The NASDAQ Stock Market LLC - PDF document

The NASDAQ Stock Market LLC Exhibit C, and Address: MCI, Inc. ("MCI') 22001 Loudon County Parkway Ashburn, VA 20147 Details of organization: Stock corporation current form under the General Corporation Law of the State of Delaware on December 29,2003. Contractual relationship: and MCI Amended and Global Services Agreement dated June 24,2005. Business or functions: MCI will provide hosting for the Disaster Recovery data center Nasdaq Market MCI also services associated with dissemination Nasdaq market to the Nasdaq Market Center. Certificate of Incorporation: as Exhibit By-Laws: Attached as Exhibit B. Officers, Governors, an

d Standing Committee Members Exhibit C. such vacancies directors standing for annual meetings), and opportunity for holders outstanding shares of Common submit nominees for such directorships through The Nominating and Corporate Governance Committee shall also solicit nominations for such vacancies Corporation's ten largest stockholders or such greater number least 15% of outstanding shares of Common Stock (the "Stockholder pursuant to the procedure set forth Corporate Policy. agreement between the Nominating and Corporate Governance Committee and Stockholder Group on nominees for such vacancies, the procedure for direct nomination

Stockholder Group shall set forth a Corporate Policy adopted Nominating and Governance Committee. SECTION 1 office of director shall automatically a good faith determination Board, meeting outside presence of question, that such director longer meets the qualification standards, independence standards other requirements or qualifications set forth this Amended and Restated Certificate applicable Committee Charters Corporate Policy. Unless otherwise Amended and Restated Certificate of Incorporation, vacancies on Board, whether caused resignation, death, disqualification, removal, an increase number of directors be filled only the af

firmative a majority remaining directors, although less than a quorum, a sole remaining director. Subject to the stock purchase requirements sub-clause (vii) of this Article director compensation Board service shall cash. Independent Directors any equity-based compensation program of the Corporation. SECTION 14. joining the every director shall be required to introductory training course continuing education course, or approved Corporate Governance Committee. Annual continuing education courses shall address topics such as accounting, disclosure, governance, compensation andlor industry developments, Nominating and Corporate Gover

nance Committee. ARTICLE VII Chairman of the Board of Directors (i) shall elect one chairman (the Chairman"). ARTICLE VIII Executive Com~ensation No employee of the Corporation shall receive severance payments aggregating the case CEO $10 million, without the holders outstanding shares Common Stock. the Corporation or of its subsidiaries as a result the Board that such employee's performance has unsatisfactory, then such employee shall receive severance payments aggregating more than 50% the severance payments that payable to such employee if such employee any other reason. These limitations may not be adjusted once every five

years the holders a majority outstanding shares of Common Stock. "Severance payments" any payment or other consideration received a termination excluding any payment other consideration had been earned or otherwise accrued employee prior termination. the Corporation shall receive more $15 million any one year without the approval of the holders of a majority the outstanding shares of Common Stock. This limitation not be adjusted more once every five years the holders outstanding shares Common Stock. the purposes this provision, the $15 annual limitation shall include, for employee, all compensation required the Corporation's annu

al proxy statement filed with the SEC such employee, at the date of grant The Corporation shall not grant stock options the Corporation or any of its subsidiaries to the fifth the Effective Date, thereafter only pursuant a stock has been the holders a majority outstanding shares Common Stock. stock options granted compliance herewith and all other forms equity-based compensation the Corporation or its subsidiaries shall the Corporation's profit and loss statement, unless expressly under generally accepted accounting principles The Corporation reserves the any time, and amend, alter, change or any provision contained and Restated C

ertificate Incorporation, and any laws of the State force may added or inserted, manner now hereafter prescribed and all preferences, and privileges nature conferred stockholders, directors or any other persons and pursuant to Amended and Restated Certificate its present or as hereafter amended subject to the right this Article XIX; provided, however, that neither amendment nor repeal Article XVII or Article XVIII nor this Amended and Restated Certificate Incorporation inconsistent with Article XVII or Article XVIII shall reduce the effect of Article or Article XVIII any matter occurring to such amendment, repeal or adoption incons

istent provision. the undersigned duly executed this Amended and Restated Certificate ,2004. MCI, INC. By: Jennifer McGarey Secretary remote communication, or, that stockholders and proxyholders physically present a meeting means of remote communication, such meeting and be deemed to be present a meeting of stockholders. such case, Board shall determine and set guidelines and procedures for holding of any meeting remote communication. all meetings stockholders, stating place, date and meeting, shall mailed or delivered each stockholder entitled less than nor more days prior the meeting. Notice special meeting shall state gener

al terms the purpose or purposes for meeting is be held. be given electronic transmission electronic transmission has been consented to the stockholder to whom given. Such consent shall be maintained the Corporation or the transfer agent together the records the Corporation. consent is given, any notice shall be deemed given, transmission, when directed to a number which the stockholder has receive notice; when directed the stockholder has consented to receive notice. The Secretary or Assistant Secretary of Corporation or transfer agent of the Corporation shall file with affidavit that such notice has transmission. The Corporate S

ecretary the officer who has charge the stock the Corporation shall prepare and make available, days before every meeting stockholders, a complete list stockholders entitled to vote meeting, arranged and showing address of each stockholder and shares registered the name each stockholder. Such list the examination any stockholder, for a place within the where the meeting is to which place shall be specified the notice place where be held. shall also and kept time and place the meeting during the whole time thereof, and be inspected who is present. The stock ledger shall the only evidence to who the stockholders entitled to examine

the stock list required this section or the books of Corporation, or to any meeting of stockholders. (a) be considered annual meeting Corporation's notice meeting pursuant these By-laws, (ii) at the or (iii) any stockholder Corporation who was a stockholder of giving notice provided for this Section, who is entitled the meeting and who complies with the notice procedures set forth in this Section. properly brought before annual meeting stockholder, the stockholder must have given timely notice thereof Secretary of the Corporation and such business otherwise be a proper for stockholder action. (b) timely, a stockholder's notice

to propose business annual meeting stockholders shall and received Secretary at the principal executive offices of the Corporation not later business on nor earlier than the close of business on to the first anniversary of the date of the annual meeting; provided, however, that annual meeting is more than 30 60 days anniversary date, notice the stockholder to be timely be so delivered not earlier than the close of business on the day prior such annual meeting but not close of 90th day prior to such annual meeting or day following the on which public announcement such meeting is first the Corporation. (c) Such stockholder's notice

the Secretary shall set each matter the stockholder proposes to bring before annual meeting (i) a brief description the business desired to brought before annual meeting and the reasons for conducting such business annual meeting, (ii) the name and they appear on the of the stockholder proposing such business and beneficial owner, behalf the proposal is (iii) number of shares of the Corporation which are owned beneficially and stockholder and such beneficial owner and (iv) any interest such stockholder such beneficial such business. (d) the Chairman of annual meeting determines that business not properly brought before the annual

meeting accordance with the foregoing procedures, the Chairman shall declare the meeting that the business was not brought properly before business shall not be transacted. (e) this Section and Section 10 By-laws, "public announcement" shall a press release Jones News Services, Associated Press or comparable national service or a document publicly filed the Securities and Exchange Commission 14 or 15(d) of Securities Exchange Act amended (the Nomination of Directors. Only such persons who accordance with the procedures set forth Section shall be eligible to serve Corporation; provided, however, this Section shall not apply to no

minations made pursuant to Section the Certificate and any person nominated accordance with Section 10 Incorporation shall eligible to serve the Corporation. (a) Nominations of persons for election to the only (i) pursuant to Corporation's notice meeting pursuant these By-laws, (ii) or at the direction of the Board or (iii) any stockholder Corporation who was a stockholder of record at the time of giving notice provided for this Section, who is entitled at the who complies with the notice procedures set forth this Section. Such nominations, other than those at the direction of the Board, shall be made pursuant timely notice Corp

oration. (b) be timely, a stockholder's notice to nominate directors for annual meeting of stockholders shall and received the principal executive offices close of business the 90th day earlier than the close business on the 120th day the first anniversary the date preceding year's annual meeting; however, that the annual meeting is more days after such anniversary date, notice the stockholder timely must delivered not earlier the close business on the 120th day prior to such annual meeting not later the close business on the day prior annual meeting day following the public announcement the date such meeting the Corporation. (c)

Such stockholder's notice shall forth (i) the stockholder proposes to nominate for election or re-election a director, (A) the name, age, business address and residence address such person, (B) the principal occupation or employment of (C) shares of the Corporation beneficially or person, (D) a good faith determination of whether such person an Independent Director of the Certificate of Incorporation and basis for such determination and any other information relating to such persons that proxies for election of is otherwise required, pursuant to Regulation under the Exchange Act (including, without limitation, such person's writ

ten consent to nominee and to serving a director if elected); and (ii) as to the stockholder giving the notice and beneficial owner, if any, behalf the nomination is address of such the Corporation's books and of such beneficial owner and number of shares of the Corporation which are owned beneficially stockholder and such beneficial owner. the Board, any for election a director shall furnish the Secretary the Corporation that information required be set forth a stockholder's notice of nomination which pertains to the nominee. The Board also proposed nominee furnish such other reasonably be required the Board to determine the eligi

bility a director Corporation. (d) Notwithstanding anything Section to event that number of directors be elected to and there is public announcement the Corporation naming all of the nominees or specifLing the size first anniversary the date preceding year's annual meeting, a stockholder's notice required Section shall also considered timely, but only with respect for any positions created such increase, if it delivered to and received the Secretary the principal executive offices of the later than the close of business on the 10th day following the day which such public announcement first made the Corporation. (e) persons for el

ection the Board a special meeting of stockholders which directors are elected pursuant the Corporation's notice the meeting made (i) determined that directors shall such meeting, any stockholder of the is a stockholder the time this Section, who shall be entitled meeting and the notice procedures set forth the event the Corporation calls a special meeting the purpose electing one more directors to any such stockholder nominate a or persons, for election Corporation's notice of if the stockholder's notice containing paragraph (c) this Section shall be the Secretary the principal executive earlier than the close business on the 1

20th day prior to such special meeting not later than the close the later day prior such special meeting day following the day on public announcement first made the date special meeting and the nominees proposed be elected (f) the Chairman of stockholders determines that a nomination was foregoing procedures, the Chairman shall declare the meeting that nomination was defective and such defective shall be disregarded. SECTION 1 a Meeting. action required permitted to be taken any meeting otherwise required law or the Certificate of Incorporation, be without a meeting, without prior notice and without a vote, a consent electronic tr

ansmission, setting forth the issued and outstanding capital stock the Corporation having not less than the of votes that would take such action which all shares entitled vote thereon were present and voted, and writings are filed permanent records the Corporation. Duration and Revocation of Consents. (a) order that the Corporation's stockholders shall have receive and consider the information germane to give written consent, any corporate action to be taken consent shall be effective Corporation shall written consents twenty (20) the commencement a solicitation term is defined under the Exchange Act) of consents. purposes of thi

s Section a consent solicitation shall have commenced when information statement containing the information is first to the Corporation's stockholders. (b) corporate action shall for a days after the earliest consent delivered the Corporation the manner provided Section 228(c) the DGCL. Consents may written notice (i) to Corporation, (ii) the stockholder or stockholders soliciting consents or soliciting consent proposed Corporation (the "Soliciting Stockholders") solicitor or other agent designated the Corporation or Soliciting Stockholders. Inspections of Consents. (a) after receipt the earliest dated consent delivered the manne

r provided Section 228(c) or the determination the Board that the Corporation should seek corporate action the case the Secretary shall engage nationally recognized independent inspectors of elections for performing a review the consents and revocations. retaining inspectors election shall the Corporation. (b) revocations shall be delivered the inspectors Corporation, the Soliciting Stockholders or their other designated agents. consents and revocations are received, inspectors shall review the consents and revocations and shall a count the number unrevoked consents. The inspectors shall keep such count confidential and shall revea

l the count to the Corporation, Stockholder or their representatives any other entity. practicable after the earlier of (i) after the date earliest dated consent delivered to the Corporation Section 228(c) or (ii) a written request therefor (which request twenty (20) days after the applicable solicitation consents, except corporate action consent taken pursuant to than ten Corporation or the Soliciting Stockholders (whichever is soliciting consents) notice request shall to the opposing the solicitation and which request shall state that the Corporation or Soliciting Stockholders, the case have a good belief that the requisite numbe

r valid and unrevoked consents to authorize or take the action specified the consents has the inspectors issue a preliminary Corporation and the Soliciting Stockholders. Such shall state: (i) consents; (ii) number of valid revocations; (iii) the number and unrevoked consents; (iv) consents; (v) the of invalid revocations; and (vi) on their count, the requisite number valid and unrevoked authorize or take the action specified the consents. (c) the Corporation the Soliciting Stockholders shall a shorter or longer period, the Corporation the Soliciting all votes or ballots, determine the proper to conduct the election or with fairne

ss to all stockholders. of the person presiding at the meeting, the inspector or inspectors, if any, shall make a report any challenge, question such inspector or inspectors and execute a certificate such inspector ARTICLE I1 Board of Directors General Powers. business, property and affairs Corporation shall managed by, under the direction of, the Board. Oualification; Number; Term; Remuneration (a) director shall otherwise provided the Certificate a director not be a the Corporation, a citizen of States, or a resident the State Delaware. The number directors constituting Board shall within the parameters set forth the Certificat

e of Incorporation. use of "entire Board" of directors which Corporation would if there were (b) director other an Independent Director. An "Independent Director" a director that good faith affirmatively determines has material relationship that interfere with the exercise objective judgment carrying out the responsibilities a director, other requirements Independent Directors set the Certificate rule and applicable listing rules of a national securities exchange a national securities quotation system (any such (c) director shall satisfy the qualification standards set of the Certificate of Incorporation. (d) director shall sat

isfy the requirements concerning skills, experiences, or expertise set forth of Article Certificate of Incorporation. (e) director shall one facility of addition to independent of regularly scheduled any facilities the Corporation. (v) member visits to Corporation facilities; (vi) at least appropriate Board overall effectiveness the Corporation's ethics legal compliance systems; (vii) overseeing an annual review effectiveness of the and the contribution each director, including the self-assessment each director committee; (viii) overseeing an annual review the Board the performance the CEO; and (ix) performing such other d

uties necessary for the Board to fulfill its responsibilities or Board. (c) The Board Chairman shall annually, for a maximum tenure of six years. (d) Chairman shall have adequate support selected Corporation's staff to the Corporation's Corporate Governance Guidelines or other applicable Corporate the successful completion assigned responsibilities. Required Vote. otherwise provided a majority shall constitute a quorum. the directors not a quorum is present, adjourn a another time and place without notice. The of the majority of the directors present a meeting at which quorum is present shall be the act of Meetings of place wi

thin or without the State may from resolution of the Board, or be specified the requirements set Certificate of Incorporation. Annual Meeting. Following the annual meeting stockholders, the officers and the transaction such other properly come before the Such meeting notice immediately after the annual meeting of stockholders at the stockholders' meeting employment status, commencement of any material SEC or other government investigation prosecution involving such director target or subject, the existence of interest involving, or any fiduciary duty such director other material change status (including a change relating the requi

rements (b) and (c) this Article), such director shall tender his or the Board. The meeting outside the presence of the director question, shall determine whether or tendered resignation; Consent. Any action required any meeting Board may taken without a directors consent thereto writing or transmission, and the writing or transmission filed with the minutes proceedings of the Board. ARTICLE I11 Committees Appointment; Tenure. (a) accordance with Incorporation, the Board may from time resolution adopted a majority addition to the Audit Committee, Compensation Committee, Nominating Corporate Governance Committee Risk Management

Committee other committee for any lawful having such powers determined and specified (b) Consistent with Incorporation and these committee members shall Board annually and shall continue be members their successors are elected and qualified or their earlier resignation removal. Any member or without cause, the Board time. The Board appoint a chairman to convene and chair sessions of a committee, agendas for committee meetings, and determine the information needs of a committee. fails to appoint a chairman, the members the committee shall elect majority vote to serve the majority. committees of the receive annual fees set the Corp

oration's Compensation Guidelines adopted the Compensation Committee other applicable Corporate Policy. Audit Committee. (a) The Audit Committee shall oversee conduct and integrity the Corporation's financial reporting process and perform the following duties responsibilities (in addition to those set forth Audit Committee Charter): fi) oversight capacity, quality and efficacy controls and management programs at least twice each year; (ii) twice each year with the General the Corporation to review issues arising compliance activities the Corporation's Ethics Office, to assess contingent and regulatory risks the Corporation; (iii

) appointing (and appropriate dismissing), evaluating, compensating (including the review all invoices) and overseeing the work of the Corporation's independent "registered public the Public Company Accounting "Independent Auditor") who shall report the Audit Committee; (iv) regularly meeting Independent Auditor to review annual audit the annual testing internal controls Independent Auditor, management letters issued such auditors, policy issues (including the review all technical accounting issues audit engagement and such other technical and quality control offices); v investigating, reviewing and/or discussing with the Indep

endent Auditor any matter brought its attention with access to all books, records, facilities and personnel of (b) the Audit Committee shall meet requirements set forth the Certificate of Incorporation and Listing Rules. the Audit Committee requirements set forth any applicable Listing Rules. At least one member the Audit Committee shall committee financial such term rules. Additionally, each member the Audit Committee shall financial expertise the Audit Committee Charter. (c) of the Committee shall have the aggregate three years experience serving on audit committees companies or other experience a regulatory or standard-setti

ng a senior audit partner independent accounting which the Board shall deem comparable. However, no member the Audit Committee simultaneously serve on the audit committee than two other public corporations. (d) Board shall adopt a written charter Audit Committee setting forth the Audit Committee, criteria for membership on Audit Committee, how often the Audit Committee meet, and the key responsibilities the Audit Committee, all the requirements the Certification of Incorporation and these By-laws. (e) Audit Committee shall meet not less than times per year. (f) Audit Committee shall have sole authority to terminate the Independen

t Auditor and the Committee's independent advisors and deems necessary including sole authority approve such auditors', advisors' andlor counsel's fees and other retention terms. (g) Members of Audit Committee shall attend an annual education program, provided or approved Nominating and Corporate Governance Committee, based on recommendations from Audit Committee. (h) Audit Committee shall rotate not less than every three At the end such rotation a member the Audit Committee and may serve again the future. chairman of Audit Committee shall such position for a total of more than six (i) the Audit Committee shall be expected to d

evote substantial time to the the committee, including meetings or discussions with internal financial external audit personnel, analysts or stockholders, experts for Audit Committee required. Compensation Committee. (a) The Compensation Committee shall oversee the Corporation's executive officers and directors and responsibilities set forth the Compensation Committee Charter. (b) Compensation Committee shall consist Independent Directors, shall have experience compensation and resources issues. Term; Termination. the event any person shall a director the Corporation, such person shall simultaneously therewith cease to be a member

any committee appointed ARTICLE IV Officers Election and Qualifications. The Board shall elect shall include a and a Secretary, election or appointment, a President, a Operating Officer, one or Vice-presidents (any one or more given an additional designation a Treasurer and any other officers Board may from time deem proper. addition, subordinate officers and other agents and employees appointed pursuant officer shall powers and duties as these By-laws and or the or more offices the same except the offices and Secretary. SECTION 2. Term of Office and Remuneration. The term of office of all officers shall one year and until their

respective successors have elected and qualified or their earlier resignation or removal. any office arising filled for unexpired portion of the the Corporation may be Board or as the Board shall provide. Removal. Any officer may any time written notice to the Corporation and resignation shall take receipt thereof unless otherwise specified the resignation. Any officer shall removal, with or without cause, any time a majority entire Board. Chief Executive Officer. The Corporation shall general management supervision of the property, business and affairs of the Corporation and over its other officers; appoint and remove assistant

officers other agents and employees, other than officers referred to of this Article Corporation powers attorney, contracts, other obligations President. The President execute and deliver Corporation contracts and other obligations pertaining to the regular course of the duties shall have the meeting is held. of or to vote at a meeting stockholders shall apply any adjournment of meeting; provided, however, that fix a new record the adjourned meeting. (b) order that the Corporation entitled to consent to corporate action in writing without a meeting, fix a record date, which date shall be more than which the resolution fixing rec

ord date is adopted the Board. date has the Board, date for determining stockholders entitled consent to corporate action writing without a meeting, prior action required, shall first date on which a signed written consent setting forth the action taken or be taken is delivered delivery to State, its principal place of business, or officer or agent Corporation having which proceedings are recorded. Delivery to the Corporation's registered office shall certified or registered return receipt requested. no record date and prior action the Board this chapter, the date for determining stockholders consent to corporate action writing wit

hout a meeting shall the close Board adopts resolution taking such (c) order that the Corporation receive payment any dividend other distribution any rights or the stockholders entitled exercise any rights any change, conversion or exchange for the any other lawful action, the Board fix a which date shall be days prior to such action. If no date for determining stockholders for any such purpose shall the close adopts the resolution relating thereto. ARTICLE VIII Certificates Representing Stock Certificates; Signatures. certificates, provided that resolution or resolutions all of all classes or series its stock shall uncertific

ated shares. such resolution shall apply to shares represented a certificate until such certificate is surrendered to the Corporation. Notwithstanding such a of stock represented the alleged such certificate or the issuance of ARTICLE IX Dividends Subject always provisions of Incorporation and applicable Corporate concerning the annual or targeted payments to stockholders, have full power to determine whether any, and, what part any, funds legally available dividends shall be and paid stockholders; the division whole or any Corporation shall rest within the lawful discretion of the shall not be required against such discretion, di

vide or any part funds among or to the stockholders as dividends ARTICLE X Electronic Transmission electronic transmission shall communication not directly involving the physical transmission of paper that retained, retrieved a recipient and that directly reproduced a recipient through automated process. ARTICLE XI Ratification transaction, questioned suit on the ground of authority, defective irregular execution, adverse interest director, officer stockholder, non-disclosure, miscomputation, or the application improper principles accounting, may or after judgment, ratified shall the same force and effect the questioned originall

y duly authorized. Such ratification shall the Corporation its stockholders shall constitute a to any such questioned transaction. ARTICLE XI1 Corporate Seal corporate seal shall have inscribed thereon the name Corporation and the year its incorporation, such form and contain such other words and/or figures shall determine. corporate seal printing, engraving, lithographing, or otherwise making, placing or causing to printed, engraved, lithographed, stamped any paper any process whatsoever, such corporate ARTICLE XI11 Fiscal Year fiscal year Corporation shall Board. Unless otherwise fiscal year of Corporation shall be the calenda

r year. ARTICLE XIV Waiver of Notice required to these By-laws or Incorporation or a written waiver thereof signed the person such notice, or a waiver electronic transmission such notice, whether before or after the time stated therein, shall deemed equivalent to notice. ARTICLE XV Bank Accounts, Drafts, Contracts, Bank Accounts and Drafts. such bank be authorized the Board, the Financial Officer the Corporation (the or any the CFO, an employee authorize such name and Corporation as or she deem necessary or appropriate, payments accounts to the check the Corporation accordance with the written instructions of the CFO, or other

person the Treasurer. Contracts. The any person the name on behalf enter into execute and deliver deeds, bonds, mortgages, contracts other obligations or instruments, such authority be general or confined to specific instances. Proxies; Powers Attorney; Other Instruments. The CEO or any other CEO or shall have the authority to execute and deliver attorney and other instruments behalf of the Corporation. or any other of attorney executed and delivered Corporation may attend any meeting stockholders of company in which the Corporation may hold stock, and exercise on behalf Corporation any and all the rights and powers incident the

ownership such stock such meeting, proxy or power of attorney authorizing any such The Board other fiscal officer andlor the Secretary or other officer and furnished to stockholders entitled thereto any special financial notice and/or financial statement, be required by any provision of law. ARTICLE XVI Amendments The Board shall have to adopt, amend repeal By-laws. By-laws may be repealed or changed, and stockholders, and the stockholders prescribe that any By-law made altered, amended or repealed Corporate Governance Page 1 of 2 b About MCI Complete Audit Committee Charter Our Company Members Our Network b News Dennis R.

Beresford, Chairperson W. Grant Gregory Investor Relations Clarence B. Rogers worperate Governance � Articles of Incorporation Board of Governance Guidelines Compensation Committee Complete Compensation Committee Charter � Officers Restoring Trust Members � Shareholder MCI Code Rogers, Chairperson Electronic Town Hall Mark Neporent Public Policy Career Center b Real Estate MCl Alumni Nominating and Corporate Governance Committee Complete Corporate Goverance Charter PDF: 18KB) Members Eric H. Dennis R. Beresford Laurence E. Harris Management Committee Charter Members Judith R. Haberkorn, Chairpers