rights, privileges, immunities, powers and franchises of the Merging Corporation, (ii) all real, personal or mixed property, tangible or intangible, and all assets of the Merging Corporation, (iii) all debts due on whatever account to the Merging Corporation, including all choses in action, and (iv) all and every other interest of or belonging to the Merging Corporation shall be taken and deemed to be transferred to and vested in the Surviving Corporation without further act or deed.
00007 | - 3 - |
(c) All the property, rights, privileges, powers and franchises and all and every other interest of the Merging Corporation shall be thereafter as effectually the property of the Surviving Corporation as they were of the Merging Corporation, and the title to any real estate, or any interest therein, whether by deed or otherwise, vested in the Merging Corporation shall not revert or be in any way impaired by reason of the Merger. Any surplus that the Merging Corporation may have at the Effective Time of the Merger shall be carried as surplus by the Surviving Corporation.
(d) All rights of creditors or of any persons against, liens upon or security interests in the property of the Merging Corporation shall not in any way be lessened and shall be preserved unimpaired, limited in lien to the property affected by such liens immediately prior to the Effective Time of the Merger. The Surviving Corporation shall be responsible for all the debts, liabilities, duties, obligations and penalties of the Merging Corporation and the same may be enforced against the Surviving Corporation in the same manner and to the same extent as if incurred or contracted by or imposed upon it. The liabilities, obligations, claims or demands of or on the Merging Corporation or any shareholder, director or officer thereof shall not be affected, released or impaired, and any existing claims actions or proceedings, whether civil or criminal, pending by or against the Merging Corporation or any shareholder, director or officer thereof may be enforced prosecuted, settled or compromises as if the merger had not taken place, or the Surviving Corporation may be proceeded against or substituted in its place and any judgment rendered against the Merging Corporation may be enforced against the Surviving Corporation.
00008 | - 4 - |
(e) At any time or from time to time after the Effective Time of the Merger, as the Surviving Corporation shall deem necessary, the last acting directors and officers of the Merging Corporation or any of them shall, in the name and on behalf of the Merging Corporation, execute and deliver all such proper deeds, assignments, confirmations, assurances and other instruments and do all such other acts and things as the Surviving Corporation may deem necessary, proper or desirable in order to (i) vest, perfect, confirm or ratify the Surviving Corporations title to and possession of all the property, assets, rights, privileges, powers, franchises and immunities of the Merging Corporation, (ii) evidence the fact that the separate existence of the Merging Corporation has ceased and (iii) otherwise carry out the purposes of this Plan of Merger.
00009 | - 5 - |
(f) In furtherance of the foregoing, all corporate acts, plans, policies, approvals and authorization of the stockholders, Boards of Directors, committees elected or appointed by the Boards of Directors, officers or agents of the Merging Corporation that were valid and effective immediately prior to the Effective Time of the Merger shall be taken for all purposes as the acts, plans, policies, approvals and authorizations of the Surviving Corporation and shall be as effective and binding on the Surviving Corporation as the same were with respect to the Merging Corporation, except to the extent the foregoing may be inconsistent with actions previously or hereafter taken by the Board of Directors or stockholders of the Surviving Corporation. The employees and agents of the Merging Corporation shall become the employees and agents of the Surviving Corporation and shall continue to be entitled to the same rights and benefits, and subject to the same limitations, qualifications, rights of amendment, termination, reassignment or changes in assignment, reserved to the Merging Corporation that they enjoyed and were subject to as employees and agents of the Merging Corporation.
All the above shall be effected as provided by the laws of the States of Alabama and Delaware.
00010 | - 6 - |
ARTICLE II
2.01. Capital Stock of the Constituent Corporations. At the Effective Time of the Merger, the issued shares of the Merging Corporation shall not be converted into shares of the Surviving Corporation and shall not be converted in any other manner, inasmuch as the Surviving Corporation owns all of the outstanding shares of the Merging Corporation. Each issued share of the Merging Corporation shall be surrendered and extinguished upon the Effective Time of the Merger. The issued shares of the Surviving Corporation shall not be converted in any manner, but each said share which is issued as of the Effective Time of the Merger shall contiue to represent one issued share of the Surviving Corporation.
ARTICLE III
3.01. Certificate of Incorporation of the Surviving Corporation. At the Effective Time of the Merger, the Certificate of Incorporation of the Surviving Corporation then in effect shall continue in force and be the Certificate of Incorporation of the Surviving Corporation.
3.02. By-laws of the Surviving Corporation. At the Effective Time of the Merger, the By-laws of the Surviving Corporation then in effect shall continue in force and be the By-laws of the Surviving Corporation, until altered, amended or repealed in accordance with the Articles of Incorporation of the Surviving Corporation, the provisions thereof and applicable law.
00011 | - 7 - |
3.03. Board of Directors of the Surviving Corporation. At the Effective Time of the Merger, the persons constituting the Board of Directors of the Surviving Corporation immediately prior to the Effective Time of the Merger shall become and be the directors of the Surviving Corporation and shall hold office until the annual meeting of stockholders of the Surviving Corporation next following the Effective Time of the Merger and until their successors shall have been elected and shall have qualified. If at the Effective Time of the Merger a vacancy shall exist on the Board of Directors, such vacancy may be filled in the manner provided by the By-laws of the Surviving Corporation as in effect at and after such time.
3.04. Officers of the Surviving Corporation. At the Effective Time of the Merger, the officers of the Surviving Corporation in office immediately prior to the Effective Time of the Merger shall become and be the officers of the Surviving Corporation, each to hold office in accordance with the By-laws of the Surviving Corporation as in effect at and after the Effective Time of the Merger.
ARTICLE IV
4.01. Counterparts. For the convenience of the parties hereto, counterparts hereof may be executed by a party hereto and each such counterpart shall be deemed to be an original instrument.
IN WITNESS WHEREOF, each of the Constituent Corporations has caused this Plan of Merger to be duly signed in its corporate name, duly attested, and its corporate seal to be affixed hereto, all as of the date first above written.
QSP, INC., | ||||
|
By | /s/ Illegible
| ||
Its President |
[Corporate Seal]
Attest: |
/s/ Virginia Lawton
|
Title: Secretary |
SUNLAND PLANS, INC., | ||||
|
By | /s/ Illegible
| ||
Its President |
[Corporate Seal]
Attest: |
/s/ Virginia Lawton
|
Title: Secretary |
EXHIBIT B
ARTICLES OF MERGER OF DOMESTIC AND
FOREIGN CORPORATIONS INTO QSP, INC.
The undersigned corporations, pursuant to Section 88 of the Business Corporation Act of the State of Alabama (hereinafter called the Alabama Act), hereby execute the following Articles of Merger:
ONE
The names of the corporations proposing to merge and the names of the States under the laws of which such corporations are incorporated are as follows:
Name of Corporation |
State of Incorporation | |
Sunland Plans, Inc. |
Alabama | |
QSP, Inc. |
Delaware |
TWO
The laws of the State of Delaware, the State under the laws of which the foreign corporation is organized, permit such merger. All conditions required by the laws of the State of Delaware applicable to the proposed merger have been satisfied.
THREE
The name of the surviving corporation shall be QSP, Inc., and it is to be governed by the laws of the State of Delaware.
FOUR
The Plan of Merger is set forth in Exhibit A attached hereto.
FIVE
(1) As to Sunland Plans, Inc., an Alabama corporation, the Board of Directors approved such plan of merger by unanimous written consent on June 10, 1985. Pursuant to a Written Consent of Stockholder to Action without a Meeting dated June 10, 1985, the sole stockholder of Sunland Plans, Inc., an Alabama corporation, approved such plan of merger pursuant to Section 38 of the Alabama Act.
(2) As to QSP, Inc., a Delaware corporation, the Board of Directors approved such plan of merger by unanimous written consent on June 10, 1985. Pursuant to a Written Consent of Stockholder to Action without a Meeting dated June 10, 1985, the sole stockholder of QSP, Inc., a Delaware corporation, approved such plan of merger pursuant to Section 228 of the Delaware General Corporation Law.
SIX
(1) As to Sunland Plans, Inc., an Alabama corporation, there is only one class of shares authorized, consisting of Common shares, par value of $1.00 per share, of which 100 shares are outstanding at the date of these Articles of Merger. All such outstanding shares were entitled to vote on such plan of merger. All 100 of such shares have been voted in favor of such plan of merger.
(2) As to QSP, Inc., a Delaware corporation, there is only one class of shares authorized, consisting of Common shares, par value of $0.01 per share, of which 1,900,000 shares are outstanding at the date of these Articles of Merger. All such outstanding shares were entitled to vote on such plan of merger. All 1,900,000 of such shares have been voted in favor of such plan of merger.
SEVEN
The articles of incorporation of Sunland Plans, Inc. are filed in Jefferson County in the State of Alabama.
EIGHT
It is agreed that upon and after the issuance of a certificate of merger by the Secretary of State of Alabama:
(1) The surviving corporation may be served with process in the State of Alabama in any proceeding for the enforcement of any obligation of any corporation organized under the laws of the State of Alabama which is a party to the merger and in any proceeding for the enforcement of the rights of a dissenting stockholder of any such corporation against the surviving corporation.
(2) The Secretary of State of the State of Alabama is hereby irrevocably appointed as agent of the surviving corporation to accept service of process in any proceeding referred to in (1) above.
(3) The surviving corporation will promptly pay to the dissenting stockholders of any corporation organized under the laws of the State of Alabama which is a party to the merger the amount, if any, to which they shall be entitled by the provisions of the Act with respect to the rights of dissenting stockholders.
IN WITNESS WHEREOF each of the undersigned corporations have caused these Articles of Merger to be executed in their names by their presidents and their secretaries as of the 10th day of June, 1985.
[Corporate Seal] | SUNLAND PLANS, INC., | |||||||
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By | /s/ Illegible | ||||||
Title: President | ||||||||
By |
/s/ Virginia Lawton
| |||||||
Title: Secretary | ||||||||
QSP, INC., | ||||||||
[Corporate Seal] |
By | /s/ Illegible
| ||||||
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Title: President | |||||||
By | /s/ Virginia Lawton
| |||||||
Title: Secretary |
STATE OF NEW YORK |
) | |
) ss.: | ||
COUNTY OF WESTCHESTER | ) |
I, /s/ Mary Graniero, a notary public, do hereby certify that on this 12th day of June, 1985, personally appeared before me Fred M. Snyder and Virginia Lawton, who, being by me first duly sworn declared that they are the President and Secretary of QSP, Inc., that they signed the foregoing document as President and Secretary of the Corporation, and that the statements therein contained are true.
/s/ Mary Graniero | ||
Notary Public | ||
(NOTARIAL SEAL)
|
||
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STATE OF NEW YORK | ) | |
) ss.: | ||
COUNTY OF WESTCHESTER | ) |
I, /s/ Mary Graniero, a notary public, do hereby certify that on this 12th day of June, 1985, personally appeared before me Fred M. Snyder and Virginia Lawton, who, being by me first duly sworn declared that they are the President and Secretary of Sunland Plans, Inc., that they signed the foregiong document as President and Secretary of the Corporation, and that the statements therein contained are true.
/s/ Mary Graniero | ||
Notary Public | ||
(NOTARIAL SEAL) | ||
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DESIGNATION OF ADDRESS FOR MAILING PROCESS
To the Secretary of State
State of Alabama
Pursuant to the provisions of the Alabama Business Corporation Act governing merger of domestic into foreign corporations, the undersigned corporation, which is the surviving corporation under the Plan of Merger for merging Sunland Plans, Inc. with and into QSP, Inc., does hereby designate the following as the address to which the Secretary of State of the State of Alabama shall mail any process served upon said Secretary of State as agent of the undersigned corporation in compliance with the provisions of said Act.
W. Barnabas McHenry, Esq.
Vice President and General Counsel
The Readers Digest Association, Inc.
200 Park Avenue
New York, New York 10166
Dated: June 10, 1985
QSP, INC. | ||
By | /s/ Illegible
| |
President | ||
/s/ Virginia Lawton
| ||
Secretary |
[SEAL]
EXHIBIT A TO | ||||||
ARTICLES OF MERGER |
PLAN OF MERGER dated as of June 10, 1985, between QSP Holdings, Inc., a Delaware corporation (hereinafter called the Surviving Corporation), and Sunland Plans, Inc., an Alabama corporation (hereinafter called the Merging Corporation). The Surviving Corporation and the Merging Corporation are hereinafter sometimes collectively called the Constituent Corporations.
The authorized capital stock of the Surviving Corporation consists of 1,900,000 Class A Common shares, par value of $0.01 per share, of which all 1,900,000 Class A Common shares are issued and outstanding, and 150,000 Class B Common Shares, par value of $0.01 per share, none of which is issued and outstanding.
The authorized capital stock of the Merging Corporation consists of 1,000 shares of Common Stock, par value $1.00 each, of which 100 Common shares are issued and outstanding.
The Board of Directors and the stockholders of each of the Constituent Corporations have, by unanimous written consents, adopted resolutions approving and adopting this Plan of Merger.
NOW, THEREFORE, in consideration of the premises and the mutual convenants and agreements herein contained, and for the purpose of stating the terms and conditions of the merger of the Merging Corporation with and into the Surviving Corporation (hereinafter called the Merger), the mode of carrying the same into effect, the manner of converting the shares of the Merging Corporation outstanding immediately prior to the Merger and such other details and provisions as are deemed necessary or desirable, the parties hereto hereby agree as follows:
ARTICLE I
1.01. The Merger. In accordance with the provisions of the Alabama Business Corporation Act (hereinafter called the Alabama Act) and the Delaware General Corporation Law (the Delaware Act), at the Effective Time of the Merger (as defined in Section 1.02 hereof), the Merging Corporation shall be merged with and into the Surviving Corporation. Upon the Effective Time of the Merger, the name of the Surviving Corporation shall become QSP, Inc., and the separate existence of each of the Constituent Corporations shall cease and the Surviving Corporation shall continue to exist and be governed by the laws of the State of Delaware.
1.02. Effective Time of the Merger. The Effective Time of the Merger shall be the later of the dates on which a (i) a certificate of merger shall have been issued by the Secretary of State of the State of Alabama pursuant to Section 85 of the Alabama Act, or (ii) a certificate of ownership and merger shall have been filed pursuant to Sections 251 (c) and 252 (c) of the Delaware Act.
1.03. Effect of the Merger. At the Effective Time of the Merger:
(a) The Surviving Corporation shall possess all the property, rights, privileges, powers, immunities, purposes and franchises, and shall be subject to all the duties, liabilities, restrictions and liabilities, of the Merging Corporation.
(b) (i) All the rights, privileges, immunities, powers and franchises of the Merging Corporation, (ii) all real, personal or mixed property, tangible or intangible, and all assets of the Merging Corporation, (iii) all debts due on whatever account to the Merging Corporation, including all choses in action, and (iv) all and every other interest of or belonging to the Merging Corporation shall be taken and deemed to be transferred to and vested in the Surviving Corporation without further act or deed.
(c) All the property, rights, privileges, powers and franchises and all and every other interest of the Merging Corporation shall be thereafter as effectually the property of the Surviving Corporation as they were of the Merging Corporation, and the title to any real estate, or any interest therein, whether by deed or otherwise, vested in the Merging Corporation shall not revert or be in any way impaired by reason of the Merger. Any surplus that the Merging Corporation may have at the Effective Time of the Merger shall be carried as surplus by the Surviving Corporation.
(d) All rights of creditors or of any persons against, liens upon or security interests in the property of the Merging Corporation shall not in any way be lessened and shall be preserved unimpaired, limited in lien to the property affected by such liens immediately prior to the Effective Time of the Merger. The Surviving Corporation shall be responsible for all the debts, liabilities, duties, obligations and penalties of the Merging Corporation and the same may be enforced against the Surviving Corporation in the same manner and to the same extent as if incurred or contracted by or imposed upon it. The liabilities, obligations, claims or demands of or on the Merging Corporation or any shareholder, director or officer thereof shall not be affected, released or impaired, and any existing claims actions or proceedings, whether civil or criminal, pending by or against the Merging Corporation or any shareholder, director or officer thereof may be enforced prosecuted, settled or compromises as if the merger had not taken place, or the Surviving Corporation may be proceeded against or substituted in its place and any judgment rendered against the Merging Corporation may be enforced against the Surviving Corporation.
(e) At any time or from time to time after the Effective Time of the Merger, as the Surviving Corporation shall deem necessary, the last acting directors and officers of the Merging Corporation or any of them shall, in the name and on behalf of the Merging Corporation, execute and deliver all such proper deeds, assignments, confirmations, assurances and other instruments and do all such other acts and things as the Surviving Corporation may deem necessary, proper or desirable in order to (i) vest, perfect, confirm or ratify the Surviving Corporations title to and possession of all the property, assets, rights, privileges, powers, franchises and immunities of the Merging Corporation, (ii) evidence the fact that the separate existence of the Merging Corporation has ceased and (iii) otherwise carry out the purposes of this Plan of Merger.
00024
(f) In furtherance of the foregoing, all corporate acts, plans, policies, approvals and authorization of the stockholders, Boards of Directors, committees elected or appointed by the Boards of Directors, officers or agents of the Merging Corporation that were valid and effective immediately prior to the Effective Time of the Merger shall be taken for all purposes as the acts, plans, policies, approvals and authorizations of the Surviving Corporation and shall be as effective and binding on the Surviving Corporation as the same were with respect to the Merging Corporation, except to the extent the foregoing may be inconsistent with actions previously or hereafter taken by the Board of Directors or stockholders of the Surviving Corporation. The employees and agents of the Merging Corporation shall become the employees and agents of the Surviving Corporation and shall continue to be entitled to the same rights and benefits, and subject to the same limitations, qualifications, rights of amendment, termination, reassignment or changes in assignment, reserved to the Merging Corporation that they enjoyed and were subject to as employees and agents of the Merging Corporation.
All the above shall be effected as provided by the laws of the States of Alabama and Delaware.
00025
ARTICLE II
2.01. Capital Stock of the Constituent Corporations. At the Effective Time of the Merger, the issued shares of the Merging Corporation shall not be converted into shares of the Surviving Corporation and shall not be converted in any other manner, inasmuch as the Surviving Corporation owns all of the outstanding shares of the Merging Corporation. Each issued share of the Merging Corporation shall be surrendered and extinguished upon the Effective Time of the Merger. The issued shares of the Surviving Corporation shall not be converted in any manner, but each said share which is issued as of the Effective Time of the Merger shall continue to represent one issued share of the Surviving Corporation.
ARTICLE III
3.01. Certificate of Incorporation of the Surviving Corporation. At the Effective Time of the Merger, the Certificate of Incorporation of the Surviving Corporation then in effect shall continue in force and be the Certificate of Incorporation of the Surviving Corporation.
3.02. By-laws of the Surviving Corporation. At the Effective Time of the Merger, the By-laws of the Surviving Corporation then in effect shall continue in force and be the By-laws of the Surviving Corporation, until altered, amended or repealed in accordance with the Articles of Incorporation of the Surviving Corporation, the provisions thereof and applicable law.
3.03. Board of Directors of the Surviving Corporation. At the Effective Time of the Merger, the persons constituting the Board of Directors of the Surviving Corporation immediately prior to the Effective Time of the Merger shall become and be the directors of the Surviving Corporation and shall hold office until the annual meeting of stockholders of the Surviving Corporation next following the Effective Time of the Merger and until their successors shall have been elected and shall have qualified. If at the Effective Time of the Merger a vacancy shall exist on the Board of Directors, such vacancy may be filled in the manner provided by the By-laws of the Surviving Corporation as in effect at and after such time.
3.04. Officers of the Surviving Corporation. At the Effective Time of the Merger, the officers of the Surviving Corporation in office immediately prior to the Effective Time of the Merger shall become and be the officers of the Surviving Corporation, each to hold office in accordance with the By-laws of the Surviving Corporation as in effect at and after the Effective Time of the Merger.
ARTICLE IV
4.01. Counterparts. For the convenience of the parties hereto, counterparts hereof may be executed by a party hereto and each such counterpart shall be deemed to be an original instrument.
IN WITNESS WHEREOF, each of the Constituent Corporations has caused this Plan of Merger to be duly signed in its corporate name, duly attested, and its corporate seal to be affixed hereto, all as of the date first above written.
QSP, INC., | ||||||||
By | /s/ Illegible
| |||||||
Its President | ||||||||
[Corporate Seal]
Attest: |
||||||||
/s/ Virginia Lawton
|
||||||||
Title: Secretary | ||||||||
SUNLAND PLANS, INC., | ||||||||
By | /s/ Illegible
| |||||||
Its President | ||||||||
[Corporate Seal]
Attest: |
||||||||
/s/ Virginia Lawton
|
||||||||
Title: Secretary |
EXHIBIT C
CERTIFICATE OF OWNERSHIP AND MERGER
of
SUNLAND PLANS, INC.
(an Alabama corporation)
into
QSP, INC.
(a Delaware corporation)
It is hereby certified that:
1. QSP, Inc. (hereinafter sometimes referred to as the Corporation) is a business corporation of the State of Delaware.
2. The Corporation is the owner of all of the outstanding shares of stock of Sunland Plans, Inc., which is a business corporation of the State of Alabama.
3. The laws of the jurisdiction of organization of Sunland Plans, Inc. permit the merger of a business corporation of that jurisdiction with a business corporation of another jurisdiction.
4. The Corporation hereby merges Sunland Plans, Inc. into the Corporation.
5. The following is a copy of the resolutions adopted on June 10, 1985 by the Board of Directors of the Corporation to merge the said Sunland Plans, Inc. into the Corporation.
RESOLVED that this Board of Directors hereby (i) recommends, approves and adopts, as being in the best interests of the Corporation and its shareholder, the proposed Plan of Merger between the Corporation and Sunland Plans, Inc., an Alabama corporation, in substantially the form attached hereto as Exhibit A; (ii) approves and adopts the proposed Articles of Merger between the Corporation and Sunland Plans, Inc., in substantially the form attached hereto as Exhibit B; and (iii) approves and adopts the proposed Certificate of Ownership and Merger in substantially the form attached hereto as Exhibit C;
RESOLVED that the proper officers of the Corporation be, and each of them hereby is, authorized and directed to execute and deliver such Plan of Merger, such Articles of Merger and such Certificate of Ownership and Merger;
RESOLVED that such Plan of Merger shall be submitted for approval to the shareholder of the Corporation; and
RESOLVED that the proper officers of the Corporation be, and each of them hereby is, authorized to take all such further action and to execute and deliver all such further agreements, instruments and documents, in the name and on the behalf of the Corporation and under its corporate seal or otherwise, and to pay all such expenses and taxes, as in their judgment shall be necessary, proper or advisable in order fully to carry out the intent and accomplish the purposes of the resolutions adopted hereby.
Executed on June 10, 1985.
QSP, INC. | ||||||||
By | ||||||||
Its President |
Attest: |
|
Its Secretary |
888237068
RESTATED CERTIFICATE OF INCORPORATION
OF
QSP, INC.
A CORPORATION |
|
Organized pursuant to Subchapter I of the
General Corporation Law of the State of Delaware
INTRODUCTION
QSP, INC. (hereinafter called the Corporation), a corporation organized and existing under and by virtue of Title 8, Chapter 1, of the Delaware Code, does hereby certify as follows:
(i) That the Corporation was originally incorporated under the name of QSP, INC., and its original certificate of incorporation filed with the Secretary of State of Delaware on December 30, 1963.
(ii) That, upon the proposal of the Board of Directors of the Corporation, the following Restated Certificate of Incorporation pursuant to Section 245 of Title 8, Chapter 1, of the Delaware Code has been duly adopted by stockholder action of the Corporation in the manner and by the vote prescribed by Section 242 of Title 8, Chapter 1, of the Delaware Code:
FIRST: The name of the Corporation is: QSP, INC.
SECOND: The address of the Corporations registered office in the State of Delaware is 229 South State Street, City of Dover, County of Kent. The name of the Corporations registered agent at such address is The Prentice-Hall Corporation System, Inc.
THIRD: The nature of the business to be conducted and the purposes to be promoted by the Corporation are to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall have the authority to issue is 2,050,000 shares, of the par value of $.01 each, of which 1,900,000 shares shall be Class A Common Stock and 150,000 shall be Class B Common Stock. The Class A Common Stock and Class B Common Stock shall participate share for share in all dividends and distributions of assets upon liquidation or otherwise and shall be identical in all other respects, except that the holders of the Class B Common Stock shall have no voting power for any purpose whatsoever, except as otherwise provided by law, and the holders of the Class A Common Stock of the Corporation shall have full voting power for all purposes.
FIFTH: Unless and except to the extent that the By-laws of the Corporation so require, the election of directors of the Corporation need not be by written ballot.
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SIXTH: No director shall be personally liable to the Corporation or any stockholder for monetary damages for breach of fiduciary duty as a director, except for any matter in respect of which such director (I) shall be liable under Section 174 of Title 8, Chapter 1, of the Delaware Code or any amendment thereto or successor provision thereto or (II) shall be liable by reason that, in addition to any and all other requirements for such liability, he (i) shall have breached his duty of loyalty to the Corporation or its stockholders, (ii) shall not have acted in good faith or, in failing to act, shall not have acted in good faith, (iii) shall have acted in a manner involving intentional misconduct or a knowing violation of law or, in failing to act, shall have acted in a manner involving intentional misconduct or a knowing violation of law or (iv) shall have derived an improper personal benefit. Neither the amendment nor repeal of this paragraph SIXTH nor the adoption of any provision of this Certificate of Incorporation inconsistent herewith shall eliminate or reduce the effect of this paragraph SIXTH in respect of any matter occurring, or any cause of action, suit or claim that, but for this paragraph SIXTH, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.
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SEVENTH: The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation. Other provisions permitted by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law. Except as expressly set forth in Article SIXTH herein, all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the right reserved in this Article.
EIGHTH: The Corporation shall indemnify each officer and director (and his heirs, successors and administrators) to the full extent permitted by the Delaware Code, subject to any limitations set forth in the By-laws.
NINTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under the provisions of Section 279 of Title 8 of the Delaware Code, order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned
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in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this Corporation, as the case may be, and also on this Corporation.
TENTH: The Corporation shall be managed by the Board of Directors which shall exercise all powers conferred under the laws of the State of Delaware including without limitation the power from time to time in such manner and upon such terms and conditions as may be determined by the Board to provide and carry out and recall, abolish, revise, alter or change, one or more plan or plans for:
(i) the issue or the purchase and sale of its capital stock or granting of options therefor or of bonuses or awards in the form of such capital stock, to any or all of the employees, officers or directors of the Corporation or of any of its subsidiaries or of any corporation in which it owns, directly or indirectly, any shares of capital stock and in the affairs or prosperity of which the Board of Directors of the
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Corporation shall consider that the Corporation has an interest, and the payment for such stock in installments or at one time, with or without the right to vote the same pending payment therefor in full, and to the extent permitted by law, for aiding any such persons in payment for such stock by contributions, compensation for services, or otherwise;
(ii) the participation by any or all of the employees, officers or directors of the Corporation or of any of its subsidiaries or of any corporation in which it owns, directly or indirectly, any shares of capital stock and in the affairs or prosperity of which the Board of Directors of the Corporation shall consider that the Corporation has an interest, in the profits of the Corporation or of any branch, division or subsidiary thereof, as part of the Corporations legitimate expenses; and
(iii) the furnishing to any or all of the employees, officers or directors of the Corporation, or any of its subsidiaries, or of any corporation in which it owns, directly or indirectly, any shares of capital stock and in the affairs or prosperity of which the Board of Directors of the Corporation shall consider that the Corporation has an interest, for their benefit or the benefit of their dependents or other persons associated with them, at the expense, wholly or in part, of the Corporation, of such health, accident of life insurance benefits, or pension, retirement, bonus, incentive, welfare or other benefits, as shall in their judgment be in the interests of the Corporation.
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IN WITNESS WHEREOF, I, the undersigned, being the Vice President of the Corporation, do hereby execute this Restated Certificate of Incorporation this 31st day of May, 1988, and do hereby certify, under penalties of perjury, that this Certificate is the act and deed of the undersigned and that the facts stated in this Certificate are true.
/s/ Illegible
|
Vice President |
Attest:
/s/ Illegible
|
Assistant Secretary |
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
QSP, INC.
(Pursuant to Section 242 of the
General Corporation Law of Delaware)
****
QSP, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the Corporation), DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation, by the unanimous written consent of all members thereof in lieu of a meeting, pursuant to Section 141(f) of the General Corporation Law of the State of Delaware, duly adopted resolutions setting forth a proposed amendment to the Restated Certificate of Incorporation of the Corporation, declaring said amendment to be advisable and calling for submission of said amendment to the sole stockholder of the Corporation for adoption by the Written Consent of Stockholders pursuant to Section 228 of the General Corporation Law of the State of Delaware, and stating that such amendment will be effective only after adoption thereof by the affirmative vote of all of the issued and outstanding shares of voting Common Stock of the Corporation.
SECOND: That thereafter, pursuant to resolutions of the Board of Directors of the Corporation, said amendment was submitted to the holder of all of the issued and outstanding shares of Common Stock of the Corporation, and such holder, by written consent taken without a meeting in accordance with Section 228 of the General Corporation Law of the State of Delaware gave its written consent and agreed to the adoption of the following resolution to amend the Restated Certificate of Incorporation of the Corporation:
RESOLVED, that the Restated Certificate of Incorporation of the Company be, and it hereby is, amended by deleting in its entirety the present Article FOURTH and substituting in lieu thereof the following new Article FOURTH:
FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is One Thousand (1,000). The par value of each of such shares is One Dollar ($1.00). All such shares are of one class and are shares of Common Stock.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said QSP, Inc. has caused this Certificate to be signed by William H. Magill, its authorized officer, this 12th day of December 2001.
QSP, INC. | ||
By: | /s/ William H. Magill
| |
William H. Magill Vice President and Treasurer |
2
CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE
AND OF REGISTERED AGENT
It is hereby certified that:
1. The name of the corporation (hereinafter called the Corporation) is QSP, INC.
2. The registered office of the Corporation within the State of Delaware is hereby changed to 160 Greentree Drive, Suite 101, City of Dover 19904, County of Kent.
3. The registered agent of the Corporation within the State of Delaware is hereby changed to National Registered Agents, Inc., the business office of which is identical with the registered office of the corporation as hereby changed.
4. The Corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors.
Signed on October 31, 2005.
/s/ Clifford H. R. DuPree
|
Clifford H. R. DuPree, Secretary |
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CERTIFICATE OF CHANGE OF
REGISTERED AGENT
AND
REGISTERED OFFICE
* * * * *
QSP, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the Corporation),
DOES HEREBY CERTIFY:
The Board of Directors of the Corporation on this the 25th day of November, 2008, do hereby resolve and order that the location of the Registered Office of the Corporation in the State of Delaware be, and the same hereby is changed to Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle Zip Code 19801.
The name of the Registered Agent therein and in charge thereof upon whom process against the Corporation may be served, is hereby changed to THE CORPORATION TRUST COMPANY, the business address of which is identical to the aforementioned Registered Office as changed.
The Changes in the Registered Office and Registered Agent of the Corporation as set forth herein were duly authorized by resolution of the Board of Directors of the Corporation.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be signed by an authorized officer, on the 25th day of November 2008.
/s/ Linda Pellegrino |
Linda Pellegrino Assistant Treasurer |
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CERTIFICATE OF MERGER
MERGING
FAMILY READING PROGRAM CORP.
INTO
QSP, INC.
UNDER SECTION 251 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
The undersigned corporation DOES HEREBY CERTIFY THAT:
FIRST: The name and state of incorporation of each of the constituent corporations are as follows:
Name |
State | |
Family Reading Program Corp. | Delaware | |
QSP, Inc. | Delaware |
SECOND: An agreement of merger has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations in accordance with the requirements of Section 251(c) of the General Corporation Law of the State of Delaware.
THIRD: The name of the surviving corporation of the merger is QSP, Inc., a Delaware corporation.
FOURTH: The Certificate of Incorporation of QSP, Inc., a Delaware corporation, which is surviving the merger, shall continue in full force and effect as the Certificate of Incorporation for the surviving corporation.
FIFTH: The executed agreement of merger is on file at an office of the surviving corporation, the address of which is 1271 Avenue of the Americas. New York, NY 10020.
SIXTH: A copy of the agreement of merger will be furnished by the surviving corporation, on request and without cost, to any stockholder of any constituent corporation.
SEVENTH: The merger shall not be effective until, and shall become effective upon, December 31, 2008.
Family Reading Program Corp. into QSP, Inc. |
IN WITNESS WHEREOF, this Certificate of Merger has been signed as of the 22nd day of December, 2008.
QSP, INC. | ||
By | /s/ Linda A. Pellegrino | |
Linda A. Pellegrino Assistant Treasurer |
Family Reading Program Corp. into QSP, Inc. |
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CERTIFICATE OF AMENDMENT OF
THE RESTATED CERTIFICATE OF INCORPORATION OF
QSP, INC.
QSP, Inc., a corporation duly organized and existing under the General Corporation Law of the State of Delaware (the Corporation), DOES HEREBY CERTIFY THAT:
FIRST: That by action without a meeting pursuant to Section 141(f) of the General Corporation Law of the State of Delaware, the Board of Directors of the Corporation duly adopted a resolution setting forth a proposed amendment to the Restated Certificate of Incorporation of the Corporation, declared said amendment advisable and submitted said amendment to the sole stockholder of the Corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that paragraph FIRST of the Restated Certificate of Incorporation of the Corporation be amended so as to read in its entirety as follows:
FIRST: The name of the corporation is: TI Content Solutions Inc.
SECOND: That thereafter, pursuant to the resolution of its Board of Directors, the sole stockholder of the Corporation by written consent pursuant to Section 228 of the General Corporation Law of Delaware consented to the above amendment to the Corporations Certificate of Incorporation.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Corporation has caused this Certificate to be signed by Lauren Ezrol Klein, its Assistant Secretary, as of the 9th day of June, 2010.
By: | /s/ Lauren Ezrol Klein | |
Lauren Ezrol Klein Assistant Secretary |
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CERTIFICATE OF AMENDMENT OF
THE RESTATED CERTIFICATE OF INCORPORATION OF
TI CONTENT SOLUTIONS INC.
TI Content Solutions Inc., a corporation duly organized and existing under the General Corporation Law of the State of Delaware (the Corporation). DOES HEREBY CERTIFY THAT:
FIRST: That by action without a meeting pursuant to Section 141(f) of the General Corporation Law of the State of Delaware, the Board of Directors of the Corporation duly adopted a resolution setting forth a proposed amendment to the Restated Certificate of Incorporation of the Corporation, declared said amendment advisable and submitted said amendment to the sole stockholder of the Corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that paragraph FIRST of the Restated Certificate of Incorporation of the Corporation be amended so as to read in its entirely as follows:
FIRST: The name of the corporation is: TI Media Solutions Inc.
SECOND: That thereafter, pursuant to the resolution of its Board of Directors, the sole stockholder of the Corporation by written consent pursuant to Section 228 of the General Corporation Law of Delaware consented to the above amendment to the Corporations Certificate of Incorporation.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Corporation has caused this Certificate to be signed by Lauren Ezrol Klein, its Assistant Secretary, as of the 14th day of June, 2010.
By: | /s/ Lauren Ezrol Klein | |
Lauren Ezrol Klein Assistant Secretary |
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AGREEMENT AND PLAN OF MERGER
FOR THE MERGER OF
FUNDRAISING SOLUTIONS INC.
WITH AND INTO
TI MEDIA SOLUTIONS INC.
UNDER SECTION 251 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
FIRST: The name and state of each of the constituent corporations to the merger are as follows: Fundraising Solutions Inc., a Delaware corporation (the FSI). and TI Media Solutions Inc., a Delaware corporation (the TI Media). Upon the Effective Date (as defined below). FSI shall be merged with and into TI Media with TI Media as the surviving corporation.
SECOND: The terms and conditions of the merger contemplated herein are that, effective upon the merger, each share of Common Stock of the FSI shall be canceled and no longer outstanding and no securities or money or other property shall be issued in exchange therefore. The shares of Common Stock of the TI Media shall not be affected by the merger. The effects of the merger as of the Effective Date shall be as provided under the General Corporation Law of the State of Delaware.
THIRD: The merger shall not become effective until, and shall become effective upon, the filing of a Certificate of Merger with the Secretary of State of the State of Delaware, or at such later time or date as may be set forth in such a Certificate of Merger (such date, the Effective Date).
FOURTH: The name of the surviving corporation is to be TI Media Solutions Inc. (the Surviving Corporation).
FIFTH: The By-Laws of TI Media in effect as of the Effective Date shall continue in force as the By-Laws of the Surviving Corporation, until their due alteration, amendment, or repeal in accordance with their provisions, with the Certificate of Incorporation and with applicable law.
SEVENTH: From time to time, as and when requested by TI Media as the Surviving Corporation or by its successors or assigns, to the extent permitted by law, the last acting officers and directors of the FSI, or the officers and directors of the Surviving Corporation, are hereby fully authorized, in the name of FSI (or otherwise), to execute and deliver any and all deeds, assignments, confirmations and other instruments and to take or cause to be taken all such other and further actions as TI Media, as the Surviving Corporation, may deem necessary or appropriate in order more fully to vest, perfect, confirm or assure the TI Medias title to, and possession of, all the properly, interests, assets, rights, privileges, powers and franchises of FSI as of the Effective Date, or otherwise to carry out the provisions of this Agreement and Plan of Merger.
SEVENTH: The directors and officers of TI Media shall be the directors and officers of the Surviving Corporation as of the Effective Date, each to hold office until his or her successor has been elected and qualified or until otherwise provided by law.
EIGHTH: This Agreement and Plan of Merger may be terminated by action of the Board of Directors of TI Media or FSI at any time before the Effective Date. In the event of such termination, this Agreement and Plan of Merger shall become wholly void and of no effect. This Agreement and Plan of Merger may, to the fullest extent permitted by law, be amended or modified at any time prior to the Effective Date by action of the Board of Directors of TI Media and FSI.
NINE: The Effective Date of the merger is January 1, 2011.
CERTIFICATION
I, Linda A. Pellegrino, Assistant Treasurer of Fundraising Solutions Inc. and Assistant Treasurer of TI Media Solutions Inc., hereby certify that the attached Agreement and Plan of Merger for the merger of Fundraising Solutions inc. with and into TI Media Solutions Inc. under Section 251 of the General Corporation Law of Delaware, effective as of January 1, 2011. was duly adopted pursuant to Section 228 of the General Corporation Law of Delaware by the sole stockholder of each of Fundraising Solutions Inc. and TI Media Solutions Inc.
IN WITNESS WHEREOF, I have signed my name below as of the 4th day January, 2011.
/s/ Linda A. Pellegrino |
Linda A. Pellegrino Assistant Treasurer, Fundraising Solutions Inc. Assistant Treasurer. TI Media Solutions Inc. |
IN WITNESS WHEREOF, this Agreement and Plan of Merger has been signed on behalf of each of TI Media and FSI by its duly authorized officer, as of the 23rd day of December, 2010.
TI MEDIA SOLUTIONS INC. | ||
By | /s/ Lauren Ezrol Klein
| |
Lauren Ezrol Klein Assistant Secretary |
FUNDRAISING SOLUTIONS INC. | ||
By | /s/ Linda A. Pellegrino
| |
Linda A. Pellegrino Assistant Treasurer |
3
Exhibit 3.66
confidential
Exhibit B
QSP, INC.
Incorporated under the Laws
of the State of Delaware
BY-LAWS
As adopted on May 31, 1988
confidential
confidential
confidential
confidential
BY-LAWS OF
QSP, INC.
TABLE OF CONTENTS
Page | ||||
ARTICLE I - OFFICES |
1 | |||
SECTION 1.01 Registered Office |
1 | |||
SECTION 1.02 Other Offices |
1 | |||
ARTICLE II - MEETINGS OF STOCKHOLDERS; STOCKHOLDERS CONSENT IN LIEU OF MEETING |
1 | |||
SECTION 2.01 Annual Meetings |
1 | |||
SECTION 2.02 Special Meetings |
2 | |||
SECTION 2.03 Notice of Meetings |
2 | |||
SECTION 2.04 Quorum |
3 | |||
SECTION 2.05 Organization |
4 | |||
SECTION 2.06 Order of Business |
4 | |||
SECTION 2.07 Voting |
4 | |||
SECTION 2.08 Stockholders Consent in Lieu of Meeting |
6 | |||
ARTICLE III - BOARD OF DIRECTORS |
6 | |||
SECTION 3.01 General Powers |
6 | |||
SECTION 3.02 Number and Term of Office |
7 | |||
SECTION 3.03 Resignation, Removal and Vacancies |
7 | |||
SECTION 3.04 Meetings |
8 | |||
SECTION 3.05 Directors Consent in Lieu of Meeting |
10 | |||
SECTION 3.06 Action by Means of Conference Telephone or Similar Communications Equipment |
10 | |||
SECTION 3.07 Compensation |
10 | |||
ARTICLE IV - COMMITTEES OF THE BOARD |
11 | |||
SECTION 4.01 Appointment of Executive Committee |
11 | |||
SECTION 4.02 Procedures of Executive Committee |
11 | |||
SECTION 4.03 Powers of Executive Committee |
12 | |||
SECTION 4.04 Reports of Executive Committee |
12 | |||
SECTION 4.05 Other Committees |
13 | |||
ARTICLE V - OFFICERS |
13 | |||
SECTION 5.01 Executive Officers |
13 | |||
SECTION 5.02 Authority and Duties |
13 | |||
SECTION 5.03 Term of Office, Resignation and Removal |
14 | |||
SECTION 5.04 Vacancies |
15 |
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Page | ||||
SECTION 5.05 President |
15 | |||
SECTION 5.06 Vice Presidents |
15 | |||
SECTION 5.07 Secretary |
16 | |||
SECTION 5.08 Assistant Secretaries |
16 | |||
SECTION 5.09 Treasurer |
17 | |||
SECTION 5.10 Assistant Treasurer |
17 | |||
SECTION 5.11 Salaries |
18 | |||
ARTICLE VI - CONTRACTS, CHECKS, DRAFTS AND BANK ACCOUNTS |
18 | |||
SECTION 6.01 Execution of Documents |
18 | |||
SECTION 6.02 Deposits |
18 | |||
ARTICLE VII - SHARES AND THEIR TRANSFER; FIXING RECORD DATE |
19 | |||
SECTION 7.01 Certificates for Shares |
19 | |||
SECTION 7.02 Record |
19 | |||
SECTION 7.03 Transfer and Registration of Stock |
20 | |||
SECTION 7.04 Addresses of Stockholders |
20 | |||
SECTION 7.05 Lost, Destroyed and Mutilated Certificates |
21 | |||
SECTION 7.06 Regulations |
21 | |||
SECTION 7.07 Fixing Date for Determination of Stockholders of Record |
21 | |||
ARTICLE VIII - SEAL |
22 | |||
ARTICLE IX - FISCAL YEAR |
22 | |||
ARTICLE X - INDEMNIFICATION |
22 | |||
ARTICLE XI - WAIVER OF NOTICE |
23 | |||
ARTICLE XII - AMENDMENTS |
23 |
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BY-LAWS OF QSP, INC.
ARTICLE I
Offices
SECTION 1.01. Registered Office. The registered office of QSP, INC. (hereinafter called the Corporation) in the State of Delaware shall be at 229 South State Street, City of Dover, County of Kent, and the registered agent in charge thereof shall be The Prentice Hall Corporation System, Inc.
SECTION 1.02. Other Offices. The Corporation may also have an office or offices at any other place or places within or without the State of Delaware as the Board of Directors (hereinafter called the Board) shall from time to time determine or as the business of the Corporation may require.
ARTICLE II
Meetings of Stockholders; Stockholders
Consent of Lieu of Meeting
SECTION 2.01. Annual Meetings. The annual meeting of the stockholders for the election of directors, and for the transaction of such other business as may properly come before the meeting, shall be held at such place, on such date and at such hour as shall be fixed by the Board and designated in the notice or waiver of notice thereof, except that no annual meeting need be held if all actions, including the election of directors, required by the General Corporation Law of the State of Delaware to be taken at a stockholders annual meeting are taken by written consent in lieu of meeting pursuant to Section 2.08 hereof.
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SECTION 2.02. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called by the Board, the President or the Secretary of the Corporation or a stockholder or stockholders holding of record at least a majority of the outstanding shares of capital stock of the Corporation entitled to vote at such meeting, such meeting to be held at such place, on such date and at such hour as shall be designated in the notice or waiver of notice thereof.
SECTION 2.03. Notice of Meetings. Except as otherwise required by the Certificate of Incorporation or these By-laws, notice of each annual or special meeting of stockholders shall be given to each stockholder of record entitled to vote at such meeting not less than 10 or more than 60 days before the day on which the meeting is to be held, by delivering a typewritten or printed notice thereof to him personally, or by mailing a copy of such notice, postage prepaid, directly to each such stockholder at his address as it appears in the records of the Corporation, or by transmitting notice thereof to him at such address by facsimile transmission, telex, telegraph, cable or other form of recorded communication. Every such notice shall state the place and the date and hour of the meeting and, in
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case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any meeting of stockholders shall not be required to be given to any stockholder who shall attend such meeting in person or by proxy or who shall, in person or by attorney duly authorized, waive such notice in writing, either before or after such meeting. Except as otherwise provided in these By-laws, neither the business to be transacted at, nor the purpose of, any meeting of the stockholders need by specified in any such waiver of notice.
SECTION 2.04. Quorum. At each meeting of stockholders of the Corporation, except where otherwise provided by the Certificate of Incorporation or these By-laws, the holders of record of a majority of the outstanding shares of capital stock of the Corporation entitled to vote at such meeting, present in person or represented by proxy, shall constitute a quorum for the transaction of business. In the absence of a quorum a majority in interest of stockholders of the Corporation present in person or represented by proxy and entitled to vote, or, in the absence of all stockholders entitled to vote, any officer entitled to preside at, or act as secretary of, such meeting shall have the power to adjourn the meeting from time to time, until stockholders holding the requisite number of shares of stock shall be present or represented. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called.
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SECTION 2.05. Organization. At each meeting of stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order of precedence:
(a) the President;
(b) any other officer of the Corporation designated by the Board of Directors to act as chairman of such meeting and to preside thereat if the President shall be absent from such meeting; or
(c) a stockholder of record of the Corporation who shall be chosen chairman of such meeting by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat.
The person whom the chairman of such meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof.
SECTION 2.06. Order of Business. The order of business at each meeting of stockholders shall be determined by the chairman of such meeting, but such order of business may be changed by a majority in voting interest of those stockholders present in person or by proxy at such meeting and entitled to vote thereat.
SECTION 2.07. Voting. Except as otherwise provided by the Certificate of Incorporation or these By-laws, at each meeting of stockholders, every stockholder of the Corporation shall be entitled to one vote in person or by proxy for each share of capital stock of the Corporation entitled to vote that is held by him and registered in his name on the books of the Corporation:
(a) on the date fixed pursuant to Section 7.07 of these By-laws as the record date for the determination of stockholders entitled to vote at such meeting; or
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(b) if no such record date shall have been fixed, 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.
The Corporation shall not vote directly or indirectly any shares of its own capital stock. Any vote of capital stock may be given by the stockholder entitled thereto in person or by his proxy appointed by an instrument in writing, subscribed by such stockholder or by his attorney thereunto authorized, delivered to the secretary of the meeting; provided, however, that no proxy shall be voted after three years from its date, unless such proxy provides for a longer period. Except as otherwise provided by the Certificate of Incorporation or these By-laws, at all meetings of stockholders, all matters shall be decided by the affirmative vote of holders of record of shares representing a majority of the voting power of the stock present in person or by proxy at such meeting and entitled to vote thereon, a quorum being present.
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SECTION 2.08. Stockholders Consent in Lieu of Meeting. Any action required by the laws of the State of Delaware to be taken at any annual or special meeting of the stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Such writing or writings shall be filed with the minutes of stockholders meetings and prompt notice of the taking of any such action without a meeting by less than unanimous written consent shall be given to those stockholders who have not so consented in writing.
ARTICLE III
Board of Directors
SECTION 3.01. General Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law or by the Certificate of Incorporation directed or required to be exercised or done by the stockholders.
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SECTION 3.02. Number and Term of Office. The number of directors who shall constitute the whole Board shall be fixed from time to time by a vote of a majority of the whole Board. Initially the whole Board shall consist of 7 members. The term whole Board is used herein to refer to the number of directors from time to time authorized to be on the Board regardless of the number of directors then in office. Directors need not be stockholders. Each director shall hold office for the term of one year and shall serve until his successor is elected and qualified, or until his earlier death or resignation or his removal in the manner hereinafter provided.
SECTION 3.03. Resignation, Removal and Vacancies.
(a) Any director may resign at any time by giving written notice of his resignation to the Board, the President or the Secretary of the Corporation. Such resignation shall take effect at the time specified therein or, if the time when it shall become effective is not specified therein, upon receipt thereof. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
(b) Any director or the entire Board may be removed, with or without cause, at any time by the holders of a majority of the shares then entitled to vote at an election of directors or by written consent of the stockholders pursuant to Section 2.08 hereof.
(c) Vacancies on the Board and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, although less than a quorum, by a sole remaining director or by the holders of a majority of the shares then entitled to vote at an election of directors.
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SECTION 3.04. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization and the transaction of other business, unless it shall have transacted all such business by written consent pursuant to Section 3.05 hereof. Notice of such meeting need not be given.
(b) Other Meetings. Other meetings of the Board shall be held at such place, on such date and at such hour as the Board or the President shall from time to time determine.
(c) Notice of Meetings. The Secretary shall give notice to each director of each meeting except the annual meeting, including the time and place of such meeting. Notice of each such meeting shall be mailed to each director, addressed to him at his residence or usual place of business, at least four days before the day on which such meeting is to be held, or shall be sent to him at such place by facsimile transmission, telex, telegraph, cable, or other form of recorded communication or be delivered personally or by telephone not later than the day before the day on which such meeting is to be held, but notice need not be given to any director who shall attend such meeting.
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(d) Place of Meetings. The Board may hold its meetings at such place or places within or without the State of Delaware as the Board may from time to time determine or as shall be designated in the notices or waivers of notice thereof.
(e) Quorum and Manner of Acting. A majority of the total number of directors then in office shall be present in person at any meeting of the Board in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of those directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for any other act of the Board, except as otherwise expressly required by law, by the Certificate of Incorporation or by these By-laws. In the absence of a quorum for any such meeting, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present.
(f) Organization. At each meeting of the Board, one of the following shall act as chairman of the meeting and preside, in the following order of precedence:
(i) the President; or
(ii) any director chosen by a majority of the directors present.
The person whom the chairman shall appoint shall act as secretary of such meeting and keep the minutes thereof.
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SECTION 3.05. Directors Consent in Lieu of Meeting. Action required or permitted to be taken at any meeting of the Board, or of any committee thereof, may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing and the writing or writings are filed with the minutes of the proceedings of the Board or committee.
SECTION 3.06. Action by Means of Conference Telephone or Similar Communications Equipment. Any one or more members of the Board, or any committee designated by the Board, may participate in a meeting of the Board or any such committee by means (including without limitation conference telephone or similar communications equipment) of which all persons participating in the meeting can hear each other and participation in a meeting by such means shall constitute presence in person at such meeting.
SECTION 3.07. Compensation. The directors and the members of any committee of the Board established pursuant to these By-laws or by resolution of the Board shall be entitled to be reimbursed for any expenses paid by them on account of their attendance at any regular or special meeting of the Board or of such committee. The Board may at any time or from time to time by resolution also provide that the Corporation shall pay each such director or member of such committee such compensation for his services as may be specified in such resolution. Nothing contained in this section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
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ARTICLE IV
Committees of the Board
SECTION 4.01. Appointment of Executive Committee. The Board may from time to time by resolution passed by a majority of the whole Board designate from its members an Executive Committee to serve at the pleasure of the Board. The chairman of the Executive Committee shall be designated by the Board. The Board may designate one or more directors as alternate members of the Executive Committee, who may replace any absent or disqualified member or members at any meeting of the Executive Committee. The Board shall have power at any time to change the membership of the Executive Committee, to fill all vacancies in it and to discharge it, either with or without cause.
SECTION 4.02. Procedures of Executive Committee. The Executive Committee, by a vote of a majority of its members, shall fix by whom its meetings may be called and the manner of calling and holding its meetings, shall determine the number of its members requisite to constitute a quorum for the transaction of business and shall prescribe its own rules of procedure, no change in which shall be made except by a majority vote of its members or by the Board.
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SECTION 4.03. Powers of Executive Committee. During the intervals between the meetings of the Board, unless otherwise determined from time to time by resolution passed by the whole Board, the Executive Committee shall possess and may exercise all the powers and authority of the Board in the management and direction of the business and affairs of the Corporation and may authorize the seal of the Corporation to be affixed to all papers which may require it, except that the Executive Committee shall not have power or authority in reference to:
(a) amending the Certificate of Incorporation;
(b) adopting an agreement of merger or consolidation;
(c) recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporations property and assets;
(d) recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution;
(e) amending the By-laws; or
(f) declaring a dividend or authorizing the issuance of stock.
SECTION 4.04. Reports of Executive Committee. The Executive Committee shall keep regular minutes of its proceedings and all action by the Executive Committee shall be reported promptly to the Board. Such action shall be subject to review by the Board, provided that no rights of third parties shall be affected by such review.
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SECTION 4.05. Other Committees. The Board, by resolution adopted by a majority of the whole Board, may designate from among its members one or more other committees, each of which shall have such authority of the Board as may be specified in the resolution of the Board designating such committee; provided, however, that any such committee so designated shall not have any powers not allowed to the Executive Committee under Section 4.03 hereof. The Board shall have power at any time to change the members of any such committee, to designate alternate members of any such committee and to fill vacancies therein and any such committee shall serve at the pleasure of the Board.
ARTICLE V
Officers
SECTION 5.01. Executive Officers. The executive officers of the Corporation shall be a President, a Secretary and a Treasurer and may include a Chairman of the Board, one or more Vice Presidents or one or more Assistant Secretaries or Assistant Treasurers and such other officers as the Board may from time to time designate. Any two or more offices may be held by the same person.
SECTION 5.02. Authority and Duties. All officers, as between themselves and the Corporation, shall have such authority and perform such duties in the management of the Corporation as may be provided in these By-laws or, to the extent not so provided, by the Board.
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SECTION 5.03 Term of Office, Resignation and Removal.
(a) All officers shall be elected or appointed by the Board and shall hold office for such term as may be prescribed by the Board. The President and the Chairman of the Board, if any, shall be elected or appointed from among the members of the Board. The Board may delegate to any principal officer the power to appoint or remove subordinate officers, agents or employees. Each officer shall hold office until his successor has been elected or appointed and qualified or his earlier death or resignation or removal in the manner hereinafter provided. The Board may require any officer to give security for the faithful performance of his duties.
(b) Any officer may resign at any time by giving written notice to the Board, the President or the Secretary of the Corporation and such resignation shall take effect at the time specified therein or, if the time when it shall become effective is not specified therein, at the time it is accepted by action of the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
(c) All officers and agents elected or appointed by the Board shall be subject to removal, with or without cause, at any time by the Board, by the stockholders of the Corporation or, except in the case of any officer elected by the Board, by any principal officer upon whom power of removal may be confirmed by the Board.
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SECTION 5.04. Vacancies. If an office becomes vacant for any reason, the Board shall fill such vacancy. Any officer so appointed or elected by the Board shall serve only until such time as the unexpired term of his predecessor shall have expired unless reelected or reappointed by the Board.
SECTION 5.05. President. The President shall be the chief executive officer of the Corporation and shall have general supervision over the business of the Corporation and over its officers, subject, however, to the control of the Board. He shall, if present, preside at all meetings of the stockholders and of the Board. He shall use his best efforts to see that all orders and resolutions of the Board are carried into effect. He shall perform all of the duties usually incumbent upon a chief executive officer of a corporation and incident to such office. He shall also have such powers and perform such duties as are assigned to him by these By-laws and shall have such other powers and perform such other duties, not inconsistent with these By-laws, as may from time to time be assigned to him by the Board.
SECTION 5.06. Vice Presidents. The Vice President or, if there be more than one, the Vice Presidents in the order of their seniority or in any other order determined by the Board shall, in the absence or disability of the President, perform the duties and exercise the powers of the President and shall generally assist the President and perform such other duties as the Board or the President shall prescribe.
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SECTION 5.07. Secretary. The Secretary shall, to the extent practicable, attend all meetings of the Board and all meetings of the stockholders and shall, if appointed secretary of any such meeting, record all votes and the minutes of all proceedings in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and of the Board. He shall keep in safe custody the seal of the Corporation and affix the same to any duly authorized instrument requiring it and, when so affixed, it shall be attested by his signature or by the signature of the Treasurer or an Assistant Secretary or Assistant Treasurer. He shall keep in safe custody the certificate books and stockholder records and such other books and records as the Board may direct. He shall perform all of the duties usually incumbent upon and incident to the office of Secretary and shall also perform all other duties as from time to time may be assigned to him by the President or the Board.
SECTION 5.08. Assistant Secretaries. The Assistant Secretaries, if any, in order of their seniority or in any other order determined by the Board shall, in the absence or disability of the Secretary, perform the duties and exercise the powers of the Secretary and shall perform such other duties as the Board, the President or the Secretary shall prescribe.
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SECTION 5.09. Treasurer. The Treasurer shall be the principal financial officer of the Corporation. He shall have the care and custody of the corporate funds and other valuable effects, including securities, shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects to the name and to the credit of the Corporation in such depositories as may be designated by the Board. The Treasurer shall disburse or cause to be disbursed (by himself or by persons designated by him) the funds of the Corporation, as may be ordered or authorized by the Board, taking proper vouchers for such disbursements, and shall render to the President and the Board, at the regular meetings of the Board, or whenever they may require it, an account of all his transactions as Treasurer and of the financial condition of the Corporation and, in general, perform all the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him by the President or the Board.
SECTION 5.10. Assistant Treasurers. The Assistant Treasurers, if any, in the order of their seniority or in any other order determined by the Board, shall in the absence or disability of the Treasurer perform the duties and exercise the powers of the Treasurer and shall perform such other duties as the President, the Treasurer or the Board shall prescribe.
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SECTION 5.11. Salaries. The salaries of the officers of the Corporation may be fixed from time to time by the Board. No officer shall be ineligible to receive such salary by reason of the fact that he is also a director of the Corporation and receiving compensation therefor.
ARTICLE VI
Contracts, Checks, Drafts and Bank Accounts
SECTION 6.01. Execution of Documents. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument of designation to other officers, employees or agents of the Corporation and, unless so designated or expressly authorized by these By-laws, no officer or agent or employee shall have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable pecuniarily for any purpose or in any amount.
SECTION 6.02. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or Treasurer or any other officer of the Corporation to whom power in this respect shall have been given by the Board shall select.
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ARTICLE VII
Shares and Their Transfer; Fixing Record Date
SECTION 7.01. Certificates for Shares. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number and class of shares owned by him in the Corporation, which shall otherwise be in such form as shall be prescribed by the Board. Certificates of each class shall be issued in consecutive order, shall be numbered in the order of their issue and shall be signed by or in the name of the Corporation by the President or a Vice President and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.
SECTION 7.02. Record. A record (hereinafter called the Stock Record) in one or more counterparts shall be kept of the name of the person, firm or corporation owning the shares represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. Except as otherwise expressly required by law, the person in whose name shares of stock stand on the Stock Record shall be deemed the owner thereof for all purposes as regards the Corporation.
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SECTION 7.03. Transfer and Registration of Stock.
(a) The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code), as amended from time to time.
(b) Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation upon request of the registered holder thereof, or of his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the Corporation, and upon the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
SECTION 7.04. Addresses of Stockholders. Each stockholder shall designate to the Secretary of the Corporation an address at which notices of meetings and all other corporate notices may be served or mailed to him and, if any stockholder shall fail to designate such address, corporate notices may be served upon him by mail directed to him at his post office address, if any, as the same appears on the share record books of the Corporation or at his last known post office address.
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SECTION 7.05. Lost, Destroyed and Mutilated Certificates. The Board or a committee designated thereby with power so to act may, in its discretion, cause to be issued a new certificate or certificates for stock of the Corporation in place of any certificate issued by it and reported to have been lost, destroyed or mutilated, upon the surrender of the mutilated certificate or, in the case of loss or destruction of the certificate, upon satisfactory proof of such loss or destruction and the Board or such committee may, in its discretion, require the owner of the lost or destroyed certificate or his legal representative to give the Corporation a bond in such sum and with such surety or sureties as it may direct to indemnify the Corporation against any claim that may be made against it on account of the alleged loss or destruction of any such certificate.
SECTION 7.06. Regulations. The Board may make such rules and regulations as it may deem expedient, not inconsistent with these By-laws, concerning the issue, transfer and registration of certificates for stock of the Corporation.
SECTION 7.07. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for purposes of any other lawful action, the Board may fix, in advance, a record date, which shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
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ARTICLE VIII
Seal
The Board shall provide a corporate seal, which shall be in the form of a circle and shall bear the full name of the Corporation and the words and figures Corporate Seal 1963 Delaware.
ARTICLE IX
Fiscal Year
The fiscal year of the Corporation shall commence on July 1 of each year and shall end on June 30 of the following year unless changed by resolution of the Board.
ARTICLE X
Indemnification
Each director and each officer (and his heirs, executors and administrators) shall be indemnified by the Corporation against expenses reasonably incurred by him in connection with any action, suit or proceeding to which he may be made a party by reason of his being or having been a director or officer of the Corporation or, at its request, of any other corporation of which it is a stockholder or creditor and from which he is not entitled to be indemnified (whether or not he continues to be a director or officer at the time of incurring such expenses) to the full extent permitted by the Delaware Code, subject to the determination, and at the discretion, of the Board.
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ARTICLE XI
Waiver of Notice
Whenever any notice whatever is required to be given by these By-laws or the Certificate of Incorporation or the laws of the State of Delaware, the person entitled thereto may, in person or by attorney duly authorized, in writing or by facsimile transmission, telex, telegraph, cable or other form of recorded communication, waive such notice, whether before or after the meeting or other matter in respect of which such notice is given, and in such event such notice need not be given to such person and such waiver shall be deemed equivalent to such notice.
ARTICLE XII
Amendments
Any By-law (including these By-laws) may be adopted, amended or repealed by the Board in any manner not inconsistent with the laws of the State of Delaware or the Certificate of Incorporation.
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Exhibit 3.67
State of Delaware | ||||
Secretary of State | ||||
Division of Corporations | ||||
Delivered 05:16 PM 07/12/2005 | ||||
FILED 05:16 PM 07/12/2005 | ||||
SRV 050576695-3999309 FILE |
Certificate of Incorporation
Of
TI MEXICO HOLDINGS INC.
1. The name of the Corporation is: TI MEXICO HOLDINGS INC.
2. The address of the registered office of the Corporation in the State of Delaware is c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of the registered agent of the Corporation at such address is The Corporation Trust Company.
3. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the Corporation shall have authority to issue is One Thousand (1,000) and the par value of each of such shares is One Cent ($.01). All such shares are of one class and are shares of Common Stock.
5. The board of directors of the Corporation shall have the power to make, adopt, alter, amend or repeal the by-laws of the Corporation. The election of directors of the Corporation need not be by written ballot.
6. The name and mailing address of the incorporator of the Corporation are:
Lauren E. Klein
1271 Avenue of the Americas
New York, New York 10020
7. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the directors duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of Delaware, or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law of Delaware is amended after approval by the stockholders of this Section to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of Delaware as so amended.
THE UNDERSIGNED, being the sole incorporator of the Corporation, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, does hereby sign this Certificate of Incorporation this 12th day of July, 2005.
/s/ Lauren E. Klein |
Lauren E. Klein Sole Incorporator |
Exhibit 3.68
BY-LAWS
OF
TI MEXICO HOLDINGS INC.
(Incorporated under the Laws of the State of Delaware)
As Adopted as of July 12, 2005
TABLE OF CONTENTS
Article |
Page | |||||
I. |
Offices | 1 | ||||
II. |
Meetings of Stockholders | 1 | ||||
Section 1 - Annual Meetings | 1 | |||||
Section 2 - Special Meetings | 1 | |||||
Section 3 - Notice of Meetings | 2 | |||||
Section 4 - Quorum and Manner of Acting | 2 | |||||
Section 5 - Organization of Meetings | 3 | |||||
Section 6 - Order of Business | 3 | |||||
Section 7 - Voting | 3 | |||||
Section 8 - Consent in Lieu of Meeting | 5 | |||||
Section 9 - List of Stockholders | 5 | |||||
Section 10 - Inspectors | 6 | |||||
III. |
Board of Directors | 6 | ||||
Section 1 - General Powers | 6 | |||||
Section 2 - Number and Term of Office | 6 | |||||
Section 3 - Election | 7 | |||||
Section 4 - Meetings | 7 | |||||
Section 5 - Compensation | 9 | |||||
Section 6 - Resignation, Removal and Vacancies | 9 | |||||
IV. |
Committees | 10 | ||||
Section 1 - Number, Appointment, Term of Office, etc. | 10 | |||||
Section 2 - Functions and Powers | 11 | |||||
Section 3 - Rules | 11 | |||||
V. |
Officers | 12 | ||||
Section 1 - Election, Appointment and Term of Office | 12 | |||||
Section 2 - Resignation, Removal and Vacancies | 12 | |||||
Section 3 - Duties and Functions | 13 | |||||
VI. |
Indemnification | 15 | ||||
Section 1 - Right to Indemnification | 15 | |||||
Section 2 - Insurance, Contracts and Funding | 16 |
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Section 3 - Indemnification Not Exclusive Right | 17 | |||
Section 4 - Indemnification of Employees and Agents | 17 | |||
VII. | Waiver of Notices; Places of Meetings | 18 | ||
Section 1 - Waiver of Notices | 18 | |||
Section 2 - Place of Meetings | 18 | |||
VIII. | Execution and Delivery of Documents; Deposits; Proxies, Books and Records | 18 | ||
Section 1 - Execution and Delivery of Documents; Delegation | 18 | |||
Section 2 - Deposits | 19 | |||
Section 3 - Proxies in Respect of Stock or Other Securities in Other Corporations | 19 | |||
Section 4 - Books and Records | 19 | |||
IX. | Certificates; Stock Record; Transfer and Registration; New Certificates: Record Date, etc. | 20 | ||
Section 1 - Certificates for Stock | 20 | |||
Section 2 - Stock Record | 20 | |||
Section 3 - Transfer and Registration of Stock | 21 | |||
Section 4 - New Certificates | 21 | |||
Section 5 - Regulations | 22 | |||
Section 6 - Fixing Date for Determination of Stockholders of Record | 22 | |||
X. | Seal | 22 | ||
Section 1 - Seal | 22 | |||
XI. | Fiscal Year | 23 | ||
Section 1 - Fiscal Year | 23 | |||
XII. | Amendments | 23 | ||
Section 1 - Amendments | 23 | |||
XIII. | Subject to Law | 23 | ||
Section 1 - Subject to Law | 23 |
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BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
Section 3. Notice of Meetings. Notice of each meeting of the stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such stockholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such stockholder at his or her address as it appears on the stock record of the Corporation or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the stockholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
Section 4. Quorum and Manner of Acting. If stockholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the stockholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until stockholders holding the amount of stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of stockholders holding the number of shares of stock of
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the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy stockholders holding the number of shares of stock of the Corporation required in respect of such other matter.
Section 5. Organization of Meetings. At each meeting of the stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
(a) the Chairman of the Board, or, if he or she is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat. The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by the majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
Section 7. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him or her and registered in his or her name on the stock record of the Corporation:
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(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or
(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he or she shall in writing so notify the secretary of the meeting prior to the voting of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his or her proxy if there be such proxy, and shall state the number of shares voted.
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Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
Section 9. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and
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place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his or her discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his or her election and until his or her successor shall be elected and qualified or until his or her earlier death or resignation or removal in the manner hereinafter provided.
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Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
(c) Special Meetings. Special Meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a type-written notice thereof to such director personally or by
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depositing such notice in the United States mail, postage prepaid, directed to such director at his or her residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. The purposes of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he or she is not present or if no person holds such office, any director chosen by a majority or the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
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(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his or her serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him or her on account of his or her attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 6. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
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Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board caused by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his or her successor shall be elected and shall qualify or until his or her earlier death or resignation or removal in the manner set forth herein.
ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he or she remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
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In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or she or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including the power and authority to declare dividends and to authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
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ARTICLE V
Officers
Section 1. Election, Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice Presidents, or any or all of the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one or more Assistant Treasurers, or any or all of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal and Vacancies. Any officer may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
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A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected he or she shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he or she shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the stockholders at which they shall be present, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he or she shall preside at meetings of the Executive Committee at which he or she shall be present; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
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(d) President. If a President is appointed or elected he or she shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He or she shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice Chairman of the Board is appointed or elected and is present.
(e) Vice Presidents. If any Vice President or Vice Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice-Presidents.
(f) Secretary. If a Secretary is appointed or elected he or she shall attend and keep the records of all meetings of the stockholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
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(g) Treasurer. If a Treasurer is appointed or elected he or she shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
(h) Controller. If a controller is appointed or elected he or she shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened,
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pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a fifty percent (50%) or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such Proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer,
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employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
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ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
ARTICLE VIII
Execution and Delivery of Documents; Deposits;
Proxies; Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such
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delegation may be resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities in Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he or she may deem necessary or proper in order that the Corporation may exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of Delaware as the proper officers of the Corporation may from time to time determine.
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ARTICLE IX
Certificates; Stock Record; Transfer and Registration;
New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him or her in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice-Chairman, the President or a Vice-President of the Corporation and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he or she were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for exchange or transfer shall be canceled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so canceled, except in cases provided for in Section 4 of this Article.
Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
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Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his or her attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
Section 4. New Certificates.
(a) Lost. Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he or she has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
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Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
Section 6. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
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ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
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Exhibit 3.69
CERTIFICATE OF INCORPORATION
OF
TI PAPERCO INC.
1. The name of the Corporation is: TI PAPERCO INC.
2. The address of the registered office of the Corporation in the State of Delaware is c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of the registered agent of the Corporation at such address is The Corporation Trust Company.
3. The purpose of the Corporation is to engage in any Iawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the Corporation shall have authority to issue is One Thousand (1,000) and the par value of each of such shares is One Cent ($.01). All such shares are of one class and are shares of Common Stock.
5. The board of directors of the Corporation shall have the power to make, adopt, alter, amend or repeal the by-laws of the Corporation. The election of directors of the Corporation need not be by written ballot.
6. The name and mailing address of the incorporator of the Corporation are:
Lauren B. Ezrol
Time Inc.
1271 Avenue of the Americas
New York, New York 10020
THE UNDERSIGNED, being the sole incorporator of the Corporation, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, does hereby sign this Certificate of Incorporation this 21st day of January, 1998.
/s/ Lauren B. Ezrol |
Lauren B. Ezrol |
Sole Incorporator |
Exhibit 3.70
BY-LAWS
OF
TI PAPERCO INC.
(Incorporated under the Laws of the State of Delaware)
As Adopted as of January 21, 1998
11636
BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
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Section 3. Notice of Meetings. Notice of each meeting of the stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such stockholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such stockholder at his address as it appears on the stock record of the Corporation or by transmitting notice thereof to him at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the stockholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
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Section 4. Quorum and Manner of Acting. If stockholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the stockholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until stockholders holding the amount of stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of stockholders holding the number of shares of stock of the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy stockholders holding the number of shares of stock of the Corporation required in respect of such other matter.
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Section 5. Organization of Meetings. At each meeting of the stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
(a) the Chairman of the Board, or, if he is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat.
The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by a majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
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Section 7. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him and registered in his name on the stock record of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or
(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for
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a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he shall in writing so notify the secretary of the meeting prior to voting of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his proxy if there be such proxy, and shall state the number of shares voted.
Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
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Section 9. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
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Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his election and until his successor shall be elected and qualified or until his earlier death or resignation or removal in the manner hereinafter provided.
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Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
(c) Special Meetings. Special meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
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(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a typewritten notice thereof to such director personally or by depositing such notice in the United States mail, postage prepaid, directed to such director at his residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him at such address by telegraph, cable or other form or recorded communication. The purposes of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
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(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he is not present or if no person holds such office, any director chosen by a majority of the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
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(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him on account of his attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
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Section 6. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board cause by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his successor shall be elected and shall qualify or until his earlier death or resignation or removal in the manner herein.
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ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including, the power and authority to declare dividends and to
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authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
ARTICLE V
Officers
Section 1. Election and Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice-Presidents, or any or all the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one or more Assistant Treasurers, or any or all
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of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal and Vacancies. Any officer may resign at any time by giving written notice of his resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effect shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
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Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected he shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the stockholders, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he shall preside at meetings of the Executive Committee; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
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(d) President. If a President is appointed or elected he shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice-Chairman of the Board is appointed or elected and is present.
(e) Vice-Presidents. If any Vice President or Vice Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice Presidents.
(f) Secretary. If a Secretary is appointed or elected he shall attend and keep the records of all meetings of the stockholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the
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Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
(g) Treasurer. If a Treasurer is appointed or elected he shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
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(h) Controller. If a Controller is appointed or elected he shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the
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Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a 50 percent or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
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Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
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Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
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Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
ARTICLE VIII
Execution and Delivery of Documents; Deposits;
Proxies; Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such delegation may be by resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
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Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities of Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he may deem necessary or proper in order that the Corporation may exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of Delaware as the proper officers of the Corporation may from time to time determine.
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ARTICLE IX
Certificates; Stock Record; Transfer and Registration;
New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the Board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice-Chairman, the President or a Vice-President of the Corporation and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for or exchange or transfer shall be cancelled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so cancelled, except in cases provided for in Section 4 of this Article.
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Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
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Section 4. New Certificates.
(a) Lost, Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
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Section 6. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix, in advance, a record date, which shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
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ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
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Exhibit 3.71
STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 11:30 AM 05/01/1998 981167652 2891373 |
CERTIFICATE OF INCORPORATION
OF
TIME CONSUMER MARKETING, INC.
1. The name of the Corporation is: TIME CONSUMER MARKETING, INC.
2. The address of the registered office of the Corporation in the State of Delaware is c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of the registered agent of the Corporation at such address is The Corporation Trust Company.
3. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the Corporation shall have authority to issue is One Thousand (1,000) and the par value of each of such shares is One Cent ($.01). All such shares are of one class and are shares of Common Stock.
5. The board of directors of the Corporation shall have the power to make, adopt, alter, amend or repeal the by-laws of the Corporation. The election of directors of the Corporation need not be by written ballot.
6. The name and mailing address of the incorporator of the Corporation are:
Lauren B. Ezrol
Time Inc.
1271 Avenue of the Americas
New York, New York 10020
THE UNDERSIGNED, being the sole incorporator of the Corporation, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, does hereby sign this Certificate of Incorporation this 1st day of May, 1998.
/s/ Lauren B. Ezrol |
Lauren B. Ezrol |
Sole Incorporator |
State of Delaware Secretary of State Division of Corporations Delivered 05:39 PM 11/14/2018 FILED 05:39 PM 11/14/2018 SR 20187647457 - File Number 2891373 |
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION
The corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware does hereby certify:
FIRST: That at a meeting of the Board of Directors of Time Consumer Marketing, Inc. resolutions were duly adopted setting forth a proposed amendment of the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing the Article thereof numbered 1 so that, as amended, said Article shall be and read as follows:
1. The name of the Corporation is: TI Consumer Marketing, Inc.
SECOND: That thereafter, pursuant to resolution of its Board of Directors, a special meeting of the stockholders of said corporation was duly called and held upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said corporation has caused this certificate to be signed this 31st day of October, 2018.
By: | /s/ Joseph H. Ceryanec | |
Authorized Officer | ||
Title: | President & CEO | |
Name: | Joseph H. Ceryanec | |
Print or Type |
Exhibit 3.72
BY-LAWS
OF
TIME CONSUMER MARKETING, INC.
(Incorporated under the Laws of the State of Delaware)
As Adopted as of May 1, 1998
TABLE OF CONTENTS
Page | ||||||||||||
Article | ||||||||||||
I | Offices | 1 | ||||||||||
Section 1 - Offices | 1 | |||||||||||
II | Meetings of Stockholders | 1 | ||||||||||
Section 1 | - | Annual Meetings | 1 | |||||||||
Section 2 | - | Special Meetings | 1 | |||||||||
Section 3 | - | Notice of Meetings | 2 | |||||||||
Section 4 | - | Quorum and Manner of Acting | 3 | |||||||||
Section 5 | - | Organization of Meetings | 3 | |||||||||
Section 6 | - | Order of Business | 4 | |||||||||
Section 7 | - | Voting | 4 | |||||||||
Section 8 | - | Consent in Lieu of Meeting | 6 | |||||||||
Section 9 | - | List of Stockholders | 7 | |||||||||
Section 10 | - | Inspectors | 8 | |||||||||
III | Board of Directors | 8 | ||||||||||
Section 1 | - | General Powers | 8 | |||||||||
Section 2 | - | Number and Term of Office | 8 | |||||||||
Section 3 | - | Election | 9 | |||||||||
Section 4 | - | Meetings | 9 | |||||||||
Section 5 | - | Compensation | 12 | |||||||||
Section 6 | - | Resignations, Removal and Vacancies | 12 | |||||||||
IV | Committees | 14 | ||||||||||
Section 1 | - | Number, Appoint, Term of Office, etc. | 14 | |||||||||
Section 2 | - | Function and Powers | 14 | |||||||||
Section 3 | - | Rules | 15 | |||||||||
V | Officers | 15 | ||||||||||
Section 1 | - | Election, Appointment and Term of Office | 15 | |||||||||
Section 2 | - | Removal, Resignation and Vacancies | 16 | |||||||||
Section 3 | - | Duties and Functions | 17 |
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VI | Indemnification | 20 | ||||||||||
Section 1 | - | Right to Indemnification | 20 | |||||||||
Section 2 | - | Insurance, Contracts and Funding | 22 | |||||||||
Section 3 | - | Indemnification Not Exclusive Right | 22 | |||||||||
Section 4 | - | Indemnification of Employees and Agents | 23 | |||||||||
VII | Waiver of Notices; Places of Meetings | 23 | ||||||||||
Section 1 | - | Waiver of Notices | 23 | |||||||||
Section 2 | - | Place of Meetings | 24 | |||||||||
VIII | Execution and Delivery of Documents; Deposits; Proxies, Books and Records | 24 | ||||||||||
Section 1 | - | Execution and Delivery of Documents | 24 | |||||||||
Section 2 | - | Deposits | 25 | |||||||||
Section 3 | - | Proxies in Respect of Stock or Other Securities in Other Corporations | 25 | |||||||||
Section 4 | - | Books and Records | 25 | |||||||||
IX | Certificates; Stock Record; Transfer and Registration | 26 | ||||||||||
Section l | - | Certificates for Stock | 26 | |||||||||
Section 2 | - | Stock Record | 27 | |||||||||
Section 3 | - | Transfer and Registration of Stocks | 27 | |||||||||
Section 4 | - | New Certificates | 28 | |||||||||
Section 5 | - | Regulations | 28 | |||||||||
Section 6 | - | Fixing Date for Determination of Stockholders of Record | 29 | |||||||||
X | Seal | 29 | ||||||||||
Section 1 | - | Seal | 29 | |||||||||
XI | Fiscal Year | 30 | ||||||||||
Section 1 | - | Fiscal Year | 30 | |||||||||
XII | Amendments | 30 | ||||||||||
Section 1 | - | Amendments | 30 | |||||||||
XIII | Subject to Law | 30 | ||||||||||
Section 1 | - | Subject to Law | 30 |
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BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
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Section 3. Notice of Meetings. Notice of each meeting of the stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such stockholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such stockholder at his address as it appears on the stock record of the Corporation or by transmitting notice thereof to him at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the stockholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
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Section 4. Quorum and Manner of Acting. If stockholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the stockholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority In voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until stockholders holding the amount of stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of stockholders holding the number of shares of stock of the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy stockholders holding the number of shares of stock of the Corporation required in respect of such other matter.
Section 5. Organization of Meetings. At each meeting of the stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
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(a) the Chairman of the Board, or, if he is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat.
The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by a majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
Section 7. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him and registered in his name on the stock record of the Corporation:
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(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or
(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for
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a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he shall in writing so notify the secretary of the meeting prior to voting of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his proxy if there be such proxy, and shall state the number of shares voted.
Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
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Section 9. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
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Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his election and until his successor shall be elected and qualified or until his earlier death or resignation or removal in the manner hereinafter provided.
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Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
(c) Special Meetings. Special meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
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(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a typewritten notice thereof to such director personally or by depositing such notice in the United States mail, postage prepaid, directed to such director at his residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him at such address by telegraph, cable or other form or recorded communication. The purposes of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
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(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he is not present or if no person holds such office, any director chosen by a majority of the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
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(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him on account of his attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 6. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
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Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board cause by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his successor shall be elected and shall qualify or until his earlier death or resignation or removal in the manner herein.
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ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including, the power and authority to declare dividends and to
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authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
ARTICLE V
Officers
Section 1. Election and Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice-Presidents, or any or all the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one ore more Assistant Treasurers, or any or all
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of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal and Vacancies. Any officer may resign at any time by giving written notice of his resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effect shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
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Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected he shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the stockholders, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairmen of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he shall preside at meetings of the Executive Committee; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
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(d) President. If a President is appointed or elected he shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice-Chairman of the Board is appointed or elected and is present.
(e) Vice-Presidents. If any Vice President or vice Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior Executive, Assistant and all other categories or types of Vice Presidents
(f) Secretary. If a Secretary is appointed or elected he shall attend and keep the records of all meetings of the stockholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the
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Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
(g) Treasurer. If a Treasurer is appointed or elected he shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
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(h) Controller. If a Controller is appointed or elected he shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the
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Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a 50 percent or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees) judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
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Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
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Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
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Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
ARTICLE VIII
Execution and Delivery of Documents; Deposits;
Proxies; Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such delegation may be by resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
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Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities of Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he may deem necessary or proper in order that the Corporation may exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of Delaware as the proper officers of the Corporation may from time to time determine.
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ARTICLE IX
Certificates; Stock Record; Transfer and Registration;
New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the Board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice-Chairman, the President or a Vice-President of the Corporation and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for or exchange or transfer shall be cancelled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so cancelled, except in cases provided for in Section 4 of this Article.
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Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
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Section 4. New Certificates.
(a) Lost, Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
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Section 6. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix, in advance, a record date, which shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
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ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
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21080-10
Exhibit 3.73
726323036
FILED
NOV 19 1988
10 AM
[ILLEGIBLE STAMP]
CERTIFICATE OF INCORPORATION
OF
TIME DIRECT MARKETING SERVICES, INC.
1. The name of the corporation is:
Time Direct Marketing Services, Inc.
2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall have authority to issue is One Hundred (100) and the par value of each of such shares is One Dollar ($1.00). All such shares are of one class and are shares of Common Stock.
5. The name and mailing address of each of the directors is:
John T. Howard | Time Incorporated Time & Life Building Rockefeller Center New York, New York 10020 | |
S. Christopher Meigher III | Time Incorporated Time & Life Building Rockefeller Center New York, New York 10020 | |
Ruth A. Shields | Time Incorporated Time & Life Building Rockefeller Center New York, New York 10020 | |
Oren P. Testa | Time Incorporated Time & Life Building Rockefeller Center New York, New York 10020 | |
Eric G. Thorkilsen | Time Incorporated Time & Life Building Rockefeller Center New York, New York 10020 |
6. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot.
7. The name and mailing address of the incorporator is:
Janice Rosamilia
Time Incorporated
Time & Life Building
Rockefeller Center
New York, New York 10020
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 18th day of November, 1986.
/s/ Janice Rosamilia |
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727079055
FILED
MAR 20 1987
10 AM
[ILLEGIBLE STAMP]
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
TIME DIRECT MARKETING SERVICES, INC.
Time Direct Marketing Services, Inc. (the Corporation), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That by action without a meeting pursuant to Section 141(f) of the General Corporation Law of the State of Delaware, the Board of Directors of the Corporation duly adopted resolutions setting forth a proposed amendment to the Certificate of Incorporation of said Corporation, declared said amendment to be advisable and called a meeting of the stockholders of the Corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this Corporation be amended by changing Article 1 so that amended, said Article shall be and read as follows:
1. The name of the corporation is: Time Customer Service, Inc.
SECOND: That, thereafter, pursuant to resolution of its Board of Directors, the stockholders of the Corporation by unanimous written consent pursuant to Section 228 of the General Corporation Law of Delaware approved the above amendment to the Corporations Certificate of Incorporation.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
FOURTH: That the capital of said Corporation shall not be reduced under or by reason of said amendment.
[ILLEGIBLE]
IN WITNESS WHEREOF, said Corporation has caused its corporate seal to be hereunto affixed and this certificate to be signed by Oren P. Testa, President, and Attested by its Secretary, this 25th day of February, 1987.
By: | /s/ Oren P. Testa | |||
Oren P. Testa President | ||||
Attest: | /s/ Lawrence J. Marmon | |||
Lawrence J. Marmon Secretary |
00003
901520030
FILED
JUN 1 1989
[ILLEGIBLE STAMP]
CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT
It is hereby certified that:
1. | The name of the corporation (hereinafter called the corporation) is TIME CUSTOMER SERVICE, INC. |
2. | The registered office of the corporation within the State of Delaware is hereby changed to 229 South State Street, City of Dover 19901, County of Kent. |
3. | The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. |
4. | The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. |
Signed on May 23, 1989.
/s/ JOHN HOWARD |
JOHN HOWARD - President |
Attest:
/s/ JODI KASS |
JODI KASS ASST - Secretary |
DEL. - C.A.-D.
CERTIFICATE OF CHANGE OF REGISTERED AGENT
AND
REGISTERED OFFICE
TIME CUSTOMER SERVICE, INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
The present registered agent of the corporation is THE PRENTICE HALL CORPORATION SYSTEM INC. and the present registered office of the corporation is in the county of New Castle.
The Board of Directors of THE COMPANY adopted the following resolutions as of the 17th day of April, 1997.
RESOLVED, that the registered office of the Corporation in the State of Delaware be, and it hereby is, changed to The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle; and further
RESOLVED, that the authorization of the present registered agent of the Corporation in the State of Delaware be, and it hereby is withdrawn and that The Corporation Trust Company be, and it hereby is, appointed the registered agent of the Corporation in the State of Delaware at the address of the Corporations registered office.
IN WITNESS WHEREOF, THE COMPANY has caused this statement to be signed by Richard I. Friedman, its Assistant Secretary, as of this 31st day of July, 1997
By: | Richard I. Friedman | |
Richard I. Friedman | ||
Assistant Secretary |
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 10:00 AM 09/05/1997
971297299 2108010
State of Delaware
Secretary of State
Division of Corporations
Delivered 05:52 PM 11/14/2018
FILED 05:52 PM 11/14/2018
SR 20187647461 - File Number 2108010
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION
The corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware does hereby certify:
FIRST: That at a meeting of the Board of Directors of Time Customer Service, Inc. resolutions were duly adopted setting forth a proposed amendment of the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing the Article thereof numbered 1 so that, as amended, said Article shall be and read as follows:
The name of the corporation is TI Customer Service, Inc.
SECOND: That thereafter, pursuant to resolution of its Board of Directors, a special meeting of the stockholders of said corporation was duly called and held upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said corporation has caused this certificate to be signed this 31st day of October, 2018.
By: | /s/ Joseph H. Ceryanec | |
Authorized Officer | ||
Title: | President & CEO | |
Name: | Joseph H. Ceryanec | |
Print or Type |
Exhibit 3.74
BY-LAWS
OF
TIME CUSTOMER SERVICE, INC.
(Incorporated under the Laws of the State of Delaware)
As Adopted March 1, 1989
TABLE OF CONTENTS
Article |
Page | |||||
I |
Offices | 1 | ||||
Section 1 - Offices | 1 | |||||
II |
Meetings of Stockholders | 1 | ||||
Section 1 - Annual Meetings | 1 | |||||
Section 2 - Special Meetings | 1 | |||||
Section 3 - Notice of Meetings | 2 | |||||
Section 4 - Quorum and Manner of Acting | 3 | |||||
Section 5 - Organization of Meetings | 4 | |||||
Section 6 - Order of Business | 4 | |||||
Section 7 - Voting | 5 | |||||
Section 8 - Consent in Lieu of Meeting | 6 | |||||
Section 9 - List of Stockholders | 7 | |||||
Section 10 - Inspectors | 8 | |||||
III |
Board of Directors | 8 | ||||
Section 1 - General Powers | 8 | |||||
Section 2 - Number and Term of Office | 8 | |||||
Section 3 - Election | 9 | |||||
Section 4 - Meetings | 9 | |||||
Section 5 - Compensation |
12 | |||||
Section 6 - Resignations, Removal and Vacancies | 13 | |||||
IV |
Committees | 14 | ||||
Section 1 - Number, Appoint, Term of Office, etc. | 14 | |||||
Section 2 - Function and Powers | 14 | |||||
Section 3 - Rules | 15 | |||||
V |
Officers | 15 | ||||
Section 1 - Election, Appointment and Term of Office | 15 | |||||
Section 2 - Removal, Resignation and Vacancies | 16 | |||||
Section 3 - Duties and Functions | 17 |
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VI | Indemnification |
20 | ||||
Section 1 - Right to Indemnification | 20 | |||||
Section 2 - Insurance, Contracts and Funding | 22 | |||||
Section 3 - Indemnification Not Exclusive Right | 22 | |||||
Section 4 - Indemnification of Employees and Agents | 23 | |||||
VII |
Waiver of Notices; Places of Meetings | 23 | ||||
Section 1 - Waiver of Notices | 23 | |||||
Section 2 - Place of Meetings | 24 | |||||
VIII |
Execution and Delivery of Documents; Deposits; Proxies, Books and Records | 24 | ||||
Section 1 - Execution and Delivery of Documents | 24 | |||||
Section 2 - Deposits | 25 | |||||
Section 3 - Proxies in Respect of Stock or Other Securities in Other Corporations | 25 | |||||
Section 4 - Books and Records | 25 | |||||
IX |
Certificates; Stock Record; Transfer and Registration | 26 | ||||
Section 1 - Certificates for Stock | 26 | |||||
Section 2 - Stock Record | 27 | |||||
Section 3 - Transfer and Registration of Stocks | 27 | |||||
Section 4 - New Certificates | 28 | |||||
Section 5 - Regulations | 28 | |||||
Section 6 - Fixing Date for Determination of Stockholders of Record | 29 | |||||
X |
Seal | 29 | ||||
Section 1 - Seal | 29 | |||||
XI |
Fiscal Year | 30 | ||||
Section 1 - Fiscal Year | 30 | |||||
XII |
Amendments | 30 | ||||
Section 1 - Amendments | 30 | |||||
XIII |
Subject to Law | 30 | ||||
Section 1 - Subject to Law | 30 |
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BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
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Section 3. Notice of Meetings. Notice of each meeting of the stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such stockholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such stockholder at his address as it appears on the stock record of the Corporation or by transmitting notice thereof to him at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the stockholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
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Section 4. Quorum and Manner of Acting. If stockholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the stockholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until stockholders holding the amount of stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of stockholders holding the number of shares of stock of the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy stockholders holding the number of shares of stock of the Corporation required in respect of such other matter.
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Section 5. Organization of Meetings. At each meeting of the stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
(a) the Chairman of the Board, or, if he is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat.
The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by a majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
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Section 7. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him and registered in his name on the stock record of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or
(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for
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a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he shall in writing so notify the secretary of the meeting prior to voting of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his proxy if there be such proxy, and shall state the number of shares voted.
Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
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Section 9. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each stockholder and the number of shared 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, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
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Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his election and until his successor shall be elected and qualified or until his earlier death or resignation or removal in the manner hereinafter provided.
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Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
(c) Special Meetings. Special meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
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(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a typewritten notice thereof to such director personally or by depositing such notice in the United States mail, postage prepaid, directed to such director at his residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him at such address by telegraph, cable or other form or recorded communication. The purposes of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
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(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he is not present or if no person holds such office, any director chosen by a majority of the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
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(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his serving as such, shall be entitled to receive from the Corporation such amount perannum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him on account of his attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
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Section 6. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board cause by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his successor shall be elected and shall qualify or until his earlier death or resignation or removal in the manner herein.
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ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including, the power and authority to declare dividends and to
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authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
ARTICLE V
Officers
Section 1. Election and Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice-Presidents, or any or all the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one or more Assistant Treasurers, or any or all
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of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal and Vacancies. Any officer may resign at any time by giving written notice of his resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effect shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
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Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected he shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the stockholders, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he shall preside at meetings of the Executive Committee; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
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(d) President. If a President is appointed or elected he shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice-Chairman of the Board is appointed or elected and is present.
(e) Vice-Presidents. If any Vice President or Vice Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice Presidents.
(f) Secretary. If a Secretary is appointed or elected he shall attend and keep the records of all meetings of the stockholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the
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Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
(g) Treasurer. If a Treasurer is appointed or elected he shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
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(h) Controller. If a Controller is appointed or elected he shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the
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Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a 50 percent or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
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Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
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Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
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Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
ARTICLE VIII
Execution and Delivery of Documents; Deposits;
Proxies; Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such delegation may be by resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
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Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities of Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he may deem necessary or proper in order that the Corporation may exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of Delaware as the proper officers of the Corporation may from time to time determine.
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ARTICLE IX
Certificates; Stock Record; Transfer and Registration;
New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the Board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice-Chairman, the President or a Vice-President of the Corporation and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for or exchange or transfer shall be cancelled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so cancelled, except in cases provided for in Section 4 of this Article.
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Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
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Section 4. New Certificates.
(a) Lost, Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
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Section 6. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix, in advance, a record date, which shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
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ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
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Exhibit 3.75
CERTIFICATE OF INCORPORATION
OF
TIME DISTRIBUTION SERVICES, INC.
FIRST. The name of the Corporation is TIME DISTRIBUTION SERVICES, INC.
SECOND. The address of the Corporations registered office in the State of Delaware is No. 100 West Tenth Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.
THIRD. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
FOURTH. The total number of shares which the Corporation shall have authority to issue is 1,000 shares of Common Stock, and the par value of such shares is $1.00 per share.
FIFTH. The name and mailing address of the incorporator is Donald W. Carson, 57th Floor, One Chase Manhattan Plaza, New York, N. Y. 10005.
SIXTH. The powers of the incorporator shall terminate upon the filing of this Certificate of Incorporation, and the names and mailing addresses of the persons who are
to serve as directors until the first annual meeting of stockholders or until their successors are elected and qualified are as follows:
Name |
Address | |
Arthur W. Keylor |
Time & Life Building Rockefeller Center New York, N. Y. 10020 | |
Kelso F. Sutton |
Time & Life Building Rockefeller Center New York, N. Y. 10020 | |
Bruce A. Barnet |
Time & Life Building Rockefeller Center New York, N. Y. 10020 |
SEVENTH. The By-laws of the Corporation may be made, altered, amended or repealed by the Board of Directors.
EIGHTH. Meetings of stockholders may be held within or without the State of Delaware, as the By-laws provide. The books of the Corporation may be kept (subject to the provisions of the laws of the State of Delaware) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the By-laws of the Corporation. Election of directors need not be by written ballot unless the By-laws of the Corporation shall so provide.
NINTH. The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or
2
hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
THE UNDERSIGNED incorporator hereby acknowledges that the foregoing Certificate of Incorporation is his act and deed and that the facts stated therein are true, and accordingly has signed this instrument this 25 day of September 1974.
/s/ Donald W. Carson |
Donald W. Carson |
3
STATE OF NEW YORK, |
) | |||||||
) | ss.: | |||||||
COUNTY OF NEW YORK, |
) |
BE IT REMEMBERED that on this 25th day of September 1974, personally came before me, a Notary Public in and for the County and State aforesaid, DONALD W. CARSON, the person who executed the foregoing Certificate of Incorporation, known to me personally to be such person, and acknowledged that the said Certificate was his act and deed and that the facts stated therein were true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the day and year aforesaid.
/s/ Ferdinand Canocca |
![]() |
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
TIME DISTRIBUTION SERVICES, INC.
Time Distribution Services, Inc. (the Corporation), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That by action without a meeting pursuant to Section 141(f) of the General Corporation Law of the State of Delaware, the Board of Directors of the Corporation duly adopted resolutions setting forth a proposed amendment to the Certificate of Incorporation of said Corporation, declared said amendment to be advisable and submitted said amendment to the stockholders of the Corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that Article 1 of the Certificate of Incorporation of the Corporation be amended so as to read in its entirety as follows:
1. The name of the corporation is: TDS Ventures, Inc.
SECOND: That, thereafter, pursuant to resolution of its Board of Directors, the stockholders of the Corporation by unanimous written consent pursuant to Section 228 of the General Corporation Law of Delaware approved the above amendment to the Corporations Certificate of Incorporation.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
FOURTH: That the capital of said Corporation shall not be reduced under or by reason of said amendment.
IN WITNESS WHEREOF, said Corporation has caused its corporate seal to be hereunto affixed and this certificate to be signed by Daniel E. Zucchi, President, and Attested by its Secretary, this 30th day of September, 1987.
By: | /s/ Daniel E. Zucchi | |
Daniel E. Zucchi President |
Attest: | /s/ Jodi Kass | |
Jodi Kass Secretary |
[SEAL]
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![]() |
|
CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE
AND OF REGISTERED AGENT
It is hereby certified that:
1. | The name of the corporation (hereinafter called the corporation) is TDS VENTURES, INC. |
2. | The registered office of the corporation within the State of Delaware is hereby changed to 229 South State Street, City of Dover 19901, County of Kent. |
3. | The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. |
4. | The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. |
Signed on APRIL 18, 1989.
/s/ RICHARD W. ANGLE |
RICHARD W. ANGLE President |
Attest: |
/s/ JODI KASS |
JODI KASS Secretary |
DEL. - C.A. -D.
STATE OF DELAWARE |
SECRETARY OF STATE |
DIVISION OF CORPORATIONS |
FILED 09:00 AM 01/12/1995 |
950008402 - 805715 |
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
TDS VENTURES, INC.
TDS Ventures, Inc. (the Corporation), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That by action without a meeting pursuant to Section 141(f) of the General Corporation Law of the State of Delaware, the Board of Directors of the Corporation duly adopted resolutions setting forth a proposed amendment to the Certificate of Incorporation of said Corporation, declared said amendment to be advisable and submitted said amendment to the sole stockholder of the Corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED that paragraph 1 of the Certificate of Incorporation of the Corporation be amended so as to read in its entirety as follows:
1. The name of the corporation is: Time Distribution Services Inc.
SECOND: That, thereafter, pursuant to resolution of its Board of Directors, the sole stockholder of the Corporation by written consent pursuant to Section 228 of the General Corporation Law of Delaware approved the above amendment to the Corporations Certificate of Incorporation.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
FOURTH: That the capital of said Corporation shall not be reduced under or by reason of said amendment.
IN WITNESS WHEREOF, said Corporation has caused this certificate to be signed by Harry M. Johnston III, its Secretary, this 10th day of January, 1995.
By: | /s/ Harry M. Johnston III | |
Harry M. Johnston III | ||
Secretary |
[ILLEGIBLE]
STATE OF DELAWARE |
SECRETARY OF STATE |
DIVISION OF CORPORATIONS |
FILED 10:00 AM 09/05/1997 |
971297308 0805715 |
CERTIFICATE OF CHANGE OF REGISTERED AGENT
AND
REGISTERED OFFICE
Time Distribution Services Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
The present registered agent of the corporation is THE PRENTICE-HALL CORPORATION SYSTEM, INC. and the present registered office of the corporation is in the county of New Castle.
The Board of Directors of THE COMPANY adopted the following resolutions as of the 17th day of April, 1997.
RESOLVED, that the registered office of the Corporation in the State of Delaware be, and it hereby is, changed to The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle; and further
RESOLVED, that the authorization of the present registered agent of the Corporation in the State of Delaware be, and it hereby is withdrawn and that The Corporation Trust Company be, and it hereby is, appointed the registered agent of the Corporation in the State of Delaware at the address of the Corporations registered office.
IN WITNESS WHEREOF, THE COMPANY has caused this statement to be signed by Richard I. Friedman. its Assistant Secretary, as of this 31st day of July, 1997.
By: | /s/ Richard I. Friedman | |
Richard I. Friedman Assistant Secretary |
State of Delaware |
Secretary of State |
Division of Corporations |
Delivered 05:34 PM 11/14/2018 |
FILED 05:34 PM 11/14/2018 |
SR 20187647175 - File Number 805715 |
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION
The corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware does hereby certify:
FIRST: That at a meeting of the Board of Directors of Time Distribution Services Inc. resolutions were duly adopted setting forth a proposed amendment of the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing the Article thereof numbered 1 so that, as amended, said Article shall be and read as follows:
1. | The name of the corporation is: TI Distribution Services Inc. |
SECOND: That thereafter, pursuant to resolution of its Board of Directors, a special meeting of the stockholders of said corporation was duly called and held upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said corporation has caused this certificate to be signed this 31st day of October, 2018.
By: | /s/ Joseph H. Ceryanec | |
Authorized Officer | ||
Title: | President & CEO | |
Name: | Joseph H. Ceryanec | |
Print or Type |
Exhibit 3.76
BY-LAWS
OF
TDS VENTURES, INC.
(Incorporated under the Laws of the State of Delaware)
As Adopted March 1, 1989
TABLE OF CONTENTS
Article |
Page | |||||
I | Offices |
1 | ||||
Section 1 Offices |
1 | |||||
II | Meetings of Stockholders |
1 | ||||
Section 1 Annual Meetings |
1 | |||||
Section 2 Special Meetings |
1 | |||||
Section 3 Notice of Meetings |
2 | |||||
Section 4 Quorum and Manner of Acting |
2 | |||||
Section 5 Organization of Meetings |
3 | |||||
Section 6 Order of Business |
4 | |||||
Section 7 Voting |
4 | |||||
Section 8 Consent in Lieu of Meeting |
6 | |||||
Section 9 List of Stockholders |
7 | |||||
Section 10 Inspectors |
8 | |||||
III | Board of Directors |
8 | ||||
Section 1 General powers |
8 | |||||
Section 2 Number and Term of Office |
8 | |||||
Section 3 Election |
9 | |||||
Section 4 Meetings |
9 | |||||
Section 5 Compensation |
12 | |||||
Section 6 Resignations, Removal and Vacancies |
12 | |||||
IV | Committees |
14 | ||||
Section 1 Number, Appoint, Term of Office, etc. |
14 | |||||
Section 2 Function and Powers |
14 | |||||
Section 3 Rules |
15 | |||||
V | Officers |
15 | ||||
Section 1 Election, Appointment and Term of Office |
15 | |||||
Section 2 Removal, Resignation and Vacancies |
16 | |||||
Section 3 Duties and Functions |
17 |
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VI | Indemnification |
20 | ||||
Section 1 Right to Indemnification |
20 | |||||
Section 2 Insurance, Contracts and Funding |
22 | |||||
Section 3 Indemnification Not Exclusive Right |
22 | |||||
Section 4 Indemnification of Employees and Agents |
22 | |||||
VII | Waiver of Notices; Places of Meetings |
23 | ||||
Section 1 Waiver of Notices |
23 | |||||
Section 2 Place of Meetings |
24 | |||||
VIII | Execution and Delivery of Documents; Deposits; Proxies, Books and Records |
24 | ||||
Section 1 Execution and Delivery of Documents |
24 | |||||
Section 2 Deposits |
25 | |||||
Section 3 Proxies in Respect of Stock or Other Securities in Other Corporations |
25 | |||||
Section 4 Books and Records |
25 | |||||
IX | Certificates; Stock Record; Transfer and Registration |
26 | ||||
Section 1 Certificates for Stock |
26 | |||||
Section 2 Stock Record |
27 | |||||
Section 3 Transfer and Registration of Stocks |
27 | |||||
Section 4 New Certificates |
28 | |||||
Section 5 Regulations |
28 | |||||
Section 6 Fixing Date for Determination of Stockholders of Record |
29 | |||||
X | Seal |
29 | ||||
Section 1 Seal |
29 | |||||
XI | Fiscal Year |
30 | ||||
Section 1 Fiscal Year |
30 | |||||
XII | Amendments |
30 | ||||
Section 1 Amendments |
30 | |||||
XIII | Subject to Law |
30 | ||||
Section 1 Subject to Law |
30 |
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BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetinqs. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote
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of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
Section 3. Notice of Meetings. Notice of each meeting of the stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such stockholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such stockholder at his address as it appears on the stock record of the Corporation or by transmitting notice thereof to him at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the stockholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
Section 4. Quorum and Manner of Acting. If stockholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any
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meeting of the stockholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until stockholders holding the amount of stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of stockholders holding the number of shares of stock of the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy stockholders holding the number of shares of stock of the Corporation required in respect of such other matter.
Section 5. Organization of Meetings. At each meeting of the stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
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(a) the Chairman of the Board, or, if he is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat.
The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by a majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
Section 7. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him and registered in his name on the stock record of the Corporation:
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(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or
(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for
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a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he shall in writing so notify the secretary of the meeting prior to voting of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his proxy if there be such proxy, and shall state the number of shares voted.
Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice
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of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
Section 9. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
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Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation
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shall hold office until the annual meeting after his election and until his successor shall be elected and qualified or until his earlier death or resignation or removal in the manner hereinafter provided.
Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
(c) Special Meetings. Special meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
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(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a typewritten notice thereof to such director personally or by depositing such notice in the United States mail, postage prepaid, directed to such director at his residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him at such address by telegraph, cable or other form or recorded communication. The purposes of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
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(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he is not present or if no person holds such office, any director chosen by a majority of the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent
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thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him on account of his attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 6. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it
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shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board cause by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his successor shall be elected and shall qualify or until his earlier death or resignation or removal in the manner herein.
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ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including, the power and authority to declare dividends and to
-14-
authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
ARTICLE V
Officers
Section 1. Election and Appointment and Term of office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice-Presidents, or any or all the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one ore more Assistant Treasurers, or any or all
-15-
of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal and Vacancies. Any officer may resign at any time by giving written notice of his resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effect shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
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Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected he shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the stockholders, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he shall preside at meetings of the Executive Committee; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
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(d) President. If a President is appointed or elected he shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice-Chairman of the Board is appointed or elected and is present.
(e) Vice-Presidents. If any Vice President or Vice Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice Presidents
(f) Secretary. If a Secretary is appointed or elected he shall attend and keep the records of all meetings of the stockholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the
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Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
(g) Treasurer. If a Treasurer is appointed or elected he shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to
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appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
(h) Controller. If a Controller is appointed or elected he shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the
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corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a 50 percent or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
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Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or
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was an employee or agent of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of
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objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
ARTICLE VIII
Execution and Delivery of Documents; Deposits;
Proxies; Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such delegation may be by resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
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Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities of Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he may deem necessary or proper in order that the Corporation may exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of Delaware as the proper officers of the Corporation may from time to time determine.
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ARTICLE IX
Certificates; Stock Record; Transfer and Registration;
New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him in the corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the Board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice-Chairman, the President or a Vice-President of the Corporation and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for or exchange or transfer shall be cancelled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so cancelled, except in cases provided for in Section 4 of this Article.
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Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
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Section 4. New Certificates.
(a) Lost, Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
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Section 6. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix, in advance, a record date, which shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
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ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
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Exhibit 3.77
140424000 | 671 |
CT07
RESTATED CERTIFICATE OF INCORPORATION
OF
TIME INC. AFFLUENT MEDIA GROUP
(Under Section 807 of the Business Corporation Law)
It is hereby certified as follows:
1. | The name of the Corporation is Time Inc. Affluent Media Group Corporation). The name under which the Corporation originally was incorporated was U.S. Camera Publishing Corporation. |
2. | The Certificate of Incorporation of the Corporation was filed by the New York State Department of State on September 10, 1938. |
3. | The Certificate of Incorporation, as previously amended and supplemented by certificates filed pursuant to law, is hereby amended to effect the following amendments and changes authorized by Section 803 of the Business Corporation Law of the State of New York (the BCL), and restated pursuant to Section 807 of the BCL: |
a) | The Certificate of Incorporation shall be amended to amend the current Article SECOND to describe the general business purpose or purposes of the Corporation. |
b) | The Certificate of Incorporation shall be amended to delete in its entirety the current Article FOURTH relating to the capital of the Corporation. |
c) | The Certificate of Incorporation shall be amended to delete in its entirety the current Article SEVENTH relating to the number of directors of the Corporation. |
d) | The Certificate of Incorporation shall be amended to delete in its entirety the current Article EIGHTH relating to the names and addresses of directors of the Corporation. |
e) | The Certificate of Incorporation shall be amended to delete in its entirety the current Article NINTH relating to stock subscriptions by shareholders of the Corporation. |
f) | The Certificate of Incorporation shall be amended to delete in its entirety the current Article TENTH relating to qualifications of shareholders and directors of the Corporation. |
1
g) | The Certificate of Incorporation shall be amended to delete in its entirety the current Article ELEVENTH relating to the issuance of shares of stock of the Corporation. |
h) | The Certificate of Incorporation shall be amended to delete in its entirety the current Article TWELFTH relating to the qualification of directors of the Corporation. |
i) | The Certificate of Incorporation shall be amended to delete in its entirety the current Article THIRTEENTH relating to shareholder votes in connection with shares of stock in other corporations held by the Corporation. |
j) | The Certificate of Incorporation shall be amended to delete in its entirety the current Article FOURTEENTH relating to working capital of the Corporation. |
k) | The Certificate of Incorporation shall be amended to delete in its entirety the current Article FIFTEENTH relating to powers of the Corporation. |
l) | The Certificate of Incorporation shall be amended to delete in its entirety the current Article SIXTEENTH relating to powers of the Corporation. |
m) | The Certificate of Incorporation shall be amended to delete in its entirety the current Article SEVENTEENTH relating to the New York Secretary of State serving as agent of the Corporation for service of process. |
n) | The Certificate of Incorporation shall be amended to delete in its entirety the current Article EIGHTEENTH relating to the rights of shareholders to inspect the accounts and books of the Corporation. |
o) | The Certificate of Incorporation shall be amended to add a new Article FOURTH relating to the office of the Corporation. |
p) | The Certificate of Incorporation shall be amended to add a new Article FIFTH relating to the designated agent of the Corporation. |
q) | The Certificate of Incorporation shall be amended to add a new Article EIGHTH to eliminate the liability of the officers and directors of the Corporation to the fullest extent permitted by law. |
r) | The Certificate of Incorporation shall be amended to add a new Article NINTH to describe the general requirements to further amend the Certificate of Incorporation. |
2
4. | The text of the Certificate of Incorporation as amended and changed heretofore is hereby restated, pursuant to Section 807 of the BCL, without further amendments or changes, to read as herein set forth in full: |
FIRST: The name of the corporation (hereinafter referred to as the Corporation) is Time Inc. Affluent Media Group.
SECOND: The Corporation is formed for the following purpose or purposes:
To engage in any lawful act or activity for which corporations may be organized under the BCL, provided that the Corporation is not formed to engage in any act or activity requiring the consent or approval of any state official, department, board, agency or other body without such consent or approval first being obtained.
To have, in furtherance of corporate purposes, all of the powers conferred upon corporations organized under the BCL, subject to any limitations thereof contained in this Certificate of Incorporation or in the laws of the State of New York.
THIRD: The aggregate number of shares of all classes of capital stock that the Corporation shall have authority to issue shall be one thousand (1,000) shares of Common Stock, all of which are to be without par value.
FOURTH: The office of the Corporation is to be located in the County of New York, State of New York.
FIFTH: The Secretary of State is designated as the agent of the Corporation upon whom process against the Corporation may be served. The post office address to which the Secretary of State shall mail a copy of any process against the Corporation served upon him is: c/o C T Corporation System, 111 Eighth Avenue, New York, New York 10011.
SIXTH: The name and address of the registered agent which is to be the agent of the Corporation upon whom process against it may be served, are C T CORPORATION SYSTEM, 111 Eighth Avenue, New York, New York 10011.
SEVENTH: The duration of the Corporation is to be perpetual.
EIGHTH: To the fullest extent from time to time permitted by law, no director of the Corporation shall be personally liable to any extent to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director.
Each person who is or was or had agreed to become a director or officer of the Corporation, and each such person who is or was serving or who had agreed to serve at the request of the Corporation as a director, officer, partner, member, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise (including the heirs, executor, administrators or estate of such person), shall be indemnified by the Corporation to the fullest extent permitted from time to time by applicable law.
3
NINTH: From time to time any of the provisions of this Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of New York at the time in force may be added or inserted in the manner and at the time prescribed by said laws.
This restated certificate of incorporation was authorized pursuant to Section 803(a) of the Business Corporation Law of the State of New York by written consent of the Board of Directors of the Corporation pursuant to Section 708(b) of the Business Corporation Law of the State of New York, whereby the Board duly adopted a resolution setting forth the proposed amendment to the certificate of incorporation of the Corporation, declared said restatement to be advisable and submitted said restatement to the sole shareholder of the Corporation for consideration thereof. The sole shareholder of the corporation by written consent pursuant to Section 615(a) of the Business Corporation Law of the State of New York consented to the above restatement of the Corporations certificate of incorporation.
4
IN WITNESS WHEREOF, said Corporation has caused this certificate to be signed by Lauren Ezrol Klein, its Assistant Secretary, as of the 24th day of April, 2014.
/s/ Lauren Ezrol Klein | ||
By: Title: |
Lauren Ezrol Klein Assistant Secretary |
5
671
CT-07
Restated Certificate of Incorporation
OF
Time Inc. Affluent Media Group
Under Section 807 of the Business Corporation Law
Icc
Filed by:
Time Inc.
1271 Avenue of the Americas
New York, NY 10020 |
STATE OF NEW YORK DEPARTMENT OF STATE FILED APR 24 2014 TAX S [ILLEGIBLE] BY: [ILLEGIBLE] |
cst ref# 9123853MC
DRAWDOWN
706
6
CT07
181115000893
![]() |
New York State Department of State DIVISION OF CORPORATIONS, STATE RECORDS AND | |
UNIFORM COMMERCIAL CODE One Commerce Plaza 99 Washington Ave. Albany, NY 12231-0001 www.dos.ny.gov |
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
Time Inc. Affluent Media Group
(Insert the Current Name of Domestic Corporation)
Under Section 805 of the Business Corporation Law
FIRST: The current name of the corporation is:
Time Inc. Affluent Media Group
If the name of the corporation has been previously changed, the name under which it was originally formed is:
U.S. Camera Publishing Corporation
SECOND: The date of filing of the certificate of incorporation with the Department of State is:
September 10, 1938
THIRD: The amendment effected by this certificate of amendment is as follows:
The subject matter and full text of each amended paragraph must be stated.
FOR EXAMPLE, a certificate of amendment changing the name of the corporation would read as follows:
Paragraph FIRST of the Certificate of Incorporation relating to the name of the corporation is amended to read in Its entirety as follows:
FIRST: The name of the corporation is (....new name....).
Paragraph 1 of the Certificate of Incorporation relating to the name of the corporation
is amended to read in its entirety as follows:
FIRST: The name of the corporation (hereinafter, the Corporation) is TI Inc.
Affluent Media Group.
Page 1 of 3
Paragraph of the Certificate of Incorporation relating to
is amended to read in its entirety as follows:
FOURTH: The certificate of amendment was authorized by: (Cheek the appropriate box)
☐ | The vote of the board of directors followed by a vote of a majority of all outstanding shares entitled to vote thereon at a meeting of shareholders. |
☒ | The vote of the board of directors followed by the unanimous written consent of the holders of all outstanding shares. |
X /s/ Joseph H. Ceryanec |
Joseph H. Ceryanec | |||
(Signature) |
|
(Name of Signer) | ||
|
President & CEO | |||
|
(Title of Signer) |
Page 2 of 3
CT 07 | 893 |
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
Time Inc. Affluent Media Group
(Insert Current Name of Domestic Corporation)
Under Section 805 of the Business Corporation Law
Filers Name and Mailing Address:
Eric Fischer Name: Nyemaster Goode, P.C. |
||
Company, If Applicable: 700 Walnut Street, Suite 1600 |
||
Malling Address: Des Moines, IA 50309 |
||
City, State and Zip Code: |
CUST REF 11257052 CS
DRAWDOWN
NOTES:
1. | The name of the corporation and its date of incorporation provided on this certificate must exactly match the records of the Department of State. This information should be verified on the Department of States website at www.dos.ny.gov. |
2. | This form was prepared by the New York State Department of State. It does not contain all optional provisions under the law. You are not required to use this form. You may draft your own form or use forms available at legal stationery stores. |
3. | The Department of State recommends that all documents be prepared under the guidance of an attorney. |
4. | The certificate must be submitted with a $60 filing fee. |
For Office Use Only
ICC |
STATE OF NEW YORK DEPARTMENT OF STATE |
FILED NOV 15 2018 |
TAX S 0 |
BY: AB |
927
Page 3 of 3
Exhibit 3.78
BY-LAWS
OF
TIME INC. AFFLUENT MEDIA GROUP
(Incorporated under the Laws of the State of New York)
As Adopted as of April 24, 2014
TABLE OF CONTENTS
Article | Page | |||||
I. |
Offices |
1 | ||||
II. |
Meetings of Shareholders |
1 | ||||
Section 1 - Annual Meetings |
1 | |||||
Section 2 - Special Meetings |
1 | |||||
Section 3 - Notice of Meetings |
2 | |||||
Section 4 - Quorum and Manner of Acting |
2 | |||||
Section 5 - Organization of Meetings |
3 | |||||
Section 6 - Order of Business |
3 | |||||
Section 7 - Voting |
3 | |||||
Section 8 - Consent in Lieu of Meeting |
5 | |||||
Section 9 - List of Shareholders |
5 | |||||
Section 10 - Inspectors |
6 | |||||
III. |
Board of Directors |
6 | ||||
Section 1 - General Powers |
6 | |||||
Section 2 - Number and Term of Office |
6 | |||||
Section 3 - Election |
7 | |||||
Section 4 - Meetings |
7 | |||||
Section 5 - Compensation |
9 | |||||
Section 6 - Resignation, Removal and Vacancies |
9 | |||||
IV. |
Committees |
10 | ||||
Section 1 - Number, Appointment, Term of Office, etc. |
10 | |||||
Section 2 - Functions and Powers |
11 | |||||
Section 3 - Rules |
11 | |||||
V. |
Officers |
12 | ||||
Section 1 - Election, Appointment and Term of Office |
12 | |||||
Section 2 - Resignation, Removal and Vacancies |
12 | |||||
Section 3 - Duties and Functions |
13 | |||||
VI. |
Indemnification |
15 | ||||
Section 1 - Right to Indemnification |
15 | |||||
Section 2 - Insurance, Contracts and Funding |
16 | |||||
Section 3 - Indemnification Not Exclusive Right |
17 |
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Section 4 - Indemnification of Employees and Agents |
17 | |||||
VII. |
Waiver of Notices: Places of Meetings |
18 | ||||
Section 1 - Waiver of Notices |
18 | |||||
Section 2 - Place of Meetings |
18 | |||||
VIII. |
Execution and Delivery of Documents; Deposits; Proxies; Books and Records |
18 | ||||
Section 1 - Execution and Delivery of Documents; Delegation |
18 | |||||
Section 2 - Deposits |
19 | |||||
Section 3 - Proxies in Respect of Stock or Other Securities in Other Corporations |
19 | |||||
Section 4 - Books and Records |
19 | |||||
IX. |
Certificates: Stock Record: Transfer and Registration; New Certificates; Record Date, etc. |
20 | ||||
Section 1 - Certificates for Stock |
20 | |||||
Section 2 - Stock Record |
20 | |||||
Section 3 - Transfer and Registration of Stock |
21 | |||||
Section 4 - New Certificates |
21 | |||||
Section 5 - Regulations |
22 | |||||
Section 6 - Fixing Date for Determination of Shareholders of Record |
22 | |||||
X. |
Seal |
22 | ||||
Section 1 - Seal |
22 | |||||
XI. |
Fiscal Year |
23 | ||||
Section 1 - Fiscal Year |
23 | |||||
XII. |
Amendments |
23 | ||||
Section 1 - Amendments |
23 | |||||
XIII. |
Subject to Law |
23 | ||||
Section 1 - Subject to Law |
23 |
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BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of New York. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Shareholders
Section 1. Annual Meetings. The annual meeting of the shareholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the shareholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
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Section 3. Notice of Meetings. Notice of each meeting of the shareholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each shareholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such shareholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such shareholder at his or her address as it appears on the stock record of the Corporation or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the shareholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
Section 4. Quorum and Manner of Acting. If shareholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the shareholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the shareholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until shareholders holding the amount of stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of shareholders holding the number of shares of stock of
2
the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy shareholders holding the number of shares of stock of the Corporation required in respect of such other matter.
Section 5. Organization of Meetings. At each meeting of the shareholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
(a) the Chairman of the Board, or, if he or she is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the shareholders present in person or by proxy and entitled to vote thereat.
The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the shareholders shall be determined by the chairman of the meeting, but such order of business may be changed by the majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
Section 7. Voting. Each shareholder shall, at each meeting of the shareholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him or her and registered in his or her name on the stock record of the Corporation:
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(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of shareholders who shall be entitled to receive notice of and to vote at such meeting; or
(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining shareholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the shareholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for a longer period. The attendance at any meeting of a shareholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he or she shall in writing so notify the secretary of the meeting prior to the voting of the proxy. At all meetings of the shareholders all matters shall be decided by the vote of a majority in voting interest of the shareholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the shareholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the shareholder voting, or by his or her proxy if there be such proxy, and shall state the number of shares voted.
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Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of shareholders of the Corporation, or any action which may be taken at any annual or special meeting of such shareholders, may be taken at any annual or special meeting of such shareholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those shareholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
Section 9. List of Shareholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the shareholders, a complete list of the shareholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and
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place of the meeting during the whole time thereof and may be inspected by any shareholder who is present. The stock record shall be the only evidence as to who are the shareholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the shareholders.
Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his or her discretion, appoint two or more inspectors, who need not be shareholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his or her election and until his or her successor shall be elected and qualified or until his or her earlier death or resignation or removal in the manner hereinafter provided.
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Section 3. Election. At each annual meeting of the shareholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be shareholders of the Corporation or residents of the State of New York.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
(c) Special Meetings. Special Meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a type-written notice thereof to such director personally or by
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depositing such notice in the United States mail, postage prepaid, directed to such director at his or her residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. The purposes of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he or she is not present or if no person holds such office, any director chosen by a majority or the directors present thereat shall act as a chairman of the meeting and preside
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thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his or her serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him or her on account of his or her attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 6. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
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Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board caused by any such removal may be filled by the shareholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his or her successor shall be elected and shall qualify or until his or her earlier death or resignation or removal in the manner set forth herein.
ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he or she remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
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In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or she or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including the power and authority to declare dividends and to authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the shareholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the shareholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
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ARTICLE V
Officers
Section 1. Election, Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice Presidents, or any or all of the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one or more Assistant Treasurers, or any or all of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of shareholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal and Vacancies. Any officer may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
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A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected he or she shall be a member of the Board; shall preside at meetings of the Board and of the shareholders at which he or she shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the shareholders at which they shall be present, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he or she shall preside at meetings of the Executive Committee at which he or she shall be present; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
(d) President. If a President is appointed or elected he or she shall be subject to the control of the Board, have general charge and management of the property, business and
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affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He or she shall preside at meetings of the Board and the shareholders unless a Chairman or a Vice Chairman of the Board is appointed or elected and is present.
(e) Vice Presidents. If any Vice President or Vice Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice-Presidents.
(f) Secretary. If a Secretary is appointed or elected he or she shall attend and keep the records of all meetings of the shareholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant
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Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
(g) Treasurer. If a Treasurer is appointed or elected he or she shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
(h) Controller. If a controller is appointed or elected he or she shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened,
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pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a fifty percent (50%) or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such Proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
Section 2. Insurance. Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer,
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employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
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ARTICLE VII
Waiver of Notices: Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or shareholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
Section 2. Place of Meetings. Any meeting of the shareholders, the Board or committee may be held within or outside the State of New York.
ARTICLE VIII
Execution and Delivery of Documents; Deposits;
Proxies; Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the
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Corporation. Such delegation may be resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities in Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he or she may deem necessary or proper in order that the Corporation may exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of New York as the proper officers of the Corporation may from time to time determine.
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ARTICLE IX
Certificates; Stock Record; Transfer and Registration;
New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him or her in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice-Chairman, the President or a Vice-President of the Corporation and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he or she were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for exchange or transfer shall be canceled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so canceled, except in cases provided for in Section 4 of this Article.
Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
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Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by the New York Uniform Commercial Code, as amended from time to time.
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his or her attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
Section 4. New Certificates.
(a) Lost. Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by New York Uniform Commercial Code, as amended from time to time.
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he or she has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
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Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
Section 6. Fixing Date for Determination of Shareholders of Record. In order that the Corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of shareholders entitled to notice of or to vote at a meeting of the shareholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the words New York.
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ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
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Exhibit 3.79
CERTIFICATE OF INCORPORATION
OF
TI ACQUISITION INC.
1. The name of the Corporation is: TI ACQUISITION INC.
2. The address of the registered office of the Corporation in the State of Delaware is c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of the registered agent of the Corporation at such address is The Corporation Trust Company.
3. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the Corporation shall have authority to issue is One Thousand (1,000) and the par value of each of such shares is One Cent ($.01). All such shares are of one class and are shares of Common Stock.
5. The board of directors of the Corporation shall have the power to make, adopt, alter, amend or repeal the by-laws of the Corporation. The election of directors of the Corporation need not be by written ballot.
6. The name and mailing address of the incorporator of the Corporation are:
Lauren B. Ezrol
Time Inc.
1271 Avenue of the Americas
New York, New York 10020
THE UNDERSIGNED, being the sole incorporator of the Corporation, for the purpose of forming a corporation pursuant to the General Corporation Law of the state of Delaware, does hereby sign this Certificate of Incorporation this 1st day of April, 1998.
/s/ Lauren B. Ezrol |
Lauren B. Ezrol |
Sole Incorporator |
STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 11:00 AM 04/01/1998 981125982 2871192 |
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
TI ACQUISITION INC.
TI Acquisition Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the Corporation), DOES HEREBY CERTIFY:
FIRST: That by action without a meeting pursuant to Section 141(f) of the General Corporation Law of the State of Delaware, the Board of Directors of the Corporation duly adopted a resolution setting forth a proposed amendment to the Certificate of Incorporation of the Corporation, declared said amendment to be advisable and submitted said amendment to the sole stockholder of the Corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that paragraph 1 of the Certificate of Incorporation of the Corporation be amended so as to read in its entirety as follows:
1. The name of the corporation is: Time Inc. Home Entertainment.
SECOND: That, thereafter, pursuant to the resolution of its Board of Directors, the sole stockholder of the Corporation by written consent pursuant to Section 228 of the General Corporation Law of Delaware consented to the above amendment to the Corporations Certificate of Incorporation.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 11:02 AM 04/01/1998 981125997 2871192 |
IN WITNESS WHEREOF, said Corporation has caused this certificate to be signed by Richard I. Friedman, its Assistant Secretary, as of the 1st day of April, 1998.
/s/ Richard I. Friedman |
Richard I. Friedman |
Assistant Secretary |
2 | TOTAL P. 06 |
State of Delaware Secretary of State Division of Corporations Delivered 01:13 PM 04/12/2010 FILED 01:11 PM 04/12/2010 SRV 100372454 2871192 FILE |
CERTIFICATE OF AMENDMENT OF
THE CERTIFICATE OF INCORPORATION OF
TIME INC. HOME ENTERTAINMENT
Time Inc. Home Entertainment, a corporation duly organized and existing under the General Corporation Law of the State of Delaware (the Corporation), DOES HEREBY CERTIFY THAT:
FIRST: That by action without a meeting pursuant to Section 141(f) of the General Corporation Law of the State of Delaware, the Board of Directors of the Corporation duly adopted a resolution setting forth a proposed amendment to the Certificate of Incorporation of the Corporation, declared said amendment advisable and submitted said amendment to the sole stockholder of the Corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that paragraph 1 of the Certificate of Incorporation of the Corporation be amended so as to read in its entirety as follows:
1. The name of the corporation is: Time Home Entertainment Inc.
SECOND: That thereafter, pursuant to the resolution of its Board of Directors, the sole stockholder of the Corporation by written consent pursuant to Section 228 of the General Corporation Law of Delaware consented to the above amendment to the Corporations Certificate of Incorporation.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Corporation has caused this Certificate to be signed by Lauren Ezrol Klein, its Assistant Secretary, as of the 12th day of April, 2010.
By: | /s/ Lauren Ezrol Klein | |
Lauren Ezrol Klein | ||
Assistant Secretary |
State of Delaware Secretary of State Division of Corporations Delivered 05:14 PM 02/13/2015 FILED 05:00 PM 02/13/2015 SRV 150198676 2871192 FILE |
CERTIFICATE OF AMENDMENT OF
THE CERTIFICATE OF INCORPORATION OF
TIME HOME ENTERTAINMENT INC.
Time Home Entertainment Inc., a corporation duly organized and existing under the General Corporation Law of the State of Delaware (the Corporation). DOES HEREBY CERTIFY THAT:
FIRST: That by action without a meeting pursuant to Section 141(f) of the General Corporation Law of the State of Delaware, the Board of Directors of the Corporation duly adopted a resolution setting forth a proposed amendment to the Certificate of Incorporation of the Corporation, declared said amendment advisable and submitted said amendment to the sole stockholder of the Corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that paragraph 1 of the Certificate of Incorporation of the Corporation be amended so as to read in its entirety as follows:
1. The name of the corporation is: Time Inc. Books.
SECOND: That thereafter, pursuant to the resolution of its Board of Directors, the sole stockholder of the Corporation by written consent pursuant to Section 228 of the General Corporation Law of Delaware consented to the above amendment to the Corporations Certificate of lncorporation.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Corporation has caused this Certificate to be signed by Lauren Ezrol Klein, its Assistant Secretary, as of the 13th day of February, 2015.
By: | /s/ Lauren Ezrol Klein | |
Lauren Ezrol Klein | ||
Assistant Secretary |
State of Delaware Secretary of State Division of Corporations Delivered 05:49 PM 11/14/2018 FILED 05:49 PM 11/14/2018 SR 20187647460 - File Number 2871192 |
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION
The corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware does hereby certify:
FIRST: That at a meeting of the Board of Directors of Time Inc. Books resolutions were duly adopted setting forth a proposed amendment of the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing the Article thereof numbered 1 so that, as amended, said Article shall be and read as follows:
The name of the corporation is TI Inc. Books.
SECOND: That thereafter, pursuant to resolution of its Board of Directors, a special meeting of the stockholders of said corporation was duly called and held upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said corporation has caused this certificate to be signed this 31st day of October, 2018.
By: | /s/ Joseph H. Ceryanec | |
Authorized Officer | ||
Title: | President & CEO | |
Name: | Joseph H. Ceryanec | |
Print or Type |
Exhibit 3.80
BY-LAWS
OF
TI ACQUISITION INC.
(Incorporated under the Laws of the State of Delaware)
As Adopted as of October 19, 2000
BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
Section 3. Notice of Meetings. Notice of each meeting of the stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such stockholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such stockholder at his or her address as it appears on the stock record of the Corporation or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the stockholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
Section 4. Quorum and Manner of Acting. If stockholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the stockholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until stockholders holding the amount of
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stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of stockholders holding the number of shares of stock of the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy stockholders holding the number of shares of stock of the Corporation required in respect of such other matter.
Section 5. Organization of Meetings. At each meeting of the stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
(a) the Chairman of the Board, or, if he or she is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat.
The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by the majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
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Section 7. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him or her and registered in his or her name on the stock record of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or
(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he or she shall in writing so notify the secretary of the meeting prior to the voting
4
of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his or her proxy if there be such proxy, and shall state the number of shares voted.
Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
Section 9. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders
5
entitled to vote thereat, 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, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his or her discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
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ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his or her election and until his or her successor shall be elected and qualified or until his or her earlier death or resignation or removal in the manner hereinafter provided.
Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to
7
time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
(c) Special Meetings. Special Meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a type-written notice thereof to such director personally or by depositing such notice in the United States mail, postage prepaid, directed to such director at his or her residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. The purposes of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
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(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he or she is not present or if no person holds such office, any director chosen by a majority or the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
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(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his or her serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him or her on account of his or her attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 6. Resignation Removal and Vacancies. Any director may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board caused by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
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In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his or her successor shall be elected and shall qualify or until his or her earlier death or resignation or removal in the manner set forth herein.
ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he or she remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or she or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
11
Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including the power and authority to declare dividends and to authorize the issuance of Stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
ARTICLE V
Officers
Section 1. Election, Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the
12
Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice Presidents, or any or all of the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one or more Assistant Treasurers, or any or all of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal and Vacancies. Any officer may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
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Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected he or she shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he or she shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the stockholders at which they shall be present, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he or she shall preside at meetings of the Executive Committee at which he or she shall be present; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
(d) President. If a President is appointed or elected he or she shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign
14
duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He or she shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice Chairman of the Board is appointed or elected and is present.
(e) Vice Presidents. If any Vice President or Vice Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice-Presidents.
(f) Secretary. If a Secretary is appointed or elected he or she shall attend and keep the records of all meetings of the stockholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall
15
be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
(g) Treasurer. If a Treasurer is appointed or elected he or she shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
(h) Controller. If a controller is appointed or elected he or she shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
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ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a fifty percent (50%) or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract
17
right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such Proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
Section 2. Insurance. Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of
18
the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
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ARTICLE VIII
Execution and Delivery of Documents; Deposits;
Proxies; Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such delegation may be resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities in Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and
20
rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he or she may deem necessary or proper in order that the Corporation may exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the state of Delaware as the proper officers of the Corporation may from time to time determine.
ARTICLE IX
Certificates; Stock Record; Transfer and Registration;
New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him or her in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice-Chairman, the President or a Vice-President of the Corporation and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a
21
certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he or she were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for exchange or transfer shall be canceled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so canceled, except in cases provided for in Section 4 of this Article.
Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his or her attorney thereunto authorized by power of attorney duly
22
executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
Section 4. New Certificates.
(a) Lost, Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he or she has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
Section 6. Fixing Date for Determination of Stockholders of Record.
23
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 to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
24
ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
25
Exhibit 3.81
CERTIFICATE OF INCORPORATION
OF
SOUTHERN LIVING, INC.
FIRST. The name of the corporation is Southern Living, Inc.
SECOND. The address of its registered office in the State of Delaware is No. 100 West Tenth Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
FOURTH. The total number of shares of stock which the corporation shall have authority to issue is 1,000 and the par value of each of such shares is $1.00 amounting in the aggregate to $1,000.00.
FIFTH. The name and mailing address of the incorporator is as follows:
NAME |
MAILING ADDRESS | |
John K. Molen |
1500 Brown-Marx Building Birmingham, Alabama 35203 |
SIXTH. The name and mailing address of each person, who is to serve as a director until the first annual meeting of the stockholders or until a successor is elected and qualified, is as follows:
NAME |
MAILING ADDRESS | |
Emory Cunningham |
P. O. Box 2581 Birmingham, Alabama 35202 | |
Vernon Owens |
P. O. Box 2581 Birmingham, Alabama 35202 | |
Eugene B. Butler |
P. O. Box 2581 Birmingham, Alabama 35202 |
SEVENTH. In furtherance and not in limitation of the powers conferred by statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the real and personal property of the corporation.
To set apart out of any of the funds of the corporation available for dividends a reserve or reserves for any proper purpose and to abolish any such reserve in the manner in which it was created.
By a majority of the whole board, to designate one or more committees, each committee to consist of two or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee,
-2-
who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution or in the by-laws of the corporation, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; provided, however, the bylaws may provide that in the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member.
When and as authorized by the affirmative vote of the holders of a majority of the stock issued and outstanding having voting power given at a stockholders meeting duly called upon such notice as is required by statute, or when authorized by the written consent of the holders of a majority of the voting stock issued and outstanding, to sell, lease or exchange all or substantially all of the property and assets of the corporation, including its good will and its corporate franchises, upon such terms and conditions and for such consideration, which may consist in whole or in part of money or property including shares of stock in, and/or other securities of, any other corporation or corporations, as its board of directors shall deem expedient and for the best interests of the corporation.
EIGHTH. Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof, or on the application of any receiver or
-3-
receivers appointed for this corporation under the provisions of section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under the provisions of section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation.
NINTH. Meetings of stockholders may be held within or without the State of Delaware, as the bylaws may provide. The books of the corporation may be kept (subject to any provision contained in the statutes) outside the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the bylaws of the corporation. Elections of directors need not be by written ballot unless the bylaws of the corporation shall so provide.
TENTH. Any corporate action upon which a vote of stockholders is required or permitted may be taken with the written consent of stockholders having not less than a majority of all of the stock entitled to vote upon the action if a meeting were held; provided that in no case shall the written consent be by holders having less than the minimum percentage of the vote required by statute for the proposed corporate action and provided that prompt notice be given to all stockholders of the taking of corporate action without a meeting and by less than unanimous written consent.
-4-
ELEVENTH. The corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this certificate, hereby declaring and certifying that the facts [ILLEGIBLE] stated are true, and accordingly have hereunto set my [ILLEGIBLE] and seal this 21st day of November, 1980.
/s/ John K. Molen | (SEAL) | |
John K. Molen |
STATE OF ALABAMA |
) | |||||
) | ss: | |||||
COUNTY OF JEFFERSON |
) |
BE IT REMEMBERED that on this 31st day of November A.D., 1980, personally came before me, a Notary Public for the State of Alabama, County of Jefferson the party to the foregoing certificate of incorporation, known to me personally to be such, and acknowledged the said certificate to be his act and deed and that the facts stated therein are true.
GIVEN under my hand and seal of office the day and year aforesaid.
/s/ Illegible |
![]() |
-5-
AGREEMENT AND PLAN OF MERGER
of
SOUTHERN LIVING, INC.
(an Alabama corporation)
into
SOUTHERN LIVING, INC.
(a Delaware corporation)
AGREEMENT AND PLAN OF MERGER (hereinafter called this Agreement) dated as of December 1, 1980, by and between Southern Living, Inc., an Alabama corporation, and Southern Living, Inc., a Delaware corporation, said corporations being hereafter sometimes [ILLEGIBLE] referred to as the Constituent Corporations.
W I T N E S S E T H:
I. Recitals.
A. Corporate Names. The name of the corporation proposing to merge is Southern Living, Inc. (hereinafter called the Alabama Company), and the name of the corporation into which the Alabama Company proposes to merge is Southern Living, Inc. (hereinafter called the Delaware Company).
1
B. Shares of the Alabama Company. The designation and number of authorized shares of each class and series of the Alabama Company is 1,000 shares of Common Stock, par value $1.00 per share, of which 1,000 shares of Common Stock are issued and outstanding. The outstanding shares of Common Stock are not subject to change prior to the effective date of the merger as no additional authorized shares of Common Stock remain to be issued.
C. Shares of the Delaware Company. The designation and number of authorized shares of each class and series of the Delaware Company is 1,000 shares of Common Stock, par value $1.00 per share, all of which are issued and outstanding. Such number is not subject to change prior to the effective date of the merger.
D. Shares Entitled to Vote. The Common Stock of the Delaware Company and the Common Stock of the Alabama Company are entitled to vote on the merger.
E. Action by Board of Directors. The Boards of Directors of the Alabama Company and the Delaware Company have approved and adopted this Agreement and have determined that it is advisable that the Alabama Company be merged into the Delaware Company on the terms set forth herein.
2
F. Merger. Pursuant to the laws of Alabama and Delaware and subject to the terms and conditions set forth herein, the Alabama Company shall be merged into the Delaware Company, which shall be the Surviving Corporation. The terms and conditions of the merger, the manner and basis of converting the shares of the Alabama Company into shares of the Surviving Corporation and the mode of carrying the merger into effect are hereinafter set forth.
G. Governing Law. Following the merger, the Delaware Company, as the Surviving Corporation, shall be governed by the laws of the State of Delaware.
II. Effect of Merger.
A. Effective Date. The merger shall become effective on December 1, 1980, following the requisite approval of the shareholders of the Constituent Corporations and the filing and recording of this Agreement in accordance with the requirements of Alabama and Delaware law (such time being herein referred to as the effective date of the merger).
B. Surviving Corporation. As of the effective date of the merger, the separate existence of the Alabama Company shall cease and the Delaware Company, as the Surviving Corporation, shall continue to exist as a corporation governed by the laws of the State of Delaware. The Surviving
3
Corporation shall thereafter, consistent with its Certificate of Incorporation, possess all the rights, privileges, immunities, powers, franchises and purposes of each of the Constituent Corporations; all the property, real, personal and mixed of the Constituent Corporations shall vest in the Surviving Corporation without further act or deed; and the Surviving Corporation shall become liable for all debts, liabilities and obligations and all duties and penalties of each of the Constituent Corporations, with all other consequences provided under the laws of Alabama and Delaware. At any time or from time to time after the effective date of the merger, the last acting officers of the Alabama Company or the corresponding officers of the Surviving Corporation, shall in the name of the Alabama Company execute and deliver all such deeds, assignments and other instruments and take all such further action as the Surviving Corporation may deem necessary in order to carry out the intent and purpose of this Agreement. All corporate actions, plans, policies, approvals and authorizations of the Alabama Company, its stockholders, Board of Directors, officers and agents, that were valid and effective immediately prior to the effective date of the merger shall be taken for all purposes as the actions, plans, policies, approvals, and authorizations of the Surviving Corporation and shall be as effective and binding thereon as the same were with respect to the Alabama Company. The employees and agents of the Alabama Company shall become the employees and agents of the Surviving Corporation and continue to be entitled to the same rights and benefits that they enjoyed as employees and agents of the Alabama Company.
4
C. Accounting. Upon the effective date of the merger, there shall be allocated to the capital stock account of the Surviving Corporation an amount equal to the aggregate par value of its then outstanding shares of Common Stock, and the excess of its total net assets over the amount so determined to be capital stock shall be surplus. The amount of surplus so determined shall be divided into (1) retained earnings, which shall be the retained earnings of the Alabama Company on the effective date of the merger, and (2) other capital ascribed to shares, which shall be the total surplus less the amount of retained earnings provided in (1) of this paragraph. With the foregoing qualification, upon the effectiveness of the merger, the assets, liabilities, reserves and accounts of each of the Constituent Corporations shall be taken up on the books of the Surviving Corporation at the amounts at which they shall then be carried on the books of the respective Constituent Corporations, subject to such adjustments, or eliminations of inter-company items, as may be appropriate in giving effect to the merger.
D. Certificate of Incorporation. The Certificate of Incorporation of the Surviving Corporation shall be the Certificate of Incorporation of the Delaware Company as set forth in Exhibit A hereto. Said Certificate of Incorporation attached hereto as Exhibit A is hereby made a part of this Agreement with the same force and effect as if herein set forth in full. From and after the effective date of the merger and until thereafter amended in accordance with applicable law, the Certificate of Incorporation of the Surviving Corporation shall be as set forth in Exhibit A. Said
5
Certificate may be amended separate and apart from this Agreement and shall be and may separately be certified as the Certificate of Incorporation of the Surviving Corporation, as amended from time to time.
E. By-Laws. At the effective date of the merger, the by-laws of the Delaware Company shall continue and be the by-laws of the Surviving Corporation until amended thereafter in accordance with applicable law.
F. Officers and Directors. At the effective date of the merger, the officers and directors of the Delaware Company shall remain in their respective positions and shall be the officers and directors of the Surviving Corporation. Such officers and directors shall continue to serve the Surviving Corporation in the same capacities, with the same powers, for the same term and subject to the same conditions as they did the Delaware Company, subject to the by-laws of the Surviving Corporation.
III. Conversion of Capital Stock.
A. Common Stock of the Delaware Company. Each share of Common Stock, par value $1.00 per share, of the Delaware Company issued and outstanding at the effective date of the merger, and all rights in respect thereof, shall by virtue of the merger and without any action on the part of the holder thereof be converted into and become one share of Common Stock, par value $1.00 per share, of the Surviving Corporation.
6
B. Certificates. Outstanding certificates and other instruments of indebtedness representing shares of the Common Stock of the Delaware Company shall thereafter represent the same number of shares of such stock of the Surviving Corporation, and the holders thereof shall have precisely the same rights that they would have had if such certificates had been issued by the Surviving Corporation.
C. Shares of the Alabama Company. Upon the effectiveness of the merger, the shares of Common Stock, par value $1.00 per share, of the Alabama Company outstanding immediately prior to the effective date of the merger (all of which are owned by the sole stockholder of the Delaware Company) shall be cancelled and retired, and no new shares of stock or other securities of the Surviving Corporation shall be issued with respect thereto.
D. Fractional Shares Interests. It shall not be necessary to issue any fractional shares of Common Stock of the Surviving Corporation in respect of either the Common Stock of the Alabama Company or the Common Stock of the Delaware Company.
IV. Termination.
This Agreement may be terminated and the proposed merger abandoned by resolution of the Board of Directors of the Alabama Company
7
at any time prior to the effective date of the merger, whether before or after approval of stockholders, if any circumstances develop which in the opinion of such Board make proceeding with the merger inadvisable. In the event of such termination and abandonment, this Agreement shall become void and have no effect, without any liability on the part of either of the Constituent Corporations or their stockholders, directors, or officers with respect thereto.
V. Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall constitute an original but all of which taken together shall constitute one instrument.
8
IN WITNESS WHEREOF, this Agreement has been duly executed by each of the Constituent Corporations as of the date first above written.
SOUTHERN LIVING, INC. (Alabama Company) | ||
By | /s/ Vernon Owens | |
Its Vice President |
ATTEST: |
/s/ Eugene B. Butler |
Secretary |
SOUTHERN LIVING, INC. (Delaware Company) | ||
By | /s/ Vernon Owens | |
Its Executive Vice President |
ATTEST: |
/s/ Eugene B. Butler |
Secretary |
9
EXHIBIT A
CERTIFICATE OF INCORPORATION
OF
SOUTHERN LIVING, INC.
FIRST. The name of the corporation is Southern Living, Inc.
SECOND. The address of its registered office in the State of Delaware is No. 100 West Tenth Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
FOURTH. The total number of shares of stock which the corporation shall have authority to issue is 1,000 and the par value of each of such shares is $1.00 amounting in the aggregate to $1,000.00.
FIFTH. The name and mailing address of the incorporator is as follows:
NAME |
MAILING ADDRESS | |
John K. Molen |
1500 Brown-Marx Building Birmingham, Alabama 35203 |
10
SIXTH. The name and mailing address of each person, who is to serve as a director until the first annual meeting of the stockholders or until a successor is elected and qualified, is as follows:
NAME |
MAILING ADDRESS | |
Emory Cunningham |
P. O. Box 2581 Birmingham, Alabama 35202 | |
Vernon Owens |
P. O. Box 2581 Birmingham, Alabama 35202 | |
Eugene B. Butler |
P. O. Box 2581 Birmingham, Alabama 35202 |
SEVENTH. In furtherance and not in limitation of the powers conferred by statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the real and personal property of the corporation.
To set apart out of any of the funds of the corporation available for dividends a reserve or reserves for any proper purpose and to abolish any such reserve in the manner in which it was created.
By a majority of the whole board, to designate one or more committees, each committee to consist of two or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee,
11
who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution or in the by-laws of the corporation, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; provided, however, the bylaws may provide that in the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member.
When and as authorized by the affirmative vote of the holders of a majority of the stock issued and outstanding having voting power given at a stockholders meeting duly called upon such notice as is required by statute, or when authorized by the written consent of the holders of a majority of the voting stock issued and outstanding, to sell, lease or exchange all or substantially all of the property and assets of the corporation, including its good will and its corporate franchises, upon such terms and conditions and for such consideration, which may consist in whole or in part of money or property including shares of stock in, and/or other securities of, any other corporation or corporations, as its board of directors shall deem expedient and for the best interests of the corporation.
EIGHTH. Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof, or on the application of any receiver or
12
receivers appointed for this corporation under the provisions of section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under the provisions of section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation.
NINTH. Meetings of stockholders may be held within or without the State of Delaware, as the bylaws may provide. The books of the corporation may be kept (subject to any provision contained in the statutes) outside the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the bylaws of the corporation. Elections of directors need not be by written ballot unless the bylaws of the corporation shall so provide.
TENTH. Any corporate action upon which a vote of stockholders is required or permitted may be taken with the written consent of stockholders having not less than a majority of all of the stock entitled to vote upon the action if a meeting were held; provided that in no case shall the written consent be by holders having less than the minimum percentage of the vote required by statute for the proposed corporate action and provided that prompt notice be given to all stockholders of the taking of corporate action without a meeting and by less than unanimous written consent.
13
ELEVENTH. The corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this certificate, hereby declaring and certifying that the facts herein stated are true, and accordingly have hereunto set my hand and seal this 21st day of November, 1980.
/s/ John K. Molen | (SEAL) | |
John K. Molen |
STATE OF ALABAMA |
) | |||||
) | ss: | |||||
COUNTY OF JEFFERSON |
) |
BE IT REMEMBERED that on this 21st day of November A.D., 1980, personally came before me, a Notary Public for the State of Alabama, County of Jefferson the party to the foregoing certificate of incorporation, known to me personally to be such, and acknowledged the said certificate to be his act and deed and that the facts stated therein are true.
GIVEN under my hand and seal of office the day and year aforesaid.
Jeanne Barlow |
Notary Public |
14
CERTIFICATE OF THE SECRETARY OF
SOUTHERN LIVING, INC.
I, Eugene B. Butler, as Secretary of Southern Living, Inc., an Alabama corporation, do hereby certify under the seal of said corporation that the foregoing Agreement and Plan of Merger of Southern Living, Inc. (an Alabama corporation) into Southern Living, Inc. (a Delaware corporation) was approved and adopted by the written consent of the sole stockholder of Southern Living, Inc. following its adoption by resolution at a duly convened meeting of the board of directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand under the seal of said corporation in my capacity as aforesaid, and have caused this certificate to be dated as of the 1 day of [ILLEGIBLE], 1980.
|
/s/ Eugene B. Butler | |||
As Secretary of Southern Living, Inc. |
CERTIFICATE OF THE SECRETARY OF
SOUTHERN LIVING, INC.
I, Eugene B. Butler, as Secretary of Southern Living, Inc., a Delaware corporation, do hereby certify under the seal of said corporation that the foregoing Agreement and Plan of Merger of Southern Living, Inc. (an Alabama corporation) into Southern Living, Inc. (a Delaware corporation) was approved and adopted by the written consent of the sole stockholder of Southern Living, Inc. in accordance with the provisions of Section 228 of the General Corporation Law of the State of Delaware, following its adoption by the unanimous written consent of the directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand under the seal of said corporation in my capacity as aforesaid, and have caused this certificate to be dated as of the [ILLEGIBLE] day of [ILLEGIBLE], 1980.
|
/s/ Eugene B. Butler | |||
As Secretary of Southern Living, Inc. |
15
In accordance with Section 252(c) of the General Corporation Law of the State of Delaware and in order to evidence acceptance of this Agreement following the requisite approval of this Agreement by the stockholders of each of the Constituent Corporations, the Constituent Corporations again execute this Agreement on the [ILLEGIBLE] day of December, 1980.
SOUTHERN LIVING, INC. (Alabama Company) | ||
By | /s/ Vernon Owens | |
Its Vice President |
ATTEST: |
/s/ Eugene B. Butler |
Secretary |
SOUTHERN LIVING, INC. (Delaware Company) | ||
By | /s/ Vernon Owens | |
Its Executive Vice President |
ATTEST: |
/s/ Eugene B. Butler |
Secretary |
16
STATE OF ALABAMA |
) | |||
JEFFERSON COUNTY |
) |
I, /s/ Illegible, a Notary Public in and for said County in said State, hereby certify that Vernon C. Owens, Jr., whose name as Vice President of Southern Living, Inc., an Alabama corporation, is signed to the foregoing Agreement and Plan of Merger, and who is known to me, acknowledged before me on this day that, being informed of the contents of said Agreement, he, as such officer and with full authority, executed the same voluntarily for and as the act and deed of said corporation, and acknowledged that the facts stated in the said Agreement are true.
Given under my hand and official seal this [ILLEGIBLE] day of [ILLEGIBLE], 1980.
/s/ Illegible | ||||||
Notary Public | ||||||
My Commission Expires July 18, 1984 | ||||||
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17
STATE OF ALABAMA |
) | |||
JEFFERSON COUNTY |
) |
I, /s/ Illegible, a Notary Public in and for said County in said State, hereby certify that Vernon C. Owens, Jr., whose name as Executive Vice President of Southern Living, Inc., a Delaware corporation, is signed to the foregoing Agreement and Plan of Merger, and who is known to me, acknowledged before me on this day that, being informed of the contents of said Agreement, he, as such officer and with full authority, executed the same voluntarily for and as the act and deed of said corporation, and acknowledged that the facts stated in the said Agreement are true.
Given under my hand and official seal this [ILLEGIBLE] day of [ILLEGIBLE], 1980.
/s/ Illegible | ||||||
Notary Public | ||||||
My Commission Expires July 18, 1984 | ||||||
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CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE
AND OF REGISTERED AGENT
It is hereby certified that:
1. | The name of the corporation (hereinafter called the corporation) is SOUTHERN LIVING, INC. |
2. | The registered office of the corporation within the State of Delaware is hereby changed to 229 South State Street, City of Dover 19901, County of Kent. |
3. | The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. |
4. | The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. |
Signed on May 30, 1989. | ||||||
/s/ James Nelson | ||||||
James Nelson, Exec. Vice - President | ||||||
Attest: |
/s/ Betty Robb Freeman |
Betty Robb Freeman, Assistant - Secretary |
DEL. - C.A.-D.
STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 10:00 AM 09/05/1997 971296251 - 0903509 |
CERTIFICATE OF CHANGE OF REGISTERED AGENT
AND
REGISTERED OFFICE
Southern Living, Inc., a corporation organized and existing under and by virtueof the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
The present registered agent of the corporation is THE PRENTICE-HALL CORPORATION SYSTEM, INC. and the present registered office of the corporation is in the county of New Castle.
The Board of Directors of THE COMPANY adopted the following resolutions as of the 1st day of July, 1997.
RESOLVED, that the registered office of the Corporation in the State of Delaware be, and it hereby is, changed to The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle; and further
RESOLVED, that the authorization of the present registered agent of the Corporation in the State of Delaware be, and it hereby is withdrawn and that The Corporation Trust Company be, and it hereby is, appointed the registered agent of the Corporation in the State of Delaware at the address of the Corporations registered office.
IN WITNESS WHEREOF, THE COMPANY has caused this statement to be signed by Richard I. Friedman, its Assistant Secretary, as of this 31st day of July, 1997.
By: Richard I, Friedman
Richard I. Friedman
Assistant Secretary
State of Delaware Secretary of State Division of Corporations Delivered 10:18 PM 12/30/2008 FILED 09:02 PM 12/30/2008 SRV 081241661 - 0903509 FILE |
CERTIFICATE OF MERGER
MERGING
SOUTHERN LIVING REAL ESTATE, INC., an Alabama corporation,
INTO
SOUTHERN LIVING, INC., a Delaware corporation,
UNDER SECTION 252 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
The undersigned corporation DOES HEREBY CERTIFY THAT:
FIRST: The name and state of incorporation of each of the constituent corporations are as follows:
Name |
State | |
Southern Living Real Estate, Inc. |
Alabama | |
Southern Living, Inc. |
Delaware |
SECOND: An agreement of merger has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations in accordance with the requirements of Section 252(c) of the General Corporation Law of the State of Delaware.
THIRD: The name of the surviving corporation of the merger is Southern Living, Inc., a Delaware corporation.
FOURTH: The Certificate of Incorporation of Southern Living, Inc., a Delaware corporation, which is surviving the merger, shall continue in full force and effect as the Certificate of Incorporation for the surviving corporation.
FIFTH: The executed agreement of merger is on file at an office of the surviving corporation, the address of which is 1271 Avenue of the Americas, New York, NY 10020.
SIXTH: A copy of the agreement of merger will be furnished by the surviving corporation, on request and without cost, to any stockholder of any constituent corporation.
SEVENTH: The authorized capital stock of each constituent corporation which is not a corporation of the State of Delaware is as follows:
Corporation |
Class |
Number of Shares | Par Value | |||||
Southern Living Real Estate, Inc., an Alabama corporation |
Common | 1000 Shares | $1.00 |
EIGHTH: This Certificate of Merger shall not become effective until, and shall become effective upon, December 31, 2008.
IN WITNESS WHEREOF, this Certificate of Merger has been signed as of the 22 day of December, 2008.
SOUTHERN LIVING, INC., a Delaware corporation | ||
By | /s/ Linda Pellegrino | |
Linda Pellegrino Assistant Secretary |
State of Delaware Secretary of State Division of Corporations Delivered 10:18 PM 12/30/2008 FILED 10:18 PM 12/31/2008 SRV 081241668 - 0903509 FILE |
CERTIFICATE OF MERGER
MERGING
SPC DIGITAL, INC.
INTO
SOUTHERN LIVING, INC.
UNDER SECTION 251 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
The undersigned corporation DOES HEREBY CERTIFY THAT:
FIRST: The name and state of incorporation of each of the constituent corporations are as follows:
Name |
State |
|||
SPC Digital, Inc. |
Delaware | |||
Southern Living, Inc. |
Delaware |
SECOND: An agreement of merger has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations in accordance with the requirements of Section 251(c) of the General Corporation Law of the State of Delaware.
THIRD: The name of the surviving corporation of the merger is Southern Living, Inc., a Delaware corporation.
FOURTH: The Certificate of Incorporation of Southern Living, Inc., a Delaware corporation, which is surviving the merger, shall continue in full force and effect as the Certificate of Incorporation for the surviving corporation.
FIFTH: The executed agreement of merger is on file at an office of the surviving corporation, the address of which is 1271 Avenue of the Americas, New York, NY 10020.
SIXTH: A copy of the agreement of merger will be furnished by the surviving corporation, on request and without cost, to any stockholder of any constituent corporation.
SEVENTH: This Certificate of Merger shall not become effective until, and shall become effective upon, December 31, 2008.
SPC Digital into
Southern Living. Inc.
IN WITNESS WHEREOF, this Certificate of Merger has been signed as of the 22nd day of December, 2008.
SOUTHERN LIVING, INC. | ||
By | /s/ Linda A. Pellegrino | |
Linda A. Pellegrino Assistant Treasurer |
SPC Digital into
Southern Living, Inc.
State of Delaware Secretary of State Division of Corporations Delivered 10:18 PM 12/30/2008 FILED 10:18 PM 12/31/2008 SRV 081241665 - 0903509 FILE |
CERTIFICATE OF MERGER
MERGING
SOUTHERN ACCENTS, INC.
INTO
SOUTHERN LIVING, INC.
UNDER SECTION 251 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
The undersigned corporation DOES HEREBY CERTIFY THAT:
FIRST: The name and state of incorporation of each of the constituent corporations are as follows:
Name |
State | |
Southern Accents, Inc. |
Delaware | |
Southern Living, Inc. |
Delaware |
SECOND: An agreement of merger has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations in accordance with the requirements of Section 251(c) of the General Corporation Law of the State of Delaware.
THIRD: The name of the surviving corporation of the merger is Southern Living, Inc., a Delaware corporation.
FOURTH: The Certificate of Incorporation of Southern Living, Inc., a Delaware corporation, which is surviving the merger, shall continue in full force and effect as the Certificate of Incorporation for the surviving corporation.
FIFTH: The executed agreement of merger is on file at an office of the surviving corporation, the address of which is 1271 Avenue of the Americas, New York. NY 10020.
SIXTH: A copy of the agreement of merger will be furnished by the surviving corporation, on request and without cost, to any stockholder of any constituent corporation.
SEVENTH: This Certificate of Merger shall not become effective until, and shall become effective upon, December 31, 2008.
Southern Accents into
Southern Living, inc.
IN WITNESS WHEREOF, this Certificate of Merger has been signed as of the 22 day of December, 2008.
SOUTHERN LIVING, INC. | ||
By | /s/ Linda A. Pellegrino | |
Linda A. Pellegrino Assistant Treasurer |
Southern Accents into
Southern Living. Inc.
State of Delaware Secretary of State Division of Corporations Delivered 02:22 PM 07/30/2009 FILED 02:14 PM 07/30/2009 SRV 090741204 - 0903509 FILE |
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
SOUTHERN LIVING, INC.
SOUTHERN LIVING. INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the Corporation), DOES HEREBY CERTIFY:
FIRST: That by action without a meeting pursuant to Section 141 (f) of the General Corporation Law of the State of Delaware, the Board of Directors of the Corporation duly adopted a resolution setting forth a proposed amendment to the Certificate of Incorporation of the Corporation, declared said amendment to be advisable and submitted said amendment to the sole stockholder of the Corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that paragraph 1 of the Certificate of Incorporation of the Corporation be amended so as to read in its entirety as follows:
1. The name of the corporation is: Time Inc. Lifestyle Group.
SECOND: That, thereafter, pursuant to the resolution of its Board of Directors, the sole stockholder of the Corporation by written consent pursuant to Section 228 of the General Corporation Law of Delaware consented to the above amendment to the Corporations Certificate of Incorporation.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Corporation has caused this certificate to be signed by Lauren Ezrol Klein, its Assistant Secretary, as of the 30th day of July, 2009.
/s/ Lauren Ezrol Klein |
Lauren Ezrol Klein Assistant Secretary |
State of Delaware Secretary of State Division of Corporations Delivered 06:04 PM 11/14/2018 FILED 06:04 PM 11/14/2018 SR 20187647464 - File Number 903509 |
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION
The corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware does hereby certify:
FIRST: That at a meeting of the Board of Directors of Time Inc. Lifestyle Group resolutions were duly adopted setting forth a proposed amendment of the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing the Article thereof numbered 1 so that, as amended, said Article shall be and read as follows:
The name of the corporation is TI Inc. Lifestyle Group.
SECOND: That thereafter, pursuant to resolution of its Board of Directors, a special meeting of the stockholders of said corporation was duly called and held upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said corporation has caused this certificate to be signed this 31st day of October, 2018.
By: | /s/ Joseph H. Ceryanec | |
Authorized Officer | ||
Title: | President & CEO | |
Name: | Joseph H. Ceryanec | |
Print or Type |
Exhibit 3.82
BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote, of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
Section 3. Notice of Meetings. Notice of each meeting of the stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such stockholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such stockholder at his address as it appears on the stock record of the corporation or by transmitting notice thereof to him at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the stockholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
Section 4. Quorum and Manner of Acting. If stockholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the stockholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until stockholders holding the amount of stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of stockholders holding the number of shares of stock of the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy stockholders holding the number of shares of stock of the Corporation required in respect of such other matter.
Section 5. Organization of Meetings. At each meeting of the stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
(a) the Chairman of the Board, or if he is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat.
The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by a majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
Page 2 of 18
Section 7. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him and registered in his name on the stock record of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date of the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or
(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he shall in writing so notify the secretary of the meeting prior to voting of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his proxy if there be such proxy, and shall state the number of shares voted.
Page 3 of 18
Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
Section 9. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
Page 4 of 18
Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his election and until his successor shall be elected and qualified or until his earlier death or resignation or removal in the manner hereinafter provided.
Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
Page 5 of 18
(c) Special Meetings. Special meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any tow directors.
(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a typewritten notice thereof to such director personally or by depositing such notice in the United States mail, postage prepaid, directed to such director at his residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him at such address by telegraph, cable or other form or recorded communication. The purpose of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
Page 6 of 18
(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he is not present or if no person holds such office, any director chosen by a majority of the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof, may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him on account of his attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 6. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Page 7 of 18
Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board cause by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his successor shall be elected and shall qualify or until his earlier death or resignation or removal in the manner herein.
ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filled at any time by the vote of a majority of the whole Board.
In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
Page 8 of 18
Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including, the power and authority to declare dividends and to authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
ARTICLE V
Officers
Section 1. Election and Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President, or one or more Vice Presidents, or any or all the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one or more Assistant Treasurers, or any or all of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal, and Vacancies. Any officer may resign at any time by giving written notice of his resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
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Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected, he shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he shall be present; shall perform such duties as are incident to the office of the Chairman of Board; and shall perform such other duties as may from time to time be prescribed by the board.
(b) Vice Chairman. If any Vice Chairman or Vice Chairmen of the Board are appointed or elected, they shall be members of the Board; shall preside at meetings of the Board and of the stockholders, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected, he shall preside at meetings of the Executive Committee; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
(d) President. If a President is appointed or elected he shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice Chairman of the Board is appointed or elected and is present.
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(e) Vice Presidents. If any Vice President or Vice Presidents are appointed or elected, they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice Presidents.
(f) Secretary. If a Secretary is appointed or elected, he shall attend and keep the records of all meetings of the stockholders and Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer, shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
(g) Treasurer. If a Treasurer is appointed or elected, he shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
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(h) Controller. If Controller is appointed or elected he shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a 50 percent or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of
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an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
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ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
ARTICLE VIII
Execution and Delivery of Documents; Deposits; Proxies; Books and
Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such delegation may be by resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
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Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities of Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he may deem necessary or proper in order that the Corporation any exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of Delaware as the proper officers of the Corporation may from time to time determine.
ARTICLE IX
Certificates; Stock Record; Transfer and Registration; New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the Board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice Chairman, the President or a Vice President of the Corporation and by the Treasurer, and Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he
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were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for or exchange or transfer shall be canceled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so canceled, except in cases provided for in Section 4 of this Article.
Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
Section 4. New Certificates.
(a) Lost, Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
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(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates of stock of the Corporation.
Section 6. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix, in advance, a record date, which shall not be more than 60 or less than 10 days before the date of such meeting, nor more than 60 days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
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ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
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Exhibit 3.83
State of Delaware Secretary of State Division of Corporations Delivered 01:28 PM 12/08/2014 FILED 01:23 PM 12/08/2014 SRV 141500876 - 5652939 FILE |
Certificate Of Incorporation
Of
TIME INC. PLAY
1. The name of the Corporation is: TIME INC. PLAY
2. The address of the registered office of the Corporation in the State of Delaware is c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of the registered agent of the Corporation at such address is The Corporation Trust Company.
3. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the Corporation shall have authority to issue is One Hundred (100) and the par value of each of such shares is One Cent ($.01). All such shares are of one class and are shares of Common Stock.
5. The board of directors of the Corporation shall have the power to make, adopt, alter, amend or repeal the by-laws of the Corporation. The election of directors of the Corporation need not be by written ballot.
6. The name and mailing address of the incorporator of the Corporation are:
Lauren Ezrol Klein
Time Inc.
1271 Avenue of the Americas
New York, New York 10020
7. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the directors duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of Delaware, or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law of Delaware is amended after approval by the stockholders of this Section to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of Delaware as so amended.
THE UNDERSIGNED. being the sole incorporator of the Corporation, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, does hereby sign this Certificate of Incorporation this 8th day of December. 2014.
/s/ Lauren Ezrol Klein |
Lauren Ezrol Klein |
Sole Incorporator |
State of Delaware Secretary of State Division of Corporations Delivered 06:09 PM 11/14/2018 FILED 06:09 PM 11/14/2018 SR 20187647478 - File Number 5652939 |
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION
The corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware does hereby certify:
FIRST: That at a meeting of the Board of Directors of Time Inc. Play resolutions were duly adopted setting forth a proposed amendment of the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing the Article thereof numbered 1 so that, as amended, said Article shall be and read as follows:
The name of the corporation is: TI Inc. Play.
SECOND: That thereafter, pursuant to resolution of its Board of Directors, a special meeting of the stockholders of said corporation was duly called and held upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said corporation has caused this certificate to be signed this 31st day of October, 2018.
By: | /s/ Joseph H. Ceryanec | |
Authorized Officer | ||
Title: | President & CEO | |
Name: | Joseph H. Ceryanec | |
Print or Type | ||
Exhibit 3.84
BY-LAWS
OF
TIME INC. PLAY
(Incorporated under the Laws of the State of Delaware)
As Adopted as of December 8, 2014
BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
Section 3. Notice of Meetings. Notice of each meeting of the stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such stockholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such stockholder at his or her address as it appears on the stock record of the Corporation or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the stockholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
Section 4. Quorum and Manner of Acting. If stockholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the stockholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until stockholders holding the amount of stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of stockholders holding the number of shares of stock of the
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Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy stockholders holding the number of shares of stock of the Corporation required in respect of such other matter.
Section 5. Organization of Meetings. At each meeting of the stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
(a) the Chairman of the Board, or, if he or she is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat. The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by the majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
Section 7. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him or her and registered in his or her name on the stock record of the Corporation:
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(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or
(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he or she shall in writing so notify the secretary of the meeting prior to the voting of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his or her proxy if there be such proxy, and shall state the number of shares voted.
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Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
Section 9. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and
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place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his or her discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his or her election and until his or her successor shall be elected and qualified or until his or her earlier death or resignation or removal in the manner hereinafter provided.
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Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
(c) Special Meetings. Special Meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a type-written notice thereof to such director personally or by
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depositing such notice in the United States mail, postage prepaid, directed to such director at his or her residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. The purposes of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he or she is not present or if no person holds such office, any director chosen by a majority or the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
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(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his or her serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him or her on account of his or her attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 6. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
9
Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board caused by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his or her successor shall be elected and shall qualify or until his or her earlier death or resignation or removal in the manner set forth herein.
ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he or she remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
10
In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or she or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including the power and authority to declare dividends and to authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
11
ARTICLE V
Officers
Section 1. Election, Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice Presidents, or any or all of the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one or more Assistant Treasurers, or any or all of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal and Vacancies. Any officer may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
12
A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected he or she shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he or she shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the stockholders at which they shall be present, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he or she shall preside at meetings of the Executive Committee at which he or she shall be present; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
13
(d) President. If a President is appointed or elected he or she shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He or she shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice Chairman of the Board is appointed or elected and is present.
(e) Vice Presidents. If any Vice President or Vice Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice-Presidents.
(f) Secretary. If a Secretary is appointed or elected he or she shall attend and keep the records of all meetings of the stockholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant
14
Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
(g) Treasurer. If a Treasurer is appointed or elected he or she shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
(h) Controller. If a controller is appointed or elected he or she shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened,
15
pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a Corporation in which the Corporation had at the time of such service, directly or indirectly, a fifty percent (50%) or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such Proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer,
16
employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
17
ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
ARTICLE VIII
Execution and Delivery of Documents; Deposits;
Proxies; Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such
18
delegation may be resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities in Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he or she may deem necessary or proper in order that the Corporation may exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of Delaware as the proper officers of the Corporation may from time to time determine.
19
ARTICLE IX
Certificates; Stock Record; Transfer and Registration;
New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him or her in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice-Chairman, the President or a Vice-President of the Corporation and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he or she were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for exchange or transfer shall be canceled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so canceled, except in cases provided for in Section 4 of this Article.
Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
20
Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his or her attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
Section 4. New Certificates.
(a) Lost, Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he or she has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
21
Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
Section 6. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
22
ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
23
TABLE OF CONTENTS
Article | Page | |||
I. |
Offices | 1 | ||
II. |
Meetings of Stockholders | 1 | ||
Section 1 - Annual Meetings | 1 | |||
Section 2 - Special Meetings | 1 | |||
Section 3 - Notice of Meetings | 2 | |||
Section 4 - Quorum and Manner of Acting | 2 | |||
Section 5 - Organization of Meetings | 3 | |||
Section 6 - Order of Business | 3 | |||
Section 7 - Voting | 3 | |||
Section 8 - Consent in Lieu of Meeting | 5 | |||
Section 9 - List of Stockholders | 5 | |||
Section 10 - Inspectors | 6 | |||
III. |
Board of Directors | 6 | ||
Section 1 - General Powers | 6 | |||
Section 2 - Number and Term of Office | 6 | |||
Section 3 - Election | 7 | |||
Section 4 - Meetings | 7 | |||
Section 5 - Compensation | 9 | |||
Section 6 - Resignation, Removal and Vacancies | 9 | |||
IV. |
Committees | 10 | ||
Section 1 - Number, Appointment, Term of Office, etc. | ||||
Section 2 - Functions and Powers | 10 | |||
Section 3 - Rules | 11 | |||
V. |
Officers | 11 | ||
Section 1 - Election, Appointment and Term of Office | 12 | |||
Section 2 - Resignation, Removal and Vacancies | 12 | |||
Section 3 - Duties and Functions | 12 | |||
VI. |
Indemnification | 13 | ||
Section 1 - Right to Indemnification | 15 | |||
Section 2 - Insurance, Contracts and Funding | 15 | |||
16 |
-i-
Section 3 - Indemnification Not Exclusive Right | 17 | |||
Section 4 - Indemnification of Employees and Agents | 17 | |||
VII. | Waiver of Notices; Places of Meetings | 18 | ||
Section 1 - Waiver of Notices | 18 | |||
Section 2 - Place of Meetings | 18 | |||
VIII. | Execution and Delivery of Documents; Deposits; Proxies, Books and Records | 18 | ||
Section 1 - Execution and Delivery of Documents; Delegation | 18 | |||
Section 2 - Deposits | 19 | |||
Section 3 - Proxies in Respect of Stock or Other Securities in Other Corporations | 19 | |||
Section 4 - Books and Records | 19 | |||
IX. | Certificates; Stock Record: Transfer and Registration; New Certificates; Record Date, etc. | 20 | ||
Section 1 - Certificates for Stock | 20 | |||
Section 2 - Stock Record | 20 | |||
Section 3 - Transfer and Registration of Stock | 21 | |||
Section 4 - New Certificates | 21 | |||
Section 5 - Regulations | 22 | |||
Section 6 - Fixing Date for Determination of Stockholders of Record | 22 | |||
X. | Seal | 22 | ||
Section 1 - Seal | 22 | |||
XI. | Fiscal Year | 23 | ||
Section 1 - Fiscal Year | 23 | |||
XII. | Amendments | 23 | ||
Section 1 - Amendments | 23 | |||
XIII. | Subject to Law | 23 | ||
Section 1 - Subject to Law | 23 |
-ii-
Exhibit 3.85
CERTIFICATE OF INCORPORATION
-of-
INDEPENDENT NEWS CO. INC.
Pursuant to Article Two of the Stock Corporation Law.
We, the undersigned, desiring to form a stock corporation pursuant to the laws of the State of New York, do here-by make, subscribe, acknowledge, and file this certificate for that purpose, as follows:
FIRST: The name of the proposed corporation is INDEPENDENT NEWS CO. INC.
SECOND: The purposes for which the said corporation is to be formed are:
To prepare for publication, print, electrotype, bind, sell and distribute, and generally deal in, magazines, newspapers, pamphlets, books and publications of all kinds, and to engage generally in the business of Job and book printers, bookbinders, stationers, engravers and electrotypers.
To apply for, purchase, or otherwise acquire, and to dispose of, copyrights in the United States and elsewhere.
To purchase or otherwise acquire, and to sell, either as principals or agents, books, magazines, music, newspapers and publications of all kinds and descriptions, stationery and stationers supplies, and generally, to carry on the business of wholesale and retail booksellers and stationers; and to buy, sell, mortgage, hire, lease, printing presses of every description, also paper cutting, numbering and ruling machines, devices and supplies.
To apply for and obtain, trademarks, patents and licenses to use trademarks and patents. To acquire, lease, own, mortgage use, all necessary lands, lofts, buildings, plants, machinery and equipment in connection with said business.
THIRD: The total number of shares that may be issued by the Corporation shall be two hundred shares of no par value, and none shall be issued having a par value.
FOURTH: The capital of the Corporation shall be at least equal to the sum of the aggregate par value of all is sued shares having par value, plus the aggregate amount of consideration received by the Corporation for the issuance of shares without par value, plus amounts that from time to time by resolution of the Board of Directors may be transferred thereto.
4317-23-1
FIFTH: The office of the corporation is to be located in the County of New York, State of New York.
SIXTH: Its duration is to be perpetual.
SEVENTH: The number of its directors is to be three, who need not be stockholders.
EIGHTH: The names and post-office addresses of the directors until the first annual meeting of the stockholders are as follows:
NAMES. |
POST-OFFICE ADDRESSES. | |
Richard Kulze | No. 1815 Riverside Drive, New York City. | |
Ann R. Newman | No. 65 Monitor Street, Jersey City, N.J. | |
Jean Zuppordi | No. 1057 Montgomery Street, Brooklyn, N.Y. |
NINTH: The names and post-office addresses of each subscriber of the Certificate of Incorporation, and a statement of the number of shares which each agrees to take, are:
NAMES. |
ADDRESSES. |
NO. OF SHARES. | ||
Richard Kulze | No. 1815 Riverside Drive, N.Y.C. | 1 | ||
Ann R. Newman | No. 68 Monitor St., Jersey City, N.J. | 1 | ||
Jean Zuppordi | No. 1057 Montgomery St., Brooklyn, N.Y. | 1 |
TENTH: All the subscribers of this certificate are of full age; at least two-thirds of them are citizens of the United States; at least one of them is a resident of the State of New York; and at least one of the persons named as a director is a citizen of the United States and a resident of the State of New York.
IN WITNESS WHEREOF, we have made, signed, and acknowledged this Certificate in duplicate, this 16th day of September, 1932.
/s/ Ann R. Newman |
(L.S.) | |
/s/ Richard Kulze |
(L.S.) | |
/s/ Jean Zuppordi |
(L.S.) |
4317-23-2
STATE OF NEW YORK | ) | |||
CITY OF NEW YORK | ) | SS: | ||
COUNTY OF NEW YORK | ) |
On this 16th day of September, 1932, before me personally came RICHARD KULZE, ANN R. NEWMAN, and JEAN ZUPPORDI to me known, and known to me to be the individuals named in and who executed the foregoing Certificate of Incorporation and they duly and severally acknowledged to me that they executed the same.
[ILLEGIBLE STAMP]
4317-23-3
CERTIFICATE OF INCORPORATION
-of-
INDEPENDENT NEWS CO. INC.
Pursuant to Article Two of the
Stock Corporation Law.
Dated, N.Y., September 16th, 1932.
[ILLEGIBLE STAMP]
ISAAC PERLMAN,
No. 185 Madison Ave.
New York City.
Certificate of Designation
STATE OF NEW YORK | ||||
DEPARTMENT OF STATE | of | |||
FILED JAN 7 1935 | 29213 |
[ILLEGIBLE]
INDEPENDENT NEWS CO. INC.
(Exact name of Corporation)
The undersigned business corporation hereby certifies pursuant to section 24 of the Stock Corporation Law:
That it hereby designates the Secretary of State of the State of New York as its agent upon whom process in any action or proceeding against it may be served within the State of New York.
That the address to which the Secretary of State shall mail a copy of any process against the corporation which may be served upon him pursuant to law is
480 Lexington Avenue
(Street and Number)
New York
(City, Village or Town)
New York
(State)
In Witness Whereof, such, corporation has caused this certificate to be executed in its corporate name and under its corporate deal, by Paul H. Sampliner
(Name of officer)
its President
(Here insert title of office; [ILLEGIBLE] president, vice president, secretary or treasurer)
(Affix Corporate Seal Here) | INDEPENDENT NEWS CO. INC. [ILLEGIBLE]
| |||||
By | /s/ Paul H. Sampliner | |||||
(Signature of officer) | ||||||
STATE OF NEW YORK
} ss. :
COUNTY OF New York
On this 27th day of December 193 4 , before me personally appeared Paul H. Sampliner to me pessonally known add known to me to be the person described in and who executed the foregoing certificate, and he thereupon acknowledged to me that he executed the same for the uses and purposes therein mentioned.
/s/ [ILLEGIBLE]
Notar Public
[ILLEGIBLE]
NOTE: If the foregoing acknowledgment is taken without the State of New York, the signature of the Notary Public should be authenticated by a certificate of the clerk of the county in which such notary has power to act, or other proper officer.
This certificate is to be forwarded to the Corporation Division, Department of State, Albany, N. Y., accompanied by $2.80 in payment of the filling fee.
[ILLEGIBLE]
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
INDEPENDENT NEWS CO. INC.
(Pursuant to Section 36 of the Stock Corporation Law)
THE UNDERSIGNED corporation, constituting the holder of record of all of the outstanding shares of Independent News Co. Inc. (hereinafter called the corporation) entitled to vote with relation to the proceedings provided for in this Certificate of Amendment, does hereby certify that:
FIRST: The name of the corporation is INDEPENDENT NEWS CO. INC.
SECOND: The date of filing the Certificate of Incorporation of the corporation in the office of the Department of State is September 19, 1932.
THIRD: The Certificate of Incorporation of the corporation is hereby amended to effect one or more of the changes authorized in subdivision two of Section thirty-five of the Stock Corporation Law, to wit:
To increase the total authorized number of shares without nominal or par value and to authorize Two Hundred (200) additional shares without nominal or par value and of the same class.
393172
- 1 -
FOURTH: To effect the amendment set forth in Article THIRD of this Certificate of Amendment, the Certificate of Incorporation hereby amended by striking out Article THIRD of said Certificate of Incorporation in its entirely, said article setting fourth the number of shares which the corporation is authorized to issue, and by substituting in lieu thereof a new Article THIRD to read as follows:
THIRD: The total number of shares that may be issued by corporation is four hundred (400) , all of which are to be without nominal or par value, and which are to be of the same class. and are to be Common Stock.
IN WITNESS WHEREOF, the undersigned corporation has made and subscribed this Certificate this 6 day of August, 1963.
(Corporate Seal) | NATIONAL PERIODICAL PUBLICATIONS, INC. | |||||
[ILLEGIBLE STAMP] | By | /s/ Jacob S. Liebowitz | ||||
Jacob S. Liebowitz, President | ||||||
ATTEST: | ||||||
/s/ Paul H. Sampliner |
||||||
Paul H. Sampliner, Secretary |
- 2 -
STATE OF NEW YORK :
: ss.:
COUNTY OF NEW YORK :
On the 8th day of August, 1963, before me personally came JACOB S. LIEBOWITZ, to me known, who, being by me duly sworn, did depose and say that he resides at One Cow Lane, Kings Point, N.Y.; that he is the President of National Periodical Publications, Inc., the corporation described in and which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; and that it was so affixed by order of the Board of Directors of said corporation, and that he signed his name thereto by like order.
/s/ Daniel Epstein |
Notary Public
DANIEL EPSTEIN Notary Public, State of New York No. 31-1123675 Qualified in New York County Commission Expires March 30, 1965 |
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STATE OF NEW YORK :
: ss.:
COUNTY OF NEW YORK :
IRWIN DONENFELD, being duly sworn, deposes and says that he is the Secretary of Independent News Co. Inc.; that the corporation which has executed the foregoing certificate, either in person or by proxy, constitutes the holder of all of the outstanding shares of Independent News Co. Inc. entitled to vote thereon.
/s/ Irwin Donelfeld |
Irwin Donelfeld |
Subscribed and sworn
to before me this
8th day of August, 1963
/s/ Daniel Epstein Notary Public
|
DANIEL EPSTEIN |
Notary Public, State of New York |
No. 31-1123675 |
Qualified in New York County |
Commission Expires March 30, 1965 |
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STATE OF NEW YORK :
: ss.:
COUNTY OF NEW YORK :
PAUL H. SAMPLINER, being duly sworn, deposes and says that he, PAUL H. SAMPLINER, is the President of INDEPENDENT NEWS CO. INC.; that the number of additional shares not resulting from a change of shares which the corporation is authorized to issue by reason of the foregoing Certificate is two hundred (200) without par value.
/s/ Paul H. Sampliner |
Paul H. Sampliner |
Subscribed and sworn to
before me this 8th day
of August, 1963.
/s/ Daniel Epstein |
Notary Public
|
DANIEL EPSTEIN |
Notary Public, State of New York |
No. 31-1123675 |
Qualified in New York County |
Commission Expires March 30, 1965 |
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9/19/32 [ILLEGIBLE]
4317-23 200 NPV
393172
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
INDEPENDENT NEWS CO. INC.
(Pursuant to Section 36 of the Stock Corporation Law)
[ILLEGIBLE]
STATE OF NEW YORK
DEPARTMENT OF STATE
FILED AUG 12 1963
TAX $10 |
FILING FEE $30 |
[ILLEGIBLE STAMP]
WEIL GOTSHAL & MANGES |
60 EAST 42nd STREET |
NEW YORK 17. N.Y |
- 6 -
A657854
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
INDEPENDENT NEWS CO., INC.
Under Section 805 of the
Business Corporation Law
Pursuant to the provisions of Section 805 of the Business Corporation Law, the undersigned, Laurence Kirshbaum, President and Stephen Langenthal, Secretary, hereby certify:
FIRST: The name of the corporation is Independent News Co., Inc. The corporation was originally formed under the name Independent News Co., Inc.
SECOND: That the Certificate of Incorporation of the corporation was filed by the Department of State, Albany, New York, on the 19th day of September 1932.
THIRD: The Certificate of Incorporation is hereby amended to change the name of the Corporation. To effect such amendment.. ARTICLE FIRST of the Certificate of Incorporation is hereby amended to read in its entirety as follows:
FIRST: The name of the Corporation is WARNER PUBLISHER SERVICES INC.
FOURTH: That the amendment of the Certificate of Incorporation was authorized by the unanimous written consent of the sole shareholder of the Corporation.
IN WITNESS WHEREOF, we hereunto sign our names and affirm that the statements made herein are true under the penalties of perjury this 24th day of March, 1980
INDEPENDENT NEWS CO., INC. | ||
By |
/s/ Laurence Kirshbaum | |
Laurence Kirshbaum, President | ||
By | /s/ Stephen Langenthal | |
Stephen Langenthal, Secretary |
1
RESOLUTION OF DIRECTORS
OF
WARNER PUBLISHING, INC.
We, JOHN MANULI and F. ROBERT STEIN, Vice President and Assistant Secretary, respectively, of Warner Publishing, Inc., a Delaware corporation, do hereby certify that at a meeting of the Board of Directors of said corporation duly held on the 2nd day of April, 1980, the following resolutions were placed before the meeting and unanimously adopted:
RESOLVED, that it is the judgment of this Board of Directors that the name of WARNER PUBLISHER SERVICES INC. will in no way interfere or conflict with the name of this corporation, and it is our further judgment that said corporate names are sufficiently different and will not tend to confuse or deceive.
RESOLVED, that a certified copy of the fore-going resolution be submitted to the Secretary of State of the State of New York, with the request that the Certificate of Amendment of Certificate of Incorporation of INDEPENDENT NEWS CO., INC. be filed.
IN WITNESS WHEREOF, we have subscribed this instrument this 3rd day of April, 1980.
/s/ John Manuli | ||||||
John Manuli, Vice President | ||||||
[Corporate Seal] | ||||||
/s/ F. Robert Stein F. Robert Stein, Asst. Secretary |
2
STATE OF NEW YORK :
COUNTY OF NEW YORK : ss.:
On this 3rd day of April, 1980, before me personally came JOHN MANULI and F. ROBERT STEIN, to me known and known to me to be the persons described in and who executed the foregoing certificate, and severally acknowledged to me that they executed the same.
/s/ M. Teresa Marando |
Notary Public |
M. TERESA MARANDO |
Notary Public, State of New York |
No. 4686966 |
Qualified in Nassau County |
Certificate filed in New York County |
Commission Expires March 30, 1981 |
3
[ILLEGIBLE ]
RUSH
A657854
USC
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
INDEPENDENT NEWS CO. INC.
Under Section 805 of the Business Corporation Law
47940 | USC |
STATE OF NEW YORK | ||
DEPARTMENT OF STATE | ||
FILED APR 4-1980 |
AMT OF CHECK $38 |
FILING FEE | $30 |
TAX | $ |
COPY | $[ILLEGIBLE] |
CERT | $ |
REFUND | $ |
BY: | [ILLEGIBLE] | |
New York |
Warner Communications Inc.
75 Rockefeller Plaza
New York, New York 10019
[ILLEGIBLE]
CT-07 |
CERTIFICATE OF CHANGE
OF
Warner Publisher Services Inc.
UNDER SECTION 805-A OF THE BUSINESS CORPORATION LAW
1. The [ILLEGIBLE STAMP] of the corporation is Warner Publisher Services Inc. It was incorporated under the name Independent News Co. Inc.
2. The Certificate of Incoporation of Incorporation of said corporation was filed by the Department of State on September 19th, 1932.
3. The following was the authorized by the Board of Director:
To change the post office address to which the Secretary of State shall mail a copy of process in any action processing against the corporation which may be served on him from Edward J. Welss, ESQ., 75 Rockefeller Plaza, New York, New York 10019 to c/o C T Corporation System, 111 Eighth Avenue, New York, N. Y. 10011.
To designate C T CORPORATION SYSTEM, 111 Eighth Avenue, New York, N. Y. 10011 as its registered agent in New York upon whom all process against the corporation may be served.
/s/ Laurne Ezrol |
Name and Capacity of Signer |
Laurne Ezrol, Assistant Secretary |
NY008 - 61/14/00 CT System Online
1
F 010601000020
1CT-07
CERTIFICATE OF CHANGE
OF
WARNER PULISHER SERVICES, INC.
Under Section 805-A of the Business Corporation Law
STATE OF NEW YORK | ||||
DEPARTMENT OF STATE | ||||
Jassmine Braxton | FILED JUN 01 2001 | |||
Time Inc. | TAX $ | |||
1271 Avenue of the Americas | BY: [ILLEGIBLE] | |||
Time Life Building. | New York | |||
New York, NY 10020-0000 |
010601000071
2
12/20/2004 | 11:28 | 15184533437 | CT CORPORPATION | PAGE 02/05 |
CT-07
f041220000878
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
WARNER PUBLISHER SERVICES INC.
UNDER SECTION 805 OF THE BUSINESS CORPORATION LAW
Warner Publisher Services Inc., a corporation organized and existing under and by virtue of the Business Corporation Law of the State of New York (the Corporation), DOES HEREBY CERTIFY:
1. The name of the Corporation is: Warner Publisher Services Inc. The Corporation was originally formed under the name Independent News Co. Inc. and changed its name to Warner Publisher Services Inc. on April 4, 1980.
2. The Corporations certificate of incorporation was filed by the department of state on September 19, 1932.
3. The Corporation hereby amends its certificate of incorporation to change the name of the corporation by amending Article FIRST so that it is amended to read as follows: The name of the corporation is: Time/Warner Retail Sales & Marketing Inc..
4. This amendment to the certificate of incorporation was authorized pursuant to Section 803(a) of the Business Corporation Law of the State of New York by written consent of the Board of Directors of the Corporation pursuant to Section 708(b) of the Business Corporation Law of the State of New York, whereby the Board duly adopted a resolution setting forth the proposed amendment to the certificate of incorporation of the Corporation, declared said amendment to be advisable and submitted said amendment to the sole stockholder of the Corporation for consideration thereof. The sole stockholder of the Corporation by written consent pursuant to Section 615(a) of the Business Corporation Law of the State of New York consented to the above amendment to the Corporations certificate of incorporation.
- 1 -
12/20/2004 11:28 15184533437 | CT CORPORPATION PAGE 03/05 | |
DEC-20-2004 10:39 CT CORP SYSTEM | P.03 |
IN WITNESS WHEREOF, said Corporation has caused this certificate to be signed by its president and Secretary as of the 20th day of December, 2004.
/s/ John S. Redpath, Jr. |
John S. Redpath, Jr. Vice President & Secretary
|
147032
- 2 -
12/20/2004 11:28 15184533437 | CT CORPORPATION PAGE 04/05 | |
DEC-20-2004 10:39 CT CORP SYSTEM | P.04 | |
f041220000878 | ||
CT-07 |
CERTIFICATE OF AMEMNDMENT
OF CERTIFICATE OF INCORPORATION
(Title of Document)
OF
WARNER PUBLISHER SERVICES INC.
(Entity Name)
Under Section 805 of the BUSINESS CORPORATION LAW
(Law under which filling made)
[ILLEGIBLE STAMP]
[ILLEGIBLE STAMP]
[ILLEGIBLE] STATE OF NEW YORK DEPARTEMENT OF STATE FILED DEC 20 2004 | ||
TAX $ |
| |
BY: | SB | |
NY |
Filed by: | TIME INC. | |
(Name) | ||
1271 AVENUE OF THE AMERICAS | ||
(Malling address) | ||
NEW YORK NEW YORK 10020 | ||
(City, State and ZIP code) |
DRAWDOWN
904
TOTAL P.04
- 3 -
CT-07 | 140602000606 |
CERTIFICATE OF AMENDMENT
OF
THE CERTIFICATE OF INCORPORATION
OF
TIME/WARNER RETAIL SALES & MARKETING INC.
UNDER SECTION 805 OF THE BUSINESS CORPORATION LAW
Time/Warner Retail Sales & Marketing Inc., a corporation organized and existing under and by virtue of the Business Corporation Law of the State of New York (the Corporation), DOES HEREBY CERTIFY:
1. The name of the Corporation is: Time/Warner Retail Sales & Marketing Inc. The Corporation was originally formed under the name Independent News Co. Inc.
2. The Corporations certificate of incorporation was filed by the Department of State on September 19, 1932.
3. The Corporation hereby amends its certificate of incorporation to change the name of the corporation by amending Article FIRST so that it is amended to read as follows:
FIRST: The name of the Corporation is: Time Inc. Retail.
4. This amendment to the certificate of incorporation was authorized pursuant to Section 803(a) of the Business Corporation Law of the State of New York by written consent of the Board of Directors of the Corporation pursuant to Section 708(b) of the Business Corporation Law of the State of New York, whereby the Board duly adopted a resolution setting forth the proposed amendment to the certificate of incorporation of the Corporation, declared said amendment to be advisable and submitted said amendment to the sole stockholder of the Corporation for consideration thereof. The sole stockholder of the corporation by written consent pursuant to Section 615(a) of the Business Corporation Law of the State of New York consented to the above amendment to the Corporations certificate of incorporation.
264445
140602000606
IN WITNESS WHEREOF, said Corporation has caused this certificate to be signed by Lauren Ezrol Klein, its Assistant Secretary, as of the 2nd day of June, 2014.
/s/ Lauren Ezrol Klein |
Lauren Ezrol Klein Assistant Secretary |
264445
[ILLEGIBLE]
CT-07
Certificate of Amendment
Of
The Certificate of Incorporation
Of
Time/Warner Retail Sales & Marketing Inc.
Under Section 805 of the Business Corporation Law
2014 JUN-2 AM 12:42
ICC STATE OF NEW YORK DEPARTMENT OF STATE FILED JUNE 02 2014 | ||
TAX $ | ||
BY: | [ILLEGIBLE] | |
Filed by:
Thomas J. Schopper
1271 Avenue of the Americas
New York, NY 10020
RECEIVED
2014 JUN-2 PM 12:24
DRAWDOWN
cst ref# 9163089mp
636
CT 07 | 181115000875 |
|
New York State Department of State DIVISION OF CORPORATIONS, STATE RECORDS AND UNIFORM COMMERCIAL CODE |
One Commerce Plaza 99 Washington Ave. Albany, NY 12231-0001 www.dos.ny.gov |
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
Time Inc. Retail
(Insert the Current Name of Domestic Corporation)
Under Section 805 of the Business Corporation Law
FIRST: The current name of the corporation is:
Time Inc. Retail
If the name of the corporation has been previously changed, the name under which it was originally formed is:
Independent News Co. Inc.
SECOND: The date of filing of the certificate of incorporation with the Department of State is:
September 19, 1932
THIRD: The-amendment effected by this certificate of amendment is as follows:
The subject matter and full text of each amended paragraph must be stated.
FOR EXAMPLE, a certificate of amendment changing the name of the corporation would read as follows:
Paragraph FIRST of the Certificate of Incorporation relating to the name of the corporation is amended to read in its entirety as follows:
FIRST: Tbe name of the corporation is (....new name....).
Paragraph of the Certificate of Incorporation relating to the name of the corporation
is amended to read in its entirety as follows:
FIRST: The name of the Corporation is TI Inc. Retail
.
DOS-1554-1 (Rev. 03/17) | Page 1 of 3 |
Paragraph of the Certificate of Incorporation relating to
is amended to read in its entirety as follows:
.
FOURTH: The certificate of amendment was authorized by: (Check the appropriate box)
☐ | The vote of the board of directors followed by a vote of a majority of all outstanding shares entitled to vote thereon at a meeting of shareholders. |
☒ | The vote of the board of directors followed by the unanimous written consent of the holders of all outstanding shares. |
X /s/ Joseph H. Ceryanec |
Joseph H. Ceryanec |
|||||
(Signature) | (Name of Signer) | |||||
President & CEO |
||||||
(Title of Signer) |
DOS-1554-1 (Rev. 03/17) | Page 2 of 3 |
CT 07 | 875 |
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
Time Inc. Retail
(Insert Current Name of Domestic Corporation)
Under Section 805 of the Business Corporation Law
Filers Name and Mailing Address:
Eric Fischer | ||
Name: | ||
Nyemaster Goode, P.C. | ||
Company, if Applicable: | ||
700 Walnut. Street, Suite 1600 | ||
Mailing Address: | ||
Des Moines, IA 50309. | ||
City State and Zip Code: |
CUST REF 11257052 CS
DRAWDOWN
NOTES:
1. | The same of the corporation and its date of incorporation provided on this certificate must exactly match the records of the Department of State. This information should be verified on the Department of States website at www.dos.nv.gov. |
2. | This form was prepared by the New York State Department of State. It does not contain all optional provisions under the law. You are not required to use this form. You may draft your own form or use forms available at legal stationery stores. |
3. | The Department of State recommends that, all documents bo prepared under the guidance of an attorney. |
4. | The certificate must be submitted with a $60 filing fee. |
For Office Use Only
FILED
2018 NOV 15 PM 3:23
RECEIVED
2018 NOV 15 PM 12:11
STATE OF NEW YORK
DEPARTMENT OF STATE
FILED NOV 15 2018
TAX $0
BY: AB
912
DOS-1555-f (Rev. 03/17) | Page 3 of 3 |
Exhibit 3.86
BY-LAWS
OF
TIME INC. RETAIL
(formerly Time/Warner Retail Sales & Marketing Inc.)
(Incorporated under the Laws of the State of New York)
As Adopted as of April 24, 2014
BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of New York. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Shareholders
Section 1. Annual Meetings. The annual meeting of the shareholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the shareholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
Section 3. Notice of Meetings. Notice of each meeting of the shareholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each shareholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such shareholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such shareholder at his or her address as it appears on the stock record of the Corporation or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the shareholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
Section 4. Quorum and Manner of Acting. If shareholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the shareholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the shareholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until shareholders holding the amount of stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of shareholders holding the number of shares of stock of the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy shareholders holding the number of shares of stock of the Corporation required in respect of such other matter.
2
Section 5. Organization of Meetings. At each meeting of the shareholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
(a) the Chairman of the Board, or, if he or she is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the shareholders present in person or by proxy and entitled to vote thereat. The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the shareholders shall be determined by the chairman of the meeting, but such order of business may be changed by the majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
Section 7. Voting. Each shareholder shall, at each meeting of the shareholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him or her and registered in his or her name on the stock record of the Corporation:
3
(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of shareholders who shall be entitled to receive notice of and to vote at such meeting; or
(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining shareholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the shareholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for a longer period. The attendance at any meeting of a shareholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he or she shall in writing so notify the secretary of the meeting prior to the voting of the proxy. At all meetings of the shareholders all matters shall be decided by the vote of a majority in voting interest of the shareholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the shareholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the shareholder voting, or by his or her proxy if there be such proxy, and shall state the number of shares voted.
4
Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of shareholders of the Corporation, or any action which may be taken at any annual or special meeting of such shareholders, may be taken at any annual or special meeting of such shareholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those shareholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
Section 9. List of Shareholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the shareholders, a complete list of the shareholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any shareholder who is present. The stock record shall be the only evidence as to who are the shareholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the shareholders.
5
Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his or her discretion, appoint two or more inspectors, who need not be shareholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his or her election and until his or her successor shall be elected and qualified or until his or her earlier death or resignation or removal in the manner hereinafter provided.
6
Section 3. Election. At each annual meeting of the shareholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be shareholders of the Corporation or residents of the State of New York.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
(c) Special Meetings. Special Meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a type-written notice thereof to such director personally or
7
by depositing such notice in the United States mail, postage prepaid, directed to such director at his or her residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. The purposes of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he or she is not present or if no person holds such office, any director chosen by a majority or the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
8
(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his or her serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him or her on account of his or her attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 6. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
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Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board caused by any such removal may be filled by the shareholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his or her successor shall be elected and shall qualify or until his or her earlier death or resignation or removal in the manner set forth herein.
ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he or she remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
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In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or she or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including the power and authority to declare dividends and to authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the shareholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the shareholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
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ARTICLE V
Officers
Section 1. Election, Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice Presidents, or any or all of the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one or more Assistant Treasurers, or any or all of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of shareholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal and Vacancies. Any officer may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
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A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected he or she shall be a member of the Board; shall preside at meetings of the Board and of the shareholders at which he or she shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the shareholders at which they shall be present, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he or she shall preside at meetings of the Executive Committee at which he or she shall be present; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
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(d) President. If a President is appointed or elected he or she shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He or she shall preside at meetings of the Board and the shareholders unless a Chairman or a Vice Chairman of the Board is appointed or elected and is present.
(e) Vice Presidents. If any Vice President or Vice Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice-Presidents.
(f) Secretary. If a Secretary is appointed or elected he or she shall attend and keep the records of all meetings of the shareholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant
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Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
(g) Treasurer. If a Treasurer is appointed or elected he or she shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
(h) Controller. If a controller is appointed or elected he or she shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without
15
limitation, any action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a fifty percent (50%) or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such Proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer,
16
employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
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ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or shareholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
Section 2. Place of Meetings. Any meeting of the shareholders, the Board or committee may be held within or outside the State of New York.
ARTICLE VIII
Execution and Delivery of Documents; Deposits;
Proxies; Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the
18
Corporation. Such delegation may be resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities in Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he or she may deem necessary or proper in order that the Corporation may exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of New York as the proper officers of the Corporation may from time to time determine.
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ARTICLE IX
Certificates; Stock Record; Transfer and Registration;
New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him or her in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice-Chairman, the President or a Vice-President of the Corporation and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he or she were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for exchange or transfer shall be canceled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so canceled, except in cases provided for in Section 4 of this Article.
Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
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Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by the New York Uniform Commercial Code, as amended from time to time.
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his or her attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
Section 4. New Certificates.
(a) Lost, Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by New York Uniform Commercial Code, as amended from time to time.
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he or she has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
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Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
Section 6. Fixing Date for Determination of Shareholders of Record. In order that the Corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of shareholders entitled to notice of or to vote at a meeting of the shareholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the words New York.
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ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
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TABLE OF CONTENTS
Article |
Page | |||||
I. |
Offices | 1 | ||||
II. |
Meetings of Shareholders | 1 | ||||
Section 1 - Annual Meetings | 1 | |||||
Section 2 - Special Meetings | 1 | |||||
Section 3 - Notice of Meetings | 2 | |||||
Section 4 - Quorum and Manner of Acting | 2 | |||||
Section 5 - Organization of Meetings | 3 | |||||
Section 6 - Order of Business | 3 | |||||
Section 7 - Voting | 3 | |||||
Section 8 - Consent in Lieu of Meeting | 5 | |||||
Section 9 - List of Shareholders | 5 | |||||
Section 10 - Inspectors | 6 | |||||
III. |
Board of Directors | 6 | ||||
Section 1 - General Powers | 6 | |||||
Section 2 - Number and Term of Office | 6 | |||||
Section 3 - Election | 7 | |||||
Section 4 - Meetings | 7 | |||||
Section 5 - Compensation | 9 | |||||
Section 6 - Resignation, Removal and Vacancies | 9 | |||||
IV. |
Committees | 10 | ||||
Section 1 - Number, Appointment, Term of Office, etc. | 10 | |||||
Section 2 - Functions and Powers | 11 | |||||
Section 3 - Rules | 11 | |||||
V. |
Officers | 12 | ||||
Section 1 - Election, Appointment and Term of Office | 12 | |||||
Section 2 - Resignation, Removal and Vacancies | 12 | |||||
Section 3 - Duties and Functions | 13 | |||||
VI. |
Indemnification | 15 | ||||
Section 1 - Right to Indemnification | 15 | |||||
Section 2 - Insurance, Contracts and Funding | 16 | |||||
Section 3 - Indemnification Not Exclusive Right | 17 |
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Section 4 - Indemnification of Employees and Agents | 17 | |||||
VII. |
Waiver of Notices; Places of Meetings | 18 | ||||
Section 1 - Waiver of Notices | 18 | |||||
Section 2 - Place of Meetings | 18 | |||||
VIII. |
Execution and Delivery of Documents; Deposits; Proxies, Books and Records | 18 | ||||
Section 1 - Execution and Delivery of Documents; Delegation | 18 | |||||
Section 2 - Deposits | 19 | |||||
Section 3 - Proxies in Respect of Stock or Other Securities in Other Corporations | 19 | |||||
Section 4 - Books and Records | 19 | |||||
IX. |
Certificates; Stock Record; Transfer and Registration; New Certificates; Record Date, etc. | 20 | ||||
Section 1 - Certificates for Stock | 20 | |||||
Section 2 - Stock Record | 20 | |||||
Section 3 - Transfer and Registration of Stock | 21 | |||||
Section 4 - New Certificates | 21 | |||||
Section 5 - Regulations | 22 | |||||
Section 6 - Fixing Date for Determination of Shareholders of Record | 22 | |||||
X. |
Seal | 22 | ||||
Section 1 - Seal | 22 | |||||
XI. |
Fiscal Year | 23 | ||||
Section 1 - Fiscal Year | 23 | |||||
XII. |
Amendments | 23 | ||||
Section 1 - Amendments | 23 | |||||
XIII. |
Subject to Law | 23 | ||||
Section 1 - Subject to Law | 23 |
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Exhibit 3.87
STATE OF DELAWARE | ||||
SECRETARY OF STATE | ||||
DIVISION OF CORPORATIONS | ||||
FILED 10:00 AM 09/11/1992 | ||||
752255005 2309208 |
CERTIFICATE OF INCORPORATION
OF
TIME INC. VENTURES
1. The name of the corporation is:
Time Inc. Ventures
2. The address of its registered office in the State of Delaware is 32 Loockerman Square, Suite L-100, in the City of Dover, County of Kent. The name of its registered agent at such address is The Prentice-Hall Corporation System, Inc.
3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall have authority to issue is One Hundred (100) and the par value of each of such shares is One Dollar ($1.00). All such shares are of one class and are shares of Common Stock.
5. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot.
6. The name and mailing address of the incorporator is:
Janice M. Cannon
1271 Avenue of the Americas
New York, New York 10020
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand the 3rd day of September, 1992.
/s/ Janice M. Cannon |
Sole Incorporator |
STATE OF DELAWARE | ||||
SECRETARY OF STATE | ||||
DIVISION OF CORPORATIONS | ||||
FILED 04:00 PM 09/05/1997 | ||||
971297481 2309208 |
CERTIFICATE OF CHANGE OF REGISTERED AGENT
AND
REGISTERED OFFICE
TIME INC. VENTURES, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware.
DOES HEREBY CERTIFY:
The present registered agent of the corporation is THE PRENTICE HALL CORPORATION SYSTEM, INC. and the present registered office of the corporation is in the county of New Castle.
The Board of Directors of THE COMPANY adopted the following resolutions as of the 17th day of April, 1997.
RESOLVED, that the registered office of the Corporation in the State of Delaware be, and it hereby is, changed to The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle; and further
RESOLVED, that the authorization of the present registered agent of the Corporation in the State of Delaware be, and it hereby is withdrawn and that The Corporation Trust Company be, and it hereby is, appointed the registered agent of the Corporation in the State of Delaware at the address of the Corporations registered office.
IN WITNESS WHEREOF, THE COMPANY has caused this statement to be signed by Richard I. Friedman, its Assistant Secretary, as of this 31st day of July, 1997.
By: | Richard I. Friedman | |
Richard I. Friedman | ||
Assistant Secretary |
State of Delaware | ||||
Secretary of State | ||||
Division of Corporations | ||||
Delivered 05:25 PM 11/14/2018 | ||||
FILED 05:25 PM 11/14/2018 | ||||
SR 20187647167 - File Number 2309208 |
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION
The corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware does hereby certify:
FIRST: That at a meeting of the Board of Directors of Time Inc. Ventures resolutions were duly adopted setting forth a proposed amendment of the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing the Article thereof numbered 1 so that, as amended, said Article shall be and read as follows:
The name of the corporation is: TI Inc. Ventures.
SECOND: That thereafter, pursuant to resolution of its Board of Directors, a special meeting of the stockholders of said corporation was duly called and held upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said corporation has caused this certificate to be signed this 31st day of October, 2018.
By: | /s/ Joseph H. Ceryanec | |
Authorized Officer | ||
Title: | President & CEO | |
Name: | Joseph H. Ceryanec | |
Print or Type |
Exhibit 3.88
BY-LAWS
OF
TIME INC. VENTURES
(Incorporated under the Laws of the State of Delaware)
As Adopted on September 30, 1992
TABLE OF CONTENTS
Article |
Page | |||||||
I | Offices | 1 | ||||||
Section | 1 Offices | 1 | ||||||
II | Meetings of Stockholders | 1 | ||||||
Section | 1 Annual Meetings | |||||||
Section | 2 Special Meetings | 1 | ||||||
Section | 3 Notice of Meetings | 2 | ||||||
Section | 4 Quorum and Manner of Acting | 2 | ||||||
Section | 5 Organization of Meetings | 3 | ||||||
Section | 6 Order of Business | 4 | ||||||
Section | 7 Voting | 4 | ||||||
Section | 8 Consent in Lieu of Meeting | 6 | ||||||
Section | 9 List of Stockholders | 7 | ||||||
Section | 10 Inspectors | 8 | ||||||
III | Board of Directors | 8 | ||||||
Section | 1 General Powers | 8 | ||||||
Section | 2 Number and Term of Office | 8 | ||||||
Section | 3 Election | 9 | ||||||
Section | 4 Meetings | 9 | ||||||
Section | 5 Compensation | 12 | ||||||
Section | 6 Resignations, Removal and Vacancies | 12 | ||||||
IV | Committees | 14 | ||||||
Section | 1 Number, Appoint, Term of Office, etc. | 14 | ||||||
Section | 2 Function and Powers | 14 | ||||||
Section | 3 Rules | 15 | ||||||
V | Officers | 15 | ||||||
Section | 1 Election, Appointment and Term of Office | 15 | ||||||
Section | 2 Removal, Resignation and Vacancies | 16 | ||||||
Section | 3 Duties and Functions | 17 |
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VI | Indemnification | 20 | ||||
Section | 1 Right to Indemnification | 20 | ||||
Section | 2 Insurance, Contracts and Funding | 22 | ||||
Section | 3 Indemnification Not Exclusive Right | 22 | ||||
Section | 4 Indemnification of Employees and Agents | 22 | ||||
VII | Waiver of Notices; Places of Meetings | 23 | ||||
Section | 1 Waiver of Notices | 23 | ||||
Section | 2 Place of Meetings | 24 | ||||
VIII | Execution and Delivery of Documents; Deposits; Proxies, Books and Records | 24 | ||||
Section | 1 Execution and Delivery of Documents | 24 | ||||
Section | 2 Deposits | 25 | ||||
Section | 3 Proxies in Respect of Stock or Other Securities in Other Corporations | 25 | ||||
Section | 4 Books and Records | 25 | ||||
IX | Certificates; Stock Record; Transfer and Registration | 26 | ||||
Section | 1 Certificates for Stock | 26 | ||||
Section | 2 Stock Record | 27 | ||||
Section | 3 Transfer and Registration of Stocks | 27 | ||||
Section | 4 New Certificates | 28 | ||||
Section | 5 Regulations | 28 | ||||
Section | 6 Fixing Date for Determination of Stockholders of Record | 29 | ||||
X | Seal | 29 | ||||
Section | 1 Seal | 29 | ||||
XI | Fiscal Year | 30 | ||||
Section | 1 Fiscal Year | 30 | ||||
XII | Amendments | 30 | ||||
Section | 1 Amendments | 30 | ||||
XIII | Subject to Law | 30 | ||||
Section | 1 Subject to Law | 30 |
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BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
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Section 3. Notice of Meetings. Notice of each meeting of the stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such stockholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such stockholder at his address as it appears on the stock record of the Corporation or by transmitting notice thereof to him at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the stockholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
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Section 4. Quorum and Manner of Acting. If stockholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the stockholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until stockholders holding the amount of stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of stockholders holding the number of shares of stock of the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy stockholders holding the number of shares of stock of the Corporation required in respect of such other matter.
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Section 5. Organization of Meetings. At each meeting of the stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
(a) the Chairman of the Board, or, if he is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat.
The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by a majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
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Section 7. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him and registered in his name on the stock record of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or
(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for
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a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he shall in writing so notify the secretary of the meeting prior to voting of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his proxy if there be such proxy, and shall state the number of shares voted.
Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
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Section 9. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
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Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his election and until his successor shall be elected and qualified or until his earlier death or resignation or removal in the manner hereinafter provided.
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Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
(c) Special Meetings. Special meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
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(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a type-written notice thereof to such director personally or by depositing such notice in the United States mail, postage prepaid, directed to such director at his residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him at such address by telegraph, cable or other form or recorded communication. The purposes of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
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(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
(g) Organization of Meetings. At each meeting of the Board, to the Chairman of the Board or, if he is not present or if no person holds such office, any director chosen by a majority of the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
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(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him on account of his attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 6. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
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Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board cause by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his successor shall be elected and shall qualify or until his earlier death or resignation or removal in the manner herein.
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ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including, the power and authority to declare dividends and to
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authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
ARTICLE V
Officers
Section 1. Election and Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice-Presidents, or any or all the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one ore more Assistant Treasurers, or any or all
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of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal and Vacancies. Any officer may resign at any time by giving written notice of his resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effect shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
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Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected he shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the stockholders, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he shall preside at meetings of the Executive Committee; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
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(d) President. If a President is appointed or elected he shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice-Chairman of the Board is appointed or elected and is present.
(e) Vice-Presidents. If any Vice President or Vice-Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice Presidents.
(f) Secretary. If a Secretary is appointed or elected he shall attend and keep the records of all meetings of the stockholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the
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Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
(g) Treasurer. If a Treasurer is appointed or elected he shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
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(h) Controller. If a Controller is appointed or elected he shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the
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Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a 50 percent or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
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Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
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Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
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Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
ARTICLE VIII
Execution and Delivery of Documents; Deposits;
Proxies; Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such delegation may be by resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
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Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities of Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he may deem necessary or proper in order that the Corporation may exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of Delaware as the proper officers of the Corporation may from time to time determine.
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ARTICLE IX
Certificates; Stock Record; Transfer and Registration;
New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the Board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice-Chairman, the President or a Vice-President of the Corporation and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for or exchange or transfer shall be cancelled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so cancelled, except in cases provided for in Section 4 of this Article.
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Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
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Section 4. New Certificates.
(a) Lost, Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
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Section 6. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix, in advance, a record date, which shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
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ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
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Exhibit 3.89
CERTIFICATE OF INCORPORATION
OF
Time Publishing Ventures, Inc.
1. The name of the corporation is:
Time Publishing Ventures, Inc.
2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall have authority to issue is One Hundred (100) and the par value of each of such shares is One Dollar ($1.00). All such shares are of one class and are shares of Common Stock.
5. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot.
6. The name and mailing address of each of the directors is:
Michael J. Klingensmith | Time Incorporated 1271 Avenue of the Americas New York, New York 10020 | |||
S. Christopher Meigher, III | Time Incorporated 1271 Avenue of the Americas New York, New York 10020 | |||
Donald L. Spurdle | Time Incorporated 1271 Avenue of the Americas New York, New York 10020 |
7. The name and mailing address of the incorporator is:
Janice M. Rosamilia
Time Incorporated
1271 Avenue of the Americas
Rockefeller Center
New York, New York 10020
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 9th day of June, 1986.
/s/ Janice M. Rosamilia |
CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE
AND OF REGISTERED AGENT
It is hereby certified that:
1. | The name of the corporation (hereinafter called the corporation) is TIME PUBLISHING VENTURES, INC. |
2. | The registered office of the corporation within the State of Delaware is hereby changed to 229 South State Street, City of Dover 19901, County of Kent. |
3. | The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. |
4. | The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. |
Signed on April 19, 1989 | ||||||
/s/ Michael J. Klingensmith | ||||||
MICHAEL J. KLINGENSMITH - President |
Attest: |
/s/ Jodi Kass |
JODI KASS - Secretary |
DEL. - C.A.-D.
CERTIFICATE OF OWNERSHIP AND MERGER
Merging
HEALTH PUBLICATIONS, INC.
(a Delaware corporation)
into
TIME PUBLISHING VENTURES, INC.
(a Delaware corporation)
Pursuant to Section 253 of the
General Corporation Law of the State of Delaware
Time Publishing ventures, Inc., a corporation organized and existing under the laws of the State of Delaware (the Corporation), does hereby certify:
FIRST: That the Corporation is a corporation duly organized and existing pursuant to the provisions of the General Corporation Law of the State of Delaware (the DGCL);
SECOND: That, immediately prior to the filing of this Certificate of Ownership and Merger, the Corporation lawfully owns all of the outstanding shares of each authorized class of capital stock of Health Publications, Inc., a Delaware corporation (the Subsidiary); and
THIRD: That, by resolutions of its Board of Directors duly adopted by unanimous written consent on December 23, 1993, the Corporation approved the merger of the Subsidiary with and into itself (the Merger) in accordance with Section 253 of the DGCL, and that said resolutions read exactly as follows:
RESOLVED, that Health publications, Inc., a Delaware corporation (Health), all of the outstanding capital stock of which is owned by the Corporation, be merged with and into the Corporation, which shall be the surviving corporation, pursuant to Section 253 of the DGCL, and that upon such merger becoming effective the Corporation shall assume all of the liabilities and obligations of Health;
RESOLVED, that the president or any vice-president and the secretary or any assistant secretary of the Corporation be, and each of them hereby is, directed to prepare and execute, under the seal of the Corporation, a Certificate of Ownership and Merger, which shall set forth a copy of these resolutions, to merge Health with and into the Corporation, and to file the same in the office of the secretary of State of the State of Delaware;
RESOLVED, that the merger shall not become effective until, and shall become effective upon, the filing of the Certificate of Ownership and Merger with the Secretary of State of the State of Delaware or at such later time or date as may be set forth in said Certificate of Ownership and Merger;
RESOLVED, that the foregoing resolutions may be amended or terminated by this Board of Directors at any time prior to the filing of the Certificate of Ownership and Merger with the Secretary of State of the State of Delaware; and
RESOLVED, that the officers of the Corporation be, and each of them hereby is, authorized to take all such actions and to execute and deliver all such agreements, instruments and documents, in the name and on behalf of the Corporation, and to cause all such entities to be organized or to be dissolved, liquidated or merged, and to pay or cause to be paid all expenses, as they or any of them shall deem necessary or appropriate to accomplish the purposes of the foregoing resolutions; and that the execution and delivery of such agreements, instruments and documents, the organization, dissolution, liquidation or merger of such entities and the doing or performing of any such actions, shall be conclusive evidence that the same is authorized hereby.
FOURTH: That the Merger shall be effective on January 1, 1994.
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IN WITNESS WHEREOF, Time Publishing Ventures, Inc. has caused this Certificate of Ownership and Merger to be executed and acknowledged in accordance with Section 103 of the General Corporation Law of the State of Delaware as of the 28th day of December 1993.
TIME PUBLISHING VENTURES, INC. | ||
By: | /s/ Harry M. Johnston, III | |
Name: Harry M. Johnston, III | ||
Title: Vice-President |
[Seal] |
Attest: |
/s/ Richard I. Friedman |
Assistant Secretary |
Richard I. Friedman |
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CERTIFICATE OF OWNERSHIP AND MERGER
Merging
IN HEALTH INC.
(a Delaware corporation)
into
TIME PUBLISHING VENTURES, INC.
(a Delaware corporation)
Pursuant to Section 253 of the
General Corporation Law of the State of Delaware
Time Publishing Ventures, Inc., a corporation organized and existing under the laws of the State of Delaware (the Corporation), does hereby certify:
FIRST: That the Corporation is a corporation duly organized and existing pursuant to the provisions of the General Corporation Law of the State of Delaware (the DGCL) ;
SECOND: That, immediately prior to the filing of this Certificate of Ownership and Merger, the Corporation lawfully owns all of the outstanding shares of each authorized class of capital stock of In Health Inc., a Delaware corporation (the Subsidiary); and
THIRD: That, by resolutions of its Board of Directors duly adopted by unanimous written consent on December 23, 1993, the Corporation approved the merger of the Subsidiary with and into itself (the Merger) in accordance with Section 253 of the DGCL, and that said resolutions read exactly as follows:
RESOLVED, that In Health Inc., a Delaware corporation (In Health), all of the outstanding capital stock of which is owned by the Corporation, be merged with and into the Corporation, which shall be the surviving corporation, pursuant to Section 253 of the DGCL, and that upon such merger becoming effective the Corporation shall assume all of the liabilities and obligations of In Health;
RESOLVED, that the president or any vice-president and the secretary or any assistant secretary of the Corporation be, and each of them hereby is, directed to prepare and execute, under the seal of the Corporation, a Certificate of Ownership and Merger, which shall set forth a copy of these resolutions, to merge In Health with and into the Corporation, and to file the same in the office of the Secretary of state of the State of Delaware;
RESOLVED, that the merger shall not become effective until, and shall become effective upon, the filing of the Certificate of Ownership and Merger with the Secretary of State of the State of Delaware or at such later time or date as may be set forth in said Certificate of Ownership and Merger;
RESOLVED, that the foregoing resolutions may be amended or terminated by this Board of Directors at any time prior to the filing of the Certificate of ownership and Merger with the Secretary of State of the State of Delaware; and
RESOLVED, that the officers of the Corporation be, and each of them hereby is, authorized to take all such actions and to execute and deliver all such agreements, instruments and documents, in the name and on behalf of the Corporation, and to cause all such entities to be organized or to be dissolved, liquidated or merged, and to pay or cause to be paid all expenses, as they or any of them shall deem necessary or appropriate to accomplish the purposes of the foregoing resolutions; and that the execution and delivery of such agreements, instruments and documents, the organization, dissolution, liquidation or merger of such entities and the doing or performing of any such actions, shall be conclusive evidence that the same is authorized hereby.
FOURTH: That the Merger shall be effective on January 1, 1994.
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IN WITNESS WHEREOF, Time Publishing Ventures, Inc. has caused this Certificate of Ownership and Merger to be executed and acknowledged in accordance with Section 103 of the General Corporation Law of the State of Delaware as of the 28th day of December 1993.
TIME PUBLISHING VENTURES, INC. | ||
By: | /s/ Harry M. Johnston, III | |
Name: Harry M. Johnston, III | ||
Title: Vice-President |
[Seal] |
Attest: |
/s/ Richard I. Friedman |
Assistant Secretary |
Richard I. friedman |
- 3 -
![]() |
CERTIFICATE OF CHANGE OF REGISTERED AGENT
AND
REGISTERED OFFICE
TIME PUBLISHING VENTURES, INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
The present registered agent of the corporation is THE PRENTICE - HALL CORPORATION SYSTEM, INC. and the present registered office of the corporation is in the county of New Castle.
The Board of Directors of THE COMPANY adopted the following resolutions as of the 17th day of April, 1997.
RESOLVED, that the registered office of the Corporation in the State of Delaware be, and it hereby is, changed to The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle; and further
RESOLVED, that the authorization of the present registered agent of the Corporation in the State of Delaware be, and it hereby is withdrawn and that The Corporation Trust Company be, and it hereby is, appointed the registered agent of the Corporation in the State of Delaware at the address of the Corporations registered office.
IN WITNESS WHEREOF, THE COMPANY has caused this statement to be signed by Richard I. Friedman, its Assistant Secretary, as of this 31st day of July, 1997.
By: | Richard I. Friedman | |
Richard I. Friedman | ||
Assistant Secretary |
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION
The corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware does hereby certify:
FIRST: That at a meeting of the Board of Directors of Time Publishing Ventures, Inc. resolutions were duly adopted setting forth a proposed amendment of the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing the Article thereof numbered 1 so that, as amended, said Article shall be and read as follows:
1. | The name of the corporation is: |
TI Publishing Ventures, Inc.
SECOND: That thereafter, pursuant to resolution of its Board of Directors, a special meeting of the stockholders of said corporation was duly called and held upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said corporation has caused this certificate to be signed this 31st day of October, 2018.
By: | /s/ Joseph H. Ceryanec |
Authorized Officer |
Title: | President & CEO |
Name: | Joseph H. Ceryanec | |
Print or Type |
Exhibit 3.90
BY-LAWS
OF
TIME PUBLISHING VENTURES, INC.
(Incorporated under the Laws of the State of Delaware)
As Adopted MARCH 1, 1989
TABLE OF CONTENTS
Article |
Page | |||||
I |
Offices | 1 | ||||
Section 1 Offices | 1 | |||||
II |
Meetings of Stockholders | 1 | ||||
Section 1 Annual Meetings | 1 | |||||
Section 2 Special Meetings | 1 | |||||
Section 3 Notice of Meetings | 2 | |||||
Section 4 Quorum and Manner of Acting | 3 | |||||
Section 5 Organization of Meetings | 3 | |||||
Section 6 Order of Business | 4 | |||||
Section 7 Voting | 4 | |||||
Section 8 Consent in Lieu of Meeting | 6 | |||||
Section 9 List of Stockholders | 7 | |||||
Section 10 Inspectors | 8 | |||||
III |
Board of Directors | 8 | ||||
Section 1 General Powers | 8 | |||||
Section 2 Number and Term of Office | 8 | |||||
Section 3 Election | 9 | |||||
Section 4 Meetings | 9 | |||||
Section 5 Compensation | 12 | |||||
Section 6 Resignations, Removal and Vacancies | 12 | |||||
IV |
Committees | 14 | ||||
Section 1 Number, Appoint, Term of Office, etc. | 14 | |||||
Section 2 Function and Powers | 14 | |||||
Section 3 Rules | 15 | |||||
V |
Officers | 15 | ||||
Section 1 Election, Appointment and Term of Office | 15 | |||||
Section 2 Removal, Resignation and Vacancies | 16 | |||||
Section 3 Duties and Functions | 17 |
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VI |
Indemnification | 20 | ||||
Section 1 Right to Indemnification | 20 | |||||
Section 2 Insurance, Contracts and Funding | 22 | |||||
Section 3 Indemnification Not Exclusive Right | 22 | |||||
Section 4 Indemnification of Employees and Agents | 22 | |||||
VII |
Waiver of Notices; Places of Meetings | 23 | ||||
Section 1 Waiver of Notices | 23 | |||||
Section 2 Place of Meetings | 24 | |||||
VIII |
Execution and Delivery of Documents; Deposits; Proxies, Books and Records | 24 | ||||
Section 1 Execution and Delivery of Documents | 24 | |||||
Section 2 Deposits | 25 | |||||
Section 3 Proxies in Respect of Stock or Other Securities in Other Corporations | 25 | |||||
Section 4 Books and Records | 25 | |||||
IX |
Certificates; Stock Record; Transfer and Registration | 26 | ||||
Section 1 Certificates for Stock | 26 | |||||
Section 2 Stock Record | 27 | |||||
Section 3 Transfer and Registration of Stocks | 27 | |||||
Section 4 New Certificates | 28 | |||||
Section 5 Regulations | 28 | |||||
Section 6 Fixing Date for Determination of Stockholders of Record | 29 | |||||
X |
Seal | 29 | ||||
Section 1 Seal | 29 | |||||
XI |
Fiscal Year | 30 | ||||
Section 1 Fiscal Year | 30 | |||||
XII |
Amendments | 30 | ||||
Section 1 Amendments | 30 | |||||
XIII |
Subject to Law | 30 | ||||
Section 1 Subject to Law | 30 |
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BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
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Section 3. Notice of Meetings. Notice of each meeting of the stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such stockholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such stockholder at his address as it appears on the stock record of the Corporation or by transmitting notice thereof to him at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the stockholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
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Section 4. Quorum and Manner of Acting. If stockholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the stockholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until stockholders holding the amount of stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of stockholders holding the number of shares of stock of the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy stockholders holding the number of shares of stock of the Corporation required in respect of such other matter.
Section 5. Organization of Meetings. At each meeting of the stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
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(a) the Chairman of the Board, or, if he is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat.
The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by a majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
Section 7. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him and registered in his name on the stock record of the Corporation:
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(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or
(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for
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a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he shall in writing so notify the secretary of the meeting prior to voting of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his proxy if there be such proxy, and shall state the number of shares voted.
Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
-6-
Section 9. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
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Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his election and until his successor shall be elected and qualified or until his earlier death or resignation or removal in the manner hereinafter provided.
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Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
(c) Special Meetings. Special meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
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(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a type-written notice thereof to such director personally or by depositing such notice in the United States mail, postage prepaid, directed to such director at his residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him at such address by telegraph, cable or other form or recorded communication. The purposes of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
(e) Time and place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
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(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he is not present or if no person holds such office, any director chosen by a majority of the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
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(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him on account of his attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 6. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
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Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board cause by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these By-laws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his successor shall be elected and shall qualify or until his earlier death or resignation or removal in the manner herein.
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ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including, the power and authority to declare dividends and to
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authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
ARTICLE V
Officers
Section 1. Election and Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice-Presidents, or any or all the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one ore more Assistant Treasurers, or any or all
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of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal and Vacancies. Any officer may resign at any time by giving written notice of his resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effect shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
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Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected he shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the stockholders unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he shall preside at meetings of the Executive Committee; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
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(d) President. If a President is appointed or elected he shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice-Chairman of the Board is appointed or elected and is present.
(e) Vice-Presidents. If any Vice President or Vice Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice Presidents
(f) Secretary. If a Secretary is appointed or elected he shall attend and keep the records of all meetings of the stockholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the
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Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
(g) Treasurer. If a Treasurer is appointed or elected he shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
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(h) Controller. If a Controller is appointed or elected he shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the
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Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a 50 percent or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
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Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or
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was an employee or agent of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
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Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
ARTICLE VIII
Execution and Delivery of Documents; Deposits;
Proxies; Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such delegation may be by resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
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Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities of Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he may deem necessary or proper in order that the Corporation may exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of Delaware as the proper officers of the Corporation may from time to time determine.
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ARTICLE IX
Certificates; Stock Record; Transfer and Registration;
New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the Board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice-Chairman, the President or a Vice-President of the Corporation and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for or exchange or transfer shall be cancelled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so cancelled, except in cases provided for in Section 4 of this Article.
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Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle l of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
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Section 4. New Certificates.
(a) Lost, Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
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Section 6. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix, in advance, a record date, which shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
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ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
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Exhibit 3.91
CERTIFICATE OF INCORPORATION
OF
TI ACQUISITION INC.
1. The name of the Corporation is: TI Acquisition Inc.
2. The address of the registered office of the Corporation in the State of Delaware is c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of the registered agent of the Corporation at such address is The Corporation Trust Company.
3. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the Corporation shall have authority to issue is one Thousand (1,000) and the par value of each of such shares is One Cent ($.01). All such shares are of one class and are shares of Common Stock.
5. The board of directors of the Corporation shall have the power to make, adopt, alter, amend or repeal the by-laws of the Corporation. The election of directors of the Corporation need not be by written ballot.
6. The name and mailing address of the incorporator of the Corporation are:
Lauren B. Ezrol
Time Inc.
Time & Life Building
1271 Avenue of the Americas
New York, New York 10020
7. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the directors duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of Delaware, or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law of Delaware is amended after approval by the stockholders of this Section to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of Delaware as so amended.
THE UNDERSIGNED, being the sole incorporator of the Corporation, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, does hereby sign this Certificate of Incorporation this 19th day of October 2000.
/s/ Lauren B. Ezrol |
Lauren B. Ezrol |
Sole Incorporator |
CERTIFICATE OF AMENDMENT OF
THE CERTIFICATE OF INCORPORATION OF
TI ACQUISITION INC.
TI Acquisition Inc., a corporation duly organized and existing under the General Corporation Law of the State of Delaware (the Corporation), DOES HEREBY CERTIFY THAT:
FIRST: That by action without a meeting pursuant to Section 141(f) of the General Corporation Law of the State of Delaware, the Board of Directors of the Corporation duly adopted a resolution setting forth a proposed amendment to the Certificate of Incorporation of the Corporation, declared said amendment advisable and submitted said amendment to the sole stockholder of the Corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that paragraph 1 of the Certificate of Incorporation of the Corporation be amended so as to read in its entirety as follows:
1. The name of the corporation is: Viant Technology Holding Inc.
SECOND: That thereafter, pursuant to the resolution of its Board of Directors, the sole stockholder of the Corporation by written consent pursuant to Section 228 of the General Corporation Law of Delaware consented to the above amendment to the Corporations Certificate of Incorporation.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Corporation has caused this Certificate to be signed by Lauren Ezrol Klein, its Assistant Secretary, as of the 2nd day of March, 2016.
By: | /s/ Lauren Ezrol Klein | |
Lauren Ezrol Klein | ||
Assistant Secretary |
Annex I to EXHIBIT A
[Certificates of Good Standing]
[see attached]
Secretary of State ,J, KIM WYMAN, Secretary of State of the State of Washington and custodian of its seal, hereby issue this CERTIFICATE OF EXISTENCE OF ALLRECIPES.COM, INC. I CERTIFY that the records on file in this office show that the above named entity was formed under the laws of the State of Washington and that its public organic record was filed in Washington and became effective on 08/25/1995. I FURTHER CERTIFY that the entitys duration is Perpetual, and that as of the date of this certificate, the records of the Secretary of State do not reflect that this entity has been dissolved. I FURTHER CERTIFY that all fees, interest, and penalties owed and collected through the Secretary of State have been paid. I FURTHER CERTIFY that the most recent annual report has been delivered to the Secretary of State for filing and that proceedings for administrative dissolution are not pending. Issued Date; 12/27/2017 UBI Number: 601 653 265
Exhibit 3.92
BY-LAWS
OF
VIANT TECHNOLOGY HOLDING INC.
(formerly TI Acquisition Inc.)
(Incorporated under the Laws of the State of Delaware)
As Adopted as of October 19, 2000
BY-LAWS
ARTICLE I
Offices
Section 1. Offices. The above-mentioned corporation (the Corporation) may have offices either within or without the State of Delaware. The registered office of the Corporation and the name of the registered agent of the Corporation are as is set forth in the Certificate of Incorporation of the Corporation, or as may subsequently be or have been changed by resolution of the Board of Directors (the Board).
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Thursday in April in each year, or such other date as the Board may from time to time determine and at such place and hour as shall be designated by the Board in the notice thereof.
Section 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Board, by any two officers of the Corporation, or by the holders of a majority of the stock entitled to vote of the Corporation, and such meeting shall be held on such date and at such place and hour as shall be designated in the notice thereof.
Section 3. Notice of Meetings. Notice of each meeting of the stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to notice of, or to vote at, such meeting by delivering a typewritten or printed notice thereof to such stockholder personally or by depositing such notice in the United States mail, postage prepaid, directed to such stockholder at his or her address as it appears on the stock record of the Corporation or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. Every such notice shall state the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned meeting of the stockholders shall not be required to be given if the time and place thereof are announced at the meeting at which the adjournment is taken, the adjourned meeting is held within 30 days thereafter and a new record date for the adjourned meeting is not thereafter fixed.
Section 4. Quorum and Manner of Acting. If stockholders holding of record a majority of the shares of stock of the Corporation entitled to be voted shall be present in person or by proxy, a quorum for the transaction of business at any meeting of the stockholders shall exist. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting, may adjourn such meeting from time to time until stockholders holding the amount of
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stock requisite for a quorum shall be present in person or by proxy. At any 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. The absence from any meeting in person or by proxy of stockholders holding the number of shares of stock of the Corporation required for action upon any given matter shall not prevent action at such meeting upon any other matter which may properly come before the meeting if there shall be present thereat in person or by proxy stockholders holding the number of shares of stock of the Corporation required in respect of such other matter.
Section 5. Organization of Meetings. At each meeting of the stockholders, one of the following shall act as chairman of the meeting and preside thereat, in the following order or precedence:
(a) the Chairman of the Board, or, if he or she is not present or if no person holds such office, any officer of the Corporation designated by the Board; or
(b) any officer of the Corporation designated by a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat.
The person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at each meeting of the stockholders shall be determined by the chairman of the meeting, but such order of business may be changed by the majority in voting interest of those present in person or by proxy at such meeting and entitled to vote thereat.
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Section 7. Voting. Each stockholder shall, at each meeting of the stockholders, be entitled to one vote in person or by proxy for each share of stock of the Corporation which has voting power on the matter in question held by him or her and registered in his or her name on the stock record of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 6 of Article IX of these By-laws as the record date for the determination of stockholders who shall be entitled to receive notice of and to vote at such meeting; or
(b) if no record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of the meeting shall be given, or, if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held, or if no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting shall have been fixed, the day on which the first written consent is expressed. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Any vote of stock of the Corporation may be given at any meeting of the stockholders by the person entitled to vote the same in person or by proxy appointed by an instrument in writing delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date, unless such proxy provides for a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he or she shall in writing so notify the secretary of the meeting prior to the voting
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of the proxy. At all meetings of the stockholders all matters shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat, a quorum being present. Unless otherwise directed by the chairman of the meeting, the vote at any meeting of the stockholders on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his or her proxy if there be such proxy, and shall state the number of shares voted.
Section 8. Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken at any annual or special meeting of such stockholders or may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and any certificate filed with respect to such matter shall state that such written notice has been given.
Section 9. List of Stockholders. It shall be the duty of the officer of the Corporation who shall have charge of the stock ledger or record, either directly or through another officer of the Corporation or agent thereof, to prepare and make, at least 10 days before each meeting of the stockholders, a complete list of the stockholders
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entitled to vote thereat, 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, during ordinary business hours for a period of at least 10 days prior to the meeting, either at the place where the meeting is to be held or at such other place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting. Such list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. The stock record shall be the only evidence as to who are the stockholders entitled to examine the stock record, such list or the books of the Corporation or to vote in person or by proxy at any meeting of the stockholders.
Section 10. Inspectors. Either the Board or, in the absence of a designation of inspectors by the Board, the chairman of the meeting may, in its or his or her discretion, appoint two or more inspectors, who need not be stockholders who shall receive and take charge of ballots and proxies and decide all questions relating to the qualification of those asserting the right to vote and validity of ballots and proxies. In the event of the failure or refusal to serve of any inspector designated by the Board, the chairman of the meeting shall appoint an inspector to act in place of each such inspector designated by the Board. In the absence of a designation of inspectors by the Board and the chairman of the meeting, the secretary of the meeting shall perform the duties which would otherwise have been performed by the inspectors.
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ARTICLE III
Board of Directors
Section 1. General Powers. The property, business, affairs and policies of the Corporation shall be managed by or under the direction of the Board.
Section 2. Number and Term of Office. The number of directors which shall constitute the whole Board shall be one or more persons as such number shall be fixed from time to time by a vote of a majority of the whole Board. (The term whole Board as used in these By-laws shall mean the number of positions on the Board regardless of the number of directors then in office.) Each of the directors of the Corporation shall hold office until the annual meeting after his or her election and until his or her successor shall be elected and qualified or until his or her earlier death or resignation or removal in the manner hereinafter provided.
Section 3. Election. At each annual meeting of the stockholders for the election of directors at which a quorum is present, the persons receiving the greatest number of votes, up to the number of directors to be elected, shall be the directors. Directors need not be stockholders of the Corporation or residents of the State of Delaware.
Section 4. Meetings.
(a) Annual Meetings. As soon as practicable after each annual election of directors, the Board shall meet for the purpose of organization, the election of officers and the transaction of other business.
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(b) Regular Meetings. Regular meetings of the Board or any committee thereof shall be held as the Board or such committee thereof shall from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held then the meeting which would otherwise be held on that day shall be postponed until the next succeeding business day.
(c) Special Meetings. Special Meetings of the Board at which any and all business may be transacted, shall be held whenever called by any two officers or any two directors.
(d) Notice of Meetings. No notice of regular meetings of the Board or of any committee thereof or of any adjourned meeting thereof need be given. Notice shall be given to each director of each special meeting of the Board or adjournment thereof, including the time and place thereof. Such notice shall be given not less than one day before the date of the meeting to each director by delivering a type-written notice thereof to such director personally or by depositing such notice in the United States mail, postage prepaid, directed to such director at his or her residence or usual business address or at such other address as such director shall then be using or by transmitting notice thereof to him or her at such address by telegraph, cable or other form of recorded communication. The purposes of a meeting of the Board or any committee thereof need not be specified in the notice thereof.
(e) Time and Place of Meetings. Regular meetings of the Board or any committee thereof shall be held at such time or times and place or places as the Board or such committee may from time to time determine. Each special meeting of the Board or any committee thereof shall be held at such time and place as the caller or callers thereof may determine. In the absence of such a determination, each regular meeting or special meeting of the Board or any committee thereof shall be held at such time and place as shall be designated in the notices or waiver of notices thereof.
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(f) Quorum and Manner of Acting. One third of the directors then in office and a majority of the members of any committee shall be present in person at any meeting thereof in order to constitute a quorum for the transaction of business at such meeting and the vote of a majority of the directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or for an act to be the act of the Board or such committee. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.
(g) Organization of Meetings. At each meeting of the Board, the Chairman of the Board or, if he or she is not present or if no person holds such office, any director chosen by a majority or the directors present thereat shall act as a chairman of the meeting and preside thereat. The person who the chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof. The order of business at each meeting of the Board shall be determined by the chairman of such meeting.
(h) Consent in Lieu of Meeting. Anything herein to the contrary notwithstanding, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all of the members of the Board or such committee, as the case may be, consent thereto in writing or writings and such writing or writings are filed with the minutes of proceedings of the Board or of such committee.
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(i) Action by Communications Equipment. The directors may participate in a meeting of the Board or any committee thereof by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 5. Compensation. Each director, in consideration of his or her serving as such, shall be entitled to receive from the Corporation such amount per annum and such fees for attendance at meetings of the Board or of any committee, or both, as the Board shall from time to time determine. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him or her on account of his or her attendance at any such meeting. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 6. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any Director may be removed at any time for cause or without cause by vote of the holders of a majority in voting interest of shares then entitled to vote at an election of directors. The vacancy in the Board caused by any such removal may be filled by the stockholders at such meeting or as provided in the next paragraph of these Bylaws. Any director may also be removed at any time for cause by vote of a majority of the whole Board.
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In the case of any vacancy on the Board or in case of any newly created directorship, a director to fill the vacancy or the newly created directorship for the unexpired portion of the term being filled may be elected by a majority of the directors of the Corporation then in office, though less than quorum, or by a sole remaining director. The director elected to fill such vacancy shall hold office for the unexpired term in respect of which such vacancy occurred and until his or her successor shall be elected and shall qualify or until his or her earlier death or resignation or removal in the manner set forth herein.
ARTICLE IV
Committees
Section 1. Number, Appointment, Term of Office, etc. The Board, by resolution or resolutions passed by a majority of the whole Board, may designate one or more committees, each committee to consist of one or more directors then in office. Each member of any such committee shall continue as such only so long as he or she remains a director and may be removed at any time, with or without cause, by a majority of the whole Board. Any vacancy on any committee may be filed at any time by the vote of a majority of the whole Board.
In the absence or in case of the disqualification of a member or members of any such committee, the member or members of such committee present and not disqualified from voting at a meeting of such committee, whether or not he or she or they constitute a quorum, may unanimously appoint another member of the Board to act at such meeting in place of any absent or disqualified member.
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Section 2. Functions and Powers. Each committee shall have such functions and powers as the Board shall deem advisable and, subject to any limitations or restrictions which may be prescribed by resolution of the Board, if an Executive Committee is designated, it shall have and may exercise all the powers and authority of the Board in the management of the property, business, affairs and policies of the Corporation, including the power and authority to declare dividends and to authorize the issuance of stock of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no committee shall have the power or authority to approve amendments to the Certificate of Incorporation of the Corporation, adopt agreements of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all the property and assets of the Corporation or recommend to the stockholders the dissolution of the Corporation or the revocation of a dissolution or amend these By-laws.
Section 3. Rules. Subject to the provisions of these By-laws, each committee by resolution adopted by a majority of all the members thereof shall fix its rules of procedure.
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ARTICLE V
Officers
Section 1. Election, Appointment and Term of Office. The Corporation shall have such officers with such titles as shall be stated in resolutions of the Board, and with such duties as shall be given them as hereinafter provided or as may otherwise be specifically given them by the Board, but such officers shall include at least (a) a Chairman of the Board or one or more Vice Chairman of the Board or a President or one or more Vice Presidents, or any or all of the foregoing, and (b) a Secretary or one or more Assistant Secretaries or a Treasurer or one or more Assistant Treasurers, or any or all of the foregoing. One of such officers shall have the duty to record the proceedings of the meetings of stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person except that at least one person who holds an office referred to in clause (a) of the second preceding sentence shall not be the same as at least one person who holds any office referred to in clause (b) of the second preceding sentence.
Section 2. Resignation, Removal and Vacancies. Any officer may resign at any time by giving written notice of his or her resignation to the Board. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, when accepted by the Board. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Any officer, agent or employee elected or appointed by the Board may be removed, with or without cause, at any time by the Board. Any agent or employee appointed by an officer may be removed, with or without cause, at any time by such officer.
A vacancy in any office may be filled for the unexpired portion of the term in the same manner provided in these By-laws for election or appointment to such office.
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Section 3. Duties and Functions. If any of the following offices is created and a person appointed or elected thereto, and unless the Board otherwise provides, such offices and persons shall have the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or elected he or she shall be a member of the Board; shall preside at meetings of the Board and of the stockholders at which he or she shall be present; shall perform such duties as are incident to the office of the Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of the Board are appointed or elected they shall be members of the Board; shall preside at meetings of the Board and of the stockholders at which they shall be present, unless a Chairman of the Board is appointed or elected and is present; shall perform such duties as are incident to the office of the Vice-Chairman of the Board; and shall perform such other duties as may from time to time be prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the Executive Committee is appointed or elected he or she shall preside at meetings of the Executive Committee at which he or she shall be present; shall when requested consult with and advise the other officers of the Corporation; and shall perform such other duties as may be agreed upon with them or as the Board or the Executive Committee may from time to time determine.
(d) President. If a President is appointed or elected he or she shall be subject to the control of the Board, have general charge and management of the property, business and affairs of the Corporation and shall have the direction of and may assign duties to all other officers (other than the Chairman and any Vice Chairman, if either or both is appointed or elected), agents and employees. He or she shall preside at meetings of the Board and the stockholders unless a Chairman or a Vice Chairman of the Board is appointed or elected and is present.
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(e) Vice Presidents. If any Vice President or Vice Presidents are appointed or elected they shall have such powers and duties as shall be prescribed by the President if one is appointed or elected, or the Board. Vice-Presidents for this purpose shall include Senior, Executive, Assistant and all other categories or types of Vice-Presidents.
(f) Secretary. If a Secretary is appointed or elected he or she shall attend and keep the records of all meetings of the stockholders and the Board in one or more books kept for that purpose; shall give or cause to be given due notice of all meetings in accordance with the By-laws and as required by law; shall notify the several officers of the Corporation of all action taken by the Board concerning matters relating to their duties; shall transmit to the proper officers copies of all contracts and resolutions approved by the Board or any committees of the Board; shall be custodian of the seal of the Corporation and of all contracts, deeds, documents and other corporate papers, records (except accounting records) and indicia of title to properties owned by the Corporation as shall not be committed to the custody of another officer by the President, if one is appointed or elected, or the Board; shall affix or cause to be affixed the seal of the Corporation to instruments requiring the same when the same have been signed on behalf of the Corporation by a duly authorized officer; shall perform all duties and have all powers incident to the office of Secretary; and shall perform such other duties as shall
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be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Secretaries may be appointed or elected, who shall perform all the duties and have all the powers of the Secretary in the absence of or in case of a failure to appoint or elect or when so delegated by the Secretary, and as the President, if one is appointed or elected, or the Board may direct.
(g) Treasurer. If a Treasurer is appointed or elected he or she shall perform all duties incident to the office of Treasurer and such other duties as shall be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Treasurers may be appointed or elected who shall perform all the duties and have all the powers of the Treasurer in the absence of or in the case of a failure to appoint or elect or when so delegated by the Treasurer, and as the President, if one is appointed or elected, or the Board may direct.
(h) Controller. If a controller is appointed or elected he or she shall perform all the duties incident to the office of Controller and such other duties as may be assigned to him or her by the President, if one is appointed or elected, or the Board. One or more Assistant Controllers may be appointed or elected who shall perform all the duties and have all the powers of the Controller in the absence of or in the case of a failure to appoint or elect or when so delegated by the Controller, and as the President, if one is appointed or elected, or the Board may direct.
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ARTICLE VI
Indemnification
Section 1. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor) (a Proceeding) by reason of the fact that such person is or was a director, officer, employee or agent of (a) the Corporation; (b) a corporation in which the Corporation had at the time of such service, directly or indirectly, a fifty percent (50%) or greater equity interest; (c) a not-for-profit corporation if such service is at the request of the Corporation; or (d) any other corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) if such service is at the request of the Corporation (each such entity described in clauses (a) through (d) above are hereinafter referred to as a Covered Entity) against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding that was commenced by such director or officer. Any director or officer of the Corporation entitled to indemnification as provided in this Section 1 is hereinafter called an Indemnitee. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding, payment of any expenses incurred by the Indemnitee in connection with such Proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Article.
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Section 2. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or of any Covered Entity against any expenses, judgments, fines and amounts paid in settlement as specified in Section 1 of this Article or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in Section 1 of this Article, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity in furtherance of the provisions of this Article.
Section 3. Indemnification Not Exclusive Right. The right of indemnification provided in this Article shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any Indemnitee under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption.
Section 4. Indemnification of Employees and Agents. Notwithstanding any other provision or provisions of this Article, the Corporation, to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a director or officer of the Corporation, who is or was an employee or agent of
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the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reason of the fact that such person is or was a director, officer, employee or agent of a Covered Entity against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
ARTICLE VII
Waiver of Notices; Place of Meetings
Section 1. Waiver of Notices. Anything herein to the contrary notwithstanding, whenever notice is required to be given to any director or member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to such notice shall be deemed equivalent to notice, whether given before or after the time specified therein and, in the case of a waiver of notice of a meeting, whether or not such waiver specifies the purpose of or business to be transacted at such meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and does so object.
Section 2. Place of Meetings. Any meeting of the stockholders, the Board or committee may be held within or outside the State of Delaware.
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ARTICLE VIII
Execution and Delivery of Documents; Deposits;
Proxies; Books and Records
Section 1. Execution and Delivery of Documents; Delegation. The Board shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such delegation may be resolution or otherwise and the authority granted shall be general or confirmed to specific matters, all as the Board or any such committee may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
Section 2. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities in Other Corporations. Unless otherwise provided by the Board, any officer of the Corporation shall have the authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and
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rights which the Corporation may have as the holder of stock or other securities in any other corporation, to vote or consent in respect of such stock or securities and to execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, such written proxies, powers of attorney or other instruments as he or she may deem necessary or proper in order that the Corporation may exercise such powers and rights. Such officer may instruct any person or persons appointed as aforesaid as to the manner of exercising such powers and rights.
Section 4. Books and Records. The books and records of the Corporation may be kept at such places within or without the State of Delaware as the proper officers of the Corporation may from time to time determine.
ARTICLE IX
Certificates; Stock Record; Transfer and Registration;
New Certificates; Record Date; etc.
Section 1. Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number of shares owned by him or her in the Corporation and designating the class of stock to which such shares belong, which shall otherwise be in such form as the board shall prescribe. Each such certificate shall be signed by, or in the name of, the Corporation by, the Chairman, a Vice-Chairman, the President or a Vice-President of the Corporation and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any of or all such signatures may be facsimiles. In case any officer or authorized agent who has signed or whose facsimile signature has been placed upon a
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certificate shall have ceased to be such officer or authorized agent before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he or she were such officer or authorized agent at the date of its issue. Every certificate surrendered to the Corporation for exchange or transfer shall be canceled and a new certificate or certificates shall not be issued or exchanged for any existing certificate until such existing certificate shall have been so canceled, except in cases provided for in Section 4 of this Article.
Section 2. Stock Record. A stock record in one or more counterparts shall be kept of the name of the person, firm or corporation owning the stock represented by each certificate for stock of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. The person in whose name shares of stock stand on the stock record of the corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
Section 3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of stock which represent the stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Registration. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his or her attorney thereunto authorized by power of attorney duly executed and filed with an officer of the Corporation, and on the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
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Section 4. New Certificates.
(a) Lost, Stolen or Destroyed Certificates. Where a stock certificate has been lost, apparently destroyed or wrongfully taken, the issuance of a new stock certificate or the claims based on such certificate shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code, as amended from time to time).
(b) Mutilated Certificates. Where the holder of any certificate for stock of the Corporation notifies the Corporation of the mutilation of such certificate within a reasonable time after he or she has notice of it, the Corporation will issue a new certificate for stock in exchange for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner of lost, stolen, destroyed or mutilated certificate to give the Corporation a bond in such sum, limited or unlimited, in such form and with such surety or sureties sufficient to indemnify the Corporation against any claim that may be made against it on account of the loss, theft, destruction or mutilation of any such certificate or the issuance of such new certificate.
Section 5. Regulations. The Board may make such rules and regulations as it may deem expedient, concerning the issue, transfer and registration of certificates for stock of the Corporation.
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Section 6. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE X
Seal
Section 1. Seal. The Board shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and the word Delaware.
ARTICLE XI
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on the last day of December in each year, or such other date as the Board may determine.
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ARTICLE XII
Amendments
Section 1. Amendments. These By-laws may be amended, altered or repealed by the vote of a majority of the whole Board, subject to the power of the holders of a majority of the outstanding stock of the Corporation entitled to vote in respect thereof, by their vote given at an annual meeting or any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XIII
Subject to Law
Section 1. Subject to Law. All provisions of these By-laws are subject to requirements of applicable law and the Certificate of Incorporation of the Corporation.
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Exhibit 3.93
CERTIFICATE OF FORMATION
OF
TI ADMINISTRATIVE HOLDINGS LLC
The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the Delaware Limited Liability Company Act), hereby certifies that:
FIRST: The name of the limited liability company (hereinafter called the limited liability company) is TI Administrative Holdings LLC.
SECOND: The address of the registered office and the name and the address of the registered agent of the limited liability company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle.
Executed On: April 6, 2000 |
/s/ Lauren B. Ezrol |
Lauren B. Ezrol, Authorized Person |
Exhibit 3.94
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
TI ADMINISTRATIVE HOLDINGS LLC
This Amended and Restated Limited Liability Company Operating Agreement (this Agreement), dated as of the 24th day of April 2014, is being entered into by Time Inc., a Delaware corporation (the Member).
W I T N E S S E T H
WHEREAS, TI Administrative Holdings LLC (the Company) was formed as a limited liability company on April 6, 2000, under and pursuant to the Delaware Limited Liability Company Act (the Act), Chapter 18, Title 6 of the Delaware Code, as amended from time to time;
WHEREAS, the Member desires to amend and restate any existing Limited Liability Company Agreement of the Company in order to provide, inter alia, for the current and future operations of the Company, and, in general, to set out fully the rights and obligations of the Member and officers of the Company; and
WHEREAS, the Member agrees that its rights, powers, duties and obligations as the Member of the Company shall be governed by the terms and provisions of this Agreement.
NOW, THEREFORE, the Member states as follows:
ARTICLE 1
Formation, Name, Principal
Place of Business and Registered Office
1.1 Rights of Member. Except as otherwise expressly provided in the Companys Certificate of Formation or this Agreement, the rights and obligations of the Member with respect to the Company shall be governed by the Act.
1.2 Principal Place of Business. The principal place of business for the transaction of the business of the Company shall be 1271 Avenue of the Americas, New York, New York 10020. The President (as hereinafter defined), on notice to the Member, may from time to time change the principal office and establish additional offices.
1.3 Registered Office; Registered Agent. The Company shall maintain a registered office in the State of Delaware and a registered agent for service of process in the State of Delaware as required by the Act.
ARTICLE 2
Purpose and Powers of the Company
2.1 Purpose of the Company. The authorized purpose of the Company is to engage in any lawful business, purpose or activity that a limited liability company may engage in under the Act.
2.2 Powers of the Company.
(a) The Company shall have the power, in fulfilling the purpose set forth in Section 2.1, to conduct any business or take any action that is lawful and that is not prohibited by the Act.
(b) The business and affairs of the Company shall be managed exclusively by the Member in accordance with the terms of this Agreement. The Member shall have the power to do any and all acts necessary or convenient to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise, possessed by members under the laws of the State of Delaware.
(c) The Member may authorize by written action any person, including without limitation the Member, to enter into and perform any agreement on behalf of the Company.
ARTICLE 3
Capital Contributions, Capital
Accounts and Voting Rights of the Member
3.1 Term. The term of the Company commenced on the date hereof following the filing of the Certificate of Formation with the Secretary of State of the State of Delaware in accordance with the Act and shall be of unlimited duration unless earlier terminated as hereinafter provided in Section 9.1.
ARTICLE 4
Capital Contributions, Capital
Accounts and Voting Rights of the Member
4.1 Initial Capital Contributions. The Member may make capital contributions to the Company.
4.2 Additional Contributions. The Member shall not have any obligation to contribute additional capital or make any loan to the Company. However, the Member may, from time to time and at its option, make voluntary additional capital contributions to the Company.
4.3 Capital Accounts. A capital account shall be maintained on the books of the Company for the Member. The capital account of the Member shall consist of the Members initial capital contribution to the Company increased by voluntary capital contributions made by the Member pursuant to Section 4.2, if any, and the share of the net income of the Company allocated to the Members capital account pursuant to this Agreement and decreased by the amount of all distributions to the Member and the share of the net losses of the Company allocated to the Members capital account pursuant to this Agreement.
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4.4 Percentage Interests. The percentage interest of the Member in the Company (the Percentage Interest) as of the date hereof is set forth on Exhibit A.
4.5 Members Voting Rights. All decisions relating to the management of the affairs of the Company with respect to any matter whatsoever (including, without limitation, the exclusive right to amend, restate or revoke the Certificate of Formation of the Company and this Agreement) shall be made by the Member.
ARTICLE 5
Profits, Losses, Distributions and Tax Treatment
5.1 Allocations. The Member shall be allocated the net income and net losses of the Company in accordance with its Percentage Interest. Net income or net losses shall be allocated to the Members capital account as soon as practicable after the close of each fiscal year of the Company and at such other times as shall be considered necessary by the Member.
5.2 Distributions. To the extent that net cash flow of the Company is available therefore, and in the good faith determination of the Member, the Company shall make periodic distributions of such net cash flow to the Member at the times and in the aggregate amounts determined by the Member. Notwithstanding any provisions to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.
5.3 Tax Treatment. The Member intends that the Company be disregarded as a separate entity for Federal income tax purposes pursuant to Treasury Regulation Section 301.7701-3. Accordingly, no election to the contrary shall be filed by or on behalf of the Company and all income, gain, loss, deduction and credit of the Company shall be reported by the Member on its own account.
ARTICLE 6
Management
6.1 Officers.
(a) Principal Officers. The Company shall have a President and such other officers as the Member may, from time to time, in its discretion appoint.
(b) Election and Term of Office. Except as specifically provided for herein, the officers of the Company shall be appointed by the Member and each such officer shall hold office at the pleasure of the Member until his or her successor shall have been duly appointed, or until his or her earlier resignation, removal (with or without cause) or death.
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(c) President. The President shall be the Chief Executive Officer of the Company, shall supervise and direct the day-to-day business of the Company and shall see that all orders and resolutions of the Member are carried into effect. He or she shall have such other powers and perform such other duties as may be prescribed from time to time by the Member.
6.2 Powers of Execution. All contracts, deeds and other instruments entered into by the Company shall be signed on behalf of the Company by the Member, by the President, by the officers of the Company or by such other person or persons as the Member may from time to time designate.
6.3 Management. In accordance with Section 18-402 of the Act, management of the Company shall be vested in the Member. The Member shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise, possessed by members of a limited liability company under the laws of the State of Delaware. The Member has the authority to bind the Company.
6.4 Indemnification.
(a) No member, nor any affiliate of a member, nor any officers, directors, shareholders, partners, employees, representatives or agents of a member, or their respective affiliates (each a Covered Person) shall be liable, responsible or accountable in damages or otherwise to the Company or to any other Covered Person for any loss, liability, damage, cost, claim or expense incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company or its activities except by reason of acts or omissions found by a court of competent jurisdiction upon entry of a final judgment to be due to fraud, gross negligence, bad faith or willful or intentional misconduct.
(b) To the fullest extent permitted by applicable law, the Company shall indemnify, defend and hold harmless any Covered Person from and against any and all loss, liability, damage, cost, claim or expense, including reasonable attorneys fees, suffered or incurred in defense of any demands, claims, actions, proceedings or lawsuits against such Covered Person, in or as a result of or relating to its or his or her capacity, actions or omissions as a Covered Person, or concerning the Company or any activities undertaken on behalf of the Company, provided that the acts or omissions of such Covered Person are not found by a court of competent jurisdiction upon entry of a final judgment to be the result of fraud, gross negligence or bad faith or willful or intentional misconduct, or to have violated such a lesser standard of conduct or public policy as under applicable law prevents indemnification hereunder.
(c) Any Covered Person shall be entitled to receive, upon request therefore, to the extent cash or cash equivalent funds are available to the Company, advances to cover the costs of defending any demand, claim, action, proceeding, or lawsuit against such Covered Person, provided that such advances shall be repaid to the Company, with interest, if such officer is found by a court of competent jurisdiction upon entry of a final judgment to have violated the standards for indemnification set forth in the immediately preceding subsection (b) of this Section 6.4.
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ARTICLE 7
Books and Records
7.1 Maintenance of Books and Records. At all times during the existence of the Company, full and accurate books of account and records of the Company shall be maintained and kept at the principal place of business of the Company. All transactions of or relating to the Company and its business shall be entered in such books.
ARTICLE 8
Admission of New Members; Assignments and Resignation
8.1 Admission of New or Substitute Members. No person shall become a member of the Company unless and until he, she or it has been approved in writing by the Member and has executed and delivered to the Company a copy of this Agreement. Upon such admission, a new Exhibit A shall be prepared by the President and circulated to the Member(s).
8.2 Assignments. A member may assign in whole or in part its limited liability company interest. If a member transfers all of its interest in the Company pursuant to this Section, the transferee shall be admitted to the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement. Such admission shall be deemed effective immediately prior to the transfer, and, immediately following such admission, the transferor member shall cease to be a member of the Company.
8.3 Resignation. A member may resign from the Company with the written consent of the Member. If a member is permitted to resign pursuant to this Section, an additional member shall be admitted to the Company, subject to Section 8.1, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement. Such admission shall be deemed effective immediately prior to the resignation, and immediately following such admission, the resigning member shall cease to be a member of the Company.
ARTICLE 9
Dissolution
9.1 Dissolution.
(a) The Company shall be dissolved and its affairs wound up upon the first to occur of either (i) the written consent of the Member(s) or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Except as otherwise provided in this paragraph, the Company shall not be dissolved upon the death, incapacity or bankruptcy of the Member.
(b) Upon the dissolution of the Company, the Company shall cease to engage in any further business, except to the extent necessary to perform existing obligations, and the Member shall wind up its affairs and liquidate or distribute its assets. Except as provided under Section 18-802 of the Act, the Member shall appoint a liquidator (who may, but need not, be the Member) who shall have sole authority and control over the Company business and affairs and shall diligently pursue the winding up of the Company.
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(c) Following dissolution, all of the business and affairs of the Company shall be liquidated and wound up. Upon dissolution, the proceeds of any liquidation shall be applied as follows: (i) first, to pay all expenses of liquidation and winding up; (ii) second, to pay all debts, obligations and liabilities of the Company in the order of priority as provided by law, other than debts owing to the Member in respect of distributions pursuant to Section 18-601 or 18-604 of the Act; (iii) third, to pay all debts of the Company owing to the Member in respect of distributions pursuant to Section 18-601 or 18-604 of the Act; and (iv) fourth, to the Member.
(d) Upon dissolution and completion of the winding up of the Company and distribution of its assets, the President shall cause to be executed and filed with the Secretary of State of the State of Delaware Articles of Dissolution of the Company in accordance with Section 18-203 of the Act.
ARTICLE 10
Miscellaneous Provisions
10.1 Entire Agreement. This Agreement contains the entire agreement of the party with respect to the subject matter hereof, supersedes all prior agreements relating to the subject matter hereof and may not be changed, altered, or amended, except in a written instrument as provided herein.
10.2 Severability. If any provision of this Agreement, or the application thereof to any person or circumstance, is held invalid, the remainder of this Agreement and the application of its provisions to other persons and circumstances shall not be affected thereby.
10.3 Captions. The captions of the respective Articles and Sections of this Agreement are inserted for convenience of reference only and shall not be deemed to affect the meaning of the provisions of this Agreement.
10.4 Governing Law. This Agreement shall be controlled, construed and enforced in accordance with the laws of the State of Delaware without regard to its principles of conflicts of laws.
10.5 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the party hereto and its respective heirs, successors, assigns and legal representatives.
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IN WITNESS WHEREOF, the party hereto has executed and delivered this Agreement as of the date first above written.
TIME INC. |
By: | /s/ Lauren E. Klein |
Name: | Lauren E. Klein | |
Title: | Vice President |
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Exhibit A
Member |
Percentage Interest | |
Time Inc. | 100% |
Exhibit 3.95
CERTIFICATE OF FORMATION
OF
TI BOOKS HOLDINGS LLC
The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the Delaware Limited Liability Company Act), hereby certifies that:
FIRST: The name of the limited liability company (hereinafter called the limited liability company) is TI Books Holdings LLC.
SECOND: The address of the registered office and the name and the address of the registered agent of the limited liability company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle.
Executed On: November 27, 2000
/s/ Lauren B. Ezrol |
Lauren B. Ezrol, Authorized Person |
Exhibit 3.96
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
TI BOOKS HOLDINGS LLC
This Limited Liability Company Operating Agreement (this Agreement), dated as of the 27th day of November 2000, is being made by Time Inc., a Delaware Corporation (the Member).
W I T N E S S E T H
WHEREAS, the Member wishes to form and become the member of a limited liability company to be called TI Books Holdings LLC (the Company), under and pursuant to the Delaware Limited Liability Company Act (the Act), Chapter 18, Title 6 of the Delaware Code, as amended from time to time, for the purposes set forth herein; and
WHEREAS, the Member agrees that its rights, powers, duties and obligations as the Member of the Company shall be governed by the terms and provisions of this Agreement.
NOW, THEREFORE, the Member states as follows:
ARTICLE 1
Formation, Name, Principal
Place of Business and Registered Office
1.1 Formation. The Member hereby organizes the Company, to be known as TI Books Holdings LLC pursuant to the Act. Except as otherwise expressly provided in the Companys Certificate of Formation or this Agreement, the rights and obligations of the Member with respect to the Company shall be governed by the Act.
1.2 Principal Place of Business. The principal place of business for the transaction of the business of the Company Shall be 1271 Avenue of the Americas, New York, New York 10020. The President (as hereinafter defined), on notice to the Member, may from time to time change the principal office and establish additional offices.
1.3 Registered Office; Registered Agent. The Company shall maintain a registered office in the State of Delaware and a registered agent for service of process in the State of Delaware as required by the Act.
ARTICLE 2
Purpose and Powers of the Company
2.1 Purpose of the Company. The authorized purpose of the Company is to engage in any lawful business, purpose or activity that a limited liability company may engage in under the Act.
2.2 Powers of the Company.
(a) The Company shall have the power, in fulfilling the purpose set forth in Section 2.1, to conduct any business or take any action that is lawful and that is not prohibited by the Act.
(b) The business and affairs of the Company shall be managed exclusively by the Member in accordance with the terms of this Agreement. The Member shall have the power to do any and all acts necessary or convenient to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise, possessed by members under the laws of the State of Delaware.
(c) The Member may authorize by written action any person, including without limitation the Member, to enter into and perform any agreement on behalf of the Company.
ARTICLE 3
Capital Contributions, Capital
Accounts and Voting Rights of the Member
3.1 Term. The term of the Company commenced on the date hereof following the filing of the Certificate of Formation with the Secretary of State of the State of Delaware in accordance with the Act and shall be of unlimited duration unless earlier terminated as hereinafter provided in Section 9.1.
ARTICLE 4
Capital Contributions, Capital
Accounts and Voting Rights of the Member
4.1 Initial Capital Contributions. As its initial capital contribution to the Company the Member is contributing simultaneously herewith cash, and no other property, in the aggregate amount reflected in Exhibit A hereto.
4.2 Additional Contributions. The Member shall not have any obligation to contribute additional capital or make any loan to the Company. However, the Member may, from time to time and at its option, make voluntary additional capital contributions to the Company.
4.3 Capital Accounts. A capital account shall be maintained on the books of the Company for the Member. The capital account of the Member shall consist of the Members initial capital contribution to the Company increased by voluntary capital contributions made by the Member pursuant to Section 4.2, if any, and the share of the net income of the Company allocated to the Members capital account pursuant to this Agreement and decreased by the amount of all distributions to the Member and the share of the net losses of the Company allocated to the Members capital account pursuant to this Agreement.
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4.4 Percentage Interests. The percentage interest of the Member in the Company (the Percentage Interest) as of the date hereof is set forth on Exhibit A.
4.5 Members Voting Rights. All decisions relating to the management of the affairs of the Company with respect to any matter whatsoever (including, without limitation, the exclusive right to amend, restate or revoke the Certificate of Formation of the Company and this Agreement) shall be made by the Member.
ARTICLE 5
Profits, Losses, Distributions and Tax Treatment
5.1 Allocations. The Member shall be allocated the net income and net losses of the Company in accordance with its Percentage Interest. Net income or net losses shall be allocated to the Members capital account as soon as practicable after the close of each fiscal year of the Company and at such other times as shall be considered necessary by the Member.
5.2 Distributions. To the extent that net cash flow of the Company is available therefore, and in the good faith determination of the Member, the Company shall make periodic distributions of such net cash flow to the Member at the times and in the aggregate amounts determined by the Member. Notwithstanding any provisions to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.
5.3 Tax Treatment. The Member intends that the Company be disregarded as a separate entity for Federal income tax purposes pursuant to Treasury Regulation Section 301.7701-3. Accordingly, no election to the contrary shall be filed by or on behalf of the Company and all income, gain, loss, deduction and credit of the Company shall be reported by the Member on its own account.
ARTICLE 6
Management
6.1 Officers.
(a) Principal Officers. The Company shall have a President and such other officers as the Member may, from time to time, in its discretion appoint.
(b) Election and Term of Office. Except as specifically provided for herein, the officers of the Company shall be appointed by the Member and each such officer shall hold office at the pleasure of the Member until his or her successor shall have been duly appointed, or until his or her earlier resignation, removal (with or without cause) or death.
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(c) President. The President shall be the Chief Executive Officer of the Company, shall supervise and direct the day-to-day business of the Company and shall see that all orders and resolutions of the Member are carried into effect. He or she shall have such other powers and perform such other duties as may be prescribed from time to time by the Member.
6.2 Powers of Execution. All contracts, deeds and other instruments entered into by the Company shall be signed on behalf of the Company by the Member, by the President, by the officers of the Company or by such other person or persons as the Member may from time to time designate.
6.3 Management. In accordance with Section 18-402 of the Act, management of the Company shall be vested in the Member. The Member shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise, possessed by members of a limited liability company under the laws of the State of Delaware. The Member has the authority to bind the Company.
6.4 Indemnification.
(a) No member, nor any affiliate of a member, nor any officers, directors, shareholders, partners, employees, representatives or agents of a member, or their respective affiliates (each a Covered Person) shall be liable responsible or accountable in damages or otherwise to the Company or to any other Covered Person for any loss, liability, damage, cost, claim or expense incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company or its activities except by reason of acts or omissions found by a court of competent jurisdiction upon entry of a final judgment to be due to fraud, gross negligence, bad faith or willful or intentional misconduct.
(b) To the fullest extent permitted by applicable law, the Company shall indemnify, defend and hold harmless any Covered Person from and against any and all loss, liability, damage, cost, claim or expense, including reasonable attorneys fees, suffered or incurred in defense of any demands, claims, actions, proceedings or lawsuits against such Covered Person, in or as a result of or relating to its or his or her capacity, actions or omissions as a Covered Person, or concerning the Company or any activities undertaken on behalf of the Company, provided that the acts or omissions of such Covered Person are not found by a court of competent jurisdiction upon entry of a final judgment to be the result of fraud, gross negligence or bad faith or willful or intentional misconduct, or to have violated such a lesser standard of conduct or public policy as under applicable law prevents indemnification hereunder.
(c) Any Covered Person shall be entitled to receive, upon request therefore, to the extent cash or cash equivalent funds are available to the Company, advances to cover the costs of defending any demand, claim, action, proceeding, or lawsuit against such Covered Person, provided that such advances shall be repaid to the Company, with interest, if such officer is found by a court of competent jurisdiction upon entry of a final judgment to have violated the standards for indemnification set forth in the immediately preceding subsection (b) of this Section 6.4.
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ARTICLE 7
Books and Records
7.1 Maintenance of Books and Records. At all times during the existence of the Company, full and accurate books of account and records of the Company shall be maintained and kept at the principal place of business of the Company. All transactions of or relating to the Company and its business shall be entered in such books.
ARTICLE 8
Admission of New Members;
Assignments and Resignation
8.1 Admission of New or Substitute Members. No person shall become a member of the Company unless and until he, she or it has been approved in writing by the Member and has executed and delivered to the Company a copy of this Agreement Upon such admission, a new Exhibit A shall be prepared by the President and circulated to the Member(s).
8.2 Assignments. A member may assign in whole or in part its limited liability company interest. If a member transfers all of its interest in the Company pursuant to this Section, the transferee shall be admitted to the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement. Such admission shall be deemed effective immediately prior to the transfer, and, immediately following such admission, the transferor member shall cease to be a member of the Company.
8.3 Resignation. A member may resign from the Company with the written consent of the Member. If a member is permitted to resign pursuant to this Section, an additional member shall be admitted to the Company, subject to Section 8.1, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement. Such admission shall be deemed effective immediately prior to the resignation, and immediately following such admission, the resigning member shall cease to be a member of the Company.
ARTICLE 9
Dissolution
9.1 Dissolution.
(a) The Company shall be dissolved and its affairs wound up upon the first to occur of either (i) the written consent of the Member(s) or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Except as otherwise provided in this paragraph, the Company shall not be dissolved upon the death, incapacity or bankruptcy of the Member.
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(b) Upon the dissolution of the Company, the Company shall cease to engage in any further business, except to the extent necessary to perform existing obligations, and the Member shall wind up its affairs and liquidate or distribute its assets. Except as provided under Section 18-802 of the Act, the Member shall appoint a liquidator (who may, but need not, be the Member) who shall have sole authority and control over the Company business and affairs and shall diligently pursue the winding up of the Company.
(c) Following dissolution, all of the business and affairs of the Company shall be liquidated and wound up. Upon dissolution, the proceeds of any liquidation shall be applied as follows: (i) first, to pay all expenses of liquidation and winding up; (ii) second, to pay all debts, obligations and liabilities of the Company in the order of priority as provided by law, other than debts owing to the Member in respect of distributions pursuant to Section 18-601 or 18-604 of the Act; (iii) third, to pay all debts of the Company owing to the Member in respect of distributions pursuant to Section 18-601 or 18-604 of the Act; and (iv) fourth, to the Member.
(d) Upon dissolution and completion of the winding up of the Company and distribution of its assets, the President shall cause to be executed and filed with the Secretary of State of the State of Delaware Articles of Dissolution of the Company in accordance with Section 18-203 of the Act.
ARTICLE 10
Miscellaneous Provisions
10.1 Entire Agreement. This Agreement contains the entire agreement of the party with respect to the subject matter hereof, supersedes all prior agreements relating to the subject matter hereof and may not be changed, altered, or amended, except in a written instrument as provided herein.
10.2 Severability. If any provision of this Agreement, or the application thereof to any person or circumstance, is held invalid, the remainder of this Agreement and the application of its provisions to other persons and circumstances shall not be affected thereby.
10.3 Captions. The captions of the respective Articles and Sections of this Agreement are inserted for convenience of reference only and shall not be deemed to affect the meaning of the provisions of this Agreement.
10.4 Governing Law. This Agreement shall be controlled, construed and enforced in accordance with the laws of the State of Delaware without regard to its principles of conflicts of laws.
10.5 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the party hereto and its respective heirs, successors, assigns and legal representatives.
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IN WITNESS WHEREOF, the party hereto has executed and delivered this Agreement as of the date first above written.
TIME INC. |
By: | /s/ Lauren B. Ezrol |
Name: | Lauren B. Ezrol | |
Title: | Assistant Secretary |
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Exhibit A
Member |
Initial Capital Contribution |
Percentage Interest |
||||||
TIME INC. |
$ | 1.00 | 100 | % |
8
Exhibit 3.97
CERTIFICATE OF FORMATION
OF
TI CIRCULATION HOLDINGS LLC
The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the Delaware Limited Liability Company Act), hereby certifies that:
FIRST: The name of the limited liability company (hereinafter called the limited liability company) is TI Circulation Holdings LLC.
SECOND: The address of the registered office and the name and the address of the registered agent of the limited liability company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are the Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle.
Executed On: November 29, 1999
/s/ Lauren B. Ezrol |
Lauren B. Ezrol, Authorized Person |
Exhibit 3.98
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
TI CIRCULATION HOLDINGS LLC
This Limited Liability Company Operating Agreement (this Agreement), dated as of the 29th day of November 1999, is being made by Time Inc., a Delaware corporation (the Member).
W I T N E S S E T H
WHEREAS, the Member wishes to form and become the member of a limited liability company to be called TI Circulation Holdings LLC (the Company), under and pursuant to the Delaware Limited Liability Company Act (the Act), Chapter 18, Title 6 of the Delaware Code, as amended from time to time, for the purposes set forth herein; and
WHEREAS, the Member agrees that its rights, powers, duties and obligations as the Member of the Company shall be governed by the terms and provisions of this Agreement.
NOW, THEREFORE, the Member states as follows:
ARTICLE 1
Formation, Name, Principal
Place of Business and Registered Office
1.1 Formation. The Member hereby organizes the Company, to be known as TI Circulation Holdings LLC pursuant to the Act. Except as otherwise expressly provided in the Companys Certificate of Formation or this Agreement, the rights and obligations of the Member with respect to the Company shall be governed by the Act.
1.2 Principal Place of Business. The principal place of business for the transaction of the business of the Company shall be 1271 Avenue of the Americas, New York, New York 10020. The President (as hereinafter defined), on notice to the Member, may from time to time change the principal office and establish additional offices.
1.3 Registered Office; Registered Agent. The Company shall maintain a registered office in the State of Delaware and a registered agent for service of process in the State of Delaware as required by the Act.
ARTICLE 2
Purpose and Powers of the Company
2.1 Purpose of the Company. The authorized purpose of the Company is to engage in any lawful business, purpose or activity that a limited liability company may engage in under the Act.
2.2 Powers of the Company.
(a) The Company shall have the power, in fulfilling the purpose set forth in Section 2.1, to conduct any business or take any action that is lawful and that is not prohibited by the Act.
(b) The business and affairs of the Company shall be managed exclusively by the Member in accordance with the terms of this Agreement. The Member shall have the power to do any and all acts necessary or convenient to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise, possessed by members under the laws of the State of Delaware.
(c) The Member may authorize by written action any person, including without limitation the Member, to enter into and perform any agreement on behalf of the Company.
ARTICLE 3
Capital Contributions, Capital
Accounts and Voting Rights of the Member
3.1 Term. The term of the Company commenced on the date hereof following the filing of the Certificate of Formation with the Secretary of State of the State of Delaware in accordance with the Act and shall be of unlimited duration unless earlier terminated as hereinafter provided in Section 9.1.
ARTICLE 4
Capital Contributions, Capital
Accounts and Voting Rights of the Member
4.1 Initial Capital Contributions. As its initial capital contribution to the Company the Member is contributing simultaneously herewith cash, and no other property, in the aggregate amount reflected in Exhibit A hereto.
4.2 Additional Contributions. The Member shall not have any obligation to contribute additional capital or make any loan to the Company. However, the Member may, from time to time and at its option, make voluntary additional capital contributions to the Company.
4.3 Capital Accounts. A capital account shall be maintained on the books of the Company for the Member. The capital account of the Member shall consist of the Members initial capital contribution to the Company increased by voluntary capital contributions made by the Member pursuant to Section 4.2, if any, and the share of the net income of the Company allocated to the Members capital account pursuant to this Agreement and decreased by the amount of all distributions to the Member and the share of the net losses of the Company allocated to the Members capital account pursuant to this Agreement.
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4.4 Percentage Interests. The percentage interest of the Member in the Company (the Percentage Interest) as of the date hereof is set forth on Exhibit A.
4.5 Members Voting Rights. All decisions relating to the management of the affairs of the Company with respect to any matter whatsoever (including, without limitation, the exclusive right to amend, restate or revoke the Certificate of Formation of the Company and this Agreement) shall be made by the Member.
ARTICLE 5
Profits, Losses, Distributions and Tax Treatment
5.1 Allocations. The Member shall be allocated the net income and net losses of the Company in accordance with its Percentage Interest. Net income or net losses shall be allocated to the Members capital account as soon as practicable after the close of each fiscal year of the Company and at such other times as shall be considered necessary by the Member.
5.2 Distributions. To the extent that net cash flow of the Company is available therefore, and in the good faith determination of the Member, the Company shall make periodic distributions of such net cash flow to the Member at the times and in the aggregate amounts determined by the Member. Notwithstanding any provisions to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.
5.3 Tax Treatment. The Member intends that the Company be disregarded as a separate entity for Federal income tax purposes pursuant to Treasury Regulation Section 301.7701-3. Accordingly, no election to the contrary shall be filed by or on behalf of the Company and all income, gain, loss, deduction and credit of the Company shall be reported by the Member on its own account.
ARTICLE 6
Management
6.1 Officers.
(a) Principal Officers. The Company shall have a President and such other officers as the Member may, from time to time, in its discretion appoint.
(b) Election and Term of Office. Except as specifically provided for herein, the officers of the Company shall be appointed by the Member and each such officer shall hold office at the pleasure of the Member until his or her successor shall have been duly appointed, or until his or her earlier resignation, removal (with or without cause) or death.
(c) President. The President shall be the Chief Executive Officer of the Company, shall supervise and direct the day-to-day business of the Company and shall see that all orders and resolutions of the Member are carried into effect. He or she shall have such other powers and perform such other duties as may be prescribed from time to time by the Member.
3
6.2 Powers of Execution. All contracts, deeds and other instruments entered into by the Company shall be signed on behalf of the Company by the Member, by the President, by the officers of the Company or by such other person or persons as the Member may from time to time designate.
6.3 Management. In accordance with Section 18-402 of the Act, management of the Company shall be vested in the Member. The Member shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise, possessed by members of a limited liability company under the laws of the State of Delaware. The Member has the authority to bind the Company.
6.4 Indemnification.
(a) No member, nor any affiliate of a member, nor any officers, directors, shareholders, partners, employees, representatives or agents of a member, or their respective affiliates (each a Covered Person) shall be liable, responsible or accountable in damages or otherwise to the Company or to any other Covered Person for any loss, liability, damage, cost, claim or expense incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company or its activities except by reason of acts or omissions found by a court of competent jurisdiction upon entry of a final judgment to be due to fraud, gross negligence, bad faith or willful or intentional misconduct.
(b) To the fullest extent permitted by applicable law, the Company shall indemnify, defend and hold harmless any Covered Person from and against any and all loss, liability, damage, cost, claim or expense, including reasonable attorneys fees, suffered or incurred in defense of any demands, claims, actions, proceedings or lawsuits against such Covered Person, in or as a result of or relating to its or his or her capacity, actions or omissions as a Covered Person, or concerning the Company or any activities undertaken on behalf of the Company, provided that the acts or omissions of such Covered Person are not found by a court of competent jurisdiction upon entry of a final judgment to be the result of fraud, gross negligence or bad faith or willful or intentional misconduct, or to have violated such a lesser standard of conduct or public policy as under applicable law prevents indemnification hereunder.
(c) Any Covered Person shall be entitled to receive, upon request therefor, to the extent cash or cash equivalent funds are available to the Company, advances to cover the costs of defending any demand, claim, action, proceeding, or lawsuit against such Covered Person, provided that such advances shall be repaid to the Company, with interest, if such officer is found by a court of competent jurisdiction upon entry of a final judgment to have violated the standards for indemnification set forth in the immediately preceding subsection (b) of this Section 6.4.
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ARTICLE 7
Books and Records
7.1 Maintenance of Books and Records. At all times during the existence of the Company, full and accurate books of account and records of the Company shall be maintained and kept at the principal place of business of the Company. All transactions of or relating to the Company and its business shall be entered in such books.
ARTICLE 8
Admission of New Members; Assignments
and Resignation
8.1 Admission of New or Substitute Members. No person shall become a member of the Company unless and until he, she or it has been approved in writing by the Member and has executed and delivered to the Company a copy of this Agreement. Upon such admission, a new Exhibit A shall be prepared by the President and circulated to the Member(s).
8.2 Assignments. A member may assign in whole or in part its limited liability company interest. If a member transfers all of its interest in the Company pursuant to this Section, the transferee shall be admitted to the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement. Such admission shall be deemed effective immediately prior to the transfer, and, immediately following such admission, the transferor member shall cease to be a member of the Company.
8.3 Resignation. A member may resign from the Company with the written consent of the Member. If a member is permitted to resign pursuant to this Section, an additional member shall be admitted to the Company, subject to Section 8.1, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement. Such admission shall be deemed effective immediately prior to the resignation, and immediately following such admission, the resigning member shall cease to be a member of the Company.
ARTICLE 9
Dissolution
9.1 Dissolution.
(a) The Company shall be dissolved and its affairs wound up upon the first to occur of either (i) the written consent of the Member(s) or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Except as otherwise provided in this paragraph, the Company shall not be dissolved upon the death, incapacity or bankruptcy of the Member.
(b) Upon the dissolution of the Company, the Company shall cease to engage in any further business, except to the extent necessary to perform existing obligations, and the Member shall wind up its affairs and liquidate or distribute its assets. Except as provided under Section 18-802 of the Act, the Member shall appoint a liquidator (who may, but need not, be the Member) who shall have sole authority and control over the Company business and affairs and shall diligently pursue the winding up of the Company.
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(c) Following dissolution, all of the business and affairs of the Company shall be liquidated and wound up. Upon dissolution, the proceeds of any liquidation shall be applied as follows: (i) first, to pay all expenses of liquidation and winding up; (ii) second, to pay all debts, obligations and liabilities of the Company in the order of priority as provided by law, other than debts owing to the Member in respect of distributions pursuant to Section 18-601 or 18-604 of the Act; (iii) third, to pay all debts of the Company owing to the Member in respect of distributions pursuant to Section 18-601 or 18-604 of the Act; and (iv) fourth, to the Member.
(d) Upon dissolution and completion of the winding up of the Company and distribution of its assets, the President shall cause to be executed and filed with the Secretary of State of the State of Delaware Articles of Dissolution of the Company in accordance with Section 18-203 of the Act.
ARTICLE 10
Miscellaneous Provisions
10.1 Entire Agreement. This Agreement contains the entire agreement of the party with respect to the subject matter hereof, supersedes all prior agreements relating to the subject matter hereof and may not be changed, altered, or amended, except in a written instrument as provided herein.
10.2 Severability. If any provision of this Agreement, or the application thereof to any person or circumstance, is held invalid, the remainder of this Agreement and the application of its provisions to other persons and circumstances shall not be affected thereby.
10.3 Captions. The captions of the respective Articles and Sections of this Agreement are inserted for convenience of reference only and shall not be deemed to affect the meaning of the provisions of this Agreement.
10.4 Governing Law. This Agreement shall be controlled, construed and enforced in accordance with the laws of the State of Delaware without regard to its principles of conflicts of laws.
10.5 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the party hereto and its respective heirs, successors, assigns and legal representatives.
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IN WITNESS WHEREOF, the party hereto has executed and delivered this Agreement as of the date first above written.
TIME INC. | ||
By: | /s/ Lauren Ezrol |
Name: | Lauren Ezrol | |
Title: | Asst. Sec |
7
Exhibit A
Member |
Initial Capital Contribution | Percentage Interest | ||||||
Time Inc. |
$ | 1.00 | 100 | % |
Exhibit 3.99
CERTIFICATE OF FORMATION
OF
TI CORPORATE HOLDINGS LLC
The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the Delaware Limited Liability Company Act), hereby certifies that:
FIRST: The name of the limited liability company (hereinafter called the limited liability company) is TI Corporate Holdings LLC.
SECOND: The address of the registered office and the name and the address of the registered agent of the limited liability company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle.
Executed On: November 27, 2000
/s/ Lauren B. Ezrol |
Lauren B. Ezrol, Authorized Person |
Exhibit 3.100
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
TI CORPORATE HOLDINGS LLC
This Limited Liability Company Operating Agreement (this Agreement), dated as of the 3rd day of December 2002, is being made by Time Inc., a Delaware corporation (the Member).
W I T N E S S E T H
WHEREAS, the Member wishes to form and become the member of a limited liability company to be called TI Corporate Holdings LLC (the Company), under and pursuant to the Delaware Limited Liability Company Act (the Act), Chapter 18, Title 6 of the Delaware Code, as amended from time to time, for the purposes set forth herein; and
WHEREAS, the Member agrees that its rights, powers, duties and obligations as the Member of the Company shall be governed by the terms and provisions of this Agreement.
NOW, THEREFORE, the Member states as follows:
ARTICLE 1
Formation, Name, Principal
Place of Business and Registered Office
1.1 Formation. The Member hereby organizes the Company, to be known as Time Direct Ventures LLC pursuant to the Act. Except as otherwise expressly provided in the Companys Certificate of Formation or this Agreement, the rights and obligations of the Member with respect to the Company shall be governed by the Act.
1.2 Principal Place of Business. The principal place of business for the transaction of the business of the Company shall be 1271 Avenue of the Americas, New York, New York 10020. The President (as hereinafter defined), on notice to the Member, may from time to time change the principal office and establish additional offices.
1.3 Registered Office; Registered Agent. The Company shall maintain a registered office in the State of Delaware and a registered agent for service of process in the State of Delaware as required by the Act.
ARTICLE 2
Purpose and Powers of the Company
2.1 Purpose of the Company. The authorized purpose of the Company is to engage in any lawful business, purpose or activity that a limited liability company may engage in under the Act.
2.2 Powers of the Company.
(a) The Company shall have the power, in fulfilling the purpose set forth in Section 2.1, to conduct any business or take any action that is lawful and that is not prohibited by the Act.
(b) The business and affairs of the Company shall be managed exclusively by the Member in accordance with the terms of this Agreement. The Member shall have the power to do any and all acts necessary or convenient to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise, possessed by members under the laws of the State of Delaware.
(c) The Member may authorize by written action any person, including without limitation the Member, to enter into and perform any agreement on behalf of the Company.
ARTICLE 3
Capital Contributions, Capital
Accounts and Voting Rights of the Member
3.1 Term. The term of the Company commenced on the date hereof following the filing of the Certificate of Formation with Secretary of State of the State of Delaware in accordance with the Act and shall be of unlimited duration unless earlier terminated as hereinafter provided in Section 9.1.
ARTICLE 4
Capital Contributions, Capital
Accounts and Voting Rights of the Member
4.1 Initial Capital Contributions. As its initial capital contribution to the Company the Member is contributing simultaneously herewith cash, and no other property, in the aggregate amount reflected in Exhibit A hereto.
4.2 Additional Contributions. The Member shall not have any obligation to contribute additional capital or make any loan to the Company. However, the Member may, from time to time and at its option, make voluntary additional capital contributions to the Company.
4.3 Capital Accounts. A capital account shall be maintained on the books of the Company for the Member. The capital account of the Member shall consist of the Members initial capital contribution to the Company increased by voluntary capital contributions made by the Member pursuant to Section 4.2, if any, and the share of the net income of the Company allocated to the Members capital account pursuant to this Agreement and decreased by the amount of all distributions to the Member and the share of the net losses of the Company allocated to the Members capital account pursuant to this Agreement.
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4.4 Percentage Interests. The percentage interest of the Member in the Company (the Percentage Interest) as of the date hereof is set forth on Exhibit A.
4.5 Members Voting Rights. All decisions relating to the management of the affairs of the Company with respect to any matter whatsoever (including, without limitation, the exclusive right to amend, restate or revoke the Certificate of Formation of the Company and this Agreement) shall be made by the Member.
ARTICLE 5
Profits, Losses, Distributions and Tax Treatment
5.1 Allocations. The Member shall be allocated the net income and net losses of the Company in accordance with its Percentage Interest. Net income or net losses shall be allocated to the Members capital account as soon as practicable after the close of each fiscal year of the Company and at such other times as shall be considered necessary by the Member.
5.2 Distributions. To the extent that net cash flow of the Company is available therefore, and in the good faith determination of the Member, the Company shall make periodic distributions of such net cash flow to the Member at the times and in the aggregate amounts determined by the Member. Notwithstanding any provisions to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.
5.3 Tax Treatment. The Member intends that the Company be disregarded as a separate entity for Federal income tax purposes pursuant to Treasury Regulation Section 301.7701-3. Accordingly, no election to the contrary shall be filed by or on behalf of the Company and all income, gain, loss, deduction and credit of the Company shall be reported by the Member on its own account.
ARTICLE 6
Management
6.1 Officers.
(a) Principal Officers. The Company shall have a President and such other officers as the Member may, from time to time, in its discretion appoint.
(b) Election and Term of Office. Except as specifically provided for herein, the officers of the Company shall be appointed by the Member and each such officer shall hold office at the pleasure of the Member until his or her successor shall have been duly appointed, or until his or her earlier resignation, removal (with or without cause) or death.
(c) President. The President shall be the Chief Executive Officer of the Company, shall supervise and direct the day-to-day business of the Company and shall see that all orders and resolutions of the Member are carried into effect. He or she shall have such other powers and perform such other duties as may be prescribed from time to time by the Member.
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6.2 Powers of Execution. All contracts, deeds and other instruments entered into by the Company shall be signed on behalf of the Company by the Member, by the President, by the officers of the Company or by such other person or persons as the Member may from time to time designate.
6.3 Management. In accordance with Section 18-402 of the Act, management of the Company shall be vested in the Member. The Member shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise, possessed by members of a limited liability company under the laws of the State of Delaware. The Member has the authority to bind the Company.
6.4 Indemnification.
(a) No member, nor any affiliate of a member, nor any officers, directors, shareholders, partners, employees, representatives or agents of a member, or their respective affiliates (each a Covered Person) shall be liable, responsible or accountable in damages or otherwise to the Company or to any other Covered Person for any loss, liability, damage, cost, claim or expense incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company or its activities except by reason of acts or omissions found by a court of competent jurisdiction upon entry of a final judgment to be due to fraud, gross negligence, bad faith or willful or intentional misconduct.
(b) To the fullest extent permitted by applicable law, the Company shall indemnify, defend and hold harmless any Covered Person from and against any and all loss, liability, damage, cost, claim or expense, including reasonable attorneys fees, suffered or incurred in defense of any demands, claims, actions, proceedings or lawsuits against such Covered Person, in or as a result of or relating to its or his or her capacity, actions or omissions as a Covered Person, or concerning the Company or any activities undertaken on behalf of the Company, provided that the acts or omissions of such Covered Person are not found by a court of competent jurisdiction upon entry of a final judgment to be the result of fraud, gross negligence or bad faith or willful or intentional misconduct, or to have violated such a lesser standard of conduct or public policy as under applicable law prevents indemnification hereunder.
(c) Any Covered Person shall be entitled to receive, upon request therefore, to the extent cash or cash equivalent funds are available to the Company, advances to cover the costs of defending any demand, claim, action, proceeding, or lawsuit against such Covered Person, provided that such advances shall be repaid to the Company, with interest, if such officer is found by a court of competent jurisdiction upon entry of a final judgment to have violated the standards for indemnification set forth in the immediately preceding subsection (b) of this Section 6.4.
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ARTICLE 7
Books and Records
7.1 Maintenance of Books and Records. At all times during the existence of the Company, full and accurate books of account and records of the Company shall be maintained and kept at the principal place of business of the Company. All transactions of or relating to the Company and its business shall be entered in such books.
ARTICLE 8
Admission of New Members; Assignments
and Resignation
8.1 Admission of New or Substitute Members. No person shall become a member of the Company unless and until he, she or it has been approved in writing by the Member and has executed and delivered to the Company a copy of this Agreement. Upon such admission, a new Exhibit A shall be prepared by the President and circulated to the Member(s).
8.2 Assignments. A member may assign in whole or in part its limited liability company interest. If a member transfers all of its interest in the Company pursuant to this Section, the transferee shall be admitted to the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement. Such admission shall be deemed effective immediately prior to the transfer, and, immediately following such admission, the transferor member shall cease to be a member of the Company.
8.3 Resignation. A member may resign from the Company with the written consent of the Member. If a member is permitted to resign pursuant to this Section, an additional member shall be admitted to the Company, subject to Section 8.1, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement. Such admission shall be deemed effective immediately prior to the resignation, and immediately following such admission, the resigning member shall cease to be a member of the Company.
ARTICLE 9
Dissolution
9.1 Dissolution.
(a) The Company shall be dissolved and its affairs wound up upon the first to occur of either (i) the written consent of the Member(s) or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Except as otherwise provided in this paragraph, the Company shall not be dissolved upon the death, incapacity or bankruptcy of the Member.
(b) Upon the dissolution of the Company, the Company shall cease to engage in any further business, except to the extent necessary to perform existing obligations, and the Member shall wind up its affairs and liquidate or distribute its assets. Except as provided under Section 18-802 of the Act, the Member shall appoint a liquidator (who may, but need not, be the Member) who shall have sole authority and control over the Company business and affairs and shall diligently pursue the winding up of the Company.
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(c) Following dissolution, all of the business and affairs of the Company shall be liquidated and wound up. Upon dissolution, the proceeds of any liquidation shall be applied as follows: (i) first, to pay all expenses of liquidation and winding up; (ii) second, to pay all debts, obligations and liabilities of the Company in the order of priority as provided by law, other than debts owing to the Member in respect of distributions pursuant to Section 18-601 or 18-604 of the Act; (iii) third, to pay all debts of the Company owing to the Member in respect of distributions pursuant to Section 18-601 or 18-604 of the Act; and (iv) fourth, to the Member.
(d) Upon dissolution and completion of the winding up of the Company and distribution of its assets, the President shall cause to be executed and filed with the Secretary of State of the State of Delaware Articles of Dissolution of the Company in accordance with Section 18-203 of the Act.
ARTICLE 10
Miscellaneous Provisions
10.1 Entire Agreement. This Agreement contains the entire agreement of the party with respect to the subject matter hereof, supersedes all prior agreements relating to the subject matter hereof and may not be changed, altered or amended, except in a written instrument as provided herein.
10.2 Severability. If any provision of this Agreement, or the application thereof to any person or circumstance, is held invalid, the remainder of this Agreement and the application of its provisions to other persons and circumstances shall not be affected thereby.
10.3 Captions. The captions of the respective Articles and Sections of this Agreement are inserted for convenience of reference only and shall not be deemed to affect the meaning of the provisions of this Agreement.
10.4 Governing Law. This Agreement shall be controlled, construed and enforced in accordance with the laws of the State of Delaware without regard to its principles of conflicts of laws.
10.5 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the party hereto and its respective heirs, successors, assigns and legal representatives.
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IN WITNESS WHEREOF, the party hereto has executed and delivered this Agreement as of the date first above written.
TIME INC. | ||
By: | /s/ Lauren Ezrol Klein | |
Name: Lauren Ezrol Klein | ||
Title: Asst. Sec. |
7
Exhibit A
Member |
Initial Capital Contribution | Percentage Interest | ||||||
Time Inc. |
$ | 1.00 | 100 | % |
Exhibit 3.101
STATE OF DELAWARE | ||||
SECRETARY OF STATE | ||||
DIVISION OF CORPORATIONS | ||||
FILLED 12:00 PM 11/27/2000 | ||||
001590006 3320428 | ||||
CERTIFICATE OF FORMATION
OF
TI DISTRIBUTION HOLDINGS LLC
The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the Delaware Limited Liability Company Act), hereby certifies that:
FIRST: The name of the limited liability company (hereinafter called the limited liability company) is TI Distribution Holdings LLC.
SECOND: The address of the registered office and the name and the address of the registered agent of the limited liability company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle.
Executed On: November 27, 2000
/s/ Lauren B. Ezrol |
Lauren B. Ezrol, Authorized Person |
Exhibit 3.102
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
TI DISTRIBUTION HOLDINGS LLC
This Limited Liability Company Operating Agreement (this Agreement), dated as of the 27th day of November 2000, is being made by Time Inc., a Delaware corporation (the Member).
W I T N E S S E T H
WHEREAS, the Member wishes to form and become the member of a limited liability company to be called TI Distribution Holdings LLC (the Company), under and pursuant to the Delaware Limited Liability Company Act (the Act), Chapter 18, Title 6 of the Delaware Code, as amended from time to time, for the purposes set forth herein; and
WHEREAS, the Member agrees that its rights, powers, duties and obligations as the Member of the Company shall be governed by the terms and provisions of this Agreement.
NOW, THEREFORE, the Member states as follows:
ARTICLE 1
Formation, Name, Principal
Place of Business and Registered Office
1.1 Formation. The Member hereby organizes the Company, to be known as TI Distribution Holdings LLC pursuant to the Act. Except as otherwise expressly provided in the Companys Certificate of Formation or this Agreement, the rights and obligations of the Member with respect to the Company shall be governed by the Act.
1.2 Principal Place of Business. The principal place of business for the transaction of the business of the Company shall be 1271 Avenue of the Americas, New York, New York 10020. The President (as hereinafter defined), on notice to the Member, may from time to time change the principal office and establish additional offices.
1.3 Registered Office; Registered Agent. The Company shall maintain a registered office in the State of Delaware and a registered agent for service of process in the State of Delaware as required by the Act.
ARTICLE 2
Purpose and Powers of the Company
2.1 Purpose of the Company. The authorized purpose of the Company is to engage in any lawful business, purpose or activity that a limited liability company may engage in under the Act.
2.2 Powers of the Company.
(a) The Company shall have the power, in fulfilling the purpose set forth in Section 2.1, to conduct any business or take any action that is lawful and that is not prohibited by the Act.
(b) The business and affairs of the Company shall be managed exclusively by the Member in accordance with the terms of this Agreement. The Member shall have the power to do any and all acts necessary or convenient to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise, possessed by members under the laws of the State of Delaware.
(c) The Member may authorize by written action any person, including without limitation the Member, to enter into and perform any agreement on behalf of the Company.
ARTICLE 3
Capital Contributions, Capital
Accounts and Voting Rights of the Member
3.1 Term. The term of the Company commenced on the date hereof following the filing of the Certificate of Formation with the Secretary of State of the State of Delaware in accordance with the Act and shall be of unlimited duration unless earlier terminated as hereinafter provided in Section 9.1.
ARTICLE 4
Capital Contributions, Capital
Accounts and Voting Rights of the Member
4.1 Initial Capital Contributions. As its initial capital contribution to the Company the Member is contributing simultaneously herewith cash, and no other property, in the aggregate amount reflected in Exhibit A hereto.
4.2 Additional Contributions. The Member shall not have any obligation to contribute additional capital or make any loan to the Company. However, the Member may, from time to time and at its option, make voluntary additional capital contributions to the Company.
4.3 Capital Accounts. A capital account shall be maintained on the books of the Company for the Member. The capital account of the Member shall consist of the Members initial capital contribution to the Company increased by voluntary capital contributions made by the Member pursuant to Section 4.2, if any, and the share of the net income of the Company allocated to the Members capital account pursuant to this Agreement and decreased by the amount of all distributions to the Member and the share of the net losses of the Company allocated to the Members capital account pursuant to this Agreement.
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4.4 Percentage Interests. The percentage interest of the Member in the Company (the Percentage Interest) as of the date hereof is set forth on Exhibit A.
4.5 Members Voting Rights. All decisions relating to the management of the affairs of the Company with respect to any matter whatsoever (including, without limitation, the exclusive right to amend, restate or revoke the Certificate of Formation of the Company and this Agreement) shall be made by the Member.
ARTICLE 5
Profits, Losses, Distributions and Tax Treatment
5.1 Allocations. The Member shall be allocated the net income and net losses of the Company in accordance with its Percentage Interest. Net income or net losses shall be allocated to the Members capital account as soon as practicable after the close of each fiscal year of the Company and at such other times as shall be considered necessary by the Member.
5.2 Distributions. To the extent that net cash flow of the Company is available therefore, and in the good faith determination of the Member, the Company shall make periodic distributions of such net cash flow to the Member at the times and in the aggregate amounts determined by the Member. Notwithstanding any provisions to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.
5.3 Tax Treatment. The Member intends that the Company be disregarded as a separate entity for Federal income tax purposes pursuant to Treasury Regulation Section 301.7701-3. Accordingly, no election to the contrary shall be filed by or on behalf of the Company and all income, gain, loss, deduction and credit of the Company shall be reported by the Member on its own account.
ARTICLE 6
Management
6.1 Officers.
(a) Principal Officers. The Company shall have a President and such other officers as the Member may, from time to time, in its discretion appoint.
(b) Election and Term of Office. Except as specifically provided for herein, the officers of the Company shall be appointed by the Member and each such officer shall hold office at the pleasure of the Member until his or her successor shall have been duly appointed, or until his or her earlier resignation, removal (with or without cause) or death.
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(c) President. The President shall be the Chief Executive Officer of the Company, shall supervise and direct the day-to-day business of the Company and shall see that all orders and resolutions of the Member are carried into effect. He or she shall have such other powers and perform such other duties as may be prescribed from time to time by the Member.
6.2 Powers of Execution. All contracts, deeds and other instruments entered into by the Company shall be signed on behalf of the Company by the Member, by the President, by the officers of the Company or by such other person or persons as the Member may from time to time designate.
6.3 Management. In accordance with Section 18-402 of the Act, management of the Company shall be vested in the Member. The Member shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise, possessed by members of a limited liability company under the laws of the State of Delaware. The Member has the authority to bind the Company.
6.4 Indemnification.
(a) No member, nor any affiliate of a member, nor any officers, directors, shareholders, partners, employees, representatives or agents of a member, or their respective affiliates (each a Covered Person) shall be liable, responsible or accountable in damages or otherwise to the Company or to any other Covered Person for any loss, liability, damage, cost, claim or expense incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company or its activities except by reason of acts or omissions found by a court of competent jurisdiction upon entry of a final judgment to be due to fraud, gross negligence, bad faith or willful or intentional misconduct.
(b) To the fullest extent permitted by applicable law, the Company shall indemnify, defend and hold harmless any Covered Person from and against any and all loss, liability, damage, cost, claim or expense, including reasonable attorneys fees, suffered or incurred in defense of any demands, claims, actions, proceedings or lawsuits against such Covered Person, in or as a result of or relating to its or his or her capacity, actions or omissions as a Covered Person, or concerning the Company or any activities undertaken on behalf of the Company, provided that the acts or omissions of such Covered Person are not found by a court of competent jurisdiction upon entry of a final judgment to be the result of fraud, gross negligence or bad faith or willful or intentional misconduct, or to have violated such a lesser standard of conduct or public policy as under applicable law prevents indemnification hereunder.
(c) Any Covered Person shall be entitled to receive, upon request therefor, to the extent cash or cash equivalent funds are available to the Company, advances to cover the costs of defending any demand, claim, action, proceeding, or lawsuit against such Covered Person, provided that such advances shall be repaid to the Company, with interest, if such officer is found by a court of competent jurisdiction upon entry of a final judgment to have violated the standards for indemnification set forth in the immediately preceding subsection (b) of this Section 6.4.
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ARTICLE 7
Books and Records
7.1 Maintenance of Books and Records. At all times during the existence of the Company, full and accurate books of account and records of the Company shall be maintained and kept at the principal place of business of the Company. All transactions of or relating to the Company and its business shall be entered in such books.
ARTICLE 8
Admission of New Members; Assignments
and Resignation
8.1 Admission of New or Substitute Members. No person shall become a member of the Company unless and until he, she or it has been approved in writing by the Member and has executed and delivered to the Company a copy of this Agreement. Upon such admission, a new Exhibit A shall be prepared by the President and circulated to the Member(s).
8.2 Assignments. A member may assign in whole or in part its limited liability company interest. If a member transfers all of its interest in the Company pursuant to this Section, the transferee shall be admitted to the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement. Such admission shall be deemed effective immediately prior to the transfer, and, immediately following such admission, the transferor member shall cease to be a member of the Company.
8.3 Resignation. A member may resign from the Company with the written consent of the Member. If a member is permitted to resign pursuant to this Section, an additional member shall be admitted to the Company, subject to Section 8.1, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement. Such admission shall be deemed effective immediately prior to the resignation, and immediately following such admission, the resigning member shall cease to be a member of the Company.
ARTICLE 9
Dissolution
9.1 Dissolution.
(a) The Company shall be dissolved and its affairs wound up upon the first to occur of either (i) the written consent of the Member(s) or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Except as otherwise provided in this paragraph, the Company shall not be dissolved upon the death, incapacity or bankruptcy of the Member.
5
(b) Upon the dissolution of the Company, the Company shall cease to engage in any further business, except to the extent necessary to perform existing obligations, and the Member shall wind up its affairs and liquidate or distribute its assets. Except as provided under Section 18-802 of the Act, the Member shall appoint a liquidator (who may, but need not, be the Member) who shall have sole authority and control over the Company business and affairs and shall diligently pursue the winding up of the Company.
(c) Following dissolution, all of the business and affairs of the Company shall be liquidated and wound up. Upon dissolution, the proceeds of any liquidation shall be applied as follows: (i) first, to pay all expenses of liquidation and winding up; (ii) second, to pay all debts, obligations and liabilities of the Company in the order of priority as provided by law, other than debts owing to the Member in respect of distributions pursuant to Section 18-601 or 18-604 of the Act; (iii) third, to pay all debts of the Company owing to the Member in respect of distributions pursuant to Section 18-601 or 18-604 of the Act; and (iv) fourth, to the Member.
(d) Upon dissolution and completion of the winding up of the Company and distribution of its assets, the President shall cause to be executed and filed with the Secretary of State of the State of Delaware Articles of Dissolution of the Company in accordance with Section 18-203 of the Act.
ARTICLE 10
Miscellaneous Provisions
10.1 Entire Agreement. This Agreement contains the entire agreement of the party with respect to the subject matter hereof, supersedes all prior agreements relating to the subject matter hereof and may not be changed, altered, or amended, except in a written instrument as provided herein.
10.2 Severability. If any provision of this Agreement, or the application thereof to any person or circumstance, is held invalid the remainder of this Agreement and the application of its provisions to other persons and circumstances shall not be affected thereby.
10.3 Captions. The captions of the respective Articles and Sections of this Agreement are inserted for convenience of reference only and shall not be deemed to affect the meaning of the provisions of this Agreement.
10.4 Governing Law. This Agreement shall be controlled, construed and enforced in accordance with the laws of the State of Delaware without regard to its principles of conflicts of laws.
10.5 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the party hereto and its respective heirs, successors, assigns and legal representatives.
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IN WITNESS WHEREOF, the party hereto has executed and delivered this Agreement as of the date first above written.
TIME INC. | ||
By: | /s/ Lauren Ezrol | |
Name: Lauren Ezrol | ||
Title: Asst. Sec. |
7
Exhibit A
Member |
Initial Capital Contribution | Percentage Interest | ||||
Time Inc. | $1.00 | 100 | % |
Exhibit 3.103
STATE OF DELAWARE | ||||
SECRETARY OF STATE | ||||
DIVISION OF CORPORATIONS | ||||
FILED 01:30 PM 06/19/2000 | ||||
001310098 3246604 |
CERTIFICATE OF FORMATION
OF
TI MAGAZINE HOLDINGS LLC
The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the Delaware Limited Liability Company Act), hereby certifies that:
FIRST: The name of the limited liability company (hereinafter called the limited liability company) is TI Magazine Holdings LLC.
SECOND: The address of the registered office and the name and the address of the registered agent of the limited liability company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle.
Executed On: June 19, 2000 |
/s/ Lauren B. Ezrol |
Lauren B. Ezrol, Authorized Person |
Exhibit 3.104
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
TI MAGAZINE HOLDINGS LLC
This Limited Liability Company Operating Agreement (this Agreement), dated as of the 19th day of June 2000, is being made by Time Inc., a Delaware Corporation (the Member).
W I T N E S S E T H
WHEREAS, the Member wishes to form and become the member of a limited liability company to be called TI Magazine Holdings LLC (the Company), under and pursuant to the Delaware Limited Liability Company Act (the Act), Chapter 18, Title 6 of the Delaware Code, as amended from time to time, for the purposes set forth herein; and
WHEREAS, the Member agrees that its rights, powers, duties and obligations as the Member of the Company shall be governed by the terms and provisions of this Agreement.
NOW, THEREFORE, the Member states as follows:
ARTICLE 1
Formation, Name, Principal
Place of Business and Registered Office
1.1 Formation. The Member hereby organizes the Company, to be known as TI Magazine Holdings LLC pursuant to the Act. Except as otherwise expressly provided in the Companys Certificate of Formation or this Agreement, the rights and obligations of the Member with respect to the Company shall be governed by the Act.
1.2 Principal Place of Business. The principal place of business for the transaction of the business of the Company shall be 1271 Avenue of the Americas, New York, New York 10020. The President (as hereinafter defined), on notice to the Member, may from time to time change the principal office and establish additional offices.
1.3 Registered Office: Registered Agent. The Company shall maintain a registered office in the State of Delaware and a registered agent for service of process in the State of Delaware as required by the Act.
ARTICLE 2
Purpose and Powers of the Company
2.1 Purpose of the Company. The authorized purpose of the Company is to engage in any lawful business, purpose or activity that a limited liability company may engage in under the Act.
2.2 Powers of the Company.
(a) The Company shall have the power, in fulfilling the purpose set forth in Section 2.1, to conduct any business or take any action that is lawful and that is not prohibited by the Act.
(b) The business and affairs of the Company shall be managed exclusively by the Member in accordance with the terms of this Agreement. The Member shall have the power to do any and all acts necessary or convenient to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise, possessed by members under the laws of the State of Delaware.
(c) The Member may authorize by written action any person, including without limitation the Member, to enter into and perform any agreement on behalf of the Company.
ARTICLE 3
Capital Contributions, Capital
Accounts and Voting Rights of the Member
3.1 Term. The term of the Company commenced on the date hereof following the filing of the Certificate of Formation with the Secretary of State of the State of Delaware in accordance with the Act and shall be of unlimited duration unless earlier terminated as hereinafter provided in Section 9.1.
ARTICLE 4
Capital Contributions, Capital
Accounts and Voting Rights of the Member
4.1 Initial Capital Contributions. As its initial capital contribution to the Company the Member is contributing simultaneously herewith cash, and no other property, in the aggregate amount reflected in Exhibit A hereto.
4.2 Additional Contributions. The Member shall not have any obligation to contribute additional capital or make any loan to the Company. However, the Member may, from time to time and at its option, make voluntary additional capital contributions to the Company.
4.3 Capital Accounts. A capital account shall be maintained on the books of the Company for the Member. The capital account of the Member shall consist of the Members initial capital contribution to the Company increased by voluntary capital contributions made by the Member pursuant to Section 4.2, if any, and the share of the net income of the Company allocated to the Members capital account pursuant to this Agreement and decreased by the amount of all distributions to the Member and the share of the net losses of the Company allocated to the Members capital account pursuant to this Agreement.
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4.4 Percentage Interests. The percentage interest of the Member in the Company (the Percentage Interest) as of the date hereof is set forth on Exhibit A.
4.5 Members Voting Rights. All decisions relating to the management of the affairs of the Company with respect to any matter whatsoever (including, without limitation, the exclusive right to amend, restate or revoke the Certificate of Formation of the Company and this Agreement) shall be made by the Member.
ARTICLE 5
Profits, Losses, Distributions and Tax Treatment
5.1 Allocations. The Member shall be allocated the net income and net losses of the Company in accordance with its Percentage Interest. Net income or net losses shall be allocated to the Members capital account as soon as practicable after the close of each fiscal year of the Company and at such other times as shall be considered necessary by the Member.
5.2 Distributions. To the extent that net cash flow of the Company is available therefore, and in the good faith determination of the Member, the Company shall make periodic distributions of such net cash flow to the Member at the times and in the aggregate amounts determined by the Member. Notwithstanding any provisions to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.
5.3 Tax Treatment. The Member intends that the Company be disregarded as a separate entity for Federal income tax purposes pursuant to Treasury Regulation Section 301.7701-3. Accordingly, no election to the contrary shall be filed by or on behalf of the Company and all income, gain, loss, deduction and credit of the Company shall be reported by the Member on its own account.
ARTICLE 6
Management
6.1 Officers.
(a) Principal Officers. The Company shall have a President and such other officers as the Member may, from time to time, in its discretion appoint.
(b) Election and Term of Office. Except as specifically provided for herein, the officers of the Company shall be appointed by the Member and each such officer shall hold office at the pleasure of the Member until his or her successor shall have been duly appointed, or until his or her earlier resignation, removal (with or without cause) or death.
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(c) President. The President shall be the Chief Executive Officer of the Company, shall supervise and direct the day-to-day business of the Company and shall see that all orders and resolutions of the Member are carried into effect. He or she shall have such other powers and perform such other duties as may be prescribed from time to time by the Member.
6.2 Powers of Execution. All contracts, deeds and other instruments entered into by the Company shall be signed on behalf of the Company by the Member, by the President, by the officers of the Company or by such other person or persons as the Member may from time to time designate.
6.3 Management. In accordance with Section 18-402 of the Act, management of the Company shall be vested in the Member. The Member shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise, possessed by members of a limited liability company under the laws of the State of Delaware. The Member has the authority to bind the Company.
6.4 Indemnification.
(a) No member, nor any affiliate of a member, nor any officers, directors, shareholders, partners, employees, representatives or agents of a member, or their respective affiliates (each a Covered Person) shall be liable, responsible or accountable in damages or otherwise to the Company or to any other Covered Person for any loss, liability, damage, cost, claim or expense incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company or its activities except by reason of acts or omissions found by a court of competent jurisdiction upon entry of a final judgment to be due to fraud, gross negligence, bad faith or willful or intentional misconduct.
(b) To the fullest extent permitted by applicable law, the Company shall indemnify, defend and hold harmless any Covered Person from and against any and all loss, liability, damage, cost, claim or expense, including reasonable attorneys fees, suffered or incurred in defense of any demands, claims, actions, proceedings or lawsuits against such Covered Person, in or as a result of or relating to its or his or her capacity, actions or omissions as a Covered Person, or concerning the Company or any activities undertaken on behalf of the Company, provided that the acts or omissions of such Covered Person are not found by a court of competent jurisdiction upon entry of a final judgment to be the result of fraud, gross negligence or bad faith or willful or intentional misconduct, or to have violated such a lesser standard of conduct or public policy as under applicable law prevents indemnification hereunder.
(c) Any Covered Person shall be entitled to receive, upon request therefore, to the extent cash or cash equivalent funds are available to the Company, advances to cover the costs of defending any demand, claim, action, proceeding, or lawsuit against such Covered Person, provided that such advances shall be repaid to the Company, with interest, if such officer is found by a court of competent jurisdiction upon entry of a final judgment to have violated the standards for indemnification set forth in the immediately preceding subsection (b) of this Section 6.4.
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ARTICLE 7
Books and Records
7.1 Maintenance of Books and Records. At all times during the existence of the Company, full and accurate books of account and records of the Company shall be maintained and kept at the principal place of business of the Company. All transactions of or relating to the Company and its business shall be entered in such books.
ARTICLE 8
Admission of New Members;
Assignments and Resignation
8.1 Admission of New or Substitute Members. No person shall become a member of the Company unless and until he, she or it has been approved in writing by the Member and has executed and delivered to the Company a copy of this Agreement. Upon such admission, a new Exhibit A shall be prepared by the President and circulated to the Member(s).
8.2 Assignments. A member may assign in whole or in part its limited liability company interest. If a member transfers all of its interest in the Company pursuant to this Section, the transferee shall be admitted to the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement. Such admission shall be deemed effective immediately prior to the transfer, and, immediately following such admission, the transferor member shall cease to be a member of the Company.
8.3 Resignation. A member may resign from the Company with the written consent of the Member. If a member is permitted to resign pursuant to this Section, an additional member shall be admitted to the Company, subject to Section 8.1, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement. Such admission shall be deemed effective immediately prior to the resignation, and immediately following such admission, the resigning member shall cease to be a member of the Company.
ARTICLE 9
Dissolution
9.1 Dissolution.
(a) The Company shall be dissolved and its affairs wound up upon the first to occur of either (i) the written consent of the Member(s) or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Except as otherwise provided in this paragraph, the Company shall not be dissolved upon the death, incapacity or bankruptcy of the Member.
5
(b) Upon the dissolution of the Company, the Company shall cease to engage in any further business, except to the extent necessary to perform existing obligations, and the Member shall wind up its affairs and liquidate or distribute its assets. Except as provided under Section 18-802 of the Act, the Member shall appoint a liquidator (who may, but need not, be the Member) who shall have sole authority and control over the Company business and affairs and shall diligently pursue the winding up of the Company.
(c) Following dissolution, all of the business and affairs of the Company shall be liquidated and wound up. Upon dissolution, the proceeds of any liquidation shall be applied as follows: (i) first, to pay all expenses of liquidation and winding up; (ii) second, to pay all debts, obligations and liabilities of the Company in the order of priority as provided by law, other than debts owing to the Member in respect of distributions pursuant to Section 18-601 or 18-604 of the Act; (iii) third, to pay all debts of the Company owing to the Member in respect of distributions pursuant to Section 18-601 or 18-604 of the Act; and (iv) fourth, to the Member.
(d) Upon dissolution and completion of the winding up of the Company and distribution of its assets, the President shall cause to be executed and filed with the Secretary of State of the State of Delaware Articles of Dissolution of the Company in accordance with Section 18-203 of the Act.
ARTICLE 10
Miscellaneous Provisions
10.1 Entire Agreement. This Agreement contains the entire agreement of the party with respect to the subject matter hereof, supersedes all prior agreements relating to the subject matter hereof and may not be changed, altered, or amended, except in a written instrument as provided herein.
10.2 Severability. If any provision of this Agreement, or the application thereof to any person or circumstance, is held invalid, the remainder of this Agreement and the application of its provisions to other persons and circumstances shall not be affected thereby.
10.3 Captions. The captions of the respective Articles and Sections of this Agreement are inserted for convenience of reference only and shall not be deemed to affect the meaning of the provisions of this Agreement.
10.4 Governing Law. This Agreement shall be controlled, construed and enforced in accordance with the laws of the State of Delaware without regard to its principles of conflicts of laws.
10.5 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the party hereto and its respective heirs, successors, assigns and legal representatives.
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IN WITNESS WHEREOF, the party hereto has executed and delivered this Agreement as of the date first above written.
TIME INC. | ||
By: | /s/ Lauren B. Ezrol | |
Name: Lauren B. Ezrol | ||
Title: Assistant Secretary |
7
Exhibit A
Member |
Initial Capital Contribution | Percentage Interest | ||||||
TIME INC. |
$ | 1.00 | 100 | % |
Exhibit 3.105
STATE OF DELAWARE |
||||
SECRETARY OF STATE |
||||
DIVISION OF CORPORATIONS |
||||
FILED 12:00 PM 11/27/2000 |
||||
001589990 3320424 |
CERTIFICATE OF FORMATION
OF
TI SALES HOLDINGS LLC
The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the Delaware Limited Liability Company Act), hereby certifies that:
FIRST: The name of the limited liability company (hereinafter called the limited liability company) is TI Sales Holdings LLC.
SECOND: The address of the registered office and the name and the address of the registered agent of the limited liability company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle.
Executed On: November 27, 2000 |
/s/ Lauren B. Ezrol |
Lauren B. Ezrol, Authorized Person |
Exhibit 3.106
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
TI SALES HOLDINGS LLC
This Limited Liability Company Operating Agreement (this Agreement), dated as of the 27th day of November 2000, is being made by Time Inc., a Delaware Corporation (the Member).
W I T N E S S E T H
WHEREAS, the Member wishes to form and become the member of a limited liability company to be called TI Sales Holdings LLC
(the
Company), under and pursuant to the Delaware Limited Liability Company Act (the Act), Chapter 18, Title 6 of the Delaware Code, as amended from time to time, for the purposes set forth herein; and
WHEREAS, the Member agrees that its rights, powers, duties and obligations as the Member of the Company shall be governed by the terms and provisions of this Agreement.
NOW, THEREFORE, the Member states as follows:
ARTICLE 1
Formation, Name, Principal
Place of Business and Registered Office
1.1 Formation. The Member hereby organizes the Company, to be known as TI Sales Holdings LLC pursuant to the Act. Except as otherwise expressly provided in the Companys Certificate of Formation or this Agreement the rights and obligations of the Member with respect to the Company shall be governed by the Act.
1.2 Principal Place of Business. The principal place of business for the transaction of the business of the Company shall be 1271 Avenue of the Americas, New York, New York 10020. The President (as hereinafter defined), on notice to the Member, may from time to time change the principal office and establish additional offices.
1.3 Registered Office: Registered Agent. The Company shall maintain a registered office in the State of Delaware and a registered agent for service of process in the State of Delaware as required by the Act.
ARTICLE 2
Purpose and Powers of the Company
2.1 Purpose of the Company. The authorized purpose of the Company is to engage in any lawful business, purpose or activity that a limited liability company may engage in under the Act.
2.2 Powers of the Company.
(a) The Company shall have the power, in fulfilling the purpose set forth in Section 2.1, to conduct any business or take any action that is lawful and that is not prohibited by the Act.
(b) The business and affairs of the Company shall be managed exclusively by the Member in accordance with the terms of this Agreement. The Member shall have the power to do any and all acts necessary or convenient to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise, possessed by members under the laws of the State of Delaware.
(c) The Member may authorize by written action any person, including without limitation the Member, to enter into and perform any agreement on behalf of the Company.
ARTICLE 3
Capital Contributions, Capital
Accounts and Voting Rights of the Member
3.1 Term. The term of the Company commenced on the date hereof following the filing of the Certificate of Formation with the Secretary of State of the State of Delaware in accordance with the Act and shall be of unlimited duration unless earlier terminated as hereinafter provided in Section 9.1.
ARTICLE 4
Capital Contributions, Capital
Accounts and Voting Rights of the Member
4.1 Initial Capital Contributions. As its initial capital contribution to the Company the Member is contributing simultaneously herewith cash, and no other property, in the aggregate amount reflected in Exhibit A hereto.
4.2 Additional Contributions. The Member shall not have any obligation to contribute additional capital or make any loan to the Company. However, the Member may, from time to time and at its option, make voluntary additional capital contributions to the Company.
4.3 Capital Accounts. A capital account shall be maintained on the books of the Company for the Member. The capital account of the Member shall consist of the Members initial capital contribution to the Company increased by voluntary capital contributions made by the Member pursuant to Section 4.2, if any, and the share of the net income of the Company allocated to the Members capital account pursuant to this Agreement and decreased by the amount of all distributions to the Member and the share of the net losses of the Company allocated to the Members capital account pursuant to this Agreement.
2
4.4 Percentage Interests. The percentage interest of the Member in the Company (the Percentage Interest) as of the date hereof is set forth on Exhibit A.
4.5 Members Voting Rights. All decisions relating to the management of the affairs of the Company with respect to any matter whatsoever (including, without limitation, the exclusive right to amend, restate or revoke the Certificate of Formation of the Company and this Agreement) shall be made by the Member.
ARTICLE 5
Profits, Losses, Distributions and Tax Treatment
5.1 Allocations. The Member shall be allocated the net income and net losses of the Company in accordance with its Percentage Interest. Net income or net losses shall be allocated to the Members capital account as soon as practicable after the close of each fiscal year of the Company and at such other times as shall be considered necessary by the Member.
5.2 Distributions. To the extent that net cash flow of the Company is available therefore, and in the good faith determination of the Member, the Company shall make periodic distributions of such net cash flow to the Member at the times and in the aggregate amounts determined by the Member. Notwithstanding any provisions to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.
5.3 Tax Treatment. The Member intends that the Company be disregarded as a separate entity for Federal income tax purposes pursuant to Treasury Regulation Section 301.7701-3. Accordingly, no election to the contrary shall be filed by or on behalf of the Company and all income, gain, loss, deduction and credit of the Company shall be reported by the Member on its own account.
ARTICLE 6
Management
6.1 Officers.
(a) Principal Officers. The Company shall have a President and such other officers as the Member may, from time to time, in its discretion appoint.
(b) Election and Term of Office. Except as specifically provided for herein, the officers of the Company shall be appointed by the Member and each such officer shall hold office at the pleasure of the Member until his or her successor shall have been duly appointed, or until his or her earlier resignation, removal (with or without cause) or death.
3
(c) President. The President shall be the Chief Executive Officer of the Company, shall supervise and direct the day-to-day business of the Company and shall see that all orders and resolutions of the Member are carried into effect. He or she shall have such other powers and perform such other duties as may be prescribed from time to time by the Member.
6.2 Powers of Execution. All contracts, deeds and other instruments entered into by the Company shall be signed on behalf of the Company by the Member, by the President, by the officers of the Company or by such other person or persons as the Member may from time to time designate.
6.3 Management. In accordance with Section 18-402 of the Act, management of the Company shall be vested in the Member. The Member shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise, possessed by members of a limited liability company under the laws of the State of Delaware. The Member has the authority to bind the Company.
6.4 Indemnification.
(a) No member, nor any affiliate of a member, nor any officers, directors, shareholders, partners, employees, representatives or agents of a member, or their respective affiliates (each a Covered Person) shall be liable, responsible or accountable in damages or otherwise to the Company or to any other Covered Person for any loss, liability, damage, cost, claim or expense incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company or its activities except by reason of acts or omissions found by a court of competent jurisdiction upon entry of a final judgment to be due to fraud, gross negligence, bad faith or willful or intentional misconduct.
(b) To the fullest extent permitted by applicable law, the Company shall indemnify, defend and hold harmless any Covered Person from and against any and all loss, liability, damage, cost, claim or expense, including reasonable attorneys fees, suffered or incurred in defense of any demands, claims, actions, proceedings or lawsuits against such Covered Person, in or as a result of or relating to its or his or her capacity, actions or omissions as a Covered Person, or concerning the Company or any activities undertaken on behalf of the Company, provided that the acts or omissions of such Covered Person are not found by a court of competent jurisdiction upon entry of a final judgment to be the result of fraud, gross negligence or bad faith or willful or intentional misconduct, or to have violated such a lesser standard of conduct or public policy as under applicable law prevents indemnification hereunder.
(c) Any Covered Person shall be entitled to receive, upon request therefore, to the extent cash or cash equivalent funds are available to the Company, advances to cover the costs of defending any demand, claim, action, proceeding, or lawsuit against such Covered Person, provided that such advances shall be repaid to the Company, with interest, if such officer is found by a court of competent jurisdiction upon entry of a final judgment to have violated the standards for indemnification set forth in the immediately preceding subsection (b) of this Section 6.4.
4
ARTICLE 7
Books and Records
7.1 Maintenance of Books and Records. At all times during the existence of the Company, full and accurate books of account and records of the Company shall be maintained and kept at the principal place of business of the Company. All transactions of or relating to the Company and its business shall be entered in such books.
ARTICLE 8
Admission of New Members;
Assignments and Resignation
8.1 Admission of New or Substitute Members. No person shall become a member of the Company unless and until he, she or it has been approved in writing by the Member and has executed and delivered to the Company a copy of this Agreement. Upon such admission, a new Exhibit A shall be prepared by the President and circulated to the Member(s).
8.2 Assignments. A member may assign in whole or in part its limited liability company interest. If a member transfers all of its interest in the Company pursuant to this Section, the transferee shall be admitted to the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement. Such admission shall be deemed effective immediately prior to the transfer, and, immediately following such admission, the transferor member shall cease to be a member of the Company.
8.3 Resignation. A member may resign from the Company with the written consent of the Member. If a member is permitted to resign pursuant to this Section, an additional member shall be admitted to the Company, subject to Section 8.1, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement. Such admission shall be deemed effective immediately prior to the resignation, and immediately following such admission, the resigning member shall cease to be a member of the Company.
ARTICLE 9
Dissolution
9.1 Dissolution.
(a) The Company shall be dissolved and its affairs wound up upon the first to occur of either (i) the written consent of the Member(s) or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Except as otherwise provided in this paragraph, the Company shall not be dissolved upon the death, incapacity or bankruptcy of the Member.
5
(b) Upon the dissolution of the Company, the Company shall cease to engage in any further business, except to the extent necessary to perform existing obligations, and the Member shall wind up its affairs and liquidate or distribute its assets. Except as provided under Section 18-802 of the Act, the Member shall appoint a liquidator (who may, but need not, be the Member) who shall have sole authority and control over the Company business and affairs and shall diligently pursue the winding up of the Company.
(c) Following dissolution, all of the business and affairs of the Company shall be liquidated and wound up. Upon dissolution, the proceeds of any liquidation shall be applied as follows: (i) first, to pay all expenses of liquidation and winding up; (ii) second, to pay all debts, obligations and liabilities of the Company in the order of priority as provided by law, other than debts owing to the Member in respect of distributions pursuant to Section 18-601 or 18-604 of the Act; (iii) third, to pay all debts of the Company owing to the Member in respect of distributions pursuant to Section 18-601 or 18-604 of the Act; and (iv) fourth, to the Member.
(d) Upon dissolution and completion of the winding up of the Company and distribution of its assets, the President shall cause to be executed and filed with the Secretary of State of the State of Delaware Articles of Dissolution of the Company in accordance with Section 18-203 of the Act.
ARTICLE 10
Miscellaneous Provisions
10.1 Entire Agreement. This Agreement contains the entire agreement of the party with respect to the subject matter hereof, supersedes all prior agreements relating to the subject matter hereof and may not be changed, altered, or amended, except in a written instrument as provided herein.
10.2 Severability. If any provision of this Agreement, or the application thereof to any person or circumstance, is held invalid, the remainder of this Agreement and the application of its provisions to other persons and circumstances shall not be affected thereby.
10.3 Captions. The captions of the respective Articles and Sections of this Agreement are inserted for convenience of reference only and shall not be deemed to affect the meaning of the provisions of this Agreement.
10.4 Governing Law. This Agreement shall be controlled, construed and enforced in accordance with the laws of the State of Delaware without regard to its principles of conflicts of laws.
6
10.5 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the party hereto and its respective heirs, successors, assigns and legal representatives.
7
IN WITNESS WHEREOF, the party hereto has executed and delivered this Agreement as of the date first above written.
TIME INC. | ||
By: | /s/ Lauren B. Ezrol |
Name: | Lauren B. Ezrol | |
Title: | Assistant Secretary |
8
Exhibit A
Member |
Initial Capital Contribution | Percentage Interest | ||||||
Time Inc. |
$ | 1.00 | 100 | % |
Exhibit 3.107
STATE OF DELAWARE SECRETARY OF STATE |
DIVISION OF CORPORATIONS FILED 08:02 PM 12/03/2002 020742458 3597685 |
CERTIFICATE OF FORMATION
OF
TIME DIRECT VENTURES LLC
The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the Delaware Limited Liability Company Act), hereby certifies that:
FIRST: The name of the limited liability company (hereinafter called the limited liability company) is TIME DIRECT VENTURES LLC.
SECOND: The address of the registered office and the name and the address of the registered agent of the limited liability company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle.
Executed On: December 3, 2002 |
/s/ Lauren Ezrol Klein |
Lauren Ezrol Klein, Authorized Person |
State of Delaware |
Secretary of State Division of Corporations Delivered 05:32 PM 11/14/2018 FILED 05:32 PM 11/14/2018 SR 20187647173 - File Number 3597685 |
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
1. Name of Limited Liability Company: Time Direct Ventures LLC
2. The Certificate of Formation of the limited liability company is hereby amended as follows:
The first paragraph is deleted in its entirety and replaced with the following:
First: The name of the limited liability company is TI Direct Ventures LLC (hereinafter, the limited liability company).
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IN WITNESS WHEREOF, the undersigned have executed this Certificate on the 31st day of October, A.D. 2018.
By: | /s/ Joseph H. Ceryanec | |
Authorized Person(s) | ||
Name: | Joseph H. Ceryanec, CEO | |
Print or Type |
Exhibit 3.108
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
TIME DIRECT VENTURES LLC
This Limited Liability Company Operating Agreement (this Agreement), dated as of the 3rd day of December 2002, is being made by Time Circulation Holdings LLC, a Delaware limited liability company (the Member).
W I T N E S S E T H
WHEREAS, the Member wishes to form and become the member of a limited liability company to be called Time Direct Ventures LLC (the Company), under and pursuant to the Delaware Limited Liability Company Act (the Act), Chapter 18, Title 6 of the Delaware Code, as amended from time to time, for the purposes set forth herein; and
WHEREAS, the Member agrees that its rights, powers, duties and obligations as the Member of the Company shall be governed by the terms and provisions of this Agreement.
NOW, THEREFORE, the Member states as follows:
ARTICLE 1
Formation, Name, Principal
Place of Business and Registered Office
1.1 Formation. The Member hereby organizes the Company, to be known as Time Direct Ventures LLC pursuant to the Act. Except as otherwise expressly provided in the Companys Certificate of Formation or this Agreement, the rights and obligations of the Member with respect to the Company shall be governed by the Act.
1.2 Principal Place of Business. The principal place of business for the transaction of the business of the Company shall be 1271 Avenue of the Americas, New York, New York 10020. The President (as hereinafter defined), on notice to the Member, may from time to time change the principal office and establish additional offices.
1.3 Registered Office; Registered Agent. The Company shall maintain a registered office in the State of Delaware and a registered agent for service of process in the State of Delaware as required by the Act.
ARTICLE 2
Purpose and Powers of the Company
2.1 Purpose of the Company. The authorized purpose of the Company is to engage in any lawful business, purpose or activity that a limited liability company may engage in under the Act.
2.2 Powers of the Company.
(a) The Company shall have the power, in fulfilling the purpose set forth in Section 2.1, to conduct any business or take any action that is lawful and that is not prohibited by the Act.
(b) The business and affairs of the Company shall be managed exclusively by the Member in accordance with the terms of this Agreement. The Member shall have the power to do any and all acts necessary or convenient to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise, possessed by members under the laws of the State of Delaware.
(c) The Member may authorize by written action any person, including without limitation the Member, to enter into and perform any agreement on behalf of the Company.
ARTICLE 3
Capital Contributions, Capital
Accounts and Voting Rights of the Member
3.1 Term. The term of the Company commenced on the date hereof following the filing of the Certificate of Formation with the Secretary of State of the State of Delaware in accordance with the Act and shall be of unlimited duration unless earlier terminated as hereinafter provided in Section 9.1.
ARTICLE 4
Capital Contributions, Capital
Accounts and Voting Rights of the Member
4.1 Initial Capital Contributions. As its initial capital contribution to the Company the Member is contributing simultaneously herewith cash, and no other property, in the aggregate amount reflected in Exhibit A hereto.
4.2 Additional Contributions. The Member shall not have any obligation to contribute additional capital or make any loan to the Company. However, the Member may, from time to time and at its option, make voluntary additional capital contributions to the Company.
4.3 Capital Accounts. A capital account shall be maintained on the books of the Company for the Member. The capital account of the Member shall consist of the Members initial capital contribution to the Company increased by voluntary capital contributions made by the Member pursuant to Section 4.2, if any, and the share of the net income of the Company allocated to the Members capital account pursuant to this Agreement and decreased by the amount of all distributions to the Member and the share of the net losses of the Company allocated to the Members capital account pursuant to this Agreement.
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4.4 Percentage Interests. The percentage interest of the Member in the Company (the Percentage Interest) as of the date hereof is set forth on Exhibit A.
4.5 Members Voting Rights. All decisions relating to the management of the affairs of the Company with respect to any matter whatsoever (including, without limitation, the exclusive right to amend, restate or revoke the Certificate of Formation of the Company and this Agreement) shall be made by the Member.
ARTICLE 5
Profits, Losses, Distributions and Tax Treatment
5.1 Allocations. The Member shall be allocated the net income and net losses of the Company in accordance with its Percentage Interest. Net income or net losses shall be allocated to the Members capital account as soon as practicable after the close of each fiscal year of the Company and at such other times as shall be considered necessary by the Member.
5.2 Distributions. To the extent that net cash flow of the Company is available therefore, and in the good faith determination of the Member, the Company shall make periodic distributions of such net cash flow to the Member at the times and in the aggregate amounts determined by the Member. Notwithstanding any provisions to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.
5.3 Tax Treatment. The Member intends that the Company be disregarded as a separate entity for Federal income tax purposes pursuant to Treasury Regulation Section 301.7701-3. Accordingly, no election to the contrary shall be filed by or on behalf of the Company and all income, gain, loss, deduction and credit of the Company shall be reported by the Member on its own account.
ARTICLE 4 ARTICLE 6
Management
6.1 Officers.
(a) Principal Officers. The Company shall have a President and such other officers as the Member may, from time to time, in its discretion appoint.
(b) Election and Term of Office. Except as specifically provided for herein, the officers of the Company shall be appointed by the Member and each such officer shall hold office at the pleasure of the Member until his or her successor shall have been duly appointed, or until his or her earlier resignation, removal (with or without cause) or death.
(c) President. The President shall be the Chief Executive Officer of the Company, shall supervise and direct the day-to-day business of the Company and shall see that all orders and resolutions of the Member are carried into effect. He or she shall have such other powers and perform such other duties as may be prescribed from time to time by the Member.
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6.2 Powers of Execution. All contracts, deeds and other instruments entered into by the Company shall be signed on behalf of the Company by the Member, by the President, by the officers of the Company or by such other person or persons as the Member may from time to time designate.
6.3 Management. In accordance with Section 18-402 of the Act, management of the Company shall be vested in the Member. The Member shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise, possessed by members of a limited liability company under the laws of the State of Delaware. The Member has the authority to bind the Company.
6.4 Indemnification.
(a) No member, nor any affiliate of a member, nor any officers, directors, shareholders, partners, employees, representatives or agents of a member, or their respective affiliates (each a Covered Person) shall be liable, responsible or accountable in damages or otherwise to the Company or to any other Covered Person for any loss, liability, damage, cost, claim or expense incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company or its activities except by reason of acts or omissions found by a court of competent jurisdiction upon entry of a final judgment to be due to fraud, gross negligence, bad faith or willful or intentional misconduct.
(b) To the fullest extent permitted by applicable law, the Company shall indemnify, defend and hold harmless any Covered Person from and against any and all loss, liability, damage, cost, claim or expense, including reasonable attorneys fees, suffered or incurred in defense of any demands, claims, actions, proceedings or lawsuits against such Covered Person, in or as a result of or relating to its or his or her capacity, actions or omissions as a Covered Person, or concerning the Company or any activities undertaken on behalf of the Company, provided that the acts or omissions of such Covered Person are not found by a court of competent jurisdiction upon entry of a final judgment to be the result of fraud, gross negligence or bad faith or willful or intentional misconduct, or to have violated such a lesser standard of conduct or public policy as under applicable law prevents indemnification hereunder.
(c) Any Covered Person shall be entitled to receive, upon request therefore, to the extent cash or cash equivalent funds are available to the Company, advances to cover the costs of defending any demand, claim, action, proceeding, or lawsuit against such Covered Person, provided that such advances shall be repaid to the Company, with interest, if such officer is found by a court of competent jurisdiction upon entry of a final judgment to have violated the standards for indemnification set forth in the immediately preceding subsection (b) of this Section 6.4.
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ARTICLE 7
Books and Records
7.1 Maintenance of Books and Records. At all times during the existence of the Company, full and accurate books of account and records of the Company shall be maintained and kept at the principal place of business of the Company. All transactions of or relating to the Company and its business shall be entered in such books.
ARTICLE 8
Admission of New Members; Assignments
and Resignation
8.1 Admission of New or Substitute Members. No person shall become a member of the Company unless and until he, she or it has been approved in writing by the Member and has executed and delivered to the Company a copy of this Agreement. Upon such admission, a new Exhibit A shall be prepared by the President and circulated to the Member(s).
8.2 Assignments. A member may assign in whole or in part its limited liability company interest. If a member transfers all of its interest in the Company pursuant to this Section, the transferee shall be admitted to the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement. Such admission shall be deemed effective immediately prior to the transfer, and, immediately following such admission, the transferor member shall cease to be a member of the Company.
8.3 Resignation. A member may resign from the Company with the written consent of the Member. If a member is permitted to resign pursuant to this Section, an additional member shall be admitted to the Company, subject to Section 8.1, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement. Such admission shall be deemed effective immediately prior to the resignation, and immediately following such admission, the resigning member shall cease to be a member of the Company.
ARTICLE 9
Dissolution
9.1 Dissolution.
(a) The Company shall be dissolved and its affairs wound up upon the first to occur of either (i) the written consent of the Member(s) or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Except as otherwise provided in this paragraph, the Company shall not be dissolved upon the death, incapacity or bankruptcy of the Member.
(b) Upon the dissolution of the Company, the Company shall cease to engage in any further business, except to the extent necessary to perform existing obligations, and the Member shall wind up its affairs and liquidate or distribute its assets. Except as provided under Section 18-802 of the Act, the Member shall appoint a liquidator (who may, but need not, be the Member) who shall have sole authority and control over the Company business and affairs and shall diligently pursue the winding up of the Company.
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(c) Following dissolution, all of the business and affairs of the Company shall be liquidated and wound up. Upon dissolution, the proceeds of any liquidation shall be applied as follows: (i) first, to pay all expenses of liquidation and winding up; (ii) second, to pay all debts, obligations and liabilities of the Company in the order of priority as provided by law, other than debts owing to the Member in respect of distributions pursuant to Section 18-601 or 18-604 of the Act; (iii) third, to pay all debts of the Company owing to the Member in respect of distributions pursuant to Section 18-601 or 18-604 of the Act; and (iv) fourth, to the Member.
(d) Upon dissolution and completion of the winding up of the Company and distribution of its assets, the President shall cause to be executed and filed with the Secretary of State of the State of Delaware Articles of Dissolution of the Company in accordance with Section 18-203 of the Act.
ARTICLE 10
Miscellaneous Provisions
10.1 Entire Agreement. This Agreement contains the entire agreement of the party with respect to the subject matter hereof, supersedes all prior agreements relating to the subject matter hereof and may not be changed, altered, or amended, except in a written instrument as provided herein.
10.2 Severability. If any provision of this Agreement, or the application thereof to any person or circumstance, is held invalid, the remainder of this Agreement and the application of its provisions to other persons and circumstances shall not be affected thereby.
10.3 Captions. The captions of the respective Articles and Sections of this Agreement are inserted for convenience of reference only and shall not be deemed to affect the meaning of the provisions of this Agreement.
10.4 Governing Law. This Agreement shall be controlled, construed and enforced in accordance with the laws of the State of Delaware without regard to its principles of conflicts of laws.
10.5 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the party hereto and its respective heirs, successors, assigns and legal representatives.
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IN WITNESS WHEREOF, the party hereto has executed and delivered this Agreement as of the date first above written.
TI CIRCULATION HOLDINGS LLC | ||
By: | /s/ Lauren Ezrol klein | |
Name: Lauren Ezrol klein | ||
Title: Assistant Secretary |
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Exhibit A
Member |
Initial Capital Contribution | Percentage Interest | ||||||
TI Circulation Holdings LLC |
$ | 1.00 | 100 | % |
Exhibit 5.1
Darren DeStefano
T: +1 (703) 456-8034
ddestefano@cooley.com
January 7, 2019
Meredith Corporation
1716 Locust Street
Des Moines, IA 50309
Ladies and Gentlemen:
We have acted as counsel to Meredith Corporation, an Iowa corporation (the Company), in connection with the preparation and filing with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended, of a Registration Statement on Form S-4 (the Registration Statement), with respect to the 6.875% Senior Notes due 2026 (the Exchange Notes) of the Company to be issued under an Indenture, dated as of January 31, 2018 (the Indenture) by and among the Company, certain subsidiaries of the Company and U.S. Bank National Association, as trustee (the Trustee), as supplemented by the First Supplemental Indenture, dated as of January 31, 2018. The Exchange Notes are to be guaranteed by each of the subsidiaries of the Company listed on Exhibit A hereto (the Exhibit A Guarantors) and each of the subsidiaries of the Company listed on Exhibit B hereto (together with the Exhibit A Guarantors, the Guarantors) pursuant to guarantees provided in the Indenture (the Guarantees).
The Exchange Notes are to be offered in exchange for like principal amounts of the Companys outstanding 6.875% Senior Notes due 2026 (the Original Notes) pursuant to the Registration Rights Agreement dated as of January 31, 2018, as supplemented by the Joinder Agreement dated as of January 31, 2018 (together, the Registration Rights Agreement), by and among the Company, certain subsidiaries of the Company and Credit Suisse Securities (USA) LLC.
In connection with this opinion, we have examined and relied upon the Registration Statement, the Indenture, the forms of the Exchange Notes and the Guarantees set forth in the Indenture, the Registration Rights Agreement and originals or copies certified to our satisfaction of such records, documents, certificates, opinions, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. As to certain factual matters, we have relied upon certificates of officers of the Company and the Guarantors and have not independently verified such matters.
In rendering this opinion, we have assumed, without investigation: (i) the genuineness of all signatures; (ii) the authenticity of all documents submitted to us as originals; (iii) the conformity to originals of all documents submitted to us as copies; (iv) the accuracy, completeness and authenticity of certificates of public officials; (v) the valid existence, good standing in the jurisdiction of organization and the corporate or similar power to enter into, and perform the Exchange Notes, the Indenture and the Guarantees in accordance with their respective terms, of all persons party thereto (except that such assumption is not made as to the Exhibit A Guarantors); (vi) the due authorization, execution and delivery of all documents (except that
1
such assumption is not made with respect to the due authorization, execution and delivery of the Exchanges Notes, the Indenture and the Guarantees by the Exhibit A Guarantors), in each case where the authorization, execution and delivery thereof by such parties are prerequisites to the effectiveness of such documents; (vii) the legal capacity of all individuals executing and delivering documents to so execute and deliver; (viii) the Exchange Notes, the Indenture and the Guarantees constitute valid and binding obligations, enforceable in accordance with their respective terms against all parties thereto (except that such assumption is not made with respect to the Company or the Guarantors); and (x) there are no extrinsic agreements or understandings among the parties to the Exchange Notes, the Indenture and the Guarantees that would modify or interpret the terms of such documents or agreements or the respective rights or obligations of the parties thereunder.
Our opinion herein is expressed with respect to the Colorado Business Corporation Act, the General Corporation Law of the State of Delaware, the Delaware Limited Liability Company Act, the Washington Business Corporation Act and the laws of the State of New York. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation. We note that the Company is incorporated under the laws of the State of Iowa and that certain of the Guarantors are incorporated under the laws of the States of Arizona, Iowa, Nevada and Oregon and that our opinion is limited to the laws set forth in the first sentence of this paragraph. We have assumed all matters determinable under the law of the States of Arizona, Iowa, Nevada and Oregon, and understand you are obtaining opinions of separate counsel with respect to such matters.
With regard to our opinion below concerning the valid and legally binding nature of the Companys obligations under the Exchange Notes and the valid and legally binding nature of the Guarantors obligations under the Guarantees:
(i) Our opinion is subject to, and may be limited by (a) applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance, debtor and creditor, and similar laws which relate to or affect creditors rights generally, and (b) general principles of equity (including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing) regardless of whether considered in a proceeding in equity or at law.
(ii) Our opinion is subject to the qualification that (a) the enforceability of provisions for indemnification or limitations on liability may be limited by public policy considerations, and (b) the availability of specific performance, an injunction or other equitable remedies is subject to the discretion of the court before which the request is brought.
(iii) We express no opinion as to any provision of the Exchange Notes, the Guarantees or the Indenture that: (a) relates to the subject matter jurisdiction of any federal court of the United States of America or any federal appellate court to adjudicate any controversy related to the Exchange Notes, the Guarantees or the Indenture; (b) contains a waiver of an inconvenient forum; (c) relates to a right of setoff; (d) provides for liquidated damages, default interest, late charges, monetary penalties, prepayment or make-whole payments or other economic remedies; (e) relates to advance waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitations, trial by jury, or procedural rights; (f) restricts non-written modifications and waivers; (g) provides for the payment of legal and other professional fees where such payment is contrary to law or public policy; (h) relates to exclusivity, election or accumulation of rights or remedies; (i) authorizes or validates conclusive or discretionary determinations; (j) provides that
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provisions of the Exchange Notes, the Guarantees or Indenture are severable to the extent an essential part of the agreed exchange is determined to be invalid and unenforceable; (k) provides that a partys waiver of any breach of any provision of the Exchange Notes, the Guarantors or the Indenture is not to be construed as a waiver by such party of any prior breach of such provision or of any other provision of the Exchange Notes, the Guarantees or the Indenture; (l) provides any party the right to accelerate obligations or exercise remedies without notice; (m) purports to permit the Trustee or any holder of the Exchange Notes to act as any partys agent and attorney-in-fact; (n) specifies that the liability of any indemnitor shall not be affected by actions or failures to act on the part of the beneficiaries of the indemnity or by amendments or waivers of provisions of documents creating and governing the indemnified obligations if such actions, failures to act, amendments or waivers change the essential nature of the terms and conditions of the indemnified obligations so that, in effect, a new contract has arisen between the recipient of the indemnity and the primary obligor on whose behalf the indemnity was issued; or (o) provides for a right or remedy which may be held to be arbitrary or unconscionable, a penalty or otherwise in violation of public policy.
(iv) We express no opinion as to whether a state court outside of the State of New York or a federal court of the United States would give effect to the choice of New York law or jurisdiction provided for in the Exchange Notes, the Guarantees and the Indenture.
On the basis of the foregoing and in reliance thereon, and subject to the qualifications set forth herein, we are of the opinion that:
1. When duly executed and delivered by the Company, authenticated by the Trustee in accordance with the terms of the Indenture and issued and delivered in exchange for the Original Notes in accordance with the Registration Statement and the Registration Rights Agreement, the Exchange Notes will constitute valid and binding obligations of the Company.
2. When (a) the Exchange Notes have been duly executed and delivered by the Company, authenticated by the Trustee in accordance with the terms of the Indenture and issued and delivered in exchange for the Original Notes in accordance with the Registration Statement and the Registration Rights Agreement and (b) the Guarantees have been duly executed and delivered by the Guarantors, the Guarantees will constitute valid and binding obligations of the Guarantors.
Our opinion set forth above is limited to the matters expressly set forth in this letter, and no opinion is implied or may be inferred beyond the matters expressly stated. This opinion speaks only as to law and facts in effect or existing as of the date hereof, and we undertake no obligation or responsibility to update or supplement this opinion to reflect any facts or circumstances that may hereafter come to our attention or any changes in law that may hereafter occur.
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We hereby consent to the use of this opinion as an exhibit to the Registration Statement and to the use of our name under the caption Legal Matters in the prospectus that is part of the Registration Statement.
Very truly yours,
Cooley LLP
/s/ Darren DeStefano |
By: Darren DeStefano |
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EXHIBIT A
Allrecipes.com, Inc.
MyWedding, LLC
Selectable Media Inc.
TI Gotham Inc.
BIZRATE INSIGHTS INC.
Book-of-the-Month Club, Inc.
Cozi Inc.
Entertainment Weekly Inc.
FanSided Inc.
Health Media Ventures Inc.
Hello Giggles, Inc.
MNI Targeted Media Inc.
NewSub Magazine Services LLC
NSSI Holdings Inc.
SI DIGITAL GAMES, INC.
Southern Progress Corporation
Synapse Direct, Inc.
Synapse Group, Inc.
Synapse Retail Ventures, Inc.
Synapse Ventures, Inc.
Synapseconnect, Inc.
TI International Holdings Inc.
TI Live Events Inc.
TI Marketing Services Inc.
TI Media Solutions Inc.
TI MEXICO HOLDINGS INC.
TI PAPERCO INC.
TI Consumer Marketing, Inc.
TI Customer Service, Inc.
TI Distribution Services Inc.
TI Inc. Affluent Media Group
TI Inc. Books
TI Inc. Lifestyle Group
TI Inc. Play
TI Inc. Retail
TI Inc. Ventures
TI Publishing Ventures, Inc.
Viant Technology Holding Inc.
TI Administrative Holdings LLC
TI Books Holdings LLC
TI Circulation Holdings LLC
TI Corporate Holdings LLC
TI Distribution Holdings LLC
TI Magazine Holdings LLC
TI Sales Holdings LLC
TI Direct Ventures LLC
5
Exhibit B
Eating Well, Inc.
KPHO Broadcasting Corporation
KPTV-KPDX Broadcasting Corporation
KVVU Broadcasting Corporation
Meredith Performance Marketing, LLC
Meredith Shopper Marketing, LLC
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Exhibit 5.2
January 7, 2019
Meredith Corporation
1716 Locust Street
Des Moines, Iowa 50309
Re: Registration Statement on Form S-4
Ladies and Gentlemen:
I am providing this opinion in connection with the preparation and filing with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended, of a Registration Statement on Form S-4 (the Registration Statement), with respect to the 6.875% Senior Notes due 2026 (the Exchange Notes) of Meredith Corporation, an Iowa corporation (the Company), to be issued under an Indenture, dated as of January 31, 2018 (the Indenture) by and among the Company, certain subsidiaries of the Company and U.S. Bank National Association, as trustee (the Trustee), as supplemented by the First Supplemental Indenture, dated as of January 31, 2018. The Exchange Notes are to be guaranteed by certain subsidiaries of the Company, including Eating Well, Inc., an Iowa corporation, Meredith Performance Marketing, LLC, an Iowa limited liability company and Meredith Shopper Marketing, LLC, an Iowa limited liability company (each, an Iowa Guarantor), each pursuant to guarantees provided in the Indenture (the Guarantees).
I have examined the Registration Statement, the Indenture and such other instruments, documents, certificates and records which I have deemed relevant and necessary for the basis of my opinions hereinafter expressed. In such examination, I have assumed (a) the authenticity of original documents and the genuineness of all signatures; (b) the conformity to the originals of all documents submitted to me as copies; (c) the truth, accuracy and completeness of the information, representations and warranties contained in the records, documents, instruments and certificates I have reviewed; and (d) the legal capacity of all natural persons. As to any facts material to the opinions expressed herein that were not independently established or verified, I have relied upon oral or written statements and representations of officers and other representatives of the Company.
I am opining herein as to the effect on the subject transactions only of the laws of the State of Iowa, and I express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction or any other laws or as to any matters of municipal law or the laws of any other local agencies within the state.
Based on such examination and subject to the assumptions and limitations set forth herein, I am of the opinion that:
1. | The Company and each Iowa Guarantor are presently active and validly existing under the laws of the State of Iowa. |
2. | The Company and each Iowa Guarantor have the requisite organizational power, authority and capacity to execute and to deliver and to perform their obligations under the Indenture and to guarantee the Exchange Notes under the Indenture, as applicable. |
3. | The Company and each Iowa Guarantor have taken all necessary corporate or limited liability company action to duly authorize the execution, delivery and performance of the Indenture and to guarantee the Exchange Notes under the Indenture, as applicable. |
I hereby consent to the references to me in the Registration Statement and to the filing of this opinion by the Company as an exhibit to the Registration Statement. In giving this consent, I do not hereby admit that I come within the category of persons whose consent is required under Section 7 of the Act, or the rules and regulations of the Securities and Exchange Commission thereunder. I am admitted to the practice of law in the State of Iowa and the foregoing opinions are limited to the laws of that state and the federal laws of the United States of America.
Very truly yours, |
/s/ John S. Zieser |
John S. Zieser |
Chief Development Officer, General Counsel and Secretary |
[Signature Page to Opinion of General Counsel]
Exhibit 5.3
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100 WEST LIBERTY, SUITE 940 RENO, NEVADA 89501 TELEPHONE: (775) 343-7500 FACSIMILE: (844) 670-6009 http://www.dickinsonwright.com |
January 7, 2019
Meredith Corporation
1716 Locust Street
Des Moines, Iowa 50309-3023
Re: | Meredith Corporation Exchange Note Offering S-4 Registration Statement |
Ladies and Gentlemen:
We have acted as special Nevada counsel for Meredith Corporation, an Iowa corporation (Meredith), and have been requested to provide an opinion of counsel under Nevada law with reference to KVVU Broadcasting Corporation, a Nevada corporation (Guarantor), with respect to a $1,400,000,000 aggregate principal amount of 6.875% Senior Notes due 2026 (the Exchange Notes) of Meredith to be issued under an Indenture, dated as of January 31, 2018, by and among the Company, certain subsidiaries of the Company and U.S. Bank National Association, as trustee (the Trustee), as supplemented by the First Supplemental Indenture, dated as of January 31, 2018 (as supplemented, the Indenture), and guaranteed by Guarantor as filed with the Securities and Exchange Commission (the SEC) pursuant to a Registration Statement on Form S-4 (such Registration Statement, as supplemented or amended, is hereinafter referred to as the Registration Statement).
I. GENERAL MATTERS
A. Opinion Documents. For purposes of this opinion, we have reviewed originals or copies of the following documents listed below relating to Guarantor and the Exchange Notes.
1. Action by Unanimous Written Consent of the Governing Bodies of the Guarantors dated January 31, 2018, certified as of January 7, 2019, by the Secretary of Guarantor;
2. Articles of Incorporation of Guarantor, and all amendments thereto, as certified on December 5, 2018, by the Nevada Secretary of State (the Secretary of State);
3. Bylaws of Guarantor dated July 17, 1978, certified as of January 7, 2019, by the Secretary of Guarantor;
4. Officers Certificate from the Secretary of Guarantor dated January 7, 2019 (Officers Certificate);
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Meredith Corporation
January 7, 2019
Page 2
5. Certificate of Good Standing from the Office of the Secretary of State of the State of Nevada for Guarantor, dated December 5, 2018, as certified on December 5, 2018, by the Secretary of State (the Good Standing Certificate);
6. Indenture and First Supplemental Indenture, dated January 31, 2018, by and among Meredith, the guarantors (including Guarantor), and U.S. Bank National Association, as trustee (the Indenture); and
7. Registration Statement filed with the SEC on January 7, 2019.
The items identified in Sections I(A)(1) through and including I(A)(5) are referred to herein as the Organizational Documents. The items identified in Sections I(A)(6) and I(A)(7) are referred to herein as the Transaction Documents, and together with the Organizational Documents, the Opinion Documents.
B. Opining Jurisdiction and Law. The law covered by this opinion letter is limited to the present law of the State of Nevada. When we refer to the applicable law, we mean the statutes, the judicial and administrative decisions, and the rules and regulations of the government agencies of the opining jurisdiction. This does not include the statutes and ordinances, administrative decisions, and the rules and regulations of counties, towns, municipalities and special political subdivisions (whether created or enabled through federal, state or regional level) and judicial decisions to the extent they deal with any of the foregoing.
C. Scope of Review. In connection with the opinions expressed in this opinion letter, we have limited the scope of our review to electronic copies of the Opinion Documents. We have examined and, to the extent we have deemed proper, relied without investigation or analysis upon certain certificates, originals or copies certified to our satisfaction, of public officials and the Officers Certificate.
D. Reliance Without Investigation. We have not made or undertaken to make any investigation as to factual matters or as to the accuracy or completeness of any representation, warranty, data or any other information, whether written or oral, that may have been made by or on behalf of the parties to the Opinion Documents or otherwise, and we assume, in giving these opinions, that none of such information, if any, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements made, in light of the circumstances in which they are made, not misleading. We have relied on the truth of the representations and warranties of the parties made in the Opinion Documents.
II. OPINIONS
Based upon the foregoing and the limitations and qualifications in this opinion, it is our opinion that:
ARIZONA CALIFORNIA FLORIDA KENTUCKY MICHIGAN
NEVADA OHIO TENNESSEE TEXAS TORONTO WASHINGTON DC
Meredith Corporation
January 7, 2019
Page 3
A. Based solely on review of the Good Standing Certificate, Guarantor is a validly existing and active corporation under the laws of the State of Nevada.
B. Guarantor has the corporate power, authority and capacity to execute and to deliver and to perform its obligations under the Indenture and to guarantee the Exchange Notes under that Indenture.
C. Guarantor has taken all necessary corporate action to duly authorize the execution, delivery and performance of the Indenture and to guarantee the Exchange Notes under that Indenture.
III. ASSUMPTIONS AND QUALIFICATIONS
A. Assumptions. In rendering the opinions set forth in this letter, we have, with your consent and without any independent investigation or inquiry, assumed:
1. The Transaction Documents have been duly and validly authorized, signed and delivered by each party thereto (other than the Guarantor) and have been or will be properly acknowledged, where appropriate.
2. The genuineness of signatures not witnessed by us, the authenticity of any documents submitted to us as originals and the conformity to originals of documents submitted to us as copies or drafts.
3. The necessary legal capacity of all natural persons signing the Transaction Documents.
4. The certifications, representations and warranties as to matters of fact made by the Guarantor in the Transaction Documents are accurate and may be relied upon by us.
5. The Opinion Documents identified herein are complete and correct.
6. No party to the Transaction Documents is named or is acting in, engaging in, instigating or facilitating the Transaction Documents, directly or indirectly, for or on behalf of any person, group, entity, or nation named by any Executive Order or the United States Treasury Department as a terrorist, Specially Designated National and Blocked Person, or other banned or blocked person, entity, nation, or transaction pursuant to any law, order, rule, or regulation that is enforced or administered by the Office of Foreign Assets Control.
7. The Transaction Documents accurately and completely describe and contain the parties mutual intent, understanding and business purposes, and there are no oral or written statements, agreements, understandings or negotiations, nor any usage of trade or course of prior dealing among the parties, that directly or indirectly modify, define, amend, supplement or vary, or purport to do so, any of the terms of the Transaction Documents or any of the parties rights or obligations thereunder, by waiver or otherwise.
ARIZONA CALIFORNIA FLORIDA KENTUCKY MICHIGAN
NEVADA OHIO TENNESSEE TEXAS TORONTO WASHINGTON DC
Meredith Corporation
January 7, 2019
Page 4
8. Each of the Transaction Documents will have attached thereto, at the time of signing and delivery, all exhibits and schedules referenced therein.
9. The Registration Statement will be effective at the time the Exchange Notes are offered as contemplated by the Registration Statement.
10. Any applicable prospectus supplement will have been prepared and filed with the SEC describing the Exchange Notes offered thereby to the extent necessary.
11. The Outstanding Unregistered Notes (as defined in the Registration Statement) have been exchanged in the manner described in the prospectus forming a part of the Registration Statement.
12. The Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended.
13. The Company and the Guarantor will have obtained any legally required consents, approvals, authorizations and other orders of the SEC and any other federal regulatory agencies necessary for the Exchange Notes to be exchanged, offered and sold in the manner stated in the Registration Statement and any applicable prospectus supplement.
B. Qualifications. The opinions set forth in this letter are subject to the following exceptions and qualifications:
1. We are expressing no opinion as to any consents, approvals, authorizations or other action by, or filing with, any Nevada governmental agencies that are required pursuant to the terms of any agreements to which such agencies are parties and that are applicable to the Guarantor.
2. We do not purport to express any opinion concerning any law other than those of the State of Nevada. Although certain members of this firm are admitted to practice in other states, we have not examined the laws of any state other than Nevada, nor have we consulted with members of this firm who are admitted in other jurisdictions with respect to the laws of such jurisdictions.
3. The opinions set forth in this letter are limited in all respects to Nevada laws now in effect, to the matters set forth herein and as of the date hereof, and we assume no obligation to revise or supplement the opinions set forth in this letter should any such law be changed by legislative action, judicial decision or otherwise.
ARIZONA CALIFORNIA FLORIDA KENTUCKY MICHIGAN
NEVADA OHIO TENNESSEE TEXAS TORONTO WASHINGTON DC
Meredith Corporation
January 7, 2019
Page 5
4. Our opinions set forth in Section II(A) above are effective as to the Guarantor only as of the date of the Certificate of Good Standing.
C. Use of This Opinion. We hereby consent to reliance on this opinion letter and the opinions provided herein by the law firm Cooley LLP in connection with its opinion letter addressed to Meredith and filed as Exhibit 5.1 to the Registration Statement. Additionally, we hereby consent to the filing of this opinion of counsel as an exhibit to the Registration Statement. We also consent to the reference to our Firm under the heading Legal Matters in the prospectus forming a part of the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the SEC thereunder.
The opinions set forth above are expressly limited to the matters stated. No opinion is implied or may be inferred beyond what is explicitly stated in this letter. The opinions set forth herein are rendered as of the date set forth above, and no opinion is expressed as to circumstances or events that may occur subsequent to such date. We disclaim any obligation to update this opinion letter for events occurring or coming to our attention after the date hereof.
Very truly yours, |
DICKINSON WRIGHT PLLC |
/s/ Dickinson Wright PLLC |
BWK/BJW
ARIZONA CALIFORNIA FLORIDA KENTUCKY MICHIGAN
NEVADA OHIO TENNESSEE TEXAS TORONTO WASHINGTON DC
Exhibit 5.4
1 East Washington Street, Suite 2300 |
Phoenix, AZ 85004-2555 |
TEL 602.798.5400 |
FAX 602.798.5595 |
www.ballardspahr.com |
January 7, 2019
Meredith Corporation
1716 Locust Street
Des Moines, Iowa 50309-3023
Re: Meredith Corporation Exchange Note Offer S-4 Registration Statement
Ladies and Gentlemen:
We have acted as local Arizona counsel for KPHO Broadcasting Corporation (the Opinion Party), an Arizona corporation and a subsidiary of Meredith Corporation (Meredith), in connection with the Opinion Partys guarantees of exchange offer debt securities to be issued and/or exchanged by Meredith, pursuant to the indenture (the Indenture), among Meredith, the Opinion Party, as a guarantor, the other guarantors party thereto and U.S. Bank National Association, as trustee (in such capacity, the Trustee), which was filed with the Securities and Exchange Commission (the SEC) as exhibits to Merediths Current Report on Form 8- K on January 31, 2018.
In so acting, we have examined the following:
(a) | The Indenture; |
(b) | The First Supplemental Indenture, dated as of January 31, 2018, among Time Inc., the other guarantors party thereto and the Trustee (the First Supplemental Indenture); |
(c) | A copy of: (i) the Certificate of Good Standing from the Arizona Corporation Commission for the Opinion Party, dated December 18, 2018 (the Good Standing Certificate); (ii) the Articles of Incorporation of the Opinion Party from the Arizona Corporation Commission, (iii) the Bylaws of the Opinion Party and (iv) the Action by Unanimous Written Consent of the Board of Directors of the Opinion Party dated January 31, 2018, in each case as attached to the Officers Certificate; |
(d) | The Officers Certificate from the Opinion Party delivered to the Trustee dated the date hereof (the Officers Certificate); and |
(e) | Merediths Registration Statement on Form S-4 filed with the SEC on January 7, 2019. |
Meredith Corporation
January 7, 2019
Page 2
The Indenture and the First Supplemental Indenture are referred to collectively as the Opinion Documents and individually as an Opinion Document.
We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates of public officials, and, as to matters of fact material to our opinions also without independent verification, on representations made in the Opinion Documents and certificates and other inquiries of officers and other representatives of the Opinion Party, including the Officers Certificate. We have assumed the factual matters contained in certificates from public officials remain true and correct as of the date hereof. We have not examined any records of any court, administrative tribunal or other similar entity in connection with our opinion.
We have assumed the legal capacity and competence of natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of documents submitted to us as certified, conformed, photostatic, electronic or facsimile copies, and the completeness of all documents reviewed by us. We have also assumed, without independent verification, (i) that the parties to the Opinion Documents and the other agreements, instruments and documents executed in connection therewith, other than the Opinion Party, have the power (including, without limitation, corporate power) and authority to enter into and perform the Opinion Documents and such other agreements and documents, (ii) the due authorization, execution and delivery by such parties, other than the Opinion Party, of each Opinion Document and such other agreements and documents and (iii) that the Opinion Documents and such other agreements and documents constitute legal, valid and binding obligations of each such party, including the Opinion Party, enforceable against each such party in accordance with their respective terms.
Based upon the foregoing and subject to the assumptions, exceptions, limitations and qualifications set forth herein, we are of the opinion that:
1. | Based solely on the Good Standing Certificate, the Opinion Party is a corporation presently active and validly existing under the laws of the State of Arizona. |
2. | The Opinion Party has the corporate power and authority to enter into and perform its obligations under the Indenture and to incur the obligations provided therein and has taken all corporate action necessary to authorize the execution, delivery and performance of the Indenture. |
3. | The Indenture has been duly executed and delivered on behalf of the Opinion Party. |
Meredith Corporation
January 7, 2019
Page 3
The foregoing opinions are subject to the following exceptions, limitations and qualifications:
(a) Our opinion is subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer, avoidable transfers, marshalling or similar laws affecting creditors rights and remedies generally; and general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) We express no opinion as to the application or requirements of (i) federal law or (ii) state securities, patent, trademark, copyright, antitrust and unfair competition, pension or employee benefit, labor, environmental, health and safety, tax, trade regulation laws, insolvency or fraudulent transfer laws, avoidable transfer laws, antifraud laws, margin regulations, laws and regulations relating to commodities trading, derivatives, futures and swaps, the rules of any stock exchange, clearing organization, designated contract market or other regulated entity for trading, processing, clearing or reporting transactions in securities, commodities, futures or swaps, export control, anti-money laundering or anti-terrorism laws in respect of the transactions contemplated by or referred to in the Opinion Documents.
(c) We have assumed that:
(i) | All filings and recordings have been properly indexed and filed or recorded. Each public authority document is accurate, complete, and authentic, and all official public records (including their proper indexing and filing) are accurate and complete. |
(ii) | There are no agreements or understandings among the parties, written or oral, and there is no usage of trade or course of prior dealing among the parties that would, in either event, define, supplement, modify, or qualify the terms of the Opinion Documents. |
(iii) | Meredith and the Opinion Party have obtained all orders, consents, permits or approvals that may be required in connection with the conduct of their businesses. |
This opinion letter is limited to the present law of the State of Arizona. No opinion is given as to any federal law. When we refer to the applicable law, we mean the statutes, the judicial and administrative decisions, and the rules and regulations of the government agencies of the State of Arizona. This does not include the statutes and ordinances, administrative decisions, and the rules and regulations of counties, towns, municipalities and special political subdivisions (whether created or enabled through federal, state or regional level) and judicial decisions to the extent they deal with any of the foregoing.
Meredith Corporation
January 7, 2019
Page 4
This opinion may be relied upon by you only in connection with the consummation of the transactions described herein and may not be used or relied upon by you or any other person for any other purpose, without in each instance our prior written consent. We hereby consent to reliance on this opinion letter and the opinions provided herein by Cooley LLP in connection with the legal opinion provided by that law firm that is included as an exhibit to the Form S-4. Additionally, we hereby consent to the filing of this opinion of counsel as an exhibit to the Form S-4. We also consent to the reference to our Firm under the heading Legal Matters in the prospectus forming a part of the Form S-4. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the SEC thereunder. Except with our written consent, this opinion is not to be used, circulated, quoted or otherwise referred to except as provided in this paragraph.
This opinion is limited to the matters expressly stated herein. No implied opinion may be inferred to extend this opinion beyond the matters expressly stated herein. This opinion speaks as of the date hereof, and we do not undertake to advise you or anyone else of any changes in the opinions expressed herein resulting from changes in law, changes in facts or any other matters that hereafter might occur or be brought to our attention.
Very truly yours,
/s/ Ballard Spahr LLP
Exhibit 5.5
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Suite 2400 1300 SW Fifth Avenue Portland, OR 97201-5610
503-241-2300 tel 503-778-5299 fax |
January 7, 2019
Meredith Corporation
1716 Locust Street
Des Moines, Iowa 50309-3023
Re: Meredith Corporation Exchange Note Offer S-4 Registration Statement
Ladies and Gentlemen:
We have acted as special Oregon state counsel for Meredith Corporation (Meredith) and KPTV-KPDX Broadcasting Corporation, an Oregon corporation (the Oregon Guarantor) in connection with the issuance by Meredith of $1,400,000,000 in aggregate principal amount of its 6.875% Senior Notes (the Notes), pursuant to the Indenture dated as of January 31, 2018 (the Indenture) among Meredith, the Guarantors named on Schedule I thereto (including the Oregon Guarantor) and U.S. Bank National Association, as trustee (the Trustee), and the First Supplemental Indenture dated as of January 31, 2018 (the Supplemental Indenture and collectively with the Indenture, the Indenture Documents), among Time Inc., certain of its subsidiaries identified on Schedule I thereto, and the Trustee. Capitalized terms used without definition in this opinion letter have the meanings given in the Indenture.
The law covered by the opinions expressed herein is limited to the laws of the State of Oregon.
A. DOCUMENTS AND MATTERS EXAMINED
In connection with this opinion letter, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents:
A.1 The Indenture Documents.
A.2 Merediths registration statement on Form S-4, filed with the Securities and Exchange Commission (SEC) on January 7, 2019 (the Form S-4).
A.3 The following documents (the Entity Documents) certified to us by an officer of the Oregon Guarantor as being complete and in full force and effect as of the date of this letter: (a) the articles of incorporation of the Oregon Guarantor, as amended to date, and (b) the bylaws of the Oregon Guarantor, as amended to date.
Meredith Corporation
January 7, 2019
Page 2
A.4 Records certified to us by an officer of the Oregon Guarantor as constituting the records of proceedings and actions of the board of directors of the Oregon Guarantor relevant to the opinions set forth in this letter.
A.5 A Certificate of Existence for the Oregon Guarantor dated December 18, 2018 and a certificate dated December 18, 2018, certifying the records on file with the office of the Oregon Secretary of State with respect to the Oregon Guarantor, each issued by the Oregon Secretary of State (collectively, the Public Authority Documents).
B. CERTAIN ASSUMPTIONS
For purposes of this opinion letter, we have relied on the following assumptions:
B.1 Each document examined by us is accurate and complete, each such document that is an original is authentic, each such document that is a copy conforms to an authentic original, and all signatures on each such document are genuine. The form and content of us as unexecuted final drafts do not differ in any respect relevant to this opinion letter from the form and content of such documents as executed and delivered.
B.2 All public records (including their due and proper recordation or filing, and their due and proper indexing) are accurate and complete.
B.3 Each natural person has sufficient legal capacity to carry out that persons role in the transactions effected by the Indenture Documents and the Notes.
B.4 The Oregon Guarantor will receive direct or indirect benefits as a result of the transactions effected by the Indenture Documents.
In connection with the opinions in this opinion letter, we have relied without investigation or analysis on information in the Entity Documents and the Public Authority Documents.
C. OPINIONS
Based on and subject to the preceding examinations, assumptions, and other provisions, and also subject to the qualifications, exclusions, and other limitations stated or referred to in this opinion letter, we are of the opinion that:
C.1 The Oregon Guarantor is a corporation duly incorporated and validly existing under Oregon law.
Meredith Corporation
January 7, 2019
Page 3
C.2 The Oregon Guarantor has corporate power to execute and deliver, and to guarantee the Notes under, the Indenture.
C.3 The Oregon Guarantor has authorized, by all necessary corporate action on the part of the Oregon Guarantor, the execution and delivery of, and the guarantee of the Notes under, the Indenture.
D. CERTAIN QUALIFICATIONS AND EXCLUSIONS
The opinions set forth in this opinion letter are subject to the following qualifications and exclusions:
D.1 In rendering the opinions set forth in paragraph C.1, we are relying solely on the Public Authority Documents.
D.2 Our opinions may be limited by the effects of bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent or avoidable transfer or obligation, and other similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity, whether considered in a proceeding at law or in equity.
***
This opinion letter is to be interpreted in accordance with customary practice as to the matters addressed, the meaning of the language used and the scope and nature of the work we have performed.
The opinions set forth above are expressly limited to the matters stated. No opinion is implied or may be inferred beyond what is explicitly stated in this opinion letter. Without limiting the foregoing, we render no opinion with respect to (a) the authorization, execution, issuance, validity or enforceability of the Notes, (b) the validity or enforceability against the Oregon Guarantor of the Indenture Documents, or (c) any matter pertaining to the contents of the Form S-4 other than as expressly stated herein with respect to the Oregon Guarantor.
This opinion letter is delivered as of its date and without any undertaking to advise you of any changes of law or fact that occur after the date of this opinion letter even though the changes may affect the legal analysis, a legal conclusion or information confirmed in this opinion letter. We have no responsibility or obligation to update this opinion letter, to consider its applicability or correctness as to any person other than its addressee, or to take into account changes in law, facts or any other development of which we may later become aware.
We hereby consent to reliance on this opinion letter and the opinions provided herein by the law firm Cooley LLP in connection with the legal opinion provided by that law firm that is
Meredith Corporation
January 7, 2019
Page 4
included as an exhibit to the Form S-4. Additionally, we hereby consent to the filing of this opinion of counsel as an exhibit to the Form S-4. We also consent to the reference to our Firm under the heading Legal Matters in the prospectus forming a part of the Form S-4. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the SEC thereunder. Subject to the foregoing, this opinion letter is rendered only to you and is solely for your benefit in connection with the transactions effected by the Indenture Documents and the Notes, and this opinion letter may not be used or relied on for any other purpose or by any other person without our prior written consent.
Very truly yours,
/S/ Davis Wright Tremaine LLP
Exhibit 21.1
Subsidiaries of the Registrant
Significant Subsidiary |
Jurisdiction of Incorporation | |
TI Gotham Inc. |
Delaware | |
TI Inc. Lifestyle Group |
Delaware | |
IPC Magazines Holdings Limited |
United Kingdom | |
TI Direct Ventures LLC |
Delaware | |
Synapse Group, Inc. |
Delaware | |
TI Inc. Affluent Media Group |
Delaware | |
Newsub Magazine Services LLC |
Delaware | |
Allrecipes.com, Inc. |
Washington | |
KPHO Broadcasting Corporation |
Arizona | |
International Publishing Corporation Limited |
United Kingdom | |
MNI Targeted Media Inc. |
Delaware | |
TI Magazine Holdings LLC |
Delaware | |
TI Distribution Services Inc. |
Delaware | |
KPTV-KPDX Broadcasting Corporation |
Oregon | |
Bizrate Insights Inc. |
Delaware |
All other subsidiaries of the Company, considered in the aggregate as a single subsidiary, would not constitute a significant subsidiary.
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
The Board of Directors and Shareholders
Meredith Corporation:
We consent to the use of our report dated August 31, 2018, except as to Note 19, which is as of January 7, 2019, with respect to the consolidated balance sheets of Meredith Corporation and subsidiaries (the Company) as of June 30, 2018 and 2017, and the related consolidated statements of earnings, comprehensive income, shareholders equity, and cash flows for each of the years in the three-year period ended June 30, 2018, and the related notes and financial statement schedule, Schedule II Valuation and Qualifying Accounts (collectively, the consolidated financial statements), and the effectiveness of internal control over financial reporting as of June 30, 2018, included herein, and to the reference to our firm under the heading Experts in the prospectus.
Our report dated August 31, 2018 on the effectiveness of internal control over financial reporting as of June 30, 2018 contains an explanatory paragraph that states that management excluded Time Inc. and subsidiaries (Time), with 59 percent of the Companys total assets and 28 percent of revenue included in the consolidated financial statements as of and for the year ended June 30, 2018, from its assessment of the effectiveness of the Companys internal control over financial reporting as of June 30, 2018. Our audit of internal control over financial reporting of the Company also excluded an evaluation of the internal control over financial reporting of Time.
/s/ KPMG LLP
Des Moines, Iowa
January 7, 2019
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption Experts and to the use of our report dated February 23, 2018 (except for Note 22, as to which the date is January 7, 2019) with respect to the consolidated financial statements of Time Inc. included in the Registration Statement on Form S-4 and related Prospectus of Meredith Corporation for the registration of Meredith Corporation Senior Notes due 2026.
/s/ Ernst & Young LLP
New York, New York
January 7, 2019
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
☐ | Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) |
U.S. BANK NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
31-0841368
I.R.S. Employer Identification No.
800 Nicollet Mall Minneapolis, Minnesota |
55402 | |
(Address of principal executive offices) | (Zip Code) |
Raymond S. Haverstock
U.S. Bank National Association
60 Livingston Avenue
St. Paul, MN 55107
(651) 466-6299
(Name, address and telephone number of agent for service)
Meredith Corporation*
(Issuer with respect to the Securities)
*see table of additional registrants
Iowa | 42-0410230 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
1716 Locust Street Des Moines, Iowa |
50309-3023 | |
(Address of Principal Executive Offices) | (Zip Code) |
6.875% Senior Notes Due 2026
Guarantees of 6.875% Senior Notes Due 2026
(Title of the Indenture Securities)
*Table of Additional Registrant Guarantors (1)(2)
Exact Name of Registrant Guarantor as Specified in its Charter |
State or other |
IRS Employer | ||
Allrecipes.com, Inc. | Washington | 61-1809295 | ||
Eating Well, Inc. | Iowa | 03-0322411 | ||
KPHO Broadcasting Corporation | Arizona | 46-1419978 | ||
KPTV-KPDX Broadcasting Corporation | Oregon | 46-1428762 | ||
KVVU Broadcasting Corporation | Nevada | 88-0150559 | ||
Meredith Performance Marketing, LLC | Iowa | 81-4439693 | ||
Meredith Shopper Marketing, LLC | Iowa | * | ||
MyWedding, LLC | Colorado | 27-0968081 | ||
Selectable Media Inc. | Delaware | 01-0829100 | ||
TI Gotham Inc. | Delaware | 13-3486363 | ||
BIZRATE INSIGHTS INC. | Delaware | 81-3387655 | ||
Book-of-the-Month Club, Inc. | New York | 13-2912773 | ||
Cozi Inc. | Delaware | 46-1871123 | ||
Entertainment Weekly Inc. | Delaware | 13-3531720 | ||
FanSided Inc. | Delaware | 47-3949424 | ||
Health Media Ventures Inc. | Delaware | 63-1276037 | ||
Hello Giggles, Inc. | Delaware | 27-5305459 | ||
MNI Targeted Media Inc. | Delaware | 06-1478215 | ||
NewSub Magazine Services LLC | Delaware | 06-1535009 | ||
NSSI Holdings Inc. | Delaware | 13-4118261 | ||
SI DIGITAL GAMES, INC. | Delaware | 46-5427147 | ||
Southern Progress Corporation | Delaware | 63-0169565 | ||
Synapse Direct, Inc. | Delaware | 06-1588839 | ||
Synapse Group, Inc. | Delaware | 06-1310649 | ||
Synapse Retail Ventures, Inc. | Delaware | 27-0036946 | ||
Synapse Ventures, Inc. | Delaware | 06-1587880 | ||
Synapseconnect, Inc. | Delaware | 06-1592469 | ||
TI International Holdings Inc. | Delaware | 13-4086900 | ||
TI Live Events Inc. | Delaware | 27-4101204 | ||
TI Marketing Services Inc. | Delaware | 26-1591865 | ||
TI Media Solutions Inc. | Delaware | 13-1996792 | ||
TI MEXICO HOLDINGS INC. | Delaware | 20-3139129 | ||
TI PAPERCO INC. | Delaware | 13-3985403 | ||
TI Consumer Marketing, Inc. | Delaware | 13-4003379 | ||
TI Customer Service, Inc. | Delaware | 13-3388590 | ||
TI Distribution Services Inc. | Delaware | 13-2791594 | ||
TI Inc. Affluent Media Group | New York | 13-1426942 | ||
TI Inc. Books | Delaware | 13-3997977 | ||
TI Inc. Lifestyle Group | Delaware | 63-0515956 | ||
TI Inc. Play | Delaware | 47-2495788 | ||
TI Inc. Retail | New York | 13-0869490 | ||
TI Inc. Ventures | Delaware | 13-3687855 | ||
TI Publishing Ventures, Inc. | Delaware | 13-3353266 | ||
Viant Technology Holding Inc. | Delaware | 13-4142023 | ||
TI Administrative Holdings LLC |
Delaware | 13-4113302 | ||
TI Books Holdings LLC |
Delaware | 13-4145911 | ||
TI Circulation Holdings LLC |
Delaware | 13-4091846 |
2
TI Corporate Holdings LLC | Delaware | 13-4145908 | ||
TI Distribution Holdings LLC | Delaware | 13-4145913 | ||
TI Magazine Holdings LLC | Delaware | 13-4135343 | ||
TI Sales Holdings LLC | Delaware | 13-4145903 | ||
TI Direct Ventures LLC | Delaware | 32-0045153 |
(1) | The address and telephone number for each of the additional registrant guarantors is 1716 Locust Street, Des Moines, Iowa 50309-3023, (515) 284-3000. |
(2) | The name, address, including zip code, and telephone number, including area code, of agent for service for each of the Additional Registrants is John S. Zieser, Chief Development Officer / General Counsel and Secretary, Meredith Corporation, 1716 Locust Street, Des Moines, Iowa 50309-3023, (515) 284-3000. |
* | Does not have employees; no employer identification number issued. |
3
FORM T-1
Item 1. | GENERAL INFORMATION. Furnish the following information as to the Trustee. |
a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
b) | Whether it is authorized to exercise corporate trust powers. |
Yes
Item 2. | AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. |
None
Items 3-15 | Items 3-15 are not applicable because to the best of the Trustees knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
Item 16. | LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification. |
1. | A copy of the Articles of Association of the Trustee.* |
2. | A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2. |
3. | A copy of the certificate of authority of the Trustee to exercise corporate trust powers, attached as Exhibit 3. |
4. | A copy of the existing bylaws of the Trustee.** |
5. | A copy of each Indenture referred to in Item 4. Not applicable. |
6. | The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
7. | Report of Condition of the Trustee as of September 30, 2018 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. |
* Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005.
** Incorporated by reference to Exhibit 25.1 to registration statement on form S-3ASR, Registration Number 333-199863 filed on November 5, 2014.
4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of St. Paul, State of Minnesota on the 4th of December, 2018.
By: | /s/ Raymond S. Haverstock | |
Raymond S. Haverstock | ||
Vice President |
5
Exhibit 2
6
Exhibit 3
7
Exhibit 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Dated: December 4th, 2018
By: | /s/ Raymond S. Haverstock | |
Raymond S. Haverstock | ||
Vice President |
8
Exhibit 7
U.S. Bank National Association
Statement of Financial Condition
As of 9/30/2018
($000s)
9/30/2018 | ||||
Assets |
||||
Cash and Balances Due From Depository Institutions |
$ | 20,003,448 | ||
Securities |
110,034,104 | |||
Federal Funds |
31,434 | |||
Loans & Lease Financing Receivables |
281,653,128 | |||
Fixed Assets |
3,819,093 | |||
Intangible Assets |
13,233,498 | |||
Other Assets |
27,236,326 | |||
|
|
|||
Total Assets |
$ | 456,011,031 | ||
Liabilities |
||||
Deposits |
$ | 342,906,860 | ||
Fed Funds |
6,964,321 | |||
Treasury Demand Notes |
0 | |||
Trading Liabilities |
977,478 | |||
Other Borrowed Money |
38,881,574 | |||
Acceptances |
0 | |||
Subordinated Notes and Debentures |
3,800,000 | |||
Other Liabilities |
14,600,333 | |||
|
|
|||
Total Liabilities |
$ | 408,130,566 | ||
Equity |
||||
Common and Preferred Stock |
18,200 | |||
Surplus |
14,266,915 | |||
Undivided Profits |
32,793,053 | |||
Minority Interest in Subsidiaries |
802,297 | |||
|
|
|||
Total Equity Capital |
$ | 47,880,465 | ||
Total Liabilities and Equity Capital |
$ | 456,011,031 |
9
Exhibit 99.1
MEREDITH CORPORATION
LETTER OF TRANSMITTAL
OFFER TO EXCHANGE
ITS 6.875% SENIOR NOTES DUE 2026, WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, FOR ANY AND ALL OF ITS OUTSTANDING 6.875% SENIOR NOTES DUE 2026.
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2019 (THE EXPIRATION DATE) UNLESS THE OFFER IS EXTENDED. TENDERS MAY BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON , 2019.
The Exchange Agent for the Exchange Offer is:
U.S. BANK NATIONAL ASSOCIATION
By overnight courier or mail to: | By certified or registered mail to: | |
U.S. Bank National Association | U.S. Bank National Association | |
60 Livingston Avenue | 60 Livingston Avenue | |
St. Paul, Minnesota 55107 | St. Paul, Minnesota 55107 | |
Attn: Specialized Finance | Attn: Specialized Finance | |
By Facsimile Transmission | By hand: | |
(For Eligible Institutions Only): | U.S. Bank National Association | |
(651) 466-7372 | 60 Livingston Avenue | |
Confirm by Telephone: | 1st Floor - Bond Drop Window | |
(800) 934-6802 | St. Paul, Minnesota 55107 |
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TRANSMISSION TO A NUMBER OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY. THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
HOLDERS WHO WISH TO BE ELIGIBLE TO RECEIVE EXCHANGE NOTES FOR THEIR OUTSTANDING UNREGISTERED NOTES PURSUANT TO THE EXCHANGE OFFER MUST VALIDLY TENDER (AND NOT WITHDRAW) THEIR OUTSTANDING UNREGISTERED NOTES TO THE EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE.
Holders of Outstanding Unregistered Notes (as defined below) should complete this Letter of Transmittal either if Outstanding Unregistered Notes are to be forwarded herewith or if tenders of Outstanding Unregistered Notes are to be made by book-entry transfer to an account maintained by U.S. Bank National Association (the Exchange Agent) at The Depository Trust Company (DTC) pursuant to the procedures set forth in The Exchange OfferProcedures for Tendering Outstanding Unregistered Notes in the Prospectus (as defined below). If tender is being made by book-entry transfer, the Holder may have an Agents Message (as defined below) delivered in lieu of this Letter of Transmittal.
Holders of Outstanding Unregistered Notes (i) whose certificates (the Certificates) for such Outstanding Unregistered Notes are not immediately available or (ii) who cannot deliver their Certificates and all other required documents to the Exchange Agent on or prior to the Expiration Date or (iii) who cannot complete the procedures for book-entry transfer on a timely basis must tender their Outstanding Unregistered Notes according to the guaranteed delivery procedures set forth in The Exchange OfferGuaranteed Delivery Procedures in the Prospectus.
Unless the context otherwise requires, the term Holder for purposes of this Letter of Transmittal means any person in whose name Outstanding Unregistered Notes are registered or any other person who has obtained a properly completed bond power from the registered Holder or any person whose Outstanding Unregistered Notes are held of record by DTC.
The undersigned acknowledges that he or she has received and reviewed the Prospectus dated , 2019 (as it may be amended or supplemented from time to time, the Prospectus) of Meredith Corporation, a Delaware corporation (the Company), and certain of the Companys subsidiaries (each, a Guarantor and collectively, the Guarantors), and this Letter of Transmittal (the Letter of Transmittal), which together constitute the Companys offer (the Exchange Offer) to exchange up to $1,272,940,000 aggregate principal amount of 6.875% Senior Notes due 2026 (the Exchange Notes), which have been registered under the Securities Act of 1933, as amended (the Securities Act), for any and all of its outstanding 6.875% Senior Notes due 2026 (the Outstanding Unregistered Notes). The Outstanding Unregistered Notes are fully and unconditionally guaranteed on a senior unsecured basis (the Unregistered Guarantees) by the Guarantors and the Exchange Notes will be fully and unconditionally guaranteed on a senior unsecured basis (the Exchange Guarantees) by the Guarantors. Upon the terms and subject to the conditions set forth in the Prospectus and this Letter of Transmittal, the Guarantors offer to issue the Exchange Guarantees with respect to all Exchange Notes issued in the Exchange Offer in exchange for the Unregistered Guarantees of the Outstanding Unregistered Notes for which such Exchange Notes are issued in the Exchange Offer. Throughout this Letter of Transmittal, unless the context otherwise requires and whether so expressed or not, references to the Exchange Offer include the Guarantors offer to exchange the Exchange Guarantees for the Unregistered Guarantees, references to the Exchange Notes include the related Exchange Guarantees and references to the Outstanding Unregistered Notes include the related Unregistered Guarantees.
For each Outstanding Unregistered Note of any series of the Outstanding Unregistered Notes accepted for exchange, the Holder of such Outstanding Unregistered Note will receive a Exchange Note of the corresponding series of the Exchange Notes having a principal amount equal to that of the surrendered Outstanding Unregistered Note.
Capitalized terms used but not defined herein shall have the same meaning given them in the Prospectus.
YOUR BANK OR BROKER CAN ASSIST YOU IN COMPLETING THIS FORM. THE INSTRUCTIONS INCLUDED WITH THIS LETTER OF TRANSMITTAL MUST BE FOLLOWED. QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE PROSPECTUS AND THIS LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE EXCHANGE AGENT, WHOSE ADDRESS AND TELEPHONE NUMBER APPEAR ON THE FRONT PAGE OF THIS LETTER OF TRANSMITTAL.
The undersigned has completed the appropriate boxes below and signed this Letter of Transmittal to indicate the action that the undersigned desires to take with respect to the Exchange Offer.
NOTE: SIGNATURES MUST BE PROVIDED BELOW. PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL AND THE PROSPECTUS CAREFULLY BEFORE CHECKING ANY BOX BELOW. HOLDERS WHO WISH TO ACCEPT THE EXCHANGE OFFER AND TENDER THEIR OUTSTANDING UNREGISTERED NOTES MUST COMPLETE THIS LETTER OF TRANSMITTAL IN ITS ENTIRETY.
All Tendering Holders Complete Box 1:
List below the Outstanding Unregistered Notes to which this Letter of Transmittal relates. If the space provided below is inadequate, the Certificate numbers and aggregate principal amounts of Outstanding Unregistered Notes should be listed on a separate signed schedule affixed hereto.
BOX 1*
DESCRIPTION OF OUTSTANDING UNREGISTERED NOTES TENDERED HEREWITH | ||||||||
Name(s) and Address(es) of Registered Holder(s) (Please fill in, if blank, exactly as name(s) appear(s) on Certificate(s)) |
Series of Outstanding Unregistered Notes |
Certificate or Registration Number(s) of
Outstanding |
Aggregate Principal Amount Represented by
Outstanding |
Aggregate Principal Amount of Outstanding Being Tendered*** | ||||
Total: |
* | If the space provided is inadequate, list the Certificate numbers and principal amount of Outstanding Unregistered Notes on a separate signed schedule and attach the list to this Letter of Transmittal. |
** | Need not be completed by book-entry Holders. |
*** | The minimum permitted tender is $2,000 in principal amount. All tenders must be in the amount of $2,000 or in integral multiples of $1,000 in excess thereof. Unless otherwise indicated in this column, the Holder will be deemed to have tendered the full aggregate principal amount represented by such Outstanding Unregistered Notes. See instruction 2. |
Box 2
Book-Entry Transfer
☐ | CHECK HERE IF CERTIFICATES REPRESENTING THE TENDERED OUTSTANDING UNREGISTERED NOTES ARE ENCLOSED. |
☐ | CHECK HERE IF TENDERED OUTSTANDING UNREGISTERED NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING: |
Name of Tendering Institution: |
| |||
Account Number: |
| |||
Transaction Code Number: |
|
Holders of Outstanding Unregistered Notes may tender Outstanding Unregistered Notes by book-entry transfer by crediting the Outstanding Unregistered Notes to the Exchange Agents account at DTC in accordance with DTCs Automated Tender Offer Program (ATOP) and by complying with applicable ATOP procedures with respect to the Exchange Offer. DTC participants that are accepting the Exchange Offer should transmit their acceptance to DTC, which will edit and verify the acceptance and execute a book-entry delivery to the Exchange Agents account at DTC. DTC will then send a computer-generated message (an Agents Message) to the Exchange Agent for its acceptance in which the Holder of the Outstanding Unregistered Notes acknowledges and agrees to be bound by the terms of, and makes the representations and warranties contained in, this Letter of Transmittal; the DTC participant confirms on behalf of itself and the beneficial owners of such Outstanding Unregistered Notes all provisions of this Letter of Transmittal (including any representations and warranties) applicable to it and such beneficial owner as fully as if it had completed the information required herein and executed and transmitted this Letter of Transmittal to the Exchange Agent. Each DTC participant transmitting an acceptance of the Exchange Offer through the ATOP procedures will be deemed to have agreed to be bound by the terms of this Letter of Transmittal. Delivery of the Agents Message by DTC will satisfy the terms of the Exchange Offer as to execution and delivery of a Letter of Transmittal by the participant identified in the Agents Message. DTC participants may also accept the Exchange Offer by submitting a Notice of Guaranteed Delivery through ATOP.
Box 3
Notice of Guaranteed Delivery
(See Instruction 1 below)
☐ | CHECK HERE IF TENDERED OUTSTANDING UNREGISTERED NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING: |
Name(s) of Registered Holder(s): |
| |||
Window Ticket Number (if any): |
| |||
Name of Eligible Guarantor Institution that Guaranteed Delivery: |
| |||
Date of Execution of Notice of Guaranteed Delivery: |
|
IF GUARANTEED DELIVERY IS TO BE MADE BY BOOK-ENTRY TRANSFER:
Name of Tendering Institution: |
| |||
Account Number: |
| |||
Transaction Code Number: |
|
Box 4
Return of Non-Exchanged Outstanding Unregistered Notes
Tendered by Book-Entry Transfer
☐ | CHECK HERE IF OUTSTANDING UNREGISTERED NOTES TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED OUTSTANDING UNREGISTERED NOTES ARE TO BE RETURNED BY CREDITING THE ACCOUNT NUMBER SET FORTH ABOVE. |
Box 5
Participating Broker-Dealer
☐ | CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE OUTSTANDING UNREGISTERED NOTES FOR YOUR OWN ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER TRADING ACTIVITIES (A PARTICIPATING BROKER DEALER) AND WISH TO RECEIVE TEN (10) ADDITIONAL COPIES OF THE PROSPECTUS AND OF ANY AMENDMENTS OR SUPPLEMENTS THERETO. |
Name: |
| |
Address: |
|
The undersigned represents that it is acquiring the Exchange Notes in the ordinary course of business and has no arrangement or understanding with any person to participate in a distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the Securities Act. If the undersigned is a broker-dealer that will receive Exchange Notes for its own account in exchange for Outstanding Unregistered Notes that were acquired as a result of market-making activities or other trading activities, it acknowledges that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale or transfer of such Exchange Notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an underwriter within the meaning of the Securities Act. A broker-dealer may not participate in the Exchange Offer with respect to Outstanding Unregistered Notes acquired other than as a result of market-making activities or other trading activities. Any broker-dealer who purchased Outstanding Unregistered Notes from the Company to resell pursuant to Rule 144A under the Securities Act or any other available exemption under the Securities Act must comply with the registration and prospectus delivery requirements under the Securities Act.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the undersigned hereby tenders to the Company the aggregate principal amount of the Outstanding Unregistered Notes indicated above. Subject to, and effective upon, the acceptance for exchange of all or any portion of the Outstanding Unregistered Notes tendered herewith in accordance with the terms and conditions of the Exchange Offer (including, if the Exchange Offer is extended or amended, the terms and conditions of any such extension or amendment), the undersigned hereby exchanges, assigns and transfers to, or upon the order of, the Company all right, title and interest in and to such Outstanding Unregistered Notes as are being tendered herewith.
The undersigned hereby irrevocably constitutes and appoints the Exchange Agent as its true and lawful agent and attorney-in-fact of the undersigned (with full knowledge that the Exchange Agent also acts as the agent of the Company, in connection with the Exchange Offer) with respect to the tendered Outstanding Unregistered Notes, with full power of substitution and resubstitution (such power of attorney being deemed an irrevocable power coupled with an interest) to (i) deliver Certificates representing such Outstanding Unregistered Notes, or transfer ownership of such Outstanding Unregistered Notes on the account books maintained by the book-entry transfer facility specified by the Holder(s) of the Outstanding Unregistered Notes, together, in each such case, with all accompanying evidences of transfer and authenticity to, or upon the order of, the Company, (ii) present and deliver such Outstanding Unregistered Notes for transfer on the books of the Company and (iii) receive all benefits or otherwise exercise all rights and incidents of beneficial ownership of such Outstanding Unregistered Notes, all in accordance with the terms of the Exchange Offer.
The undersigned hereby represents and warrants that (i) the undersigned has full power and authority to tender, exchange, assign and transfer the Outstanding Unregistered Notes tendered hereby, (ii) when such tendered Outstanding Unregistered Notes are accepted for exchange, the Company will acquire good and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and (iii) the Outstanding Unregistered Notes tendered for exchange are not subject to any adverse claims or proxies when accepted by the Company. The undersigned hereby further represents that (i) any Exchange Notes acquired in exchange for Outstanding Unregistered Notes tendered hereby will have been acquired in the ordinary course of business of the person receiving such Exchange Notes, whether or not such person is the undersigned, (ii) neither the Holder of such Outstanding Unregistered Notes nor any such other person has any arrangement or understanding with any person to participate in, the distribution (within the meaning of the Securities Act) of such Exchange Notes, to be issued to the undersigned in the Exchange Offer, in violation of the Securities Act, (iii) neither the Holder of such Outstanding Unregistered Notes nor any such other person is an affiliate, as such term is defined in Rule 405 under the Securities Act, of the Company or any Guarantor, (iv) if the undersigned or any such other person is not a broker-dealer, the undersigned or any such other person is not engaging in, and does not intend to engage in, a distribution of the Exchange Notes to be issued to the undersigned in the Exchange Offer, (v) if the undersigned or any such other person is a participating broker-dealer that will receive Exchange Notes for its own account in exchange for the Outstanding Unregistered Notes that were acquired as a result of market-making or other trading activities, that the undersigned or any such other person will deliver a prospectus in connection with any resale of the Exchange Notes and (vi) the undersigned or any such other person is not acting on behalf of any persons or entities that could not truthfully make the foregoing representations.
The undersigned also acknowledges that the Exchange Offer is being made based on the Companys understanding of an interpretation by the staff of the Securities and Exchange Commission (the SEC) as set forth in a series of no-action letters issued to third parties, including Morgan Stanley & Co. Incorporated (available June 5, 1991), Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SECs letter to Shearman & Sterling, dated July 2, 1993, or similar no-action letters, that the Exchange Notes issued in exchange for the Outstanding Unregistered Notes pursuant to the Exchange Offer may be offered for resale, resold and otherwise transferred by each Holder thereof (other than a broker-dealer who acquires such Exchange Notes directly from the Company for resale pursuant to Rule 144A under the Securities Act or any other available exemption under the Securities Act or any such Holder that is an affiliate of the Company or the Guarantors within the meaning of Rule 405 under the Securities Act), without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that such Exchange Notes are acquired in the ordinary course of such Holders business and such Holders have no arrangement with any person to participate in the distribution of such Exchange Notes. However, the SEC has not considered the Exchange Offer in the context of a no-action letter, and there can be no assurance that the staff of the SEC would make a similar determination with respect to the Exchange Offer as in other circumstances. If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in, and does not intend to engage in, a distribution of such Exchange Notes and has no arrangement or understanding with any person to participate in the distribution of such Exchange Notes. If a Holder of the Outstanding Unregistered Notes is an affiliate of the Company or the Guarantors, is not acquiring the Exchange Notes in the ordinary course of its business, is engaged in or intends to engage in a distribution of the Exchange Notes or has any arrangement or understanding with respect to the distribution of the Exchange Notes to be acquired pursuant to the Exchange Offer, such Holder (x) may not rely on the applicable interpretations of the staff of the SEC and (y) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction. If the undersigned is a broker-dealer that will receive the Exchange Notes for its own account in exchange for the Outstanding Unregistered Notes, it represents that the Outstanding Unregistered Notes to be exchanged for the Exchange Notes were acquired by it as a result of market-making activities or other trading activities and acknowledges that it will deliver a prospectus in connection with any resale or transfer of such Exchange Notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an underwriter within the meaning of the Securities Act.
The undersigned will, upon request, execute and deliver any additional documents deemed by the Company or the Exchange Agent to be necessary or desirable to complete the exchange, assignment and transfer of the tendered Outstanding Unregistered Notes or transfer ownership of such Outstanding Unregistered Notes on the account books maintained by the book-entry transfer facility. The undersigned further agrees that acceptance of any and all validly tendered Outstanding Unregistered Notes by the Company and the issuance of Exchange Notes in exchange therefor shall constitute performance in full by the Company of its obligations under the Registration Rights Agreement, dated as of January 31, 2018, among the Issuer, the guarantors listed therein, and Credit Suisse Securities (USA) LLC, as representative of the Initial Purchasers defined therein (the Registration Rights Agreement), and that the Company shall have no further obligations or liabilities thereunder except as provided in Section 7 (indemnification and contribution) of such agreement. The undersigned will comply with its obligations under the Registration Rights Agreement.
The Exchange Offer is subject to certain conditions as set forth in the Prospectus under the caption The Exchange OfferConditions to the Exchange Offer. The undersigned recognizes that as a result of these conditions (which may be waived, in whole or in part, by the Company), as more particularly set forth in the Prospectus, the Company may not be required to exchange any of the Outstanding Unregistered Notes tendered hereby and, in such event, the Outstanding Unregistered Notes not exchanged will be returned to the undersigned at the address shown above, promptly following the expiration or termination of the Exchange Offer. In addition, the Company may amend the Exchange Offer at any time prior to the Expiration Date if any of the conditions set forth under The Exchange OfferConditions to the Exchange Offer occur.
All authority herein conferred or agreed to be conferred in this Letter of Transmittal shall survive the death or incapacity of the undersigned and every obligation of the undersigned hereunder shall be binding upon the successors, assigns, heirs, administrators, trustees in bankruptcy and legal representatives of the undersigned. Tendered Outstanding Unregistered Notes may be withdrawn at any time prior to the Expiration Date in accordance with the procedures set forth in the terms of this Letter of Transmittal.
Unless otherwise indicated herein in the box entitled Special Registration Instructions below, please deliver the Exchange Notes (and, if applicable, substitute Certificates representing the Outstanding Unregistered Notes for any Outstanding Unregistered Notes not exchanged) in the name of the undersigned or, in the case of a book-entry delivery of the Outstanding Unregistered Notes, please credit the account indicated above. Similarly, unless otherwise indicated under the box entitled Special Delivery Instructions below, please send the Exchange Notes (and, if applicable, substitute Certificates representing the Outstanding Unregistered Notes for any Outstanding Unregistered Notes not exchanged) to the undersigned at the address shown above in the box entitled Description of Outstanding Unregistered Notes Tendered Herewith.
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED DESCRIPTION OF OUTSTANDING UNREGISTERED NOTES TENDERED HEREWITH ABOVE AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE TENDERED THE OUTSTANDING UNREGISTERED NOTES AS SET FORTH IN SUCH BOX.
Box 6
SPECIAL REGISTRATION INSTRUCTIONS
(See Instructions 4 and 5)
To be completed ONLY if the Exchange Notes are to be issued in the name of someone other than the registered Holder of the Outstanding Unregistered Notes whose name(s) appear(s) above:
Issue Exchange Notes to:
Name: | ||
(Please Print) | ||
Address: | ||
(Including Zip Code) | ||
Daytime Area Code and Telephone Number:
| ||
Taxpayer Identification or Social Security No:
|
Box 7
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 4 and 5)
To be completed ONLY if the Exchange Notes are to be delivered to someone other than the registered Holder of the Outstanding Unregistered Notes whose name(s) appear(s) above, or to such registered Holder(s) at an address other than that shown above.
Mail Exchange Notes to:
Issue Exchange Notes to:
Name: | ||
(Please Print) | ||
Address: | ||
(Including Zip Code) | ||
Daytime Area Code and Telephone Number:
| ||
Taxpayer Identification or Social Security No:
|
Box 8
TENDERING HOLDER(S) SIGN HERE
(Complete accompanying IRS Form W-9)
PLEASE SIGN HERE
(To Be Completed by All Tendering Holders of
Outstanding Unregistered Notes Regardless of Whether Outstanding Unregistered Notes Are Being Physically
Delivered Herewith)
This Letter of Transmittal must be signed by the Holder(s) of Outstanding Unregistered Notes exactly as their name(s) appear(s) on Certificate(s) for Outstanding Unregistered Notes or, if tendered by a participant in DTC, exactly as such participants name appears on a security position listing as the owner of Outstanding Unregistered Notes, or by person(s) authorized to become registered Holder(s) by endorsements and documents transmitted with this Letter of Transmittal. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer or other person acting in a fiduciary or representative capacity, such person must set forth his or her full title below under Capacity and submit evidence satisfactory to the Company of such persons authority to so act.
If the signature appearing below is not of the registered Holder(s) of the Outstanding Unregistered Notes, then the registered Holder(s) must sign a valid proxy.
Date: | ||||||
Date: | ||||||
Signature(s) of Holder(s) or Authorized Signatory | ||||||
Name(s): | Address: | |||||
(Please Print) | (Including Zip Code) | |||||
Capacity | Area Code and Telephone No.: | |||||
Social Security | ||||||
No: |
SIGNATURE GUARANTEE (See Instruction 4 herein)
Certain Signatures Must Be Guaranteed by an Eligible Institution
(Name of Eligible Institution Guaranteeing Signatures)
(Address (including zip code) and Telephone Number (including area code) of Firm)
(Authorized Signature)
(Printed Name)
(Title)
Date:
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Delivery of this Letter of Transmittal and Certificates; Guaranteed Delivery Procedures.
A Holder of Outstanding Unregistered Notes may tender the same by (i) properly completing, dating and signing this Letter of Transmittal or a facsimile hereof (all references in the Prospectus to the Letter of Transmittal shall be deemed to include a facsimile thereof) and mailing or delivering the same, together with the Certificate or Certificates, if applicable, representing the Outstanding Unregistered Notes being tendered and any required signature guarantees and any other documents required by this Letter of Transmittal, to the Exchange Agent at its address set forth above on or prior to the Expiration Date, (ii) complying with the procedure for book-entry transfer described below or (iii) complying with the guaranteed delivery procedures described below.
Holders of Outstanding Unregistered Notes may tender Outstanding Unregistered Notes by book-entry transfer by crediting the Outstanding Unregistered Notes to the Exchange Agents account at DTC in accordance with DTCs Automated Tender Offer Program (ATOP) and by complying with applicable ATOP procedures with respect to the Exchange Offer. DTC participants that are accepting the Exchange Offer should transmit their acceptance to DTC, which will edit and verify the acceptance and execute a book-entry delivery to the Exchange Agents account at DTC. DTC will then send a computer-generated message (an Agents Message) to the Exchange Agent for its acceptance in which the Holder of the Outstanding Unregistered Notes acknowledges and agrees to be bound by the terms of, and makes the representations and warranties contained in, this Letter of Transmittal; the DTC participant confirms on behalf of itself and the beneficial owners of such Outstanding Unregistered Notes all provisions of this Letter of Transmittal (including any representations and warranties) applicable to it and such beneficial owner as fully as if it had completed the information required herein and executed and transmitted this Letter of Transmittal to the Exchange Agent. Each DTC participant transmitting an acceptance of the Exchange Offer through the ATOP procedures will be deemed to have agreed to be bound by the terms of this Letter of Transmittal. Delivery of the Agents Message by DTC will satisfy the terms of the Exchange Offer as to execution and delivery of a Letter of Transmittal by the participant identified in the Agents Message. DTC participants may also accept the Exchange Offer by submitting a Notice of Guaranteed Delivery through ATOP.
THE METHOD OF DELIVERY OF OUTSTANDING UNREGISTERED NOTES, THIS LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT THE HOLDERS ELECTION AND RISK. RATHER THAN MAIL THESE ITEMS, WE RECOMMEND THAT HOLDERS USE AN OVERNIGHT OR HAND DELIVERY SERVICE. IN ALL CASES, HOLDERS SHOULD ALLOW SUFFICIENT TIME TO ASSURE DELIVERY TO THE EXCHANGE AGENT BEFORE THE EXPIRATION DATE. HOLDERS SHOULD NOT SEND THE LETTER OF TRANSMITTAL OR OUTSTANDING UNREGISTERED NOTES DIRECTLY TO THE COMPANY. HOLDERS MAY REQUEST THEIR RESPECTIVE BROKERS, DEALERS, COMMERCIAL BANKS, TRUST COMPANIES OR OTHER NOMINEES TO EFFECT THE ABOVE TRANSACTIONS FOR THEM.
Holders (i) whose Outstanding Unregistered Notes are not immediately available; (ii) who cannot deliver their Outstanding Unregistered Notes, this Letter of Transmittal and all other required documents to the Exchange Agent on or prior to the Expiration Date; or (iii) who cannot comply with the book-entry transfer procedures on a timely basis, must tender their Outstanding Unregistered Notes pursuant to the guaranteed delivery procedures set forth in The Exchange OfferGuaranteed Delivery Procedures in the Prospectus and complete Box 3.
No alternative, conditional, irregular or contingent tenders will be accepted. Each tendering Holder, by execution of this Letter of Transmittal (or facsimile thereof), shall waive any right to receive notice of the acceptance of the Outstanding Unregistered Notes for exchange.
2. Partial Tenders; Withdrawals.
Tenders of Outstanding Unregistered Notes will be accepted only in the principal amount of $2,000 and integral multiples of $1,000 in excess thereof. If less than the entire principal amount of Outstanding Unregistered Notes evidenced by a submitted Certificate is tendered, the tendering Holder(s) must fill in the aggregate principal amount of Outstanding Unregistered Notes tendered in the box entitled Description of Outstanding Unregistered Notes Tendered Herewith in Box 1 above. A newly issued Certificate for the Outstanding Unregistered Notes submitted but not tendered will be sent to such Holder as soon as practicable after the Expiration Date, unless otherwise provided in the appropriate box on this Letter of Transmittal. All Outstanding Unregistered Notes delivered to the Exchange Agent will be deemed to have been tendered in full unless otherwise clearly indicated.
Outstanding Unregistered Notes tendered pursuant to the Exchange Offer may be withdrawn at any time prior to the Expiration Date, after which tenders of Outstanding Unregistered Notes are irrevocable.
To be effective with respect to the tender of Outstanding Unregistered Notes, a written notice of withdrawal (which notice may be by telegram, telex, facsimile or letter) must: (i) be received by the Exchange Agent at the address for the Exchange Agent set forth above before the Company notifies the Exchange Agent that it has accepted the tender of Outstanding Unregistered Notes pursuant to the Exchange Offer; (ii) specify the name of the person who tendered the Outstanding Unregistered Notes to be withdrawn; (iii) identify the Outstanding Unregistered Notes to be withdrawn (including the principal amount of such Outstanding Unregistered Notes, or, if applicable, the Certificate numbers shown on the particular Certificates evidencing such Outstanding Unregistered Notes and the principal amount of Outstanding Unregistered Notes represented by such Certificates); (iv) include a statement that such Holder is withdrawing its election to have such Outstanding Unregistered Notes exchanged; (v) specify the name in which any such Outstanding Unregistered Notes are to be registered, if different from that of the withdrawing Holder; and (vi) be signed by the Holder in the same manner as the original signature on this Letter of Transmittal (including any required signature guarantee). The Exchange Agent will return the properly withdrawn Outstanding Unregistered Notes promptly following the expiration or termination of the Exchange Offer.
If Outstanding Unregistered Notes have been tendered pursuant to the procedure for book-entry transfer set forth in The Exchange OfferBook-Entry Delivery Procedures in the Prospectus, any notice of withdrawal must specify the name and number of the account at DTC to be credited with the withdrawn Outstanding Unregistered Notes or otherwise comply with DTCs procedures. All questions as to the validity, form and eligibility of notices of withdrawals, including time of receipt, will be determined by the Company, and such determination will be final and binding on all parties.
Any Outstanding Unregistered Notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the Exchange Offer. Any Outstanding Unregistered Notes which have been tendered for exchange but which are not accepted for exchange for any reason will be returned to the Holder thereof without cost to such Holder (or, in the case of Outstanding Unregistered Notes tendered by book-entry transfer into the Exchange Agents account at DTC pursuant to the book-entry transfer procedures described above, such Outstanding Unregistered Notes will be credited to an account maintained with DTC for Outstanding Unregistered Notes) promptly following the expiration or termination of the Exchange Offer. Properly withdrawn Outstanding Unregistered Notes may be retendered by following one of the procedures described under the caption The Exchange OfferProcedures for Tendering Outstanding Unregistered Notes in the Prospectus at any time prior to the Expiration Date.
Neither the Company, any affiliate or assigns of the Company, the Exchange Agent nor any other person will be under any duty to give any notification of any irregularities in any notice of withdrawal or incur any liability for failure to give such notification (even if such notice is given to other persons).
3. Beneficial Owner Instructions.
Only a Holder of Outstanding Unregistered Notes (i.e., a person in whose name Outstanding Unregistered Notes are registered or any other person who has obtained a properly completed bond power from the registered Holder or any person whose Outstanding Unregistered Notes are held of record by DTC), or the legal representative or attorney-in-fact of a Holder, may execute and deliver this Letter of Transmittal.
4. Signature on this Letter of Transmittal; Written Instruments and Endorsements; Guarantee of Signatures.
If this Letter of Transmittal is signed by the registered Holder(s) (which term, for the purposes described herein, shall include DTC) of the Outstanding Unregistered Notes tendered hereby, the signature must correspond exactly with the name(s) as written on the face of the Certificates (or on such security listing) without alteration, addition, enlargement or any change whatsoever.
If any of the Outstanding Unregistered Notes tendered hereby are owned of record by two or more joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Outstanding Unregistered Notes are registered in different names, it will be necessary to complete, sign and submit as many separate copies of this Letter of Transmittal (or facsimiles thereof) as there are different registrations of Outstanding Unregistered Notes.
When this Letter of Transmittal is signed by the registered Holder(s) of Outstanding Unregistered Notes (which term, for the purposes described herein, shall include DTC) listed and tendered hereby, no endorsements of Certificates or separate written instruments of transfer or exchange are required. If, however, this Letter of Transmittal is signed by a person other than the registered Holder(s) of the Outstanding Unregistered Notes listed or the Exchange Notes are to be issued, or any untendered Outstanding Unregistered Notes are to be reissued, to a person other than the registered Holder(s) of the Outstanding Unregistered Notes, such Outstanding Unregistered Notes must be endorsed or accompanied by separate written instruments of transfer or exchange in form satisfactory to the Company and duly executed by the registered Holder, in each case signed exactly as the name or names of the registered Holder(s) appear(s) on the Outstanding Unregistered Notes and the signatures on such Certificates must be guaranteed by an Eligible Guarantor Institution. If this Letter of Transmittal, any Certificates or separate written instruments of transfer or exchange are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and, unless waived by the Company, submit proper evidence satisfactory to the Company, in its sole discretion, of such persons authority to so act.
Endorsements on Certificates for the Outstanding Unregistered Notes or signatures on bond powers required by this Instruction 4 must be guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc., a commercial bank or trust company having an office or correspondent in the United States or another eligible guarantor institution within the meaning of Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended (an Eligible Guarantor Institution).
Signatures on this Letter of Transmittal must be guaranteed by an Eligible Guarantor Institution, unless Outstanding Unregistered Notes are tendered: (i) by a registered Holder (which term, for the purposes described herein, shall include the book-entry transfer facility whose name appears on a security listing as the owner of the Outstanding Unregistered Notes) who has not completed the box entitled Special Registration Instructions or Special Delivery Instructions on this Letter of Transmittal; or (ii) for the account of an Eligible Guarantor Institution.
5. Special Registration and Delivery Instructions.
Tendering Holders should indicate, in the applicable Box 6 or Box 7, the name and address in/to which the Exchange Notes and/or Certificates for Outstanding Unregistered Notes not tendered or not accepted for exchange are to be issued or sent, if different from the name(s) and address(es) of the person signing this Letter of Transmittal. In the case of issuance in a different name, the tax identification number or social security number of the person named must also be indicated. A Holder tendering the Outstanding Unregistered Notes by book-entry transfer may request that the Outstanding Unregistered Notes not exchanged be credited to such account maintained at the book-entry transfer facility as such Holder may designate by indicating such in Box 4.
If no such instructions are given, the Exchange Notes (and any Outstanding Unregistered Notes not tendered or not accepted) will be issued in the name of and sent to the Holder signing this Letter of Transmittal or deposited into such Holders account at DTC.
6. Transfer Taxes.
The Company shall pay all transfer taxes, if any, applicable to the transfer and exchange of the Outstanding Unregistered Notes to it or its order pursuant to the Exchange Offer. If, however, the Exchange Notes and/or substitute Outstanding Unregistered Notes not exchanged are delivered to, are to be registered or are to be issued in the name of any person other than the registered Holder of the Outstanding Unregistered Notes tendered hereby, or if tendered Outstanding Unregistered Notes are registered in the name of any person other than the person signing this Letter of Transmittal, or if a transfer tax is imposed for any reason other than the transfer and exchange of Outstanding Unregistered Notes to the Company or its order pursuant to the Exchange Offer, the amount of any such transfer taxes (whether imposed on the registered Holder or any other person) will be payable by the tendering Holder. If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted herewith the amount of such transfer taxes will be billed directly to such tendering Holder.
Except as provided in this Instruction 6, it will not be necessary for transfer tax stamps to be affixed to the Outstanding Unregistered Notes listed in this Letter of Transmittal.
7. Waiver of Conditions.
The Company reserves the absolute right to amend or waive, in whole or in part, any of the conditions to the Exchange Offer set forth in the Prospectus.
8. Mutilated, Lost, Stolen or Destroyed Securities.
Any Holder whose Outstanding Unregistered Notes have been mutilated, lost, stolen or destroyed, should promptly contact the Exchange Agent at the address set forth on the first page hereof for further instructions. The Holder will then be instructed as to the steps that must be taken in order to replace the Certificate(s). This Letter of Transmittal and related documents cannot be processed until the procedures for replacing lost, destroyed or stolen Certificate(s) have been completed.
9. No Conditional Tenders; No Notice of Irregularities.
No alternative, conditional, irregular or contingent tenders will be accepted. All tendering Holders, by execution of this Letter of Transmittal or completing a tender of Outstanding Unregistered Notes through DTCs ATOP, shall waive any right to receive notice of the acceptance of their Outstanding Unregistered Notes for exchange. The Company reserves the absolute right, in its reasonable judgment, to waive any defects, irregularities or conditions of tender as to particular Outstanding Unregistered Notes. The Companys interpretation of the terms and conditions of the Exchange Offer (including the instructions in this Letter of Transmittal) will be final and binding on all parties. The Company also reserves the absolute right to reject any or all Letters of Transmittal or tenders that are not in proper form or the acceptance of which would, in the opinion of the Companys counsel, be unlawful.
Unless waived, any defects or irregularities in connection with tenders of Outstanding Unregistered Notes must be cured within such time as the Company shall determine. Although the Company intends to notify Holders of defects or irregularities with respect to tenders of Outstanding Unregistered Notes, neither the Company, the Exchange Agent nor any other person is under any obligation to give such notice nor shall they incur any liability for failure to give such notification. Tenders of Outstanding Unregistered Notes will not be deemed to have been made until such defects or irregularities have been cured or waived. Any Outstanding Unregistered Notes received by the Exchange Agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned by the Exchange Agent to the tendering Holder promptly following the expiration or termination of the Exchange Offer.
10. Requests for Assistance or Additional Copies.
Questions relating to the procedure for tendering, as well as requests for additional copies of the Prospectus and this Letter of Transmittal, may be directed to the Exchange Agent at the address and telephone number set forth on the first page hereof.
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A FACSIMILE OR COPY THEREOF (TOGETHER WITH CERTIFICATES OF OUTSTANDING UNREGISTERED NOTES OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED DOCUMENTS) OR A NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION DATE.
Print or type. See Specific Instructions on page 3. Form W-9 (Rev. October 2018) Department of the Treasury Internal Revenue Service Request for Taxpayer Identification Number and Certification ⶠGo to www.irs.gov/FormW9 for instructions and the latest information. Give Form to the requester. Do not send to the IRS. 1 Name (as shown on your income tax return). Name is required on this line; do not leave this line blank. 2 Business name/disregarded entity name, if different from above 3 Check appropriate box for federal tax classification of the person whose name is entered on line 1. Check only one of the following seven boxes. Individual/sole proprietor or C Corporation S Corporation PartnershipTrust/estate single-member LLC Limited liability company. Enter the tax classification (C=C corporation, S=S corporation, P=Partnership) ⶠNote: Check the appropriate box in the line above for the tax classification of the single-member owner. Do not check LLC if the LLC is classified as a single-member LLC that is disregarded from the owner unless the owner of the LLC is another LLC that is not disregarded from the owner for U.S. federal tax purposes. Otherwise, a single-member LLC that is disregarded from the owner should check the appropriate box for the tax classification of its owner. Other (see instructions) ⶠ4 Exemptions (codes apply only to certain entities, not individuals; see instructions on page 3): Exempt payee code (if any) Exemption from FATCA reporting code (if any) (Applies to accounts maintained outside the U.S.) 5 Address (number, street, and apt. or suite no.) See instructions. Requesters name and address (optional) 6 City, state, and ZIP code 7 List account number(s) here (optional) [GRAPHIC APPEARS HERE]Taxpayer Identification Number (TIN) Enter your TIN in the appropriate box. The TIN provided must match the name given on line 1 to avoid backup withholding. For individuals, this is generally your social security number (SSN). However, for a resident alien, sole proprietor, or disregarded entity, see the instructions for Part I, later. For other entities, it is your employer identification number (EIN). If you do not have a number, see How to get a Social security number Employer identification number TIN, later. or Note: If the account is in more than one name, see the instructions for line 1. Also see What Name and Number To Give the Requester for guidelines on whose number to enter. Certification [GRAPHIC APPEARS HERE] Under penalties of perjury, I certify that: 1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me); and 2. I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding; and 3. I am a U.S. citizen or other U.S. person (defined below); and 4. The FATCA code(s) entered on this form (if any) indicating that I am exempt from FATCA reporting is correct. Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the instructions for Part II, later. [GRAPHIC APPEARS HERE] General Instructions Section references are to the Internal Revenue Code unless otherwise noted. Future developments. For the latest information about developments related to Form W-9 and its instructions, such as legislation enacted after they were published, go to www.irs.gov/FormW9. Purpose of Form An individual or entity (Form W-9 requester) who is required to file an information return with the IRS must obtain your correct taxpayer identification number (TIN) which may be your social security number (SSN), individual taxpayer identification number (ITIN), adoption taxpayer identification number (ATIN), or employer identification number (EIN), to report on an information return the amount paid to you, or other amount reportable on an information return. Examples of information returns include, but are not limited to, the following. Form 1099-INT (interest earned or paid) Form 1099-DIV (dividends, including those from stocks or mutual funds) Form 1099-MISC (various types of income, prizes, awards, or gross proceeds) Form 1099-B (stock or mutual fund sales and certain other transactions by brokers) Form 1099-S (proceeds from real estate transactions) Form 1099-K (merchant card and third party network transactions) Form 1098 (home mortgage interest), 1098-E (student loan interest), 1098-T (tuition) Form 1099-C (canceled debt) Form 1099-A (acquisition or abandonment of secured property) Use Form W-9 only if you are a U.S. person (including a resident alien), to provide your correct TIN. If you do not return Form W-9 to the requester with a TIN, you might be subject to backup withholding. See What is backup withholding, later. [GRAPHIC APPEARS HERE][GRAPHIC APPEARS HERE][GRAPHIC APPEARS HERE][GRAPHIC APPEARS HERE][GRAPHIC APPEARS HERE][GRAPHIC APPEARS HERE] [GRAPHIC APPEARS HERE]Cat. No. 10231X Form W-9 (Rev. 10-2018)
By signing the filled-out form, you: Certify that the TIN you are giving is correct (or you are waiting for a number to be issued), Certify that you are not subject to backup withholding, or Claim exemption from backup withholding if you are a U.S. exempt payee. If applicable, you are also certifying that as a U.S. person, your allocable share of any partnership income from a U.S. trade or business is not subject to the withholding tax on foreign partners share of effectively connected income, and Certify that FATCA code(s) entered on this form (if any) indicating that you are exempt from the FATCA reporting, is correct. See What is FATCA reporting, later, for further information. Note: If you are a U.S. person and a requester gives you a form other than Form W-9 to request your TIN, you must use the requesters form if it is substantially similar to this Form W-9. Definition of a U.S. person. For federal tax purposes, you are considered a U.S. person if you are: An individual who is a U.S. citizen or U.S. resident alien; A partnership, corporation, company, or association created or organized in the United States or under the laws of the United States; An estate (other than a foreign estate); or A domestic trust (as defined in Regulations section 301.7701-7). Special rules for partnerships. Partnerships that conduct a trade or business in the United States are generally required to pay a withholding tax under section 1446 on any foreign partners share of effectively connected taxable income from such business. Further, in certain cases where a Form W-9 has not been received, the rules under section 1446 require a partnership to presume that a partner is a foreign person, and pay the section 1446 withholding tax. Therefore, if you are a U.S. person that is a partner in a partnership conducting a trade or business in the United States, provide Form W-9 to the partnership to establish your U.S. status and avoid section 1446 withholding on your share of partnership income. In the cases below, the following person must give Form W-9 to the partnership for purposes of establishing its U.S. status and avoiding withholding on its allocable share of net income from the partnership conducting a trade or business in the United States. In the case of a disregarded entity with a U.S. owner, the U.S. owner of the disregarded entity and not the entity; In the case of a grantor trust with a U.S. grantor or other U.S. owner, generally, the U.S. grantor or other U.S. owner of the grantor trust and not the trust; and In the case of a U.S. trust (other than a grantor trust), the U.S. trust (other than a grantor trust) and not the beneficiaries of the trust. Foreign person. If you are a foreign person or the U.S. branch of a foreign bank that has elected to be treated as a U.S. person, do not use Form W-9. Instead, use the appropriate Form W-8 or Form 8233 (see Pub. 515, Withholding of Tax on Nonresident Aliens and Foreign Entities). Nonresident alien who becomes a resident alien. Generally, only a nonresident alien individual may use the terms of a tax treaty to reduce or eliminate U.S. tax on certain types of income. However, most tax treaties contain a provision known as a saving clause. Exceptions specified in the saving clause may permit an exemption from tax to continue for certain types of income even after the payee has otherwise become a U.S. resident alien for tax purposes. If you are a U.S. resident alien who is relying on an exception contained in the saving clause of a tax treaty to claim an exemption from U.S. tax on certain types of income, you must attach a statement to Form W-9 that specifies the following five items. The treaty country. Generally, this must be the same treaty under which you claimed exemption from tax as a nonresident alien. The treaty article addressing the income. The article number (or location) in the tax treaty that contains the saving clause and its exceptions. The type and amount of income that qualifies for the exemption from tax. Sufficient facts to justify the exemption from tax under the terms of the treaty article.Example. Article 20 of the U.S.-China income tax treaty allows an exemption from tax for scholarship income received by a Chinese student temporarily present in the United States. Under U.S. law, this student will become a resident alien for tax purposes if his or her stay in the United States exceeds 5 calendar years. However, paragraph 2 of the first Protocol to the U.S.-China treaty (dated April 30, 1984) allows the provisions of Article 20 to continue to apply even after the Chinese student becomes a resident alien of the United States. A Chinese student who qualifies for this exception (under paragraph 2 of the first protocol) and is relying on this exception to claim an exemption from tax on his or her scholarship or fellowship income would attach to Form W-9 a statement that includes the information described above to support that exemption. If you are a nonresident alien or a foreign entity, give the requester the appropriate completed Form W-8 or Form 8233. Backup Withholding What is backup withholding? Persons making certain payments to you must under certain conditions withhold and pay to the IRS 24% of such payments. This is called backup withholding. Payments that may be subject to backup withholding include interest, tax-exempt interest, dividends, broker and barter exchange transactions, rents, royalties, nonemployee pay, payments made in settlement of payment card and third party network transactions, and certain payments from fishing boat operators. Real estate transactions are not subject to backup withholding. You will not be subject to backup withholding on payments you receive if you give the requester your correct TIN, make the proper certifications, and report all your taxable interest and dividends on your tax return. Payments you receive will be subject to backup withholding if: You do not furnish your TIN to the requester, You do not certify your TIN when required (see the instructions for Part II for details), The IRS tells the requester that you furnished an incorrect TIN, The IRS tells you that you are subject to backup withholding because you did not report all your interest and dividends on your tax return (for reportable interest and dividends only), or You do not certify to the requester that you are not subject to backup withholding under 4 above (for reportable interest and dividend accounts opened after 1983 only). Certain payees and payments are exempt from backup withholding. See Exempt payee code, later, and the separate Instructions for the Requester of Form W-9 for more information. Also see Special rules for partnerships, earlier. What is FATCA Reporting? The Foreign Account Tax Compliance Act (FATCA) requires a participating foreign financial institution to report all United States account holders that are specified United States persons. Certain payees are exempt from FATCA reporting. See Exemption from FATCA reporting code, later, and the Instructions for the Requester of Form W-9 for more information. Updating Your Information You must provide updated information to any person to whom you claimed to be an exempt payee if you are no longer an exempt payee and anticipate receiving reportable payments in the future from this person. For example, you may need to provide updated information if you are a C corporation that elects to be an S corporation, or if you no longer are tax exempt. In addition, you must furnish a new Form W-9 if the name or TIN changes for the account; for example, if the grantor of a grantor trust dies. Penalties Failure to furnish TIN. If you fail to furnish your correct TIN to a requester, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect. Civil penalty for false information with respect to withholding. If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty
Criminal penalty for falsifying information. Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment. Misuse of TINs. If the requester discloses or uses TINs in violation of federal law, the requester may be subject to civil and criminal penalties. Specific Instructions Line 1 You must enter one of the following on this line; do not leave this line blank. The name should match the name on your tax return. If this Form W-9 is for a joint account (other than an account maintained by a foreign financial institution (FFI)), list first, and then circle, the name of the person or entity whose number you entered in Part I of Form W-9. If you are providing Form W-9 to an FFI to document a joint account, each holder of the account that is a U.S. person must provide a Form W-9. a. Individual. Generally, enter the name shown on your tax return. If you have changed your last name without informing the Social Security Administration (SSA) of the name change, enter your first name, the last name as shown on your social security card, and your new last name. Note: ITIN applicant: Enter your individual name as it was entered on your Form W-7 application, line 1a. This should also be the same as the IF the entity/person on line 1 is a(n) . . . THEN check the box for . . . Corporation Corporation Individual Sole proprietorship, or Single-member limited liability company (LLC) owned by an individual and disregarded for U.S. federal tax purposes. Individual/sole proprietor or single- member LLC LLC treated as a partnership for U.S. federal tax purposes, LLC that has filed Form 8832 or 2553 to be taxed as a corporation, or LLC that is disregarded as an entity separate from its owner but the owner is another LLC that is not disregarded for U.S. federal tax purposes. Limited liability company and enter the appropriate tax classification. (P= Partnership; C= C corporation; or S= S corporation) Partnership Partnership Trust/estate Trust/estate name you entered on the Form 1040/1040A/1040EZ you filed with your application. Sole proprietor or single-member LLC. Enter your individual name as shown on your 1040/1040A/1040EZ on line 1. You may enter your business, trade, or doing business as (DBA) name on line 2. Partnership, LLC that is not a single-member LLC, C corporation, or S corporation. Enter the entitys name as shown on the entitys tax return on line 1 and any business, trade, or DBA name on line 2. Other entities. Enter your name as shown on required U.S. federal tax documents on line 1. This name should match the name shown on the charter or other legal document creating the entity. You may enter any business, trade, or DBA name on line 2. Disregarded entity. For U.S. federal tax purposes, an entity that is disregarded as an entity separate from its owner is treated as a disregarded entity. See Regulations section 301.7701-2(c)(2)(iii). Enter the owners name on line 1. The name of the entity entered on line 1 should never be a disregarded entity. The name on line 1 should be the name shown on the income tax return on which the income should be reported. For example, if a foreign LLC that is treated as a disregarded entity for U.S. federal tax purposes has a single owner that is a U.S. person, the U.S. owners name is required to be provided on line 1. If the direct owner of the entity is also a disregarded entity, enter the first owner that is not disregarded for federal tax purposes. Enter the disregarded entitys name on line 2, Business name/disregarded entity name. If the owner of the disregarded entity is a foreign person, the owner must complete an appropriate Form W-8 instead of a Form W-9. This is the case even if the foreign person has a U.S. TIN. Line 2 If you have a business name, trade name, DBA name, or disregarded entity name, you may enter it on line 2. Line 3 Check the appropriate box on line 3 for the U.S. federal tax classification of the person whose name is entered on line 1. Check only one box on line 3. Line 4, Exemptions If you are exempt from backup withholding and/or FATCA reporting, enter in the appropriate space on line 4 any code(s) that may apply to you. Exempt payee code. Generally, individuals (including sole proprietors) are not exempt from backup withholding. Except as provided below, corporations are exempt from backup withholding for certain payments, including interest and dividends. Corporations are not exempt from backup withholding for payments made in settlement of payment card or third party network transactions. Corporations are not exempt from backup withholding with respect to attorneys fees or gross proceeds paid to attorneys, and corporations that provide medical or health care services are not exempt with respect to payments reportable on Form 1099-MISC. The following codes identify payees that are exempt from backup withholding. Enter the appropriate code in the space in line 4. 1An organization exempt from tax under section 501(a), any IRA, or a custodial account under section 403(b)(7) if the account satisfies the requirements of section 401(f)(2) 2The United States or any of its agencies or instrumentalities 3A state, the District of Columbia, a U.S. commonwealth or possession, or any of their political subdivisions or instrumentalities 4A foreign government or any of its political subdivisions, agencies, or instrumentalities 5A corporation 6A dealer in securities or commodities required to register in the United States, the District of Columbia, or a U.S. commonwealth or possession 7A futures commission merchant registered with the Commodity Futures Trading Commission 8A real estate investment trust 9An entity registered at all times during the tax year under the Investment Company Act of 1940 10A common trust fund operated by a bank under section 584(a) 11A financial institution 12A middleman known in the investment community as a nominee or custodian 13A trust exempt from tax under section 664 or described in section 4947
The following chart shows types of payments that may be exempt from backup withholding. The chart applies to the exempt payees listed above, 1 through 13. IF the payment is for . . . THEN the payment is exempt for . . . Interest and dividend payments All exempt payees except for 7 Broker transactions Exempt payees 1 through 4 and 6 through 11 and all C corporations. S corporations must not enter an exempt payee code because they are exempt only for sales of noncovered securities acquired prior to 2012. Barter exchange transactions and patronage dividends Exempt payees 1 through 4 Payments over $600 required to be reported and direct sales over $5,0001 Generally, exempt payees 1 through 52 Payments made in settlement of payment card or third party network transactions Exempt payees 1 through 4 1 See Form 1099-MISC, Miscellaneous Income, and its instructions. 2 However, the following payments made to a corporation and reportable on Form 1099-MISC are not exempt from backup withholding: medical and health care payments, attorneys fees, gross proceeds paid to an attorney reportable under section 6045(f), and payments for services paid by a federal executive agency. Exemption from FATCA reporting code. The following codes identify payees that are exempt from reporting under FATCA. These codes apply to persons submitting this form for accounts maintained outside of the United States by certain foreign financial institutions. Therefore, if you are only submitting this form for an account you hold in the United States, you may leave this field blank. Consult with the person requesting this form if you are uncertain if the financial institution is subject to these requirements. A requester may indicate that a code is not required by providing you with a Form W-9 with Not Applicable (or any similar indication) written or printed on the line for a FATCA exemption code. AAn organization exempt from tax under section 501(a) or any individual retirement plan as defined in section 7701(a)(37) BThe United States or any of its agencies or instrumentalities CA state, the District of Columbia, a U.S. commonwealth or possession, or any of their political subdivisions or instrumentalities DA corporation the stock of which is regularly traded on one or more established securities markets, as described in Regulations section 1.1472-1(c)(1)(i) EA corporation that is a member of the same expanded affiliated group as a corporation described in Regulations section 1.1472-1(c)(1)(i) FA dealer in securities, commodities, or derivative financial instruments (including notional principal contracts, futures, forwards, and options) that is registered as such under the laws of the United States or any state GA real estate investment trust HA regulated investment company as defined in section 851 or an entity registered at all times during the tax year under the Investment Company Act of 1940 IA common trust fund as defined in section 584(a) JA bank as defined in section 581 KA broker LA trust exempt from tax under section 664 or described in section 4947(a)(1) MA tax exempt trust under a section 403(b) plan or section 457(g) plan Note: You may wish to consult with the financial institution requesting this form to determine whether the FATCA code and/or exempt payee code should be completed. Line 5 Enter your address (number, street, and apartment or suite number). This is where the requester of this Form W-9 will mail your information returns. If this address differs from the one the requester already has on file, write NEW at the top. If a new address is provided, there is still a chance the old address will be used until the payor changes your address in their records. Line 6 Enter your city, state, and ZIP code. Part I. Taxpayer Identification Number (TIN) Enter your TIN in the appropriate box. If you are a resident alien and you do not have and are not eligible to get an SSN, your TIN is your IRS individual taxpayer identification number (ITIN). Enter it in the social security number box. If you do not have an ITIN, see How to get a TIN below. If you are a sole proprietor and you have an EIN, you may enter either your SSN or EIN. If you are a single-member LLC that is disregarded as an entity separate from its owner, enter the owners SSN (or EIN, if the owner has one). Do not enter the disregarded entitys EIN. If the LLC is classified as a corporation or partnership, enter the entitys EIN. Note: See What Name and Number To Give the Requester, later, for further clarification of name and TIN combinations. How to get a TIN. If you do not have a TIN, apply for one immediately. To apply for an SSN, get Form SS-5, Application for a Social Security Card, from your local SSA office or get this form online at www.SSA.gov. You may also get this form by calling 1-800-772-1213. Use Form W-7, Application for IRS Individual Taxpayer Identification Number, to apply for an ITIN, or Form SS-4, Application for Employer Identification Number, to apply for an EIN. You can apply for an EIN online by accessing the IRS website at www.irs.gov/Businesses and clicking on Employer Identification Number (EIN) under Starting a Business. Go to www.irs.gov/Forms to view, download, or print Form W-7 and/or Form SS-4. Or, you can go to www.irs.gov/OrderForms to place an order and have Form W-7 and/or SS-4 mailed to you within 10 business days. If you are asked to complete Form W-9 but do not have a TIN, apply for a TIN and write Applied For in the space for the TIN, sign and date the form, and give it to the requester. For interest and dividend payments, and certain payments made with respect to readily tradable instruments, generally you will have 60 days to get a TIN and give it to the requester before you are subject to backup withholding on payments. The 60-day rule does not apply to other types of payments. You will be subject to backup withholding on all such payments until you provide your TIN to the requester. Note: Entering Applied For means that you have already applied for a TIN or that you intend to apply for one soon. Caution: A disregarded U.S. entity that has a foreign owner must use the appropriate Form W-8. Part II. Certification To establish to the withholding agent that you are a U.S. person, or resident alien, sign Form W-9. You may be requested to sign by the withholding agent even if item 1, 4, or 5 below indicates otherwise. For a joint account, only the person whose TIN is shown in Part I should sign (when required). In the case of a disregarded entity, the person identified on line 1 must sign. Exempt payees, see Exempt payee code, earlier. Signature requirements. Complete the certification as indicated in items 1 through 5 below
number must be furnished. 2 Circle the minors name and furnish the minors SSN. 3 You must show your individual name and you may also enter your business or DBA name on the Business name/disregarded entity name line. You may use either your SSN or EIN (if you have one), but the IRS encourages you to use your SSN. 4 List first and circle the name of the trust, estate, or pension trust. (Do not furnish the TIN of the personal representative or trustee unless the legal entity itself is not designated in the account title.) Also see Special rules for partnerships, earlier. *Note: The grantor also must provide a Form W-9 to trustee of trust. Note: If no name is circled when more than one name is listed, the number will be considered to be that of the first name listed. Secure Your Tax Records From Identity Theft Identity theft occurs when someone uses your personal information such as your name, SSN, or other identifying information, without your permission, to commit fraud or other crimes. An identity thief may use your SSN to get a job or may file a tax return using your SSN to receive a refund. To reduce your risk: Protect your SSN, Ensure your employer is protecting your SSN, and Be careful when choosing a tax preparer. If your tax records are affected by identity theft and you receive a notice from the IRS, respond right away to the name and phone number printed on the IRS notice or letter. If your tax records are not currently affected by identity theft but you think you are at risk due to a lost or stolen purse or wallet, questionable credit card activity or credit report, contact the IRS Identity Theft Hotline at 1-800-908-4490 or submit Form 14039. For more information, see Pub. 5027, Identity Theft Information for Taxpayers. Victims of identity theft who are experiencing economic harm or a systemic problem, or are seeking help in resolving tax problems that have not been resolved through normal channels, may be eligible for Taxpayer Advocate Service (TAS) assistance. You can reach TAS by calling the TAS toll-free case intake line at 1-877-777-4778 or TTY/TDD 1-800-829-4059. Protect yourself from suspicious emails or phishing schemes. Phishing is the creation and use of email and websites designed to mimic legitimate business emails and websites. The most common act is sending an email to a user falsely claiming to be an established legitimate enterprise in an attempt to scam the user into surrendering private information that will be used for identity theft.
The IRS does not initiate contacts with taxpayers via emails. Also, the IRS does not request personal detailed information through email or ask taxpayers for the PIN numbers, passwords, or similar secret access information for their credit card, bank, or other financial accounts. If you receive an unsolicited email claiming to be from the IRS, forward this message to phishing@irs.gov. You may also report misuse of the IRS name, logo, or other IRS property to the Treasury Inspector General for Tax Administration (TIGTA) at 1-800-366-4484. You can forward suspicious emails to the Federal Trade Commission at spam@uce.gov or report them at www.ftc.gov/complaint. You can contact the FTC at www.ftc.gov/idtheft or 877-IDTHEFT (877-438-4338). If you have been the victim of identity theft, see www.IdentityTheft.gov and Pub. 5027. Visit www.irs.gov/IdentityTheft to learn more about identity theft and how to reduce your risk. Privacy Act Notice Section 6109 of the Internal Revenue Code requires you to provide your correct TIN to persons (including federal agencies) who are required to file information returns with the IRS to report interest, dividends, or certain other income paid to you; mortgage interest you paid; the acquisition or abandonment of secured property; the cancellation of debt; or contributions you made to an IRA, Archer MSA, or HSA. The person collecting this form uses the information on the form to file information returns with the IRS, reporting the above information. Routine uses of this information include giving it to the Department of Justice for civil and criminal litigation and to cities, states, the District of Columbia, and U.S. commonwealths and possessions for use in administering their laws. The information also may be disclosed to other countries under a treaty, to federal and state agencies to enforce civil and criminal laws, or to federal law enforcement and intelligence agencies to combat terrorism. You must provide your TIN whether or not you are required to file a tax return. Under section 3406, payers must generally withhold a percentage of taxable interest, dividend, and certain other payments to a payee who does not give a TIN to the payer. Certain penalties may also apply for providing false or fraudulent information.
Exhibit 99.2
MEREDITH CORPORATION
NOTICE OF GUARANTEED DELIVERY
OFFER TO EXCHANGE
ITS 6.875% SENIOR NOTES DUE 2026, WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, FOR ANY AND ALL OF OUTSTANDING 6.875% SENIOR NOTES DUE 2026.
This Notice of Guaranteed Delivery, or one substantially equivalent hereto, must be used to accept the Exchange Offer made by Meredith Corporation, a Delaware corporation (the Company), and the Guarantors, pursuant to the Prospectus, dated , 2019 (as it may be amended or supplemented from time to time, the Prospectus), and the enclosed Letter of Transmittal (the Letter of Transmittal), if (i) the Certificates for the Outstanding Unregistered Notes are not immediately available, (ii) time will not permit the Certificates and all other required documents to reach U.S. Bank National Association (the Exchange Agent) prior to 5:00 p.m., New York City time, on the Expiration Date of the Exchange Offer or (iii) the procedure for book-entry transfer cannot be completed on a timely basis. Such form may be delivered by hand, overnight courier or mail, or transmitted by facsimile transmission to the Exchange Agent as set forth below.
In addition, in order to utilize the guaranteed delivery procedure to tender the Outstanding Unregistered Notes pursuant to the Exchange Offer, a completed, signed and dated Letter of Transmittal (or facsimile thereof) must also be received by the Exchange Agent prior to 5:00 p.m., New York City time, on the Expiration Date of the Exchange Offer. Capitalized terms not defined herein have the meanings ascribed to them in the Letter of Transmittal.
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2019 (THE EXPIRATION DATE) UNLESS THE OFFER IS EXTENDED. TENDERS MAY BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON , 2019.
The Exchange Agent for the Exchange Offer is:
U.S. BANK NATIONAL ASSOCIATION
By overnight courier or mail to: | By certified or registered mail to: | |
U.S. Bank National Association | U.S. Bank National Association | |
60 Livingston Avenue | 60 Livingston Avenue | |
St. Paul, Minnesota 55107 | St. Paul, Minnesota 55107 | |
Attn: Specialized Finance | Attn: Specialized Finance | |
By Facsimile Transmission | By hand: | |
(For Eligible Institutions Only): | U.S. Bank National Association | |
(651) 466-7372 | 60 Livingston Avenue | |
Confirm by Telephone: | 1st FloorBond Drop Window | |
(800) 934-6802 | St. Paul, Minnesota 55107 |
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION VIA FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
This Notice of Guaranteed Delivery is not to be used to guarantee signatures. If a signature on a Letter of Transmittal is required to be guaranteed by an eligible institution (as defined in the Prospectus), such signature guarantee must appear in the applicable space in Box 8 provided on the Letter of Transmittal for signature guarantee.
Ladies and Gentlemen:
Upon the terms and subject to the conditions set forth in the Prospectus and the accompanying Letter of Transmittal, the undersigned hereby tenders to the Company the principal amount of Outstanding Unregistered Notes indicated below, pursuant to the guaranteed delivery procedures described in The Exchange OfferGuaranteed Delivery Procedures section of the Prospectus. All authority herein conferred or agreed to be conferred in this Letter of Transmittal shall survive the death or incapacity of the undersigned and every obligation of the undersigned hereunder shall be binding upon the successors, assigns, heirs, administrators, trustees in bankruptcy and legal representatives of the undersigned.
Certificate Number(s) (if known) of Outstanding Unregistered Notes or Account Number at DTC |
Aggregate Principal Amount Represented by Outstanding Unregistered Notes |
Aggregate Principal Amount of Outstanding Unregistered Notes Being Tendered* | ||
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* | The minimum permitted tender is $2,000 in principal amount. All tenders must be in the amount of $2,000 or in integral multiples of $1,000 in excess thereof. Unless otherwise indicated in this column, the Holder will be deemed to have tendered the full aggregate principal amount represented by such Outstanding Unregistered Notes. |
PLEASE COMPLETE AND SIGN
(Signature(s) of Registered Holder(s))
|
(Signature(s) of Registered Holder(s)) | |
(Please Type or Print Name(s) of Registered Holder(s)) |
(Please Type or Print Name(s) of Registered Holder(s)) | |
Dated: | Dated: | |
Address: | ||
(Zip Code) | ||
(Daytime Area Code and Telephone No.) |
☐ | Check this Box if the Outstanding Unregistered Notes will be delivered by book-entry transfer to The Depository Trust Company (DTC). |
Account Number:
THE ACCOMPANYING GUARANTEE MUST BE COMPLETED.
GUARANTEE OF DELIVERY
(Not to be used for signature guarantee)
The undersigned, a member of a recognized signature medallion program or an eligible guarantor institution, as such term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended (the Exchange Act), hereby (a) represents that the above person(s) own(s) the Outstanding Unregistered Notes tendered hereby within the meaning of Rule 14e-4(b)(2) under the Exchange Act, (b) represents that the tender of those Outstanding Unregistered Notes complies with Rule 14e-4 under the Exchange Act and (c) guarantees to deliver to the Exchange Agent, at its address set forth in the Notice of Guaranteed Delivery, the Certificates representing all tendered Outstanding Unregistered Notes, in proper form for transfer, or a book-entry confirmation (a confirmation of a book-entry transfer of the Outstanding Unregistered Notes into the Exchange Agents account at The Depository Trust Company), together with a properly completed and duly executed Letter of Transmittal (or facsimile thereof), with any required signature guarantees, and any other documents required by the Letter of Transmittal within three (3) New York Stock Exchange trading days after the Expiration Date.
Name of Firm:
(Authorized Signature)
Address:
(Zip Code)
Area Code and Tel. No.:
Name:
(Please Type or Print)
Title:
Dated:
NOTE: | DO NOT SEND OUTSTANDING UNREGISTERED NOTES WITH THIS NOTICE OF GUARANTEED DELIVERY. OUTSTANDING UNREGISTERED NOTES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL. |
INSTRUCTIONS FOR NOTICE OF GUARANTEED DELIVERY
1. Delivery of this Notice of Guaranteed Delivery.
A properly completed and duly executed copy of this Notice of Guaranteed Delivery and any other documents required by this Notice of Guaranteed Delivery must be received by the Exchange Agent at its address set forth on the cover page hereof prior to the Expiration Date of the Exchange Offer. The method of delivery of this Notice of Guaranteed Delivery and any other required documents to the Exchange Agent is at the election and sole risk of the Holders and the delivery will be deemed made only when actually received by the Exchange Agent. Instead of delivery by mail, it is recommended that the Holders use an overnight or hand delivery service, properly insured. If such delivery is by mail, it is recommended that the Holders use properly insured, registered mail with return receipt requested. In all cases, sufficient time should be allowed to assure timely delivery. For a description of the guaranteed delivery procedure, see Instruction 1 of the Letter of Transmittal. No notice of Guaranteed Delivery should be sent to the Company.
2. Signatures on this Notice of Guaranteed Delivery.
If this Notice of Guaranteed Delivery is signed by the registered Holder(s) of the Outstanding Unregistered Notes referred to herein, the signatures must correspond with the name(s) written on the face of the Outstanding Unregistered Notes without alteration, addition, enlargement or any change whatsoever. If this Notice of Guaranteed Delivery is signed by a person other than the registered Holder(s) of any Outstanding Unregistered Notes listed, this Notice of Guaranteed Delivery must be accompanied by appropriate bond powers, signed as the name of the registered Holder(s) appear(s) on the Outstanding Unregistered Notes without alteration, addition, enlargement or any change whatsoever. If this Notice of Guaranteed Delivery is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, such person should so indicate when signing and, unless waived by the Company, evidence satisfactory to the Company of their authority so to act must be submitted with this Notice of Guaranteed Delivery.
3. Questions and Requests for Assistance or Additional Copies.
Questions and requests for assistance and requests for additional copies of the Prospectus may be directed to the Exchange Agent at the address set forth on the cover hereof. Holders may also contact their broker, dealer, commercial bank, trust company or other nominee for assistance concerning the Exchange Offer.
Exhibit 99.3
MEREDITH CORPORATION
OFFER TO EXCHANGE
ITS 6.875% SENIOR NOTES DUE 2026, WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, FOR ANY AND ALL OF ITS OUTSTANDING 6.875% SENIOR NOTES DUE 2026.
, 2019
To Brokers, Dealers, Commercial Banks, Trust Companies and other Nominees:
As described in the enclosed Prospectus, dated , 2019 (as the same may be amended or supplemented from time to time, the Prospectus), and Letter of Transmittal (the Letter of Transmittal), Meredith Corporation (the Company) and certain subsidiaries of the Company (the Guarantors), are offering to exchange (the Exchange Offer) an aggregate principal amount of up to $1,272,940,000 of its 6.875% Senior Notes due 2026 (the Exchange Notes), which have been registered under the Securities Act of 1933, as amended (the Securities Act), for any and all of its outstanding 6.875% Senior Notes due 2026 (the Outstanding Unregistered Notes) in integral multiples of $2,000 and multiples of $1,000 in excess thereof upon the terms and subject to the conditions of the enclosed Prospectus and Letter of Transmittal.
The terms of the Exchange Notes are identical in all material respects (including principal amount, interest rate and maturity) to the terms of the Outstanding Unregistered Notes for which they may be exchanged pursuant to the Exchange Offer, except that the Exchange Notes are freely transferable by Holders (as defined in the Letter of Transmittal) thereof. The Outstanding Unregistered Notes are fully and unconditionally guaranteed on a senior unsecured basis (the Unregistered Guarantees) by the Guarantors, and the Exchange Notes will be fully and unconditionally guaranteed on a senior unsecured basis (the Exchange Guarantees) by the Guarantors. Upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal, the Guarantors offer to issue the Exchange Guarantees with respect to all Exchange Notes issued in the Exchange Offer in exchange for the Unregistered Guarantees of the Outstanding Unregistered Notes for which such Exchange Notes are issued in the Exchange Offer. Throughout this letter, unless the context otherwise requires and whether so expressed or not, references to the Exchange Offer include the Guarantors offer to exchange the Exchange Guarantees for the Unregistered Guarantees, references to the Exchange Notes include the related Exchange Guarantees and references to the Outstanding Unregistered Notes include the related Unregistered Guarantees. The Company will accept for exchange any and all Outstanding Unregistered Notes properly tendered according to the terms of the Prospectus and the Letter of Transmittal. Consummation of the Exchange Offer is subject to certain conditions described in the Prospectus.
WE URGE YOU TO PROMPTLY CONTACT YOUR CLIENTS FOR WHOM YOU HOLD OUTSTANDING UNREGISTERED NOTES REGISTERED IN YOUR NAME OR IN THE NAME OF YOUR NOMINEE. PLEASE BRING THE EXCHANGE OFFER TO THEIR ATTENTION AS PROMPTLY AS POSSIBLE.
Enclosed are copies of the following documents:
1. | The Prospectus; |
2. | The Letter of Transmittal for your use in connection with the tender of Outstanding Unregistered Notes and for the information of your clients, including a Substitute Form W-9 and Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 (providing information relating to U.S. federal income tax backup withholding); |
3. | A form of Notice of Guaranteed Delivery; and |
4. | A form of letter, including a letter of instructions to a beneficial Holder from a registered owner, which you may use to correspond with your clients for whose accounts you hold Outstanding Unregistered Notes that are registered in your name or the name of your nominee, with space provided for obtaining such clients instructions regarding the Exchange Offer. |
YOUR PROMPT ACTION IS REQUESTED. PLEASE NOTE THAT THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2019 (THE EXPIRATION DATE), UNLESS THE COMPANY OTHERWISE EXTENDS THE EXCHANGE OFFER.
To participate in the Exchange Offer, Certificates for Outstanding Unregistered Notes, together with a duly executed and properly completed Letter of Transmittal or facsimile thereof, or a timely confirmation of a book-entry transfer of such Outstanding Unregistered Notes into the account of U.S. Bank National Association (the Exchange Agent), at the book-entry transfer facility, with any required signature guarantees, and any other required documents, must be received by the Exchange Agent by the Expiration Date as indicated in the Prospectus and the Letter of Transmittal.
The Exchange Offer is not conditioned upon any minimum number of Outstanding Unregistered Notes being tendered.
The Company will not pay any fees or commissions to any broker or dealer or to any other persons (other than the Exchange Agent) in connection with the solicitation of tenders of the Outstanding Unregistered Notes pursuant to the Exchange Offer. However, the Company will pay or cause to be paid any transfer taxes, if any, applicable to the tender of the Outstanding Unregistered Notes to it or its order, except as otherwise provided in the Prospectus and Letter of Transmittal.
If Holders of the Outstanding Unregistered Notes wish to tender, but (i) certificates (the Certificates) for such Outstanding Unregistered Notes are not immediately available or (ii) such Holders cannot deliver their Certificates and all other required documents to the Exchange Agent on or prior to the Expiration Date or (iii) such Holders cannot complete the procedures for book-entry transfer on a timely basis, a tender may be effected by following the guaranteed delivery procedures described in the Prospectus and in the Letter of Transmittal.
Any inquiries you may have with respect to the Exchange Offer should be addressed to the Exchange Agent at its address and telephone number set forth in the enclosed Prospectus and Letter of Transmittal. Additional copies of the enclosed materials may be obtained from the Exchange Agent.
Very truly yours,
MEREDITH CORPORATION
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY OTHER PERSON AS AN AGENT OF THE COMPANY OR THE EXCHANGE AGENT, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENTS ON BEHALF OF EITHER OF THEM IN CONNECTION WITH THE EXCHANGE OFFER, OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH AND THE STATEMENTS EXPRESSLY CONTAINED THEREIN.
Exhibit 99.4
MEREDITH CORPORATION
OFFER TO EXCHANGE
ITS 6.875% SENIOR NOTES DUE 2026, WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, FOR ANY AND ALL OF ITS OUTSTANDING 6.875% SENIOR NOTES DUE 2026.
, 2019
To Our Clients:
Enclosed for your consideration are a Prospectus, dated , 2019 (as the same may be amended or supplemented from time to time, the Prospectus), and a Letter of Transmittal (the Letter of Transmittal), relating to the offer (the Exchange Offer) by Meredith Corporation (the Company) and certain subsidiaries of the Company (the Guarantors), to exchange an aggregate principal amount of up to $1,272,940,000 of its 6.875% Senior Notes due 2026 (the Exchange Notes), which have been registered under the Securities Act of 1933, as amended (the Securities Act), for any and all of its outstanding 6.875% Senior Notes due 2026 (the Outstanding Unregistered Notes) in integral multiples of $2,000 and multiples of $1,000 in excess thereof upon the terms and subject to the conditions of the enclosed Prospectus and Letter of Transmittal.
The terms of the Exchange Notes are identical in all material respects (including principal amount, interest rate and maturity) to the terms of the Outstanding Unregistered Notes for which they may be exchanged pursuant to the Exchange Offer, except that the Exchange Notes are freely transferable by Holders (as defined in the Letter of Transmittal) thereof, upon the terms and subject to the conditions of the enclosed Prospectus and the related Letter of Transmittal. The Outstanding Unregistered Notes are fully and unconditionally guaranteed on a senior unsecured basis (the Unregistered Guarantees) by the Guarantors, and the Exchange Notes are fully and unconditionally guaranteed on a senior unsecured basis (the Exchange Guarantees) by the Guarantors. Upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal, the Guarantors offer to issue the Exchange Guarantees with respect to all Exchange Notes issued in the Exchange Offer in exchange for the Unregistered Guarantees of the Outstanding Unregistered Notes for which such Exchange Notes are issued in the Exchange Offer. Throughout this letter, unless the context otherwise requires and whether so expressed or not, references to the Exchange Offer includes the Guarantors offer to exchange the Exchange Guarantees for the Unregistered Guarantees, references to the Exchange Notes include the related Exchange Guarantees and references to the Outstanding Unregistered Notes include the related Unregistered Guarantees. The Company will accept for exchange any and all Outstanding Unregistered Notes properly tendered according to the terms of the Prospectus and the Letter of Transmittal. Consummation of the Exchange Offer is subject to certain conditions described in the Prospectus.
The Exchange Offer is not conditioned upon any minimum number of Outstanding Unregistered Notes being tendered.
PLEASE NOTE THAT THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2019 (THE EXPIRATION DATE), UNLESS THE COMPANY EXTENDS THE EXCHANGE OFFER.
The enclosed materials are being forwarded to you as the beneficial owner of the Outstanding Unregistered Notes held by us for your account but not registered in your name. A tender of such Outstanding Unregistered Notes may only be made by us as the registered Holder and pursuant to your instructions. Therefore, the Company urges beneficial owners of Outstanding Unregistered Notes registered in the name of a broker, dealer, commercial bank, trust company or other nominee to contact such registered Holder promptly if such beneficial owners wish to tender their Outstanding Unregistered Notes in the Exchange Offer.
Accordingly, we request instructions as to whether you wish to tender any or all such Outstanding Unregistered Notes held by us for your account, pursuant to the terms and conditions set forth in the enclosed Prospectus and Letter of Transmittal. If you have any questions regarding the terms of the Exchange Offer, please direct your questions to U.S. Bank National Association, the exchange agent for the Exchange Offer (the Exchange Agent). If you wish to have us tender any or all of your Outstanding Unregistered Notes, please so instruct us by completing, signing and returning to us the Instructions to Registered Holder from Beneficial Owner form that appears below. We urge you to read the Prospectus and the Letter of Transmittal carefully before instructing us as to whether or not to tender your Outstanding Unregistered Notes. If you require assistance, you should consult your financial, tax or other professional advisors. Holders who wish to participate in the Exchange Offer are asked to respond promptly by completing and returning the enclosed Letter of Transmittal and all other required documentation to the Exchange Agent.
The accompanying Letter of Transmittal is furnished to you for your information only and may not be used by you to tender Outstanding Unregistered Notes held by us and registered in our name for your account or benefit.
If we do not receive written instructions in accordance with the below and the procedures presented in the Prospectus and the Letter of Transmittal, we will not tender any of the Outstanding Unregistered Notes on your account.
INSTRUCTIONS TO REGISTERED HOLDER FROM BENEFICIAL OWNER
The undersigned beneficial owner acknowledges receipt of your letter and the accompanying Prospectus dated , 2019 (as the same may be amended or supplemented from time to time, the Prospectus), and a Letter of Transmittal (the Letter of Transmittal), relating to the offer (the Exchange Offer) by Meredith Corporation (the Company) and certain subsidiaries of the Company (the Guarantors) to exchange an aggregate principal amount of up to $1,272,940,000 of its 6.875% Senior Notes due 2026 (the Exchange Notes), which have been registered under the Securities Act of 1933, as amended (the Securities Act), for any and all of its outstanding 6.875% Senior Notes due 2026 (the Outstanding Unregistered Notes), upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal. Capitalized terms used but not defined herein have the meanings ascribed to them in the Prospectus.
This will instruct you, the registered Holder, to tender the principal amount of the Outstanding Unregistered Notes indicated below held by you for the account of the undersigned, upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal.
Principal Amount Held for Account Holder(s) |
Principal Amount to be Tendered* | |
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* | Unless otherwise indicated, the entire principal amount held for the account of the undersigned will be tendered. |
If the undersigned instructs you to tender the Outstanding Unregistered Notes held by you for the account of the undersigned, it is understood that you are authorized to make, on behalf of the undersigned (and the undersigned, by its signature below, hereby makes to you), the representations and warranties contained in the Letter of Transmittal that are to be made with respect to the undersigned as a beneficial owner of the Outstanding Unregistered Notes, including but not limited to the representations that (i) the undersigned has full power and authority to tender, exchange, assign and transfer the Outstanding Unregistered Notes tendered thereby, (ii) when such tendered Outstanding Unregistered Notes are accepted for exchange, the Company will acquire good and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances, (iii) the Outstanding Unregistered Notes tendered for exchange are not subject to any adverse claims or proxies when accepted by the Company, (iv) the undersigned or any such other person is acquiring the Registered Notes in the ordinary course of its business, (v) neither the undersigned nor any such other person has any arrangement or understanding with any person to participate in, a distribution (within the meaning of the Securities Act) of Exchange Notes, to be issued to the undersigned in the Exchange Offer, in violation of the Securities Act, (vi) neither the undersigned nor any such other person is an affiliate, as defined in Rule 405 under the Securities Act, of the Company or the Guarantors, (vii) if the undersigned or any such other person is not a broker-dealer, the undersigned or any such other person is not engaging in, and does not intend to engage in, a distribution of the Exchange Notes to be issued to the undersigned in the Exchange Offer, (viii) if the undersigned or any such other person is a participating broker-dealer that will receive Exchange Notes for its own account in exchange for the Outstanding Unregistered Notes that were acquired as a result of market-making or other trading activities, that the undersigned or any such other person will deliver a prospectus in connection with any resale of the Exchange Notes and (ix) the undersigned or any such other person is not acting on behalf of any persons or entities that could not truthfully make the foregoing representations. If a Holder of the Outstanding Unregistered Notes is an affiliate of the Company or the Guarantors, is not acquiring the Exchange Notes in the ordinary course of its business, is engaged in or intends to engage in a distribution of the Exchange Notes or has any arrangement or understanding with respect to the distribution of the Exchange Notes to be acquired pursuant to the Exchange Offer, such Holder may not rely on the applicable interpretations of the staff of the Securities and Exchange Commission relating to exemptions from the registration and prospectus delivery requirements of the Securities Act and must comply with such requirements in connection with any secondary resale transaction.
SIGN HERE
Dated:
Signature(s):
Print Name(s):
Address:
(Please include Zip Code)
Telephone Number
(Please include Area Code)
Tax Identification Number or Social Security Number:
My Account Number With You:
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