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UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
FORM 8-K
CURRENT REPORT
Pursuant to Section
13 or 15(d)
of the Securities
Exchange Act of 1934
Date of Report (date
of earliest event reported): August 13, 2024
LIBERTY
MEDIA CORPORATION
(Exact name of registrant
as specified in its charter)
Delaware | |
001-35707 | |
37-1699499 |
(State or other jurisdiction of incorporation or organization) | |
(Commission File Number) | |
(I.R.S. Employer
Identification No.) |
12300
Liberty Blvd.
Englewood,
Colorado 80112
(Address of principal executive offices and zip
code)
Registrant's telephone number, including area
code: (720) 875-5400
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General
Instruction A.2. below):
¨
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title
of each class |
Trading
Symbol |
Name
of each exchange on which registered |
Series
A Liberty SiriusXM Common Stock |
LSXMA |
The
Nasdaq Stock Market LLC |
Series
B Liberty SiriusXM Common Stock |
LSXMB |
The
Nasdaq Stock Market LLC |
Series
C Liberty SiriusXM Common Stock |
LSXMK |
The
Nasdaq Stock Market LLC |
Series
A Liberty Formula One Common Stock |
FWONA |
The
Nasdaq Stock Market LLC |
Series
C Liberty Formula One Common Stock |
FWONK |
The
Nasdaq Stock Market LLC |
Series
A Liberty Live Common Stock |
LLYVA |
The
Nasdaq Stock Market LLC |
Series
C Liberty Live Common Stock |
LLYVK |
The
Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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 13(a) of the Exchange Act. ¨
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change
in Fiscal Year.
On August 13, 2024, the board of directors (the “Board”)
of Liberty Media Corporation (the “Company”) approved an amendment and restatement of the Company’s bylaws (the
“Amended Bylaws”), which became effective immediately. In addition to certain other technical, conforming, modernizing
and clarifying changes, the Amended Bylaws include the following changes to the advance notice provisions in Section 1.5 of the Amended
Bylaws:
| · | modify the window for stockholders to submit proposals or nominations for the annual meeting to not more than 120 days and not less
than 90 days prior to the anniversary date of the preceding year’s annual meeting, and in the event the annual meeting is advanced
by more than 20 days or delayed by more than 70 days from the anniversary date, notice must be received not earlier than 120 days prior
to the annual meeting or the later of 90 days prior to the annual meeting or the 10th day following public announcement; |
| · | modify the window for stockholders to submit proposals or nominations for special meetings to not more than 120 days and not less
than 90 days prior to the special meeting; |
| · | require a stockholder proposing business or nominating directors to provide additional information about the stockholder and any candidate
the stockholder proposes to nominate for election as a director; |
| · | expand the definition of beneficial and record ownership to encompass the definitions used in Rule 13d-3 of the Securities and
Exchange Act of 1934, as amended (the “Exchange Act”); |
| · | require the nominee and the proposing person represent that they are not subject to, and will not enter into, any undisclosed voting
agreements with the Company; |
| · | require that any stockholder nominee for director submit a completed and signed questionnaire with respect to the background, qualifications,
and independence of such nominee; and |
| · | incorporate the universal proxy rule (Rule 14a-19 of the Exchange Act) into the advance notice provisions applicable to
director nominations. |
In addition, the Amended Bylaws also include revisions to incorporate
recent amendments to the Delaware General Corporation Law, including revisions relating to: (i) adjournment procedures and preparation
and availability of the Company’s stockholder list for meetings of stockholders; (ii) authorization to sign stock certificates,
approval of uncertificated stock, and notice of uncertificated shares by means of electronic transmissions; and (iii) notice under
Section 5.4 of the Amended Bylaws by electronic mail.
The foregoing summary of the changes contained in the Amended Bylaws
does not purport to be complete and is qualified in its entirety by the full text of the Amended Bylaws, which is filed as Exhibit 3.1
to this Current Report on Form 8-K and incorporated by reference herein.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: August 15, 2024
|
LIBERTY MEDIA CORPORATION |
|
|
|
|
By: |
/s/ Katherine C. Jewell |
|
|
Name: Katherine C. Jewell |
|
|
Title: Vice President and Assistant Secretary |
Exhibit 3.1
LIBERTY
MEDIA CORPORATION
A Delaware Corporation
AMENDED AND RESTATED BYLAWS
ARTICLE I
STOCKHOLDERS
Section 1.1 Annual
Meeting.
An annual meeting of stockholders
for the purpose of electing directors and of transacting any other business properly brought before the meeting pursuant to these Bylaws
shall be held each year at such date, time and place, either within or without the State of Delaware or, if so determined by the Board
of Directors in its sole discretion, at no place (but rather by means of remote communication), as may be specified by the Board of Directors
in the notice of meeting.
Section 1.2 Special
Meetings.
Except as otherwise provided
in the terms of any series of preferred stock or unless otherwise provided by law or by the Certificate of Incorporation, special meetings
of stockholders of the Corporation, for the transaction of such business as may properly come before the meeting, may be called by the
Secretary of the Corporation (the “Secretary”) only (i) upon written request received by the Secretary at the
principal executive offices of the Corporation by or on behalf of the holder or holders of record of outstanding shares of capital stock
of the Corporation, representing collectively not less than 66 2/3% of the total voting power of the outstanding capital stock of the
Corporation entitled to vote at such meeting or (ii) at the request of not less than 75% of the members of the Board of Directors
then in office. Only such business may be transacted as is specified in the notice of the special meeting. The Board of Directors shall
have the sole power to determine the time, date and place, either within or without the State of Delaware, or, if so determined by the
Board of Directors in its sole discretion, at no place (but rather by means of remote communication), for any special meeting of stockholders
(including those properly called by the Secretary in accordance with Section 1.2(i) hereof). Following such determination, it
shall be the duty of the Secretary to cause notice to be given to the stockholders entitled to vote at such meeting that a meeting will
be held at the time, date and place, if any, and in accordance with the record date determined by the Board of Directors.
Section 1.3 Record
Date.
In order that the Corporation
may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board of Directors may
fix, in advance, a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by the Board
of Directors, and which record date shall not be more than sixty (60) calendar days nor less than ten (10) calendar days before the
date of such meeting. If the Board of Directors so fixes a record date for determining the stockholders entitled to notice of any meeting
of stockholders, such date shall be the record date for determining the stockholders entitled to vote at such meeting, unless the Board
of Directors determines, at the time it fixes the record date for determining the stockholders entitled to notice of such meeting, that
a later date on or before the date of the meeting shall be the record date for determining stockholders entitled to vote at such meeting.
In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment
of 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 of Directors may fix, in advance, a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty (60) calendar
days prior to such action. If no record date is fixed by the Board of Directors: (i) the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which
notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held, and
(ii) 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 thereto. A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting in accordance with this Section 1.3.
Section 1.4 Notice
of Meetings.
Notice of all stockholders
meetings, stating the place, if any, date and hour thereof, as well as the record date for determining stockholders entitled to vote at
such meeting (if such record date is different from the record date for determining stockholders entitled to notice of the meeting); the
means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such
meeting; and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered by the Corporation
in accordance with Section 5.4 of these Bylaws, applicable law and applicable stock exchange rules and regulations by the Chairman
of the Board, the President, any Vice President, the Secretary or an Assistant Secretary, to each stockholder entitled to notice of such
meeting, unless otherwise provided by applicable law or the Certificate of Incorporation, at least ten (10) calendar days but not
more than sixty (60) calendar days before the date of the meeting.
Section 1.5 Notice
of Stockholder Business.
(a) Annual
Meetings of Stockholders.
(1) At
an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To
be properly brought before an annual meeting, nominations for persons for election to the Board of Directors and the proposal of business
to be considered by the stockholders must be (i) specified in the notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors (or any duly authorized committee thereof), (ii) otherwise properly brought before the meeting
by or at the direction of the Board of Directors (or any duly authorized committee thereof), or (iii) otherwise properly be requested
to be brought before the meeting by a stockholder (x) who complies with the procedures set forth in this Section 1.5 and (y) who
was a stockholder of record of the Corporation (and, with respect to any beneficial owner, if different, on whose behalf such business
is proposed or such nomination or nominations made, only if such beneficial owner was the beneficial owner of shares of the Corporation)
both at the time the notice provided for in Section 1.5(a)(2) is delivered to the Secretary and on the record date for the determination
of stockholders entitled to vote at the meeting, and (z) who is entitled to vote at the meeting upon such election of directors or
upon such business, as the case may be.
(2) In
addition to any other requirements under applicable law and the Corporation’s Certificate of Incorporation, for a nomination for
election to the Board of Directors or the proposal of business to be properly requested to be brought before an annual meeting by a stockholder,
the stockholder must have given timely notice thereof in proper written form to the Secretary and any such proposed business, other than
the nominations of persons for election to the Board of Directors, must constitute a proper matter for stockholder action pursuant to
the Certificate of Incorporation, these Bylaws, and applicable law. To be timely, a stockholder’s notice must be received at the
principal executive offices of the Corporation not less than ninety (90) calendar days nor more than one hundred twenty (120) calendar
days prior to the first anniversary of the preceding year’s annual meeting; provided, that, in the event that the date of the annual
meeting is advanced by more than twenty (20) calendar days, or delayed by more than seventy (70) calendar days, from such anniversary
date, notice by the stockholder to be timely must be so received not earlier than the one hundred twentieth (120th) day prior
to such annual meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such annual
meeting or the tenth (10th) day following the day on which notice of the date of the meeting was communicated to stockholders or public
announcement (as defined below) of the date of the meeting was made, whichever occurs first; and provided further, that for purposes of
the application of Rule 14a-4(c) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)
(or any successor provision), the date for notice specified in this paragraph (a)(2) shall be the earlier of the date calculated
as hereinbefore provided or the date specified in paragraph (c)(1) of Rule 14a-4. In no event shall the public announcement
of an adjournment or postponement of a meeting of stockholders commence a new time period (or extend any time period) for the giving of
a stockholder notice as described herein.
To
be in proper written form, such stockholder’s notice to the Secretary must be submitted by a holder of record of stock entitled
to vote on the nomination of directors of the Corporation and shall set forth in writing and describe in fair, accurate, and material
detail (A) as to each person whom the stockholder proposes to nominate for election as a director (a “nominee”)
(i) the name, age, business and residence address, and principal occupation or employment of the nominee, (ii) all information
relating to such nominee that is required to be disclosed in solicitations of proxies for election of directors in an election contest,
or is otherwise required, in each case pursuant to and in accordance with Regulation 14A under the Exchange Act of 1934, and (iii) such
nominee’s written consent to being named in the proxy statement as a nominee, the accompanying proxy card and to serving as a director
if elected; (B) as to any other business that the stockholder proposes to bring before the annual meeting, (i) a brief
description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual
meeting, (ii) the text of the proposal or business (including the text of any resolutions proposed for consideration and, in the
event that such business includes a proposal to amend the Bylaws of the Corporation, the language of the proposed amendment), and (iii) any
material interest of the stockholder and beneficial owner, if any, on whose behalf the proposal is made, in such business; and (C) as
to such stockholder giving notice and the beneficial owner or owners, if different, on whose behalf the nomination or proposal is made,
and any affiliates or associates (each within the meaning of Rule 12b-2 under the Exchange Act) of such stockholder or beneficial
owner (each a “Proposing Person”) (i) the name and address, as they appear on the Corporation’s books, of
such Proposing Person, (ii) the class or series and number of shares of the capital stock of the Corporation that are, directly or
indirectly, owned beneficially and of record (within the meaning of Rule 13d-3 under the Exchange Act) by such Proposing Person
(provided that for purposes of this Section 1.5, such Proposing Person shall in all events be deemed to beneficially own any shares
of any class or series and number of shares of capital stock of the Corporation as to which such Proposing Person has a right to acquire
beneficial ownership at any time in the future), (iii) a description of all agreements, arrangements or understandings between (or
on behalf of) such Proposing Person and any other person or persons (including their names) pursuant to which the proposals or nominations
are to be made by such stockholder, (iv) a representation by each Proposing Person who is a holder of record of stock of the Corporation
(A) that the notice the Proposing Person is giving to the Secretary is being given on behalf of (x) such holder of record and/or
(y) if different than such holder of record, one or more beneficial owners of stock of the Corporation held of record by such holder
of record, (B) as to each such beneficial owner, the number of shares held of record by such holder of record that are beneficially
owned by such beneficial owner, with documentary evidence of such beneficial ownership, and (C) that such holder of record is entitled
to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such business or nomination set forth in
its notice, (v) a representation (I) whether any such Proposing Person or nominee has received any financial assistance, funding
or other consideration from any other person in respect of the nomination (and the details thereof) (a “Stockholder Associated
Person”) and (II) whether and the extent to which any hedging, derivative or other transaction has been entered into with
respect to the Corporation within the past twelve (12) months by, or is in effect with respect to, such Proposing Person, any person to
be nominated by such Proposing Person or any Stockholder Associated Person, the effect or intent of which transaction is to mitigate loss
to or manage risk or benefit of share price changes for, or to increase or decrease the voting power of, such stockholder, nominee or
any such Stockholder Associated Person, (vi) a representation whether any Proposing Person intends or is part of a group that intends
to (I) deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding
voting power required to approve or adopt the proposal or elect the nominee and/or (II) otherwise solicit proxies from stockholders
in support of such proposal, (vii) a representation that no Proposing Person or nominee is subject to, nor will enter into, any voting
or other agreement that has not been disclosed to the Corporation and that could limit or interfere with such nominee’s ability
to comply, if elected, with their fiduciary duties under applicable law, and (viii) any other information relating to such Proposing
Person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations
of proxies in support of such proposal pursuant to Section 14 of the Exchange Act, and any rules and regulations promulgated
thereunder. The foregoing notice requirements of this Section 1.5 shall not apply to any proposal made pursuant to Rule 14a-8
(or any successor thereof) promulgated under the Exchange Act. A proposal to be made pursuant to Rule 14a-8 (or any successor thereof)
promulgated under the Exchange Act shall be deemed satisfied if the stockholder making such proposal complies with the provisions of Rule 14a-8
and has notified the Corporation of his or her intention to present a proposal at an annual meeting in compliance with Rule 14a-8
and such stockholder’s proposal has been included in a proxy statement that has been prepared by the Corporation to solicit proxies
for such annual meeting. The Corporation may require any proposed nominee to furnish such other information as it may reasonably require
to determine (x) the eligibility of such proposed nominee to serve as a director of the Corporation and (y) whether the nominee
would qualify as an “independent director” or “audit committee financial expert” under applicable law, securities
exchange rule or regulation, or any publicly disclosed corporate governance guideline or committee charter of the Corporation.
(3) In
addition to the other requirements of this Section 1.5, each nominee who a Proposing Person proposes to nominate for election or
re-election as a director must deliver in writing (in accordance with the time periods prescribed for delivery of notice under this Section 1.5)
to the Secretary at the principal executive offices of the Corporation a written questionnaire completed and signed by such nominee (in
the form provided by the Secretary upon written request of any stockholder of record within ten (10) days of such request) with respect
to the background, qualifications, and independence of such nominee and the background of any other person or entity on whose behalf the
nomination is being made.
(4) Notwithstanding
anything in paragraph (a)(2) of this Section 1.5 to the contrary, in the event that the number of directors to be elected to
the Board of Directors of the Corporation at an annual meeting is increased and there is no public announcement by the Corporation naming
all of the nominees for director or specifying the size of the increased Board of Directors at least one hundred (100) calendar days prior
to the first anniversary date of the immediately preceding annual meeting, a stockholder’s notice required by this Section 1.5
shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be received
by the Secretary at the principal executive offices of the Corporation not later than the close of business on the tenth (10 ) day following
the day on which such public announcement is first made by the Corporation.
(5) Notwithstanding
anything to the contrary set forth herein, unless otherwise required by law, if any stockholder or Proposing Person (i) provides
notice pursuant to Rule 14a-19(b) under the Exchange Act with respect to any proposed nominee and (ii) subsequently fails
to comply with the requirements of Rule 14a-19 under the Exchange Act (or fails to timely provide reasonable evidence sufficient
to satisfy the Corporation that such stockholder has met the requirements of Rule 14a-19(a)(3) under the Exchange Act in accordance
with the following sentence), then the nomination of each such proposed nominee shall be disregarded, notwithstanding that the nominee
is included as a nominee in the Corporation’s proxy statement, notice of meeting or other proxy materials for any annual meeting
(or any supplement thereto) and notwithstanding that proxies or votes in respect of the election of such proposed nominees may have been
received by the Corporation (which proxies and votes shall be disregarded). If any stockholder or Proposing Person provides notice pursuant
to Rule 14a-19(b) promulgated under the Exchange Act, such stockholder shall deliver to the Corporation, no later than five
business days prior to the date of the meeting and any adjournment or postponement thereof, reasonable evidence that it has met the requirements
of Rule 14a-19(a)(3) promulgated under the Exchange Act.
(b) Special
Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation’s notice of meeting. In the event the Corporation calls a special meeting of stockholders
for the purpose of electing one or more directors to the Board of Directors, any such stockholder entitled to vote at such meeting who
was a stockholder of record of the Corporation (and, with respect to any beneficial owner, if different, on whose behalf such nomination
or nominations are made, only if such beneficial owner was the beneficial owner of shares of the Corporation) both at the time the notice
provided for in paragraph (a)(2) of this Section 1.5 is delivered to the Secretary and on the record date for the determination
of stockholders entitled to vote at the special meeting may nominate a person or persons (as the case may be) for election to such position(s) as
specified in the Corporation’s notice of meeting, if the stockholder’s notice meeting the requirements of paragraph (a)(2) of
this Section 1.5 (substituting special meeting for annual meeting as applicable) shall be received by the Secretary at the principal
executive offices of the Corporation not earlier than the close of business on the one hundred twentieth (120th) day prior to such special
meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such special meeting or the tenth (10th)
day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the
Board of Directors to be elected at such meeting; provided, however, that a stockholder may nominate persons for election at a special
meeting only to such directorship(s) as specified in the Corporation’s notice of the meeting. In no event shall the public
announcement of an adjournment or postponement of a special meeting commence a new time period (or extend any time period) for the giving
of a stockholder’s notice as described above.
(c) Updating
and Supplementing of Stockholder Information. A stockholder providing notice of nominations of persons for election to the Board of
Directors at an annual or special meeting of stockholders or notice of business proposed to be brought before an annual meeting of stockholders
shall further update and supplement such notice so that the information provided or required to be provided in such notice pursuant to
paragraph (a)(2) of this Section 1.5 shall be true and correct both as of the record date for the determination of stockholders
entitled to notice of the meeting and as of the date that is ten (10) business days before the meeting or any adjournment or postponement
thereof, and such updated and supplemental information shall be delivered to, or mailed and received by, the Secretary at the principal
executive offices of the Corporation (a) in the case of information that is required to be updated and supplemented to be true and
correct as of the record date for the determination of stockholders entitled to notice of the meeting, not later than the later of five
(5) business days after such record date or five (5) business days after the public announcement of such record date, and (b) in
the case of information that is required to be updated and supplemented to be true and correct as of ten (10) business days before
the meeting or any adjournment or postponement thereof, not later than eight (8) business days before the meeting or any adjournment
or postponement thereof (or if not practicable to provide such updated and supplemental information not later than eight (8) business
days before any adjournment or postponement, on the first practicable date before any such adjournment or postponement).
(d) General.
(1) Only
such persons who are nominated in accordance with the procedures set forth in this Section 1.5 shall be eligible to be elected at
an annual or special meeting of stockholders of the Corporation to serve as directors and only such business shall be conducted at a meeting
of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 1.5. Except
as otherwise provided by law, the chairman of the meeting shall have the power and duty (i) to determine whether a nomination or
any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set
forth in this Section 1.5 (including whether the stockholder or beneficial owner, if any, on whose behalf the nomination or proposal
is made solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies in support of such stockholder’s
nominee or proposal in compliance with such stockholder’s representation as required by clause (a)(2)(C)(vi) of this Section 1.5)
and (ii) if any proposed nomination or proposed business was not made or proposed in compliance with this Section 1.5, to declare
that such nomination shall be disregarded or that such proposed business shall not be transacted. Notwithstanding the foregoing provisions
of this Section 1.5, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special
meeting of stockholders of the Corporation to present the nomination to the Board of Directors or to present the proposed business, such
nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote
may have been received by the Corporation. For purposes of this Section 1.5, to be considered a qualified representative of the stockholder,
a person must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act
for such stockholder as proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or
a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.
(2) For
purposes of this Section 1.5, (i) “public announcement” shall mean disclosure in a press release reported
by a national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to
the Exchange Act, and (ii) “business day” shall mean any day, other than Saturday, Sunday and any day on which
banks located in the State of New York are authorized or obligated by applicable law to close.
(3) Notwithstanding
the foregoing provisions of this Section 1.5, a stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set forth in this Section 1.5. Nothing in this
Section 1.5 shall be deemed to affect any rights (i) of stockholders to request inclusion of proposals in the
Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders of any series of
preferred stock to elect directors pursuant to any applicable provisions of the Corporation’s Certificate of
Incorporation.
Section 1.6 Quorum.
Subject to the rights of the
holders of any series of preferred stock and except as otherwise provided by law or in the Certificate of Incorporation or these Bylaws,
at any meeting of stockholders, the holders of a majority in total voting power of the outstanding shares of stock entitled to vote at
the meeting shall be present or represented by proxy in order to constitute a quorum for the transaction of any business. The chairman
of the meeting shall have the power and duty to determine whether a quorum is present at any meeting of the stockholders. 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; provided, however, that the foregoing shall not limit the right of the Corporation or any subsidiary of the Corporation
to vote stock, including, but not limited to, its own stock, held by it in a fiduciary capacity. In the absence of a quorum, the chairman
of the meeting may adjourn the meeting from time to time in the manner provided in Section 1.7 hereof until a quorum shall be present.
Section 1.7 Adjournment.
Any meeting of stockholders,
annual or special, may be adjourned from time to time solely by the chairman of the meeting because of the absence of a quorum or for
any other reason (including to address technical failures to convene or continue a meeting using remote communication) and to reconvene
at the same or some other time, date and place, if any, or by means of remote communication. Notice need not be given of any such adjourned
meeting if the time, date and place, if any, and the means of remote communications, if any, thereof are (i) announced at the meeting
at which the adjournment is taken, (ii) displayed, during the time scheduled for the meeting, on the same electronic network used
to enable stockholders and proxyholders to participate in the meeting by means of remote communication, or (iii) set forth in the
notice of the meeting. The chairman of the meeting shall have full power and authority to adjourn a stockholder meeting in his sole discretion
even over stockholder opposition to such adjournment. The stockholders present at a meeting shall not have the authority to adjourn the
meeting. If the time, date and place, if any, thereof, and the means of remote communication, if any, by which the stockholders and the
proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment
is taken, displayed, during the time scheduled for the meeting, on the same electronic network used to enable stockholders and proxyholders
to participate in the meeting by means of remote communication, or set forth in the notice of the meeting, and the adjournment is for
less than thirty (30) calendar days, no notice need be given of any such adjourned meeting. If the adjournment is for more than thirty
(30) calendar days or if after the adjournment a new record date for determining stockholders entitled to vote at the adjourned meeting
is fixed for the adjourned meeting, then notice shall be given to each stockholder entitled to vote at the meeting. At the adjourned meeting,
the stockholders may transact any business that might have been transacted at the original meeting.
Section 1.8 Organization.
The Chairman of the Board,
or in the Chairman of the Board’s absence or at the Chairman of the Board’s direction, the President, or in the President’s
absence or at the President’s direction, any officer of the Corporation, shall call to order meetings of stockholders and preside
over and act as chairman of such meetings. The Board of Directors or, if the Board fails to act, the stockholders, may appoint any stockholder,
director or officer of the Corporation to act as chairman of any meeting in the absence of the Chairman of the Board, the President and
other officers. The date and time of the opening and closing of the polls for each matter upon which the stockholders will vote at a meeting
shall be determined by the chairman of the meeting and announced at the meeting. The Board of Directors may adopt by resolution such rules and
regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Unless otherwise determined by the Board of Directors,
the chairman of the meeting shall have the exclusive right to determine the order of business and to prescribe other such rules, regulations
and procedures and shall have the authority in his discretion to regulate the conduct of any such meeting. Such rules, regulations or
procedures, whether adopted by the Board of Directors or prescribed by the chairman of the meeting, may include, without limitation, the
following: (i) rules and procedures for maintaining order at the meeting and the safety of those present; (ii) limitations
on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies
or such other persons as the chairman of the meeting shall determine; (iii) restrictions on entry to the meeting after the time fixed
for the commencement thereof; and (iv) limitations on the time allotted to questions or comments by participants. Unless and to the
extent determined by the Board of Directors or the chairman of the meeting, meetings of stockholders shall not be required to be held
in accordance with the rules of parliamentary procedure.
The Secretary, or in the
Secretary’s absence, an Assistant Secretary, shall act as secretary of all meetings of stockholders, but, in the absence of the
Secretary or the Assistant Secretary, the chairman of the meeting may appoint any other person to act as secretary of the meeting.
Section 1.9 Postponement
or Cancellation of Meeting.
Any previously scheduled annual
or special meeting of the stockholders may be postponed or canceled by resolution of the Board of Directors upon public notice given prior
to the time previously scheduled for such meeting of stockholders.
Section 1.10 Voting.
Subject to the rights of the
holders of any series of preferred stock and except as otherwise provided by law, the Certificate of Incorporation or these Bylaws and
except for the election of directors, at any meeting duly called and held at which a quorum is present, the affirmative vote of a majority
of the combined voting power of the outstanding shares present in person or represented by proxy at the meeting and entitled to vote on
the subject matter shall be the act of the stockholders. Subject to the rights of the holders of any series of preferred stock, at any
meeting duly called and held for the election of directors at which a quorum is present, directors shall be elected by a plurality of
the combined voting power of the outstanding shares present in person or represented by proxy at the meeting and entitled to vote on the
election of directors.
Section 1.11 List
of Stockholders.
The Corporation shall prepare,
no later than the tenth (10th) calendar day 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 stockholder’s
name; provided, however, if the record date for determining the stockholders entitled to vote at the meeting is fewer than ten (10) calendar
days before the meeting date, the list shall reflect the stockholders entitled to vote as of the tenth (10) calendar day before the
meeting date. Nothing contained in this Section 1.11 shall require the Corporation to include electronic mail addresses or other
electronic contact information on such list. Such list shall be open to the examination of any stockholder, for any purpose germane to
the meeting for a period of ten (10) calendar days ending on the day before the meeting date: (i) on a reasonably accessible
electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or
(ii) during ordinary business hours, at the principal place of business of the Corporation. If the Corporation determines to make
the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only
to stockholders of the Corporation. The stock ledger shall be the only evidence of the identity of the stockholders entitled to examine
such list.
Section 1.12 Remote Communications.
For purposes of these Bylaws,
if authorized by the Board of Directors in its sole discretion, and subject to such guidelines and procedures as the Board of Directors
may adopt, stockholders and proxyholders may, by means of remote communication:
(a) participate
in a meeting of stockholders; and
(b) be
deemed present in person and vote at a meeting of stockholders whether such meeting is to be held at a designated place or solely by means
of remote communication, provided that (i) the Corporation shall implement reasonable measures to verify that each person deemed
present and permitted to vote at the meeting by means of remote communication is a stockholder or proxyholder, (ii) the Corporation
shall implement reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to participate in the meeting
and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially
concurrent with such proceedings, and (iii) if any stockholder or proxyholder votes or takes other action at the meeting by means
of remote communication, a record of such vote or other action shall be maintained by the Corporation.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1 Number and
Term of Office.
(a) Subject
to any limitations set forth in the Certificate of Incorporation and to any provision of the Delaware General Corporation Law relating
to the powers or rights conferred upon or reserved to the stockholders or the holders of any class or series of the issued and outstanding
stock of the Corporation, the business and affairs of the Corporation shall be managed, and all corporate powers shall be exercised, by
or under the direction of the Board of Directors. Subject to any rights of the holders of any series of preferred stock to elect additional
directors, the Board of Directors shall be comprised of not less than three (3) members and the exact number will be fixed from time
to time by the Board of Directors by resolution adopted by the affirmative vote of not less than 75% of the members of the Board of Directors
then in office. Directors need not be stockholders of the Corporation. The Corporation shall nominate the persons holding the offices
of Chairman of the Board and President for election as directors at any meeting at which such persons are subject to election as directors.
(b) Except
as otherwise fixed by the Certificate of Incorporation relating to the rights of the holders of any series of preferred stock to separately
elect additional directors, which additional directors are not required to be classified pursuant to the terms of such series of preferred
stock, the Board of Directors shall be divided into three (3) classes: Class I, Class II and Class III. Each class
shall consist, as nearly as possible, of a number of directors equal to one-third (33 1/3%) of the then authorized number of members of
the Board of Directors. The term of office of the initial Class I directors shall expire at the annual meeting of stockholders in
2014; the term of office of the initial Class II directors shall expire at the annual meeting of stockholders in 2015; and the term
of office of the initial Class III directors shall expire at the annual meeting of stockholders in 2013. At each annual meeting of
stockholders of the Corporation the successors of that class of directors whose term expires at that meeting shall be elected to hold
office for a term expiring at the annual meeting of stockholders held in the third year following the year of their election. The directors
of each class will serve until the earliest to occur of their death, resignation, removal or disqualification or the election and qualification
of their respective successors.
Section 2.2 Resignations.
Any director of the Corporation,
or any member of any committee, may resign at any time by giving notice in writing or by electronic transmission to the Board of Directors,
the Chairman of the Board or the President or Secretary. Any such resignation shall take effect at the time specified therein or, if the
time be not specified therein, then upon receipt thereof. The acceptance of such resignation shall not be necessary to make it effective
unless otherwise stated therein.
Section 2.3 Removal of
Directors.
Subject to the rights of the
holders of any series of preferred stock, directors may be removed from office only for cause upon the affirmative vote of the holders
of not less than a majority of the total voting power of the then outstanding shares entitled to vote at an election of directors voting
together as a single class.
Section 2.4 Newly Created
Directorships and Vacancies.
Subject to the rights of the
holders of any series of preferred stock, vacancies on the Board of Directors resulting from death, resignation, removal, disqualification
or other cause, and newly created directorships resulting from any increase in the number of directors on the Board of Directors, shall
be filled only by the affirmative vote of a majority of the remaining directors then in office (even though less than a quorum) or by
the sole remaining director. Any director elected in accordance with the preceding sentence shall hold office for the remainder of the
full term of the class of directors in which the vacancy occurred or to which the new directorship is apportioned, and until such director’s
successor shall have been elected and qualified. No decrease in the number of directors constituting the Board of Directors shall shorten
the term of any incumbent director, except as may be provided in the terms of any series of preferred stock with respect to any additional
director elected by the holders of such series of preferred stock. If at any time, by reason of death or resignation or other cause, the
Corporation should have no directors in office, then any officer or any stockholder may call a special meeting of stockholders in the
same manner that the Board of Directors may call such a meeting, and directors for the unexpired terms may be elected at such special
meeting.
Section 2.5 Meetings.
Regular meetings of the Board
of Directors shall be held on such dates and at such times and places, within or without the State of Delaware, as shall from time to
time be determined by the Board of Directors, such determination to constitute the only notice of such regular meetings to which any director
shall be entitled. In the absence of any such determination, such meeting shall be held, upon notice to each director in accordance with
Section 2.6 of this Article II, at such times and places, within or without the State of Delaware, as shall be designated in
the notice of meeting.
Special meetings of the Board
of Directors shall be held at such times and places, if any, within or without the State of Delaware, as shall be designated in the notice
of the meeting in accordance with Section 2.6 hereof. Special meetings of the Board of Directors may be called by the Chairman of
the Board, and shall be called by the President or Secretary upon the written request of not less than 75% of the members of the Board
of Directors then in office.
Section 2.6 Notice of Meetings.
The Secretary, or in his absence
any other officer of the Corporation, shall give each director notice of the time and place of holding of any regular meetings (if required)
or special meetings of the Board of Directors, in accordance with Section 5.4 of these Bylaws, by mail at least ten (10) calendar
days before the meeting, or by courier service at least three (3) calendar days before the meeting, or by facsimile transmission,
electronic mail or other electronic transmission, or personal service, in each case, at least twenty-four (24) hours before the meeting,
unless notice is waived in accordance with Section 5.4 of these Bylaws. Unless otherwise stated in the notice thereof, any and all
business may be transacted at any meeting without specification of such business in the notice.
Section 2.7 Meetings by
Conference Telephone or Other Communications.
Members of the Board of Directors,
or any committee thereof, may participate in a meeting of the Board of Directors or such committee by means of telephone conference or
other communications equipment by means of which all persons participating in the meeting can hear each other and communicate with each
other, and such participation in a meeting by such means shall constitute presence in person at such meeting.
Section 2.8 Quorum and
Organization of Meetings.
A majority of the total number
of members of the Board of Directors as constituted from time to time shall constitute a quorum for the transaction of business, but,
if at any meeting of the Board of Directors (whether or not adjourned from a previous meeting) there shall be less than a quorum present,
a majority of those present may adjourn the meeting to another time, date and place, and the meeting may be held as adjourned without
further notice or waiver. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, a majority of the directors
present at any meeting at which a quorum is present may decide any question brought before such meeting. Meetings shall be presided over
by the Chairman of the Board or in his absence by such other person as the directors may select. The Board of Directors shall keep written
minutes of its meetings. The Secretary shall act as secretary of the meeting, but in his absence the chairman of the meeting may appoint
any person to act as secretary of the meeting.
The Board may designate one
or more committees, each committee to consist of one or more of the directors of the Corporation. The Board may designate one or more
Directors as alternate members of any committee to replace absent or disqualified members at any meeting of such committee. If a member
of a committee shall be absent from any meeting, or disqualified from voting thereat, the remaining member or members present and not
disqualified from voting, whether or not such member or members constitute a quorum, may, by a unanimous vote, 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 a resolution of the Board of Directors passed as aforesaid, 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 impressed on all papers that may require it, but no such committee shall have the power or authority of the Board of Directors in reference
to (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the laws of the State
of Delaware to be submitted to the stockholders for approval or (ii) adopting, amending or repealing any Bylaw of the Corporation.
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. Unless otherwise specified in the resolution of the Board of Directors designating a committee, at all meetings of such committee
a majority of the total number of members of the committee shall constitute a quorum for the transaction of business, and the vote of
a majority of the members of the committee present at any meeting at which there is a quorum shall be the act of the committee. Each committee
shall keep regular minutes of its meetings. Unless the Board of Directors otherwise provides, each committee designated by the Board of
Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall
conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these Bylaws.
Section 2.9 Indemnification.
The Corporation shall indemnify
members of the Board of Directors and officers of the Corporation and their respective heirs, personal representatives and successors
in interest for or on account of any action performed on behalf of the Corporation, to the fullest extent permitted by the laws of the
State of Delaware and the Corporation’s Certificate of Incorporation, as now or hereafter in effect.
Section 2.10 Indemnity
Undertaking.
To the extent not prohibited
by law, the Corporation shall indemnify any person who is or was made, or threatened to be made, a party to any threatened, pending or
completed action, suit or proceeding (a “Proceeding”), whether civil, criminal, administrative or investigative, including,
without limitation, an action by or in the right of the Corporation to procure a judgment in its favor, by reason of the fact that such
person, or a person of whom such person is the legal representative, is or was a director or officer of the Corporation, or is or was
serving in any capacity at the request of the Corporation for any other corporation, partnership, limited liability company, joint venture,
trust, employee benefit plan or other enterprises (an “Other Entity”), against judgments, fines, penalties, excise
taxes, amounts paid in settlement and costs, charges and expenses (including attorneys’ fees). Persons who are not directors or
officers of the Corporation may be similarly indemnified in respect of service to the Corporation or to an Other Entity at the request
of the Corporation to the extent the Board of Directors at any time specifies that such persons are entitled to the benefits of this Section 2.10.
Except as otherwise provided in Section 2.12 hereof, the Corporation shall be required to indemnify a person in connection with a
proceeding (or part thereof) commenced by such person only if the commencement of such proceeding (or part thereof) by the person was
authorized by the Board of Directors.
Section 2.11 Advancement
of Expenses.
The Corporation shall, from
time to time, reimburse or advance to any director or officer or other person entitled to indemnification hereunder the funds necessary
for payment of expenses, including attorneys’ fees, incurred in connection with any Proceeding in advance of the final disposition
of such Proceeding; provided, however, that, such expenses incurred by or on behalf of any director or officer or other person may
be paid in advance of the final disposition of a Proceeding only upon receipt by the Corporation of an undertaking, by or on behalf of
such director or officer or such person, to repay all amounts advanced if it shall ultimately be determined by final judicial decision
from which there is no further right of appeal that such director, officer or other person is not entitled to be indemnified for such
expenses. Except as otherwise provided in Section 2.12 hereof, the Corporation shall be required to reimburse or advance expenses
incurred by a person in connection with a proceeding (or part thereof) commenced by such person only if the commencement of such proceeding
(or part thereof) by the person was authorized by the Board of Directors.
Section 2.12 Claims.
If a claim for indemnification
or advancement of expenses under this Article II is not paid in full within sixty (60) calendar days after a written claim therefor
by the person seeking indemnification or reimbursement or advancement of expenses has been received by the Corporation, the person may
file suit to recover the unpaid amount of such claim and, if successful, in whole or in part, shall be entitled to be paid the expense
(including attorneys’ fees) of prosecuting such claim to the fullest extent permitted by Delaware law. In any such action the Corporation
shall have the burden of proving that the person seeking indemnification or reimbursement or advancement of expenses is not entitled to
the requested indemnification, reimbursement or advancement of expenses under applicable law.
Section 2.13 Amendment,
Modification or Repeal.
Any amendment, modification
or repeal of the foregoing provisions of this Article II shall not adversely affect any right or protection hereunder of any person
entitled to indemnification under Section 2.9 hereof in respect of any act or omission occurring prior to the time of such repeal
or modification.
Section 2.14 Executive
Committee of the Board of Directors.
The Board of Directors, by
the affirmative vote of not less than 75% of the members of the Board of Directors then in office, may designate an executive committee,
all of whose members shall be directors, to manage and operate the affairs of the Corporation or particular properties or enterprises
of the Corporation. Subject to the limitations of the law of the State of Delaware and the Certificate of Incorporation, such executive
committee shall exercise all powers and authority of the Board of Directors in the management of the business and affairs of the Corporation
including, but not limited to, the power and authority to authorize the issuance of shares of common or preferred stock. The executive
committee shall keep minutes of its meetings and report to the Board of Directors not less often than quarterly on its activities and
shall be responsible to the Board of Directors for the conduct of the enterprises and affairs entrusted to it. Regular meetings of the
executive committee, of which no notice shall be necessary, shall be held at such time, dates and places, if any, as shall be fixed by
resolution adopted by the executive committee. Special meetings of the executive committee shall be called at the request of the President
or of any member of the executive committee, and shall be held upon such notice as is required by these Bylaws for special meetings of
the Board of Directors, provided that oral notice by telephone or otherwise, or notice by electronic transmission shall be sufficient
if received not later than the day immediately preceding the day of the meeting.
Section 2.15 Other Committees
of the Board of Directors.
The Board of Directors may
by resolution establish committees other than an executive committee and shall specify with particularity the powers and duties of any
such committee. Subject to the limitations of the laws of the State of Delaware and the Certificate of Incorporation, any such committee
shall exercise all powers and authority specifically granted to it by the Board of Directors, which powers may include the authority to
authorize the issuance of shares of common or preferred stock. Such committees shall serve at the pleasure of the Board of Directors,
keep minutes of their meetings and have such names as the Board of Directors by resolution may determine and shall be responsible to the
Board of Directors for the conduct of the enterprises and affairs entrusted to them.
Section 2.16 Directors’
Compensation.
Directors shall receive such
compensation for attendance at any meetings of the Board and any expenses incidental to the performance of their duties as the Board of
Directors shall determine by resolution. Such compensation may be in addition to any compensation received by the members of the Board
of Directors in any other capacity.
Section 2.17 Action Without
Meeting.
Nothing contained in these
Bylaws shall be deemed to restrict the power of members of the Board of Directors or any committee designated by the Board of Directors
to take any action required or permitted to be taken by them without a meeting; provided, however, that if such action is taken without
a meeting by consent by electronic transmission or transmissions, such electronic transmission or transmissions must either set forth
or be submitted with information from which it can be determined that the electronic transmission or transmissions were authorized by
the director.
ARTICLE III
OFFICERS
Section 3.1 Executive Officers.
The Board of Directors shall
elect from its own number, a Chairman of the Board and a President. The Board of Directors may also elect such Vice Presidents as in the
opinion of the Board of Directors the business of the Corporation requires, a Treasurer and a Secretary, any of whom may or may not be
directors. The Board of Directors may also elect, from time to time, such other or additional officers as in its opinion are desirable
for the conduct of business of the Corporation and such officers shall hold office at the pleasure of the Board of Directors; provided,
however, that the President shall not hold any other office except that of Chairman of the Board.
Section 3.2 Powers and
Duties of Officers.
The Chairman of the Board
shall have overall responsibility for the management and direction of the business and affairs of the Corporation and shall exercise such
duties as customarily pertain to the office of Chairman of the Board and such other duties as may be prescribed from time to time by the
Board of Directors. He shall be the senior officer of the Corporation and in case of the inability or failure of the President to perform
his duties, he shall perform the duties of the President. He may appoint and terminate the appointment or election of officers, agents
or employees other than those appointed or elected by the Board of Directors. He may sign, execute and deliver, in the name of the Corporation,
powers of attorney, contracts, bonds and other obligations. The Chairman of the Board shall preside at all meetings of stockholders and
of the Board of Directors at which he is present, and shall perform such other duties as may be prescribed from time to time by the Board
of Directors or these Bylaws.
The President of the Corporation
shall have such powers and perform such duties as customarily pertain to a chief executive officer and the office of a president, including,
without limitation, being responsible for the active direction of the daily business of the Corporation, and shall exercise such other
duties as may be prescribed from time to time by the Board of Directors. The President may sign, execute and deliver, in the name of the
Corporation, powers of attorney, contracts, bonds and other obligations. In the absence or disability of the Chairman of the Board, the
President shall perform the duties and exercise the powers of the Chairman of the Board.
Vice Presidents shall have
such powers and perform such duties as may be assigned to them by the Chairman of the Board, the President, the executive committee, if
any, or the Board of Directors. A Vice President may sign and execute contracts and other obligations pertaining to the regular course
of his duties which implement policies established by the Board of Directors.
Unless the Board of Directors
otherwise declares by resolution, the Treasurer shall have general custody of all the funds and securities of the Corporation and general
supervision of the collection and disbursement of funds of the Corporation. He shall endorse for collection on behalf of the Corporation
checks, notes and other obligations, and shall deposit the same to the credit of the Corporation in such bank or banks or depository as
the Board of Directors may designate. He may sign, with the Chairman of the Board, President or such other person or persons as may be
designated for the purpose by the Board of Directors, all bills of exchange or promissory notes of the Corporation. He shall enter or
cause to be entered regularly in the books of the Corporation a full and accurate account of all moneys received and paid by him on account
of the Corporation, shall at all reasonable times exhibit his books and accounts to any director of the Corporation upon application at
the office of the Corporation during business hours and, whenever required by the Board of Directors or the President, shall render a
statement of his accounts. He shall perform such other duties as may be prescribed from time to time by the Board of Directors or by these
Bylaws. He may be required to give bond for the faithful performance of his duties in such sum and with such surety as shall be approved
by the Board of Directors. Any Assistant Treasurer 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 and have such other powers as the Board of Directors may from time to
time prescribe.
The Secretary shall keep the
minutes of all meetings of the stockholders and of the Board of Directors. The Secretary shall cause notice to be given of meetings of
stockholders, of the Board of Directors, and of any committee appointed by the Board of Directors. He shall have custody of the corporate
seal, minutes and records relating to the conduct and acts of the stockholders and Board of Directors, which shall, at all reasonable
times, be open to the examination of any director. The Secretary or any Assistant Secretary may certify the record of proceedings of the
meetings of the stockholders or of the Board of Directors or resolutions adopted at such meetings, may sign or attest certificates, statements
or reports required to be filed with governmental bodies or officials, may sign acknowledgments of instruments, may give notices of meetings
and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.
Section 3.3 Bank Accounts.
In addition to such bank accounts
as may be authorized in the usual manner by resolution of the Board of Directors, the Treasurer, with approval of the Chairman of the
Board or the President, may authorize such bank accounts to be opened or maintained in the name and on behalf of the Corporation as he
may deem necessary or appropriate, provided payments from such bank accounts are to be made upon and according to the check of the Corporation,
which may be signed jointly or singularly by either the manual or facsimile signature or signatures of such officers or bonded employees
of the Corporation as shall be specified in the written instructions of the Treasurer or Assistant Treasurer of the Corporation with the
approval of the Chairman of the Board or the President of the Corporation.
Section 3.4 Proxies;
Stock Transfers.
Unless otherwise provided
in the Certificate of Incorporation or directed by the Board of Directors, the Chairman of the Board or the President or any Vice President
or their designees shall have full power and authority on behalf of the Corporation to attend and to vote upon all matters and resolutions
at any meeting of stockholders of any corporation in which this Corporation may hold stock, and may exercise on behalf of this Corporation
any and all of the rights and powers incident to the ownership of such stock at any such meeting, whether regular or special, and at all
adjournments thereof, and shall have power and authority to execute and deliver proxies and consents on behalf of this Corporation in
connection with the exercise by this Corporation of the rights and powers incident to the ownership of such stock, with full power of
substitution or revocation. Unless otherwise provided in the Certificate of Incorporation or directed by the Board of Directors, the Chairman
of the Board or the President or any Vice President or their designees shall have full power and authority on behalf of the Corporation
to transfer, sell or dispose of stock of any corporation in which this Corporation may hold stock.
ARTICLE IV
CAPITAL STOCK
Section 4.1 Shares.
The shares of the Corporation
shall be represented by a certificate, provided that the Board of Directors may provide by resolution that some or all of any or all classes
or series of the Corporation’s stock shall be uncertificated. Certificates shall be signed by or in the name of the Corporation
by any two authorized officers of the Corporation, and sealed with the seal of the Corporation. Such seal may be a facsimile, engraved
or printed. Within a reasonable time after the issuance or transfer of uncertificated shares, the Corporation shall send to the registered
owner thereof a notice, in writing or by electronic transmission, containing the information required to be set forth or stated on certificates
pursuant to Sections 151, 156, 202(a) or 218(a) of the Delaware General Corporation Law or a statement that the Corporation
will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional
or other special rights of each class of stock or series thereof and the qualification, limitations or restrictions of such preferences
and/or rights.
Any of or all the signatures
on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such an officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if such officer, transfer agent or registrar had not ceased to hold such position
at the time of its issuance.
Except as otherwise expressly
provided by law, the rights and obligations of the holders of uncertificated shares and the rights and obligations of the holders of certificates
representing stock of the same class and series shall be identical.
Section 4.2 Transfer of
Shares.
(a) Upon
surrender to the Corporation or the transfer agent of a certificate for shares duly endorsed or accompanied by proper evidence of succession,
assignation 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. Upon receipt of proper transfer instructions from the registered
owner of uncertificated shares such uncertificated shares shall be cancelled, and the issuance of new equivalent uncertificated shares
or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the Corporation.
(b) The
person in whose name shares of stock stand on the books of the Corporation shall be deemed by the Corporation to be the owner thereof
for all purposes, and the Corporation 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 the State of Delaware.
Section 4.3 Lost Certificates.
The Board of Directors or
any transfer agent of the Corporation may direct a new certificate or certificates or uncertificated shares representing stock of the
Corporation to be issued in place of any certificate or certificates theretofore issued by the Corporation, alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate to be lost, stolen or destroyed.
When authorizing such issue of a new certificate or certificates or uncertificated shares, the Board of Directors (or any transfer agent
of the Corporation authorized to do so by a resolution of the Board of Directors) may, in its discretion and as a condition precedent
to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative,
to give the Corporation a bond in such sum as the Board of Directors (or any transfer agent so authorized) shall direct to indemnify the
Corporation and the transfer agent against any claim that may be made against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed or the issuance of such new certificates or uncertificated shares, and such requirement may be
general or confined to specific instances.
Section 4.4 Transfer Agent
and Registrar.
The Board of Directors may
appoint one or more transfer agents and one or more registrars, and may require all certificates for shares to bear the manual or facsimile
signature or signatures of any of them.
Section 4.5 Regulations.
The Board of Directors shall
have power and authority to make all such rules and regulations as it may deem expedient concerning the issue, transfer, registration,
cancellation and replacement of certificates representing stock of the Corporation or uncertificated shares, which rules and regulations
shall comply in all respects with the rules and regulations of the transfer agent.
ARTICLE V
GENERAL PROVISIONS
Section 5.1 Offices.
The Corporation shall maintain
a registered office in the State of Delaware as required by the laws of the State of Delaware. The Corporation may also have offices in
such other places, either within or without the State of Delaware, as the Board of Directors may from time to time designate or as the
business of the Corporation may require.
Section 5.2 Corporate Seal.
The corporate seal shall have
inscribed thereon the name of the Corporation, the year of its organization, and the words “Corporate Seal” and “Delaware.”
Section 5.3 Fiscal Year.
The fiscal year of the Corporation
shall be determined by resolution of the Board of Directors.
Section 5.4 Notices and
Waivers Thereof.
Whenever
any notice is required by the laws of the State of Delaware, the Certificate of Incorporation or these Bylaws to be given by the Corporation
to any stockholder, director or officer, such notice, except as otherwise provided by law, may be given personally, by mail, by courier
service, or by electronic transmission in accordance with applicable law. Any notice given by electronic mail shall be deemed to have
been given when it shall have been directed to such stockholder’s, director’s or officer’s electronic mail address as
it appears on the records of the Corporation unless, in the case of a stockholder, such stockholder has notified the Corporation
in writing or by electronic transmission of an objection to receiving notice by electronic mail or such notice is prohibited by Section 232(e) of
the Delaware General Corporation Law, any notice given by mail shall be deemed to have been given when deposited in the United States
mail with postage thereon prepaid directed to such stockholder, director, or officer, as the case may be, at such stockholder’s,
director’s, or officer’s, as the case may be, address as it appears in the records of the Corporation, and any notice given
by courier service shall be deemed to have been given on the earlier of when such notice is received or left at such stockholder’s,
director’s or officer’s, as the case may be, address as it appears in the records of the Corporation. An affidavit of the
Secretary or Assistant Secretary or of the transfer agent or other agent of the Corporation that the notice has been given by personal
delivery, by mail, by courier service, or by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence
of the facts stated therein.
Whenever any notice is required
to be given by law, the Certificate of Incorporation, or these Bylaws to the person entitled to such notice, a waiver thereof, in writing
signed by the person, or by electronic transmission, whether before or after the meeting or the time stated therein, shall be deemed equivalent
in all respects to such notice to the full extent permitted by law. If such waiver is given by electronic transmission, the electronic
transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was
authorized by the person waiving notice. In addition, notice of any meeting of the Board of Directors, or any committee thereof, need
not be given to any director if such director shall sign the minutes of such meeting or attend the meeting, except that if such director
attends a 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, then such director shall not be deemed to have waived notice of such meeting.
Section 5.5 Saving Clause.
These Bylaws are subject to
the provisions of the Certificate of Incorporation and applicable law. In the event any provision of these Bylaws is inconsistent with
the Certificate of Incorporation or the corporate laws of the State of Delaware, such provision shall be invalid to the extent only of
such conflict, and such conflict shall not affect the validity of any other provision of these Bylaws.
Section 5.6 Amendments.
In furtherance and not in
limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors, by action taken by the affirmative vote
of not less than 75% of the members of the Board of Directors then in office, is hereby expressly authorized and empowered to adopt, amend
or repeal any provision of the Bylaws of this Corporation.
Subject to the rights of the
holders of any series of preferred stock, these Bylaws may be adopted, amended or repealed by the affirmative vote of the holders of not
less than 66 2/3% of the total voting power of the then outstanding capital stock of the Corporation entitled to vote thereon; provided,
however, that this paragraph shall not apply to, and no vote of the stockholders of the Corporation shall be required to authorize, the
adoption, amendment or repeal of any provision of the Bylaws by the Board of Directors in accordance with the preceding paragraph.
Section 5.7 Gender/Number.
As used in these Bylaws, the
masculine, feminine, or neuter gender, and the singular and plural number, shall include the other whenever the context so indicates.
Section 5.8 Electronic
Transmission.
For purposes of these Bylaws:
(a) “electronic
transmission” means any form of communication, not directly involving the physical transmission of paper, including the use
of, or participation in, one or more electronic networks or databases (including one or more distributed electronic networks or databases),
that creates a record that may be retained, retrieved, and reviewed by a recipient thereof, and that may be directly reproduced in paper
form by such recipient through an automated process;
(b) “electronic
mail” means an electronic transmission directed to a unique electronic mail address (which electronic mail shall be deemed to
include any files attached thereto and any information hyperlinked to a website if such electronic mail includes the contact information
of an officer or agent of the corporation who is available to assist with accessing such files and information); and
(c) “electronic
mail address” means destination, commonly expressed as a string of characters, consisting of a unique user name or mailbox (commonly
referred to as the “local part” of the address) and a reference to an internet domain (commonly referred to as the “domain
part” of the address), whether or not displayed, to which electronic mail can be sent or delivered.
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