<PAGE>
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
March 12, 1997
(Date of earliest event reported)
PS GROUP HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Delaware 1-7141 95-2760133
(State or other jurisdiction (Commission file number) (I.R.S. Employer
of incorporation) Identification No.)
4370 La Jolla Village Drive, Suite 1050
San Diego, California 92122
(Address of principal executive offices and zip code)
(619) 642-2999
(Registrant's telephone number)
<PAGE>
ITEM 5. OTHER EVENTS
On March 12, 1997, the Board of Directors of PS Group Holdings, Inc. (the
"Company") approved certain amendments to Articles II, III and IV of the
Restated By-Laws of the Company (the "Restated By-Laws"). The text of such
amendments, marked to reflect additions and deletions effected thereby, is
attached hereto as Exhibit 99.1 (in the case of Articles II and III) and Exhibit
99.2 (in the case of Article IV), respectively. The entire text of the Restated
By-Laws as amended is attached hereto as Exhibit 99.3. In addition, the Company
has issued a press release dated March 12, 1997, a copy of which is attached
hereto as Exhibit 99.4.
ITEM 7. (C) EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
- - -------- -----------
<S> <C>
99.1 Articles II and III of the Restated By-Laws, as amended effective
March 12, 1997
99.2 Article IV of the Restated By-Laws, as amended effective March 12,
1997
99.3 The Restated By-Laws, as amended effective March 12, 1997
99.4 Press Release dated March 12, 1997
</TABLE>
2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PS GROUP HOLDINGS, INC.
(Registrant)
Date: March 13, 1997
By:/s/ CHARLES E. RICKERSHAUSER, JR.
---------------------------------
Charles E. Rickershauser, Jr.
Chairman of the Board and Chief
Executive Officer
3
<PAGE>
EXHIBIT INDEX
-------------
The following exhibits are hereby filed as part of this Form 8-K:
<TABLE>
<CAPTION>
Exhibit
Number Description Number
- - ------- ----------- ------
<S> <C> <C>
99.1 Articles II and III of the Restated By-Laws, as amended
effective March 12, 1997
99.2 Article IV of the Restated By-Laws, as amended effective
March 12, 1997
99.3 The Restated By-Laws, as amended effective March 12, 1997
99.4 Press Release dated March 12, 1997
</TABLE>
4
<PAGE>
EXHIBIT 99.1
AMENDMENTS TO
ARTICLES II AND III OF RESTATED BY-LAWS*
AMENDMENTS TO ARTICLE II
Section 2. Annual Meetings. Annual meetings of stockholders shall be held
on the fourth Tuesday of May, if not a legal holiday, and if a legal holiday,
then on the next secular day following, at 10:00 a.m., or at such other date and
time set by the Board and stated in the notice of the meeting, at which the
stockholders shall elect a Board, and transact such other business as may
properly be brought before the meeting.
Nominations of persons for election to the Board and the proposal of
--------------------------------------------------------------------
business to be transacted by the stockholders may be made at an annual meeting
- - ------------------------------------------------------------------------------
of stockholders (a) pursuant to the Corporation's notice with respect to such
- - -----------------------------------------------------------------------------
meeting, (b) by or at the direction of the Board or (c) by any stockholder of
- - -----------------------------------------------------------------------------
record of the Corporation who was a stockholder of record at the time of the
- - ----------------------------------------------------------------------------
giving of the notice provided for in the following paragraph, who is entitled
- - -----------------------------------------------------------------------------
to vote at the meeting and who has complied with the notice procedures set
- - --------------------------------------------------------------------------
forth in this section.
- - ---------------------
For nominations or other business to be properly brought before an annual
-------------------------------------------------------------------------
meeting by a stockholder pursuant to clause (c) of the foregoing paragraph,
- - ---------------------------------------------------------------------------
the stockholder must have given timely notice thereof in writing to the
- - -----------------------------------------------------------------------
Secretary of the Corporation, such business must be a proper matter for
- - -----------------------------------------------------------------------
stockholder action under the General Corporation Law of the State of Delaware
- - -----------------------------------------------------------------------------
and, if the stockholder, or the beneficial owner on whose behalf any such
- - -------------------------------------------------------------------------
proposal or nomination is made, solicits or participates in the solicitation
- - ----------------------------------------------------------------------------
of proxies in support of such proposal or nominees, the stockholder must have
- - -----------------------------------------------------------------------------
timely indicated its, or such beneficial owner's, intention to do so as
- - -----------------------------------------------------------------------
provided in subclause (c) (iii) of this paragraph. To be timely, a
- - ------------------------------------------------------------------
stockholder's notice shall be delivered to the Secretary at the principal
- - -------------------------------------------------------------------------
executive offices of the Corporation not less than 90 days prior to the first
- - -----------------------------------------------------------------------------
anniversary of the preceding year's annual meeting of stockholders; provided,
- - -----------------------------------------------------------------------------
however, that if the date of the annual meeting is advanced more than 30 days
- - -----------------------------------------------------------------------------
prior to, or delayed by more than 60 days after, such anniversary date, notice
- - ------------------------------------------------------------------------------
by the stockholder to be timely must be so delivered not later than the close
- - -----------------------------------------------------------------------------
of business on the later of the 90th day prior to such annual meeting or the
- - ----------------------------------------------------------------------------
10th day following the day on which public announcement of the date of such
- - ---------------------------------------------------------------------------
meeting is first made. Such stockholder's notice shall set forth: (i) (a) as
- - ----------------------------------------------------------------------------
to each person whom the stockholder proposes to nominate for election or
- - ------------------------------------------------------------------------
reelection as a director, all information relating to such person as would be
- - -----------------------------------------------------------------------------
required to be disclosed in solicitations of proxies for the election of such
- - -----------------------------------------------------------------------------
nominees as directors pursuant to Regulation 14A under the Securities Exchange
- - ------------------------------------------------------------------------------
Act of 1934, as amended (the "Exchange Act"), and such person's written
- - -----------------------------------------------------------------------
consent to serving as a director if elected; (b) as to any other business that
- - ------------------------------------------------------------------------------
the stockholder proposes to bring before the meeting, a brief description of
- - ----------------------------------------------------------------------------
such business, the reasons for conducting such business at the meeting and any
- - ------------------------------------------------------------------------------
material interest in such business of such stockholder and the beneficial
- - -------------------------------------------------------------------------
owner, if any, on whose behalf the proposal is made; and (c) as to the
- - ----------------------------------------------------------------------
stockholder giving the notice and the beneficial owner, if any, on whose
- - ------------------------------------------------------------------------
behalf the nomination or proposal is made, (i) the name and address of such
- - ---------------------------------------------------------------------------
stockholder, as they appear on the Corporation's books, and of such beneficial
- - ------------------------------------------------------------------------------
owner, (ii) the class and number of shares of the Corporation which are owned
- - -----------------------------------------------------------------------------
beneficially and of record by such stockholder and such beneficial owner, and
- - -----------------------------------------------------------------------------
(iii) whether either such stockholder or beneficial owner intends to solicit
- - ----------------------------------------------------------------------------
or participate in the solicitation of proxies in favor of such proposal or
- - --------------------------------------------------------------------------
nominee(s).
- - ----------
Notwithstanding anything in the second sentence of the second paragraph of
--------------------------------------------------------------------------
this Section 2 to the contrary, in the event that the number of directors to
- - ----------------------------------------------------------------------------
be elected to the Board is increased and there is no public announcement
- - ------------------------------------------------------------------------
naming all of the nominees for director or specifying the size of the
- - ---------------------------------------------------------------------
increased Board made by the Corporation at least 100 days prior to the first
- - ----------------------------------------------------------------------------
anniversary of the preceding year's annual meeting, a stockholder's notice
- - --------------------------------------------------------------------------
required by this By-law shall also be considered timely, but only with respect
- - ------------------------------------------------------------------------------
to nominees for any new
- - -----------------------
- - ------------
* Underscorings on this Exhibit indicate language added. Brackets on this
Exhibit indicate language deleted. Unmarked language on this Exhibit
indicates existing (unamended) text of the Restated By-Laws.
1
<PAGE>
positions created by such increase, if it shall be delivered to the Secretary
- - -----------------------------------------------------------------------------
at the principal executive offices of the Corporation not later than the close
- - ------------------------------------------------------------------------------
of business on the 10th day following the day on which such public
- - ------------------------------------------------------------------
announcement is first made by the Corporation.
- - ---------------------------------------------
Only persons nominated in accordance with the procedures set forth in this
--------------------------------------------------------------------------
section shall be eligible to serve as directors and only such business shall
- - ----------------------------------------------------------------------------
be conducted at an annual meeting of stockholders as shall have been brought
- - ----------------------------------------------------------------------------
before the meeting in accordance with the procedures set forth in this
- - ----------------------------------------------------------------------
section. The chair of the meeting shall have the power and the duty to
- - ----------------------------------------------------------------------
determine whether a nomination or any business proposed to be brought before
- - ----------------------------------------------------------------------------
the meeting has been made in accordance with the procedures set forth in these
- - ------------------------------------------------------------------------------
By-laws and, if any proposed nomination or business is not in compliance with
- - -----------------------------------------------------------------------------
these By-laws to declare that such defective proposed business or nomination
- - ----------------------------------------------------------------------------
shall not be presented for stockholder action at the meeting and shall be
- - -------------------------------------------------------------------------
disregarded.
- - -----------
For purposes of this Section 2, "public announcement" shall mean disclosure
---------------------------------------------------------------------------
in a press release reported by the Dow Jones News Service, Associated Press or
- - ------------------------------------------------------------------------------
a comparable national news service or in a document publicly filed by the
- - -------------------------------------------------------------------------
Corporation with the Securities and Exchange Commission pursuant to Section
- - ---------------------------------------------------------------------------
13, 14 or 15(d) of the Exchange Act.
- - -----------------------------------
Notwithstanding the foregoing provisions of this By-law, a stockholder
----------------------------------------------------------------------
shall also comply with all applicable requirements of the Exchange Act and the
- - ------------------------------------------------------------------------------
rules and regulations thereunder with respect to matters set forth in this By-
- - ------------------------------------------------------------------------------
law. Nothing in this Section 2 shall be deemed to affect any rights of
- - ----------------------------------------------------------------------
stockholders to request inclusion of proposals in the Corporation's proxy
- - -------------------------------------------------------------------------
statement pursuant to Rule 14a-8 under the Exchange Act.
- - -------------------------------------------------------
The provisions of the second through the seventh paragraphs of this Section
---------------------------------------------------------------------------
2 shall apply to any annual meeting of stockholders following the 1997 annual
- - -----------------------------------------------------------------------------
meeting.
- - -------
SECTION 3. Special Meetings. Special meetings of stockholders, for any
purpose or purposes, unless otherwise prescribed by applicable law or by the
Certificate of Incorporation, may be called by the Chairman of the Board (or,
if the Board does not appoint a Chairman of the Board, the Chief Executive
Officer) and shall be called by the Chairman of the Board (or, if the Board
does not appoint a Chairman of the Board, the Chief Executive Officer) or
Secretary at the request in writing of a majority of the Board, or if, and
only if, the special meeting is to be called for the purpose of removing a
member of the Board (a "Director") for cause, at the request in writing of
stockholders owning a majority in amount of the entire capital stock of the
Corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting and the business
transacted at any such special meeting of stockholders shall be limited to the
purposes set forth in the notice. Stockholders may not request the call of a
special meeting for any purpose other than as provided herein.
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. Nominations of persons for election to the Board may be
- - --------------------------------------------------------------------------
made at a special meeting of stockholders at which directors are to be
- - ----------------------------------------------------------------------
selected pursuant to the Corporation's notice of meeting (a) by or at the
- - -------------------------------------------------------------------------
direction of the Board or (b) by any stockholder of record of the Corporation
- - -----------------------------------------------------------------------------
who is a stockholder of record at the time of giving of notice provided for in
- - ------------------------------------------------------------------------------
this paragraph, who shall be entitled to vote at the meeting and who complies
- - -----------------------------------------------------------------------------
with the notice procedures set forth in this Section 3. Nominations by
- - ----------------------------------------------------------------------
stockholders of persons for election to the Board may be made at such a
- - -----------------------------------------------------------------------
special meeting of stockholders if the notice that such stockholder would be
- - ----------------------------------------------------------------------------
required to give, in the case of a nomination proposed to be made at an annual
- - ------------------------------------------------------------------------------
meeting of stockholders, by the third paragraph of Article II, Section 2 of
- - ---------------------------------------------------------------------------
these By-laws shall be delivered to the Secretary at the principal executive
- - ----------------------------------------------------------------------------
offices of the Corporation not later than the close of business on the later
- - ----------------------------------------------------------------------------
of the 90th day prior to such special meeting or the 10th day following the
- - ---------------------------------------------------------------------------
day on which public announcement is first made of the date of the special
- - -------------------------------------------------------------------------
meeting and of the nominee(s) proposed by the Board to be elected at such
- - -------------------------------------------------------------------------
meeting.
- - -------
2
<PAGE>
. . .
SECTION 10. [Notice of Stockholder Business.] Notice of Stockholder
---------------------
Business at the 1997 Annual Meeting. This Section 10 shall apply to the 1997
- - ----------------------------------------------------------------------------
annual meeting of the stockholders of the Corporation; notice of stockholder
- - ----------------------------------------------------------------------------
business at all subsequent annual meetings shall be governed by Section 2 of
- - ----------------------------------------------------------------------------
Article II of these By-laws (and not this Section 10) and notice of stockholder
- - -------------------------------------------------------------------------------
business at all special meetings shall be governed by Section 3 of Article II of
- - --------------------------------------------------------------------------------
these By-laws. At an annual meeting of the stockholders, only such business
- - -------------
shall be conducted as shall have been brought before the meeting (a) by or at
the direction of the Board or (b) by any stockholder of the Corporation who
complies with the notice procedures set forth in this Section 10. For business
to be properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation. To be timely, a stockholder's notice must be delivered to or
mailed and received at the principal executive offices of the Corporation, not
less than 30 days nor more than 60 days prior to the meeting; provided, however,
that in the event that less than 40 days' notice or prior public disclosure of
the date of the meeting is given or made to stockholders, notice by the
stockholder to be timely must be received not later than the close of business
on the 10th day following the day on which such notice of the date of the annual
meeting was mailed or such public disclosure was made. A stockholder's notice to
the Secretary shall set forth as to each matter the stockholder proposes to
bring before the annual meeting (a) 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, (b) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business, (c) the class
and number of shares of the Corporation which are beneficially owned by the
stockholder and (d) any material interest of the stockholder in such business.
Notwithstanding anything in the By-laws to the contrary, no business shall be
conducted at an annual meeting except in accordance with the procedures set
forth in this Section 10. The Chairman of an annual meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting in accordance with the provisions of this Section 10,
and if he should so determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
AMENDMENTS TO ARTICLE III
SECTION 3. Nominations. Nominations of candidates for election as Directors
of the Corporation may be made by the Board or by any stockholder entitled to
vote at a meeting at which one or more Directors are to be elected (an
"Election Meeting").
Nominations made by the Board shall be made at a meeting of the Board or by
written consent of Directors in lieu of a meeting, not less than thirty days
prior to the date of an Election Meeting. At the request of the Secretary of
the Corporation, each proposed nominee shall provide the Corporation with such
information concerning himself as is required, under the rules of the
Securities and Exchange Commission, to be included in the Corporation's proxy
statement soliciting proxies for his election as a Director.
Not less than thirty days prior to the date of an Election Meeting any
stockholder who intends to make a nomination at the Election Meeting shall
deliver a notice to the Secretary of the Corporation setting forth (i) the
name, age, business address, and residence address of each nominee proposed in
such notice, (ii) the principal occupation or employment of each such nominee,
(iii) the number of shares of capital stock of the Corporation which are
beneficially owned by each such nominee and (iv) such other information
concerning each such nominee as would be required, under the rules of the
Securities and Exchange Commission, in a proxy statement soliciting proxies
for the election of such nominees. Such notice shall include a signed consent
to serve as a Director of the Corporation, if elected, of each such nominee.
In the event that a person is validly designated as a nominee and shall
thereafter become unable or unwilling to stand for election to the Board, the
Board or the stockholder who proposed such nominee, as the case may be, may
designate a substitute nominee.
If the chairman of the Election Meeting determines that a nomination was
not made in accordance with the foregoing procedures, such nomination shall be
void.
3
<PAGE>
The provisions of the third through fifth paragraphs of this Section 3
----------------------------------------------------------------------
shall apply to any nominations by stockholders for election as a Director of the
- - --------------------------------------------------------------------------------
Corporation at the 1997 annual meeting of stockholders; nominations by
- - ----------------------------------------------------------------------
stockholders for election as a Director of the Corporation at all subsequent
- - ----------------------------------------------------------------------------
annual meetings shall be governed by Section 2 of Article II of these By-laws
- - -----------------------------------------------------------------------------
(and not this Section 3) and nominations by stockholders for election as a
- - --------------------------------------------------------------------------
Director of the Corporation at all special meetings shall be governed by Section
- - --------------------------------------------------------------------------------
3 of Article II of these By-laws (and not this Section 3).
- - ---------------------------------------------------------
4
<PAGE>
EXHIBIT 99.2
AMENDMENTS TO
ARTICLE IV OF RESTATED BY-LAWS
SECTION 3. The Chairman of the Board; Vice Chairman. The Board may, at its
-------------
election, appoint a Chairman of the Board. If such an officer be elected, he
shall, if present, preside at all meetings of the stockholders and of the
Board and shall have such other powers and duties as may from time to time be
assigned to him by the Board. The Board may, at its election, also appoint a
----------------------------------------------
Vice Chairman of the Board to preside at all meetings of the stockholders and
- - -----------------------------------------------------------------------------
of the Board in the absence of the Chairman of the Board and to have such
- - -------------------------------------------------------------------------
other powers and duties as may from time to time be assigned to him by the
- - --------------------------------------------------------------------------
Board.
- - -----
- - ------------
* Underscorings on this Exhibit indicate language added. Unmarked language on
this Exhibit indicates existing (unamended) text of the Restated By-Laws.
1
<PAGE>
EXHIBIT 99.3
RESTATED BY-LAWS
OF
PS GROUP HOLDINGS, INC.
AS AMENDED EFFECTIVE MARCH 12, 1997
<PAGE>
RESTATED BY-LAWS
OF
PS GROUP HOLDINGS, INC.
AS AMENDED EFFECTIVE MARCH 12, 1997
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE I Offices............................................................ 1
ARTICLE II Meetings of Stockholders........................................... 1
ARTICLE III Directors.......................................................... 4
ARTICLE IV Officers........................................................... 7
ARTICLE V Seal............................................................... 9
ARTICLE VI Form of Stock Certificate.......................................... 9
ARTICLE VII Representation of Shares of Other Corporations..................... 9
ARTICLE VIII Transfers of Stock................................................. 9
ARTICLE IX Lost, Stolen or Destroyed Certificates............................. 9
ARTICLE X Record Date........................................................ 10
ARTICLE XI Registered Stockholders............................................ 10
ARTICLE XII Fiscal Year........................................................ 10
ARTICLE XIII Notices............................................................ 10
ARTICLE XIV Amendments......................................................... 11
ARTICLE XV Indemnification and Insurance...................................... 11
</TABLE>
i
<PAGE>
RESTATED BY-LAWS
OF
PS GROUP HOLDINGS, INC.
A DELAWARE CORPORATION
(HEREINAFTER CALLED THE "CORPORATION")
ARTICLE I
OFFICES
SECTION 1. Registered Office. The registered office of this Corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware,
and the name of the resident agent in charge thereof is The Corporation Trust
Company.
SECTION 2. Other Offices. The Corporation may also have offices at such
other places, either within or without the State of Delaware, as the Board of
Directors (the "Board") may from time to time designate or the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. Place of Meetings. Meetings of stockholders shall be held at such
time and place, within or without the State of Delaware, as shall be stated in
the notice of the meeting or in a duly executed waiver of notice thereof.
SECTION 2. Annual Meetings. Annual meetings of stockholders shall be held on
the fourth Tuesday of May, if not a legal holiday, and if a legal holiday,
then on the next secular day following, at 10:00 a.m., or at such other date
and time set by the Board and stated in the notice of the meeting, at which
the stockholders shall elect a Board, and transact such other business as may
properly be brought before the meeting.
Nominations of persons for election to the Board and the proposal of
business to be transacted by the stockholders may be made at an annual meeting
of stockholders (a) pursuant to the Corporation's notice with respect to such
meeting, (b) by or at the direction of the Board or (c) by any stockholder of
record of the Corporation who was a stockholder of record at the time of the
giving of the notice provided for in the following paragraph, who is entitled
to vote at the meeting and who has complied with the notice procedures set
forth in this section.
For nominations or other business to be properly brought before an annual
meeting by a stockholder pursuant to clause (c) of the foregoing paragraph,
the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation, such business must be a proper matter for
stockholder action under the General Corporation Law of the State of Delaware
and, if the stockholder, or the beneficial owner on whose behalf any such
proposal or nomination is made, solicits or participates in the solicitation
of proxies in support of such proposal or nominees, the stockholder must have
timely indicated its, or such beneficial owner's, intention to do so as
provided in subclause (c) (iii) of this paragraph. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not less than 90 days prior to the first
anniversary of the preceding year's annual meeting of stockholders; provided,
however, that if the date of the annual meeting is advanced more than 30 days
prior to, or delayed by more than 60 days after, such anniversary date, notice
by the stockholder to be timely must be so delivered not later than the close
of business on the later of the 90th day prior to such annual meeting or the
10th day following the day on which public announcement of the date of such
meeting is first made. Such stockholder's notice shall set forth: (i) (a) as
to
1
<PAGE>
each person whom the stockholder proposes to nominate for election or
reelection as a director, all information relating to such person as would be
required to be disclosed in solicitations of proxies for the election of such
nominees as directors pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and such person's written
consent to serving as a director if elected; (b) as to any other business that
the stockholder proposes to bring before the meeting, a brief description of
such business, the reasons for conducting such business at the meeting and any
material interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and (c) as to the
stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made, (i) the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner, (ii) the class and number of shares of the Corporation which are owned
beneficially and of record by such stockholder and such beneficial owner, and
(iii) whether either such stockholder or beneficial owner intends to solicit
or participate in the solicitation of proxies in favor of such proposal or
nominee(s).
Notwithstanding anything in the second sentence of the second paragraph of
this Section 2 to the contrary, in the event that the number of directors to
be elected to the Board is increased and there is no public announcement
naming all of the nominees for director or specifying the size of the
increased Board made by the Corporation at least 100 days prior to the first
anniversary of the preceding year's annual meeting, a stockholder's notice
required by this By-law shall also be considered timely, but only with respect
to nominees for any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 10th day following the
day on which such public announcement is first made by the Corporation.
Only persons nominated in accordance with the procedures set forth in this
section shall be eligible to serve as directors and only such business shall
be conducted at an annual meeting of stockholders as shall have been brought
before the meeting in accordance with the procedures set forth in this
section. The chair of the meeting shall have the power and the duty to
determine whether a nomination or any business proposed to be brought before
the meeting has been made in accordance with the procedures set forth in these
By-laws and, if any proposed nomination or business is not in compliance with
these By-laws to declare that such defective proposed business or nomination
shall not be presented for stockholder action at the meeting and shall be
disregarded.
For purposes of this Section 2, "public announcement" shall mean disclosure
in a press release reported by the Dow Jones News Service, Associated Press or
a comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section
13, 14 or 15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of this By-law, a stockholder shall
also comply with all applicable requirements of the Exchange Act and the rules
and regulations thereunder with respect to matters set forth in this By-law.
Nothing in this Section 2 shall be deemed to affect any rights of stockholders
to request inclusion of proposals in the Corporation's proxy statement
pursuant to Rule 14a-8 under the Exchange Act.
The provisions of the second through the seventh paragraphs of this Section
2 shall apply to any annual meeting of stockholders following the 1997 annual
meeting.
SECTION 3. Special Meetings. Special meetings of stockholders, for any
purpose or purposes, unless otherwise prescribed by applicable law or by the
Certificate of Incorporation, may be called by the Chairman of the Board (or,
if the Board does not appoint a Chairman of the Board, the Chief Executive
Officer) and shall be called by the Chairman of the Board (or, if the Board
does not appoint a Chairman of the Board, the Chief Executive Officer) or
Secretary at the request in writing of a majority of the Board, or if, and
only if, the special meeting is to be called for the purpose of removing a
member of the Board (a "Director") for cause, at the request in writing of
stockholders owning a majority in amount of the entire capital stock of the
Corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting and the business
transacted at any such special meeting of stockholders shall be limited to the
purposes set forth in the notice. Stockholders may not request the call of a
special meeting for any purpose other than as provided herein.
2
<PAGE>
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. Nominations of persons for election to the Board may be
made at a special meeting of stockholders at which directors are to be
selected pursuant to the Corporation's notice of meeting (a) by or at the
direction of the Board or (b) by any stockholder of record of the Corporation
who is a stockholder of record at the time of giving of notice provided for in
this paragraph, who shall be entitled to vote at the meeting and who complies
with the notice procedures set forth in this Section 3. Nominations by
stockholders of persons for election to the Board may be made at such a
special meeting of stockholders if the notice that such stockholder would be
required to give, in the case of a nomination proposed to be made at an annual
meeting of stockholders, by the third paragraph of Article II, Section 2 of
these By-laws shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on the later
of the 90th day prior to such special meeting or the 10th day following the
day on which public announcement is first made of the date of the special
meeting and of the nominee(s) proposed by the Board to be elected at such
meeting.
SECTION 4. Stockholder Lists. The officer who has charge of the stock ledger
of the Corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder.
Such list shall be open to the examination of any stockholder, for any
purpose germane to the meeting, during ordinary business hours, for a period
of at least ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice
of the meeting, or at the place of the meeting, and the list shall also be
available at the meeting during the whole time thereof, and may be inspected
by any stockholder who is present.
SECTION 5. Notice of Meetings. Written notice of each meeting of
stockholders, whether annual or special, stating the place, date and hour of
the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten nor more than sixty days before the date of the
meeting.
SECTION 6. Quorum and Adjournment. The holders of a majority of the stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum for holding all meetings of
stockholders, except as otherwise provided by applicable law or by the
Certificate of Incorporation. If it shall appear that such quorum is not
present or represented at any meeting of stockholders, the Chairman of the
meeting shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
or represented. At such adjourned meeting at which a quorum shall be present
or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. The Chairman of the meeting
may determine that a quorum is present based upon any reasonable evidence of
the presence in person or by proxy of stockholders holding a majority of the
outstanding votes, including without limitation, evidence from any record of
stockholders who have signed a register indicating their presence at the
meeting.
SECTION 7. Voting. In all matters, the vote of the holders of a majority of
the capital stock having voting power present in person or represented by
proxy shall decide any question brought before such meeting, unless the
question is one upon which by express provision of applicable law or of the
Certificate of Incorporation, a different vote is required in which case such
express provision shall govern and control the decision of such question.
SECTION 8. Proxies. Each stockholder entitled to vote at a meeting of
stockholders may authorize in writing or by any other means as is provided in
Section 212 of the Delaware General Corporation Law another person or persons
to act for him by proxy, but no proxy shall be voted or acted upon after
eleven months from its date, unless the person executing the proxy specifies
therein the period of time for which it is to continue in force.
SECTION 9. Judges of Election. The Board may appoint a Judge or Judges of
Election for any meeting of stockholders. Such Judges shall decide upon the
qualification of the voters and report the number of shares
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represented at the meeting and entitled to vote, shall conduct the voting and
accept the votes, and when the voting is completed shall ascertain and report
the number of shares voted respectively for and against each position upon
which a vote is taken by ballot. The Judges need not be stockholders, and any
officer of the Corporation may be a Judge on any position other than a vote
for or against a proposal in which he shall have a material interest.
SECTION 10. Notice of Stockholder Business at the 1997 Annual Meeting. This
Section 10 shall apply to the 1997 annual meeting of the stockholders of the
Corporation; notice of stockholder business at all subsequent annual meetings
shall be governed by Section 2 of Article II of these By-laws (and not this
Section 10) and notice of stockholder business at all special meetings shall
be governed by Section 3 of Article II of these By-laws. At an annual meeting
of the stockholders, only such business shall be conducted as shall have been
brought before the meeting (a) by or at the direction of the Board or (b) by
any stockholder of the Corporation who complies with the notice procedures set
forth in this Section 10. For business to be properly brought before an annual
meeting by a stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation, not less than 30 days nor more
than 60 days prior to the meeting; provided, however, that in the event that
less than 40 days' notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be
timely must be received not later than the close of business on the 10th day
following the day on which such notice of the date of the annual meeting was
mailed or such public disclosure was made. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the annual meeting (a) 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, (b) the name and address, as they appear on
the Corporation's books, of the stockholder proposing such business, (c) the
class and number of shares of the Corporation which are beneficially owned by
the stockholder and (d) any material interest of the stockholder in such
business. Notwithstanding anything in the By-laws to the contrary, no business
shall be conducted at an annual meeting except in accordance with the
procedures set forth in this Section 10. The Chairman of an annual meeting
shall, if the facts warrant, determine and declare to the meeting that
business was not properly brought before the meeting in accordance with the
provisions of this Section 10, and if he should so determine, he shall so
declare to the meeting and any such business not properly brought before the
meeting shall not be transacted.
ARTICLE III
DIRECTORS
SECTION 1. Powers. The Board shall have the power to manage or direct the
management of the property, business and affairs of the Corporation, and
except as expressly limited by law, to exercise all of its corporate powers.
The Board may establish procedures and rules, or may authorize the Chairman of
any meeting of stockholders to establish procedures and rules, for the fair
and orderly conduct of any stockholders meeting, including without limitation,
registration of the stockholders attending the meeting, adoption of an agenda,
establishing the order of business at the meeting, recessing and adjourning
the meeting for the purposes of tabulating any votes and receiving the result
thereof, the timing of the opening and closing of the polls, and the physical
layout of the facilities for the meeting.
SECTION 2. Number. The Board shall consist of one or more members in such
number as shall be determined from time to time by resolution of the Board.
Until otherwise determined by such resolution, the Board shall consist of five
members. Directors need not be stockholders, and each Director shall serve
until his successor is elected and qualified or until his death, retirement,
resignation or removal.
SECTION 3. Nominations. Nominations of candidates for election as Directors
of the Corporation may be made by the Board or by any stockholder entitled to
vote at a meeting at which one or more Directors are to be elected (an
"Election Meeting").
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Nominations made by the Board shall be made at a meeting of the Board or by
written consent of Directors in lieu of a meeting, not less than thirty days
prior to the date of an Election Meeting. At the request of the Secretary of
the Corporation, each proposed nominee shall provide the Corporation with such
information concerning himself as is required, under the rules of the
Securities and Exchange Commission, to be included in the Corporation's proxy
statement soliciting proxies for his election as a Director.
Not less than thirty days prior to the date of an Election Meeting any
stockholder who intends to make a nomination at the Election Meeting shall
deliver a notice to the Secretary of the Corporation setting forth (i) the
name, age, business address, and residence address of each nominee proposed in
such notice, (ii) the principal occupation or employment of each such nominee,
(iii) the number of shares of capital stock of the Corporation which are
beneficially owned by each such nominee and (iv) such other information
concerning each such nominee as would be required, under the rules of the
Securities and Exchange Commission, in a proxy statement soliciting proxies
for the election of such nominees. Such notice shall include a signed consent
to serve as a Director of the Corporation, if elected, of each such nominee.
In the event that a person is validly designated as a nominee and shall
thereafter become unable or unwilling to stand for election to the Board, the
Board or the stockholder who proposed such nominee, as the case may be, may
designate a substitute nominee.
If the chairman of the Election Meeting determines that a nomination was not
made in accordance with the foregoing procedures, such nomination shall be
void.
The provisions of the third through fifth paragraphs of this Section 3 shall
apply to any nominations by stockholders for election as a Director of the
Corporation at the 1997 annual meeting of stockholders; nominations by
stockholders for election as a Director of the Corporation at all subsequent
annual meetings shall be governed by Section 2 of Article II of these By-laws
(and not this Section 3) and nominations by stockholders for election as a
Director of the Corporation at all special meetings shall be governed by
Section 3 of Article II of these By-laws (and not this Section 3).
SECTION 4. Class Division and Term. The Board shall be and is divided into
three classes, Class I, Class II, and Class III, which shall be as nearly
equal in number as possible. Each Director shall serve for a term ending on
the date of the third annual meeting following the annual meeting at which
such Director was elected; and until his successor shall have been elected and
qualified; provided, however, that each initial Director in Class I shall hold
office until the annual meeting of stockholders in 1997; each initial Director
in Class II shall hold office until the annual meeting of stockholders in
1998; and each initial Director in Class III shall hold office until the
annual meeting of stockholders in 1999.
In the event of any increase or decrease in the authorized number of
Directors, (i) each Director then serving as such shall nevertheless continue
as a Director of the class of which he is a member until the expiration of his
current term, or his prior death, retirement, resignation or removal, and (ii)
the newly created or eliminated directorships resulting from such increase or
decrease shall be apportioned by the Board among the three classes of
Directors so as to maintain such classes as nearly equal as possible.
SECTION 5. Vacancies and Newly Created Directorships. Any vacancy in the
Board caused by death, resignation, removal or otherwise, or through an
increase in the number of Directors of a class, shall be filled by a majority
vote of the remaining Directors of the class in which such vacancy occurs, or
by the sole remaining Director of that class if only one Director remains, or
by the majority vote of the remaining Directors of the other two classes if
there be no remaining members of the class in which the vacancy occurs. A
Director so elected to fill a vacancy shall serve for the remainder of the
then present term of the office of the class to which he was elected.
SECTION 6. Initial Meeting. The Board shall meet as soon as practicable
after the annual election of Directors and notice of such first meeting shall
not be required.
SECTION 7. Regular Meeting. Regular meetings of the Board shall be held
without call or notice at such time and place as shall from time to time be
fixed by standing resolution of the Board.
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SECTION 8. Special Meetings. Special meetings of the Board may be called at
any time, and for any purpose permitted by law, by the Chairman of the Board,
the Chief Executive Officer or by the Secretary on the request (whether
written or oral) of any two members of the Board, which meetings shall be held
at the time and place designated by the person or persons calling the meeting.
Notice of the time and place of any such meetings shall be given to the
Directors by the Secretary, or in case of his absence, refusal or inability to
act, by any other officer. Any such notice may be given by mail, by private
express courier service, by telegraph, by telecopier, by telephone, by
personal service, or by any thereof as to different Directors.
Notice to a Director by mail or by private express courier service shall be
deemed to have been given if addressed to such Director at the address shown
upon the records of the Corporation for such Director (or as may have been
given to the Corporation by such Director for purposes of notice) and
deposited in a United States Post Office or delivered to such private express
courier service, as the case may be, at least forty-eight hours before the
time of the meeting. Any other written notice shall be deemed to have been
given at the time it is personally delivered to the recipient or is delivered
to a common carrier for transmission, or actually transmitted to the recipient
by the person giving the notice by electronic means. Oral notice shall be
deemed to have been given at the time it is communicated, in person or by
telephone or wireless, to the recipient or to a person at the office or home
of the recipient who may reasonably be expected to communicate the notice to
the recipient.
A notice need not specify the purpose of any special meeting of the Board.
Whenever any Director has been absent from any meeting of the Board for which
notice has not been dispensed with, an entry in the minutes of such meeting to
the effect that notice has been duly given shall be conclusive and
incontrovertible evidence that due notice of such meeting was given to such
Director.
SECTION 9. Quorum. At all meetings of the Board a majority of the whole
Board shall be necessary and sufficient to constitute a quorum for the
transaction of business, and the act of a majority of the Directors present at
any meeting at which there is a quorum shall be the act of the Board, except
as may be otherwise specifically provided by applicable law or by the
Certificate of Incorporation or by these By-laws. Any meeting of the Board may
be adjourned to meet again at a stated day and hour. Even though no quorum is
present, as required in this Section, a majority of the Directors present at
any meeting of the Board, either regular or special, may adjourn from time to
time until a quorum be had, but no later than the time fixed for the next
regular meeting of the Board. Notice of any adjourned meeting need not be
given.
SECTION 10. Fees and Compensation. Each Director and each member of a
committee of the Board shall receive such fees and reimbursement of expenses
incurred on behalf of the Corporation or in attending meetings as the Board
may from time to time determine.
SECTION 11. Meetings by Telephonic Communication. Members of the Board or
any committee thereof may participate in a regular or special meeting of such
Board or committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, if the standing resolutions fixing the time and place of a regular
meeting or if the notice of the time and place of any regular or special
meeting provides for such participation. Participation in a meeting pursuant
to this Section shall constitute presence in person at such meeting.
SECTION 12. Qualification of Directors. No person can be elected a Director
of this Corporation (whether by vote of the stockholders or the Directors) if,
were he or she to be elected a Director, less than a majority of the total
number of Directors would be Outside Directors. If such a person is nominated
for Director, no votes cast for his or her election shall be counted and, for
this purpose, the announcement of the results of any election of Directors,
shall be delayed pending the determination by the Board referred to below. An
Outside Director is a person who is not: (a) an officer or employee of the
Corporation or any relative of an officer or employee; (b) a Related Person
(as that term is defined in Article X of the Corporation's Certificate of
Incorporation) or an officer, director, employee, associate or affiliate of a
Related Person, or a relative of any of the foregoing; or (c) a person having
a direct or indirect material business relationship with the Corporation. The
Board shall be empowered to determine in its sole and absolute discretion
whether a person is or is not an Outside Director within the meaning of the
foregoing.
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SECTION 13. Committees. The Board may, by resolution passed by a majority of
the whole Board, designate one or more committees, each committee to consist
of one or more of the Directors of the Corporation. The Board may designate
one or more Directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the committee. In the
absence or disqualification of a member of a committee and if the Board has
not designated one or more alternates (or if such a designation has been made,
in the absence or disqualification of such alternate(s)), the member or
members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board to act at the meeting in the place of any such absent or
disqualified member or alternate. Any such committee, to the extent provided
in the resolution of the Board shall have and may exercise all the powers and
authority of the Board in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to
all papers which may require it; but no such committee shall have the power or
authority in reference to amending the Certificate of Incorporation, adopting
an agreement of merger or consolidation, recommending to the stockholders the
sale, lease or exchange of all or substantially all of the Corporation's
property and assets, recommending to the stockholders a dissolution of the
Corporation or a revocation of a dissolution, or amending the By-laws of the
Corporation; and, unless the resolution expressly so provides, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
SECTION 14. Action Without Meetings. Unless otherwise restricted by
applicable law or by the Certificate of Incorporation or by these By-laws, any
action required or permitted to be taken at any meeting of the Board or of any
committee thereof may be taken without meeting if all members of the Board or
of such committee consent thereto in writing as the case may be, and the
writing or writings are filed with the minutes of proceedings of the Board or
committee. Action shall be taken by the stockholders only at annual or special
meetings of stockholders and stockholders may not act by written consent.
ARTICLE IV
OFFICERS
SECTION 1. Appointment and Salaries. The Board shall appoint the executive
officers who shall include a Chief Executive Officer, one or more Vice
Presidents (one or more of whom may be designated as Executive Vice Presidents
or as Senior Vice Presidents), a Secretary, a Controller, and a Treasurer. The
Board may also appoint a Chairman of the Board and a President and the Board
or the Chief Executive Officer may appoint such other officers (including
Assistant Vice Presidents, Assistant Secretaries, Assistant Treasurers and
Assistant Controllers) as the Board or they may deem necessary or desirable.
The Board shall fix the salaries of all officers appointed by it. Unless
prohibited by applicable law or by the Certificate of Incorporation or by
these By-laws, one person may be elected or appointed to serve in more than
one official capacity.
SECTION 2. Removal and Resignation. Any officer may be removed, either with
or without cause, by the Board or, in the case of an officer not appointed by
the Board by the Chief Executive Officer (or if the Board does not appoint a
Chief Executive Officer, the President). Any officer may resign at any time by
giving notice to the Board or to the Chief Executive Officer (or if the Board
does not appoint a Chief Executive Officer, the President), or to the
Secretary of the Corporation. Any such resignation shall take effect at the
date of receipt of such notice or at any later time specified therein; and,
unless otherwise specified in such notice, the acceptance of the resignation
shall not be necessary to make it effective.
SECTION 3. The Chairman of the Board; Vice Chairman. The Board may, at its
election, appoint a Chairman of the Board. If such an officer be elected, he
shall, if present, preside at all meetings of the stockholders and of the
Board and shall have such other powers and duties as may from time to time be
assigned to him by the Board. The Board may, at its election, also appoint a
Vice Chairman of the Board to preside at all meetings of the stockholders and
of the Board in the absence of the Chairman of the Board and to have such
other powers and duties as may from time to time be assigned to him by the
Board.
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SECTION 4. The Chief Executive Officer. Subject to such powers, if any, as
may be given by the Board to the Chairman of the Board, if there is such an
officer, the Chief Executive Officer shall be the chief executive officer of
the Corporation with the powers of general manager, and he shall have
supervision over and may exercise general executive powers concerning all of
the operations and business of the Corporation, with the authority from time
to time to delegate to other officers such executive and other powers and
duties as he may deem advisable. If there be no Chairman of the Board or if he
is absent, the Chief Executive Officer shall preside at all meetings of the
stockholders and of the Board, unless the Board appoints another person who
need not be a stockholder, officer or Director of the Corporation, to preside
at a meeting of stockholders.
SECTION 5. The Vice President. In the absence of the Chief Executive Officer
(or, if the Board does not appoint a Chief Executive Officer, the President)
or in the event of his inability or refusal to act, the Vice President (or if
there be more than one Vice President, the Vice Presidents in the order of
their rank or, if of equal rank, then in the order designated by the Board or
the Chief Executive Officer (or, if the Board does not appoint a Chief
Executive Officer, the President) or, in the absence of any designation, then
in the order of their appointment) shall perform the duties of the Chief
Executive Officer (or, if the Board does not appoint a Chief Executive
Officer, the President) and when so acting, shall have all the powers of and
be subject to all the restrictions upon the Chief Executive Officer (or, if
the Board does not appoint a Chief Executive Officer, the President). The rank
of Vice Presidents in descending order shall be Executive Vice President,
Senior Vice President, Vice President, and Assistant Vice President. The Vice
President shall perform such other duties and have such other powers as the
Board may from time to time prescribe.
SECTION 6. The Secretary. The Secretary shall attend all meetings of the
Board and all meetings of the stockholders and record all the proceedings of
the meetings of the Corporation and of the Board in a book to be kept for that
purpose and shall perform like duties for the committees when required. He
shall give, or cause to be given, notice of all meetings of stockholders and
special meetings of the Board. He shall have custody of the corporate seal of
the Corporation and he, or an Assistant Secretary, shall have authority to
affix the same to any instrument requiring it and when so affixed, it may be
attested by his signature or by the signature of such Assistant Secretary. The
Board may give general authority to any other officer to affix the seal of the
Corporation and to attest the affixing by his signature. The Secretary shall
perform such other duties and have such other powers as the Board or the Chief
Executive Officer (or, if the Board does not appoint a Chief Executive
Officer, the President) may from time to time prescribe.
SECTION 7. The Treasurer and the Controller. The Treasurer and the
Controller shall each have custody of the corporate funds and securities and
shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all monies and other valuable
effects in the name and to the credit of the Corporation in such depositories
as may be designated by the Board. Either the Treasurer or the Controller may
disburse the funds of the Corporation as may be ordered by the Board or the
Chief Executive Officer (or, if the Board does not appoint a Chief Executive
Officer, the President), taking proper vouchers for such disbursements, and
shall render to the Board and Chief Executive Officer (or, if the Board does
not appoint a Chief Executive Officer, the President) an account of
transactions and of the financial condition of the Corporation. The Treasurer
and the Controller each shall perform such other duties and have such other
powers as the Board or the Chief Executive Officer (or, if the Board does not
appoint a Chief Executive Officer, the President) may from time to time
prescribe.
SECTION 8. Assistant Officers. An Assistant Officer shall, in the absence of
the officer to whom he is an assistant or in the event of such officers
inability or refusal to act (or, if there be more than one such assistant
officer, the assistant officers in the order designated by the Board or the
Chief Executive Officer (or, if the Board does not appoint a Chief Executive
Officer, the President) or, in the absence of any designation then in the
order of their appointment), perform the duties and exercise the powers of
such officer. An Assistant Officer shall perform such other duties and have
such other powers as the Board or the Chief Executive Officer (or, if the
Board does not appoint a Chief Executive Officer, the President) may from time
to time prescribe.
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ARTICLE V
SEAL
It shall not be necessary to the validity of any instrument executed by any
authorized officer or officers of the Corporation, that the execution of such
instrument be evidenced by the corporate seal, and all documents, instruments,
contracts, and writings of all kinds signed on behalf of the Corporation by
any authorized officer or officers thereof shall be as effectual and binding
on the Corporation without the corporate seal, as if the execution of the same
had been evidenced by affixing the corporate seal thereto.
ARTICLE VI
FORM OF STOCK CERTIFICATE
Every holder of stock in the Corporation shall be entitled to have a
certificate signed by, or in the name of, the Corporation by the Chief
Executive Officer or a Vice President, and by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares owned by him in the Corporation. Any or all of
the signatures on the certificate may be a 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 officer, transfer
agent or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of the issue.
ARTICLE VII
REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The Chief Executive Officer or any other officer or officers authorized by
the Board or the Chief Executive Officer are each authorized to vote,
represent, and exercise on behalf of the Corporation all rights incident to
any and all shares of any other corporation or corporations standing in the
name of the Corporation. The authority herein granted may be exercised either
by any such officer in person or by any other person authorized so to do by
proxy or power of attorney duly executed by said officer.
ARTICLE VIII
TRANSFERS OF STOCK
Subject to any provisions relating to restrictions on transfer of the
Corporation's shares contained in, or adopted pursuant to, these By-laws or
the Certificate of Incorporation, upon surrender to the Corporation or a
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment, or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate
to the person entitled thereto, cancel the old certificate, and record the
transaction upon its books.
ARTICLE IX
LOST, STOLEN OR DESTROYED CERTIFICATES
The Board may direct a new certificate or certificates to be issued in place
of any certificate or certificates theretofore issued by the Corporation
alleged to have been lost, stolen or destroyed, upon the making of an
affidavit of the fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate or
certificates, the Board may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate
alleged to have been lost, stolen or destroyed.
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ARTICLE X
RECORD DATE
The Board may fix in advance a date, which shall not be more than sixty days
nor less than ten days preceding the date of any meeting of stockholders, or
the date for the payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of capital stock
shall go into effect, as a record date for the determination of stockholders
entitled to notice of, and to vote at, any such meeting and any adjournment
thereof, or entitled to receive payment of any such dividend, or to any such
allotment of rights, or to exercise the rights in respect of any such change,
conversion or exchange of capital stock, and in such case such stockholders,
and only such stockholders as shall be stockholders of record on the date so
fixed shall be entitled to such notice of, and to vote at, such meeting and
any adjournment thereof, or to receive payment of such dividend, or to receive
such allotment of rights, or to exercise such rights, as the case may be, not
withstanding any transfer of any stock on the books of the Corporation after
any such record date fixed as aforesaid.
ARTICLE XI
REGISTERED STOCKHOLDERS
The Corporation shall be entitled to treat the holder of record of any share
or shares of stock as the holder in fact thereof and, accordingly, shall not
be bound to recognize any equitable or other claim to or interest in such
share on the part of any other person, whether or not it shall have express or
other notice thereof, save as expressly provided by applicable law.
ARTICLE XII
FISCAL YEAR
The fiscal year of the Corporation shall be fixed by resolution of the
Board.
ARTICLE XIII
NOTICES
SECTION 1. Manner of Notice. Whenever under the provisions of the statutes
or of the Certificate of Incorporation or of these By-laws notice is required
to be given to any Director, committee member, officer or stockholder, it
shall not be construed to mean personal notice, but such notice may be given,
in the case of stockholders, in writing, by mail, by depositing the same in
the post office or letterbox, in a postpaid sealed wrapper, addressed to such
stockholder, at such address as appears on the books of the Corporation, or,
in default of other address, to such stockholder at the General Post Office in
the City of Wilmington, Delaware, and, in the case of Directors, committee
members and officers, by telephone, or by mail or by telegram to the last
business address known to the Secretary of the Corporation, and such notice
shall be deemed to be given at the time when the same shall be thus mailed or
telegraphed or telephoned.
SECTION 2. Waiver of Notice. Whenever any notice is required to be given
under the provisions of the statutes or of the Certificate of Incorporation or
of these By-laws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
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ARTICLE XIV
AMENDMENTS
The Board shall have the power to make, adopt, alter, amend and repeal from
time to time By-laws of this Corporation, subject to the right of the
stockholders entitled to vote with respect thereto to adopt, alter, amend, and
repeal By-laws made by the Board; provided, however, that By-laws shall not be
adopted, altered, amended or repealed by the stockholders of the Corporation,
except by the vote of the holders of not less than sixty-six and two-thirds
percent (66-2/3%) of the outstanding shares of Common Stock.
ARTICLE XV
INDEMNIFICATION AND INSURANCE
SECTION 1. Right to Indemnification. Each person who was or is a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a
person of whom he or she is the legal representative, is or was a Director or
officer of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, whether the basis of such
proceeding is alleged action or inaction in an official capacity or in any
other capacity while serving as a director, officer, employee or agent, shall
be indemnified and held harmless by the Corporation to the fullest extent
permitted by the laws of Delaware, as the same exist or may hereafter be
amended, against all costs, charges, expenses, liabilities and losses
(including attorneys' fees, judgements, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered
by such person in connection therewith, and such indemnification shall
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that, except as provided in Section 2
hereof, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
Board. The right to indemnification conferred in this Article shall be a
contract right and shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, if the Delaware General Corporation Law
requires, the payment of such expenses incurred by a director or officer in
his or her capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such director or
officer, to repay all amounts so advanced if it shall ultimately be determined
that such director or officer is not entitled to be indemnified under this
Section or otherwise. The Corporation may, by action of its Board, provide
indemnification to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
SECTION 2. Right of Claimant to Bring Suit. If a claim under Section 1 of
this Article is not paid in full by the Corporation within thirty days after a
written claim has been received by the Corporation, the claimant may at any
time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant shall
be entitled to be paid also the expense of prosecuting such claim. It shall be
a defense to any such action (other than an action brought to enforce a claim
for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has failed to meet a standard
of conduct which makes it permissible under Delaware law for the Corporation
to indemnify the claimant for the amount claimed. Neither the failure of the
Corporation (including its Board, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is permissible in the
circumstances because he or she has met such standard of conduct, nor an
actual determination by the Corporation (including its Board, independent
legal counsel, or its stockholders) that the claimant has not
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met such standard of conduct, shall be a defense to the action or create a
presumption that the claimant has failed to meet such standard of conduct.
SECTION 3. Non-Exclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Article shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
SECTION 4. Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability, loss, whether or not the
Corporation would have the power to indemnify such person against such
expense, liability or loss under Delaware law.
SECTION 5. Expenses as a Witness. To the extent that any director, officer,
employee or agent of the Corporation is by reason of such position, or a
position with another entity at the request of the Corporation, a witness in
any action, suit or proceeding, he shall be indemnified against all costs and
expenses actually and reasonably incurred by him or her or on his or her
behalf in connection therewith.
SECTION 6. Indemnity Agreements. The Corporation may enter into agreements
with any director, officer, employee or agent of the Corporation providing for
indemnification to the full extent permitted by Delaware law.
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EXHIBIT 99.4
[ON PS GROUP HOLDINGS, INC. NEWS RELEASE LETTERHEAD]
FOR IMMEDIATE RELEASE
PS GROUP HOLDINGS, INC. WILL SEEK STOCKHOLDER APPROVAL AT THE 1997 ANNUAL
MEETING TO REPEAL ITS CLASSIFIED BOARD, EFFECTIVE 1998
__________________________________
BOARD HAS AMENDED THE BY-LAW REQUIREMENTS FOR ADVANCE NOTICE OF STOCKHOLDER
PROPOSALS AT ANNUAL MEETINGS, EFFECTIVE 1998
SAN DIEGO, CA., March 12, 1997 -- PS Group Holdings, Inc. (PSGH) announced
today that its Board of Directors has unanimously decided to propose the repeal
of the Company's classified board. The proposal will be submitted for
stockholder approval at the 1997 Annual Meeting, scheduled for May 30, 1997. If
approved, the entire Board will be required to stand for re-election annually,
starting with the 1998 Annual Meeting. Approval of the proposal will require
the affirmative vote of two-thirds of the outstanding shares of the Company's
common stock.
The Company stated that its Board's reasons for proposing this change,
together with the details of the implementing amendments to the Company's
charter documents, will be contained in proxy materials that will be distributed
to stockholders in connection with the 1997 Annual Meeting after the materials
have been filed and cleared with the Securities and Exchange Commission.
The Company also announced that its Board has amended the By-Law provisions
relating to the advance notice that a stockholder is required to give in order
to propose a Board nomination or raise other business at an annual meeting.
This amendment, which is not dependent upon stockholder approval of the proposal
to unclassify the Board, will take effect for annual meetings starting in 1998.
Under the current By-Law requirement, the stockholder's advance notice must be
given at least 30 days prior to the Annual Meeting. Under the amendment, the
notice will have to be given at least 90 days prior to the first anniversary of
the preceding year's Annual Meeting. In addition, the amendment requires the
proponent to furnish more information than is currently required.
The Company stated that its Board adopted this amendment to ensure that the
Board has adequate time and information to enable it to respond to a stockholder
proposal before the Company's own annual proxy material is mailed. The text of
the amended By-Law requirements will be shortly filed with the Securities and
Exchange Commission in a Current Report on Form 8-K.
# # #
CONTACT: LAWRENCE A. GUSKE, PS GROUP HOLDINGS, INC. (619) 642-2982
