EFTA01378050.pdf

declares the advisability of the amendment and directs that it be submitted to a vote at a meeting of stockholders; provided that unless required by the certificate of incorporation, no meeting or vote is required to adopt an amendment for certain specified changes; and (ii) the holders of a majority of shares of stock entitled to vote on the matter approve the amendment, unless the certificate of incorporation requires the vote of a greater number of shares. If a class vote on the amendment is required by the DGCL, a majority of the outstanding stock of the class is required, unless a greater proportion is specified in the certificate of incorporation or by other provisions of the DGCL. Our certificate of incorporation will provide that the rights of our Class B common stock may not be amended. altered, changed or repealed without the approval of the requisite number of said shares of Class B common stock. Under the DGCL, the board of directors may amend a corporations bylaws if so authorized in the certificate of incorporation. The stockholders of a Delaware corporation also have the power to amend bylaws. Our certificate of Incorporation and our bylaws will allow our board of directors to amend our bylaws by the affirmative vote of a majority of all directors. Authorized but unissued shares Delaware companies are permitted to authorize shares but not issue such shares. Our unissued shares of common stock, Class B common stock, Class C common stock and preferred stock will be available for 133 Table of Contents, future issuances without stockholder approval and could be utilized for a variety of corporate purposes, including future offerings to raise additional capital, acquisitions and employee benefit plans. The existence of any authorized but unissued and unreserved common stock. Class B common stock. Class C common stock and preferred stock could render more difficult or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise. Exclusive Jurisdiction Our by-laws will provide that a state court located within the State of Delaware, or if no state court located within the State of Delaware has jurisdiction, the federal district court for the District of Delaware, shall be the exclusive forum for any derivative action or proceeding brought on our behalf, any action asserting a claim of breach of fiduciary duty owed by any of our directors or officers or other employees to our stockholders, and any action asserting a claim against us or any of our directors, officers, or other employees pursuant to the DGCL, our certificate of incorporation, our bylaws or under the internal affairs doctrine. Limitation on liability and indemnification of directors and officers Under the DGCL, subject to specified limitations in the case of derivative suits brought by a corporation's stockholders in its name, a corporation may indemnify any person who is made a party to any action, suit or proceeding on account of being a director, officer, employee or agent of the corporation (or was serving at the request of the corporation in such capacity for another corporation, partnership, joint venture, trust or other enterprise) against expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with the action, suit or proceeding, provided that there is a determination that (i) the individual acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation: and (ii) in a criminal action or proceeding, the individual had no reasonable cause to believe his or her conduct was unlawful. Without court approval, however, no indemnification may be made in respect of any derivative action in which an individual is adjudged liable to the corporation, except to the extent the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity. The DGCL requires indemnification of directors and officers for expenses (including attorneys' fees) actually and reasonably relating to a successful defense on the merits or otherwise of a derivative or third-party action. Under the DGCL, a corporation may advance expenses relating to the defense or any proceeding to directors and officers upon the receipt of an undertaking by or on behalf of the individual to repay such amount if It shall ultimately be determined that such person is not entitled to be indemnified. The DGCL permits the adoption of a provision in a corporation's certificate of incorporation limiting or eliminating the monetary liability of a director to a corporation or its stockholders by reason of a directors breach of the fiduciary duty of care. The DGCL does not permt any limitation of the liability of a director for: (i) breaching the duty of loyalty to the corporation or its stockholders; (ii) acts or omissions not in good faith; (iii) engaging in intentional misconduct or a known violation of law; (iv) obtaining an improper personal benefit from the corporation; or (v) paying a dividend or approving a stock repurchase that was illegal under applicable law. 134 Table of Contents Our certificate of incorporation and bylaws will provide for limitations on liability and the indemnification of our directors to the fullest extent permitted by the DGCL Waiver of corporate opportunity for IAC and officers and directors of IAC The DGCL permits the adoption of a provision in a corporation's certificate of incorporation renouncing any interests or expectancy of a corporation in, or in being offered an opportunity to participate in, specified business opportunities or specified classes or categories of business opportunities that are presented to the corporation or one or more of its officers, directors or stockholders. Our certificate of incorporation will include a "corporate opportunity" provision that renounces any interests or expectancy in corporate opportunities which hap: \Nov. iicesiov•Andints 'edger datel 575189,0001047469150064311222645Rn-I 3.1111111 I I 92013911:17 AM] CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e) DB-SDNY-0075210 CONFIDENTIAL SONY GM_00221394 EFTA01378050