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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): December 29, 1998
PENNZOIL-QUAKER STATE COMPANY
(Exact name of issuer as specified in its charter)
DELAWARE 1-14501 76-0200625
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification Number)
PENNZOIL PLACE, P.O. BOX 2967
HOUSTON, TEXAS 77252-2967
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (713) 546-4000
PENNZOIL PRODUCTS COMPANY
(Former name, if changed since last report)
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ITEM 5. OTHER EVENTS.
Pennzoil Products Company changed its name on December 29, 1998 to
Pennzoil-Quaker State Company (the "Company").
The Certificate of Amendment to the Certificate of Incorporation of the
Company is attached hereto as Exhibit 4.1 and incorporated herein by reference.
The Company's Restated Certificate of Incorporation is attached hereto as
Exhibit 4.2 and incorporated herein by reference. The Company's Amended and
Restated By-laws are attached hereto as Exhibit 4.3 and incorporated herein by
reference.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
Exhibit
No. Description
4.1 - Certificate of Amendment to the Certificate of Incorporation of
Pennzoil Products Company changing the name to Pennzoil-Quaker State
Company
4.2 - Restated Certificate of Incorporation of Pennzoil-Quaker State
Company
4.3 - Amended and Restated By-laws of Pennzoil-Quaker State Company
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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 hereunto duly authorized.
PENNZOIL-QUAKER STATE COMPANY,
a Delaware corporation
By: /s/ David P. Alderson II
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David P. Alderson II
Vice President
Date: December 29, 1998
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EXHIBIT 4.1
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
PENNZOIL PRODUCTS COMPANY
Pennzoil Products Company (the "Corporation"), a corporation duly
organized and existing under the General Corporation Law of the State of
Delaware (the "DGCL"), does hereby certify that:
I. The amendment to the Corporation's Certificate of Incorporation
set forth below was duly adopted in accordance with the provisions of Section
242 of the DGCL and has been consented to in writing by the sole stockholder of
the Corporation in accordance with Section 228 of the DGCL.
II. Article I of the Corporation's Certificate of Incorporation is
amended to read in its entirety as follows:
"The name of this corporation (the "Corporation") is Pennzoil-Quaker
State Company."
IN WITNESS WHEREOF, this Certificate has been executed by an
authorized officer of the Corporation on this 29th day of December, 1998.
PENNZOIL PRODUCTS COMPANY
By: /s/ Linda F. Condit
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Linda F. Condit
Vice President and Secretary
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EXHIBIT 4.2
RESTATED CERTIFICATE OF INCORPORATION
OF
PENNZOIL-QUAKER STATE COMPANY
(Originally incorporated under the name
"PPC Reincorp Company" on March 26, 1998)
ARTICLE I
NAME
The name of this corporation (the "Corporation") is Pennzoil-Quaker
State Company.
ARTICLE II
DEFINITIONS
For the purposes of this Certificate of Incorporation:
A. A "person" shall mean any individual, firm, corporation,
partnership, limited liability company, trust, unincorporated organization or
other entity.
B. "Public Status Date" shall mean the first date on which the
Corporation has outstanding a class of equity securities registered under
Section 12 of the Securities Exchange Act of 1934, as amended.
C. "Voting Stock" means all outstanding shares of capital stock of
the Corporation that pursuant to or in accordance with this Certificate of
Incorporation are entitled to vote generally in the election of directors of the
Corporation, and each reference herein, where appropriate, to a percentage or
portion of shares of Voting Stock shall refer to such percentage or portion of
the voting power of such shares entitled to vote.
ARTICLE III
REGISTERED OFFICE
The address of the registered office of the Corporation in the State
of Delaware is at 1209 Orange Street, in the City of Wilmington, County of New
Castle, and the name of its registered agent at that address is The Corporation
Trust Company.
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ARTICLE IV
BUSINESS
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware (the "General Corporation Law").
ARTICLE V
AUTHORIZED CAPITAL STOCK
A. The Corporation shall be authorized to issue a total of
110,000,000 shares of capital stock divided into classes as follows:
(1) One hundred million (100,000,000) shares of Common Stock, par
value $0.10 per share ("Common Stock"), and
(2) Ten million (10,000,000) shares of Preferred Stock, par value
$1.00 per share ("Preferred Stock").
B. Shares of Preferred Stock may be issued from time to time in one
or more series as may from time to time be determined by the Board of Directors
of the Corporation (the "Board"), each of said series to be distinctly
designated. The voting powers, preferences and relative, participating,
optional and other special rights, and the qualifications, limitations or
restrictions thereof, if any, of each such series may differ from those of any
and all other series of Preferred Stock at any time outstanding, and the Board
is hereby expressly granted authority to fix or alter, by resolution or
resolutions, the designation, number, voting powers, preferences and relative,
participating, optional and other special rights, and the qualifications,
limitations and restrictions thereof, of each such series, including, but
without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock that shall constitute, such series, which number (except
where otherwise provided by the Board in the resolution establishing such
series) may be increased or decreased (but not below the number of shares
of such series then outstanding) from time to time by action of the Board;
(2) The rights in respect of dividends, if any, of such series of
Preferred Stock, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes or any
other series of the same or other class or classes of capital stock of the
Corporation, and whether or in what circumstances such dividends shall be
cumulative;
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(3) The right, if any, of the holders of such series of Preferred
Stock to convert the same into, or exchange the same for, shares of any
other class or classes or of any other series of the same or any other
class or classes of capital stock or other securities of the Corporation or
any other person, and the terms and conditions of such conversion or
exchange;
(4) Whether or not shares of such series of Preferred Stock shall be
subject to redemption, and, if so, the terms and conditions of such
redemption (including whether such redemption shall be optional or
mandatory), including the date or dates or event or events upon or after
which they shall be redeemable, and the amount and type of consideration
payable upon redemption, which may vary under different conditions and at
different redemption dates;
(5) The rights, if any, of the holders of such series of Preferred
Stock upon the voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation or in the event of any merger or
consolidation of or sale of assets by the Corporation;
(6) The terms of any sinking fund or redemption or purchase account,
if any, to be provided for shares of such series of the Preferred Stock;
(7) The voting powers, if any, of the holders of any series of
Preferred Stock generally or with respect to any particular matter, which
may be less than, equal to or greater than one vote per share, and which
may, without limiting the generality of the foregoing, include the right,
voting as a series by itself or together with the holders of any other
series of Preferred Stock or all series of Preferred Stock as a class, to
elect one or more directors of the Corporation generally or under such
specific circumstances and on such conditions, as shall be provided in the
resolution or resolutions of the Board adopted pursuant hereto, including,
without limitation, in the event there shall have been a default in the
payment of dividends on or redemption of any one or more series of
Preferred Stock; and
(8) Any other powers, preferences and relative, participating,
optional or other rights, and qualifications, limitations or restrictions
of shares of such series of Preferred Stock.
C. (1) After the provisions with respect to preferential dividends
on any series of Preferred Stock (fixed in accordance with the provisions
of Paragraph B of this Article V), if any, shall have been satisfied and
after the Corporation shall have complied with all the requirements, if
any, with respect to redemption of, or the setting aside of sums as sinking
funds or redemption or purchase accounts with respect to, any series of
Preferred Stock (fixed in accordance with the provisions of Paragraph B of
this Article V), and subject further to any other conditions that may be
fixed in accordance with the provisions of Paragraph B of this Article V,
then and not otherwise the holders of Common Stock shall be entitled to
receive such dividends as may be declared from time to time by the Board.
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(2) In the event of the voluntary or involuntary liquidation,
dissolution or winding-up of the Corporation, after distribution in full of
the preferential amounts, if any (fixed in accordance with the provisions
of Paragraph B of this Article V), to be distributed to the holders of
Preferred Stock by reason thereof, the holders of Common Stock shall,
subject to the additional rights, if any (fixed in accordance with the
provisions of Paragraph B of this Article V), of the holders of any
outstanding shares of Preferred Stock, be entitled to receive all of the
remaining assets of the Corporation, tangible and intangible, of whatever
kind available for distribution to stockholders ratably in proportion to
the number of shares of Common Stock held by them respectively.
(3) Except as may otherwise be required by law, and subject to the
provisions of such resolution or resolutions as may be adopted by the Board
pursuant to Paragraph B of this Article V granting the holders of one or
more series of Preferred Stock exclusive voting powers with respect to any
matter, each holder of Common Stock shall have one vote in respect of each
share of Common Stock held on all matters voted upon by the stockholders.
(4) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased from
time to time by the affirmative vote of the holders of a majority of the
combined voting power of the then-outstanding shares of Voting Stock,
voting together as a single class.
D. No stockholder of the Corporation shall by reason of his holding
shares of any class or series of stock of the Corporation have any preemptive or
preferential right to purchase, acquire, subscribe for or otherwise receive any
additional, unissued or treasury shares (whether now or hereafter acquired) of
any class or series of stock of the Corporation now or hereafter to be
authorized, or any notes, debentures, bonds or other securities convertible into
or carrying any right, option or warrant to purchase, acquire, subscribe for or
otherwise receive shares of any class or series of stock of the Corporation now
or hereafter to be authorized, whether or not the issuance of any such shares,
or such notes, debentures, bonds or other securities, would adversely affect the
dividends or voting or other rights of such stockholder, and the Board may issue
or authorize the issuance of shares of any class or series of stock of the
Corporation, or any notes, debentures, bonds or other securities convertible
into or carrying rights, options or warrants to purchase, acquire, subscribe for
or otherwise receive shares of any class or series of stock of the Corporation,
without offering any such shares of any such class, either in whole or in part,
to the existing stockholders of any class.
E. Cumulative voting of shares of any class or series of capital
stock of the Corporation having voting rights is not permitted.
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ARTICLE VI
ELECTION OF DIRECTORS
A. The business and affairs of the Corporation shall be conducted
and managed by, or under the direction of, the Board. Except as otherwise
provided for or fixed pursuant to the provisions of Article V relating to the
rights of the holders of any one or more series of Preferred Stock to elect
additional directors, the total number of directors constituting the entire
Board shall be not less than three nor more than fifteen, with the then-
authorized number of directors being fixed from time to time by or pursuant to a
resolution passed by the Board.
B. On and after the Public Status Date, the Board, other than those
directors elected by the holders of any series of Preferred Stock as provided
for or fixed pursuant to the provisions of Article V, shall be divided into
three classes, Class I, Class II and Class III, and the Board, by resolution or
resolutions adopted on or prior to the Public Status Date, shall designate the
directors who shall first serve in Class I, Class II and Class III, effective as
of the Public Status Date. Such classes shall be as nearly equal in number as
possible. Each director shall serve for a term ending on the third annual
meeting following the annual meeting at which such director was elected;
provided, however, that the directors first designated to Class I shall serve
for a term expiring at the annual meeting next following the date of their
designation as Class I Directors, the directors first designated to Class II
shall serve for a term expiring at the second annual meeting next following the
date of their designation as Class II Directors, and the directors first
designated to Class III shall serve for a term expiring at the third annual
meeting next following the date of their designation as Class III Directors. At
each annual election of directors, the directors chosen to succeed those whose
terms then expire shall be of the same class as the directors of the Corporation
they succeed, unless, by reason of any intervening changes in the authorized
number of directors, the Board of Directors shall designate one or more
directorships whose term then expires as directorships of another class in order
more nearly to achieve equality of number of directors among the classes. In
the event of any change in the authorized number of Directors of the
Corporation, each Director of the Corporation then continuing to serve 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, resignation or
removal.
C. Except as otherwise provided for or fixed pursuant to the
provisions of Article V relating to the rights of the holders of any series of
Preferred Stock to elect additional directors, and subject to the provisions
hereof, newly created directorships resulting from any increase in the
authorized number of directors, and any vacancies on the Board resulting from
death, resignation, disqualification, removal, or other cause, may be filled
only by the affirmative vote of a majority of the remaining directors then in
office, even though less than a quorum of the Board. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the class of directors in which the new directorship was
created or in which the vacancy occurred, and until such director's successor
shall have been duly elected and qualified, subject to his earlier death,
disqualification, resignation or removal. Except as otherwise provided pursuant
to Article V of this Certificate of Incorporation relating to additional
directors elected by the holders of one or
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more series of Preferred Stock, no decrease in the number of directors
constituting the Board shall shorten the term of any incumbent director.
D. During any period when the holders of any series of Preferred
Stock have the right to elect additional directors as provided for or fixed
pursuant to the provisions of Article V, then upon commencement and for the
duration of the period during which such right continues (i) the then otherwise
total authorized number of directors of the Corporation shall automatically be
increased by such specified number of directors, and the holders of such
Preferred Stock shall be entitled to elect the additional directors so provided
for or fixed pursuant to said provisions, and (ii) each such additional director
shall serve until such director's successor shall have been duly elected and
qualified, or until such director's right to hold such office terminates
pursuant to said provisions, whichever occurs earlier, subject to his earlier
death, disqualification, resignation or removal. Except as otherwise provided
by the Board in the resolution or resolutions establishing such series, whenever
the holders of any series of Preferred Stock having such right to elect
additional directors are divested of such right pursuant to the provisions of
such stock, the terms of office of all such additional directors elected by the
holders of such stock, or elected to fill any vacancies resulting from the
death, resignation, disqualification or removal of such additional directors,
shall forthwith terminate and the total and authorized number of directors of
the Corporation shall be reduced accordingly.
E. Except for such additional directors, if any, as are elected by
the holders of any series of Preferred Stock as provided for or fixed pursuant
to the provisions of Article V of this Certificate of Incorporation, any
director may be removed from office only for cause and only by the affirmative
vote of the holders of 75% or more of the combined voting power of the then-
outstanding shares of Voting Stock at a meeting of stockholders called for that
purpose, voting together as a single class.
ARTICLE VII
MEETINGS OF STOCKHOLDERS
A. Meetings of stockholders of the Corporation may be held within or
without the State of Delaware, as the By-laws of the Corporation may provide.
Except as otherwise provided for or fixed pursuant to the provisions of Article
V relating to the rights of the holders of any series of Preferred Stock,
special meetings of stockholders of the Corporation may be called only by the
Chairman of the Board, the President or the Board pursuant to a resolution
adopted by a majority of the then-authorized number of directors of the
Corporation. Special meetings of stockholders may not be called by any other
person or persons or in any other manner. Elections of directors need not be by
written ballot unless the By-laws of the Corporation shall so provide.
B. In addition to the powers conferred on the Board by this
Certificate of Incorporation and by the General Corporation Law, and without
limiting the generality thereof, the Board is specifically authorized from time
to time, by resolution of the Board without additional authorization by the
stockholders of the Corporation, to adopt, amend or repeal the By-laws of the
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Corporation, in such form and with such terms as the Board may determine,
including, without limiting the generality of the foregoing, By-laws relating to
(i) regulation of the procedure for submission by stockholders of nominations of
persons to be elected to the Board, (ii) regulation of the attendance at annual
or special meetings of the stockholders of persons other than holders of record
or their proxies, and (iii) regulation of the business that may properly be
brought by a stockholder of the Corporation before an annual or special meeting
of stockholders of the Corporation.
ARTICLE VIII
STOCKHOLDER CONSENT
Except as otherwise provided for or fixed pursuant to the provisions
of Article V relating to the rights of the holders of any series of Preferred
Stock, no action required to be taken or that may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of the stockholders of the Corporation to consent in
writing, without a meeting, to the taking of any action is specifically denied,
provided, however, that prior to the Public Status date stockholders may take
action on any matter by written consent of all the holders of Voting Stock
entitled to vote on such matters.
ARTICLE IX
LIMITATION OF LIABILITY
A director of this Corporation shall not be liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent such exemption from liability or limitation
thereof is not permitted under the General Corporation Law as the same exists or
may hereafter be amended. Any repeal or modification of the foregoing paragraph
shall not adversely affect any right or protection of a director of the
Corporation existing hereunder with respect to any act or omission occurring
prior to such repeal or modification.
ARTICLE X
EXECUTIVE COMMITTEE
The Board, pursuant to the By-laws of the Corporation or by resolution
passed by a majority of the then-authorized number of directors, may designate
any of their number to constitute an Executive Committee, which Executive
Committee, to the fullest extent permitted by law and provided for in said
resolution or in the By-laws of the Corporation, shall have and may exercise all
of the powers of the Board in the management of the business and affairs of the
Corporation, and shall have power to authorize the seal of the Corporation to be
affixed to all papers that may require it.
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ARTICLE XI
AMENDMENT OF CORPORATE DOCUMENTS
A. Certificate of Incorporation
In addition to any affirmative vote required by applicable law and in
addition to any vote of the holders of any series of Preferred Stock provided
for or fixed pursuant to the provisions of Article V, any alteration, amendment,
repeal or rescission (a "Change") of any provision of this Certificate of
Incorporation must be approved by at least a majority of the then-authorized
number of directors and by the affirmative vote of the holders of at least a
majority of the combined voting power of the then-outstanding shares of Voting
Stock, voting together as a single class; provided, however, that if any such
Change relates to Article II, V, VI, VII, VIII or IX hereof or to this Article
XI, such Change must also be approved by the affirmative vote of the holders of
at least 80% of the combined voting power of the then-outstanding shares of
Voting Stock, voting together as a single class. Subject to the provisions
hereof, the Corporation reserves the right at any time, and from time to time,
to amend, alter, repeal or rescind any provision contained in this Certificate
of Incorporation in the manner now or hereafter prescribed by law, and other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted, in the manner now or hereafter prescribed by law; and
all rights, preferences and privileges of whatsoever nature conferred upon
stockholders, directors or any other persons whomsoever by and pursuant to this
Certificate of Incorporation in its present form or as hereafter amended are
granted subject to the rights reserved in this article.
B. By-Laws
In addition to any affirmative vote required by law, any Change of the
By-laws of the Corporation may be adopted either (i) by the Board by the
affirmative vote of at least a majority of the then-authorized number of
directors or (ii) by the stockholders by the affirmative vote of the holders of
at least 66 2/3% of the combined voting power of the then-outstanding shares of
Voting Stock, voting together as a single class.
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IN WITNESS WHEREOF, this Restated Certificate of Incorporation, which
restates and integrates and does further amend the provisions of the Certificate
of Incorporation of the Corporation, and which has been duly adopted in
accordance with the provisions of Sections 242 and 245 of the Delaware General
Corporation Law, has been executed by an authorized officer of the Corporation
on this 29th day of December, 1998.
PENNZOIL-QUAKER STATE COMPANY
By:/s/ Linda F. Condit
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Linda F. Condit
Vice President and Secretary
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EXHIBIT 4.3
AMENDED AND RESTATED BY-LAWS
PENNZOIL-QUAKER STATE COMPANY
ARTICLE 1
STOCKHOLDERS' MEETINGS
Section 1. ANNUAL MEETING. The annual meeting of the stockholders
shall be held at 10:00 a.m., Houston time on the fourth Thursday in April in
each year at the principal office of the Corporation or at such other date,
time or place as may be designated by resolution of the Board of Directors.
Section 2. SPECIAL MEETINGS. Subject to the provisions of the
Certificate of Incorporation (the "Certificate"), special meetings of the
stockholders may be called only by the Chairman of the Board of Directors, the
President, or by the Board of Directors pursuant to a resolution adopted by a
majority of the then-authorized number of directors.
Section 3. NOTICE. Notice of all meetings of the stockholders shall
be given by mailing to each stockholder, at least ten days, or such greater
number of days as shall be required by law, before said meeting, at his last
known address, a written or printed notice fixing the time and place of such
meeting.
Section 4. QUORUM. The presence in person or by proxy of the holders
of a majority of the voting power of the then-outstanding shares of Voting Stock
(as defined in the Certificate) on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but, in the absence of a quorum, the holders of a smaller number of
shares of Voting Stock may adjourn a meeting from time to time, without further
notice (unless otherwise required herein or by law), until a quorum is secured.
Unless otherwise provided in the Certificate, at each annual or special meeting
of stockholders, each stockholder shall be entitled to one vote, either in
person or by proxy, for each share of Common Stock registered in the
stockholder's name on the books of the Corporation on the record date for any
such meeting as determined herein.
Section 5. ADJOURNMENT. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and, unless otherwise required by law and subject to the provisions
hereof, notice need not be given of any such adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is taken. At
the adjourned meeting the Corporation may transact any business that might have
been transacted at the original meeting. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
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Section 6. PROCEDURES. Meetings of stockholders shall be presided
over by the Chairman of the Board or in his absence by the President, or in his
absence by a Vice President, or in the absence of the foregoing persons by a
chairman designated by the Board of Directors, or in the absence of such
designation by a chairman chosen at the meeting. The Secretary of the
Corporation shall act as secretary of the meeting, but in his absence the
chairman of the meeting may appoint any person to act as secretary of the
meeting.
The date and time of the opening and the closing of the polls for each
matter upon which the stockholders will vote at a meeting shall be announced at
the meeting by the person presiding over the meeting. The Board of Directors of
the Corporation may adopt by resolution such rules and regulations for the
conduct of the meeting of stockholders as it shall deem appropriate. Except to
the extent inconsistent with such rules and regulations as adopted by the Board
of Directors, the chairman of any meeting of stockholders shall have the right
and authority to prescribe such rules, regulations and procedures and to do all
such acts as, in the judgment of such chairman, are appropriate for the proper
conduct of the meeting. Such rules, regulations or procedures, whether adopted
by the Board of Directors or prescribed by the chairman of the meeting, may
include, without limitation, the following: (i) the establishment of an agenda
or order of business for the meeting; (ii) rules and procedures for maintaining
order at the meeting and the safety of those present; (iii) limitations on
attendance at or participation in the meeting to stockholders of record of the
Corporation, their duly authorized and constituted proxies or such other persons
as the chairman of the meeting shall determine; (iv) restrictions on entry to
the meeting after the time fixed for the commencement thereof; and (v)
limitations on the time allotted to questions or comments by participants.
Unless and to the extent determined by the Board of Directors or the chairman of
the meeting, meetings of stockholders shall not be required to be held in
accordance with the rules of parliamentary procedure.
Section 7. PROXIES; REQUIRED VOTE. Each stockholder entitled to vote
at a meeting of stockholders may authorize another person or persons to act for
him by proxy, but no such proxy shall be voted or acted upon after three years
from its date, unless the proxy provides for a longer period. A duly executed
proxy shall be irrevocable if it states that it is irrevocable and if, and only
as long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A stockholder may revoke any proxy which is not irrevocable
by attending the meeting and voting in person or by filing an instrument in
writing revoking the proxy or another duly executed proxy bearing a later date
with the Secretary of the corporation. At all meetings of stockholders for the
election of directors, a plurality of the voting power of the Voting Stock
present at the meeting shall be sufficient to elect. In the case of a matter
submitted for action by the stockholders at the direction of the Board of
Directors as to which a stockholder approval requirement is applicable under a
rule or policy of a national stock exchange or any provision of the Internal
Revenue Code, in each case for which no higher voting requirement is specified
by law, the Certificate or these By-laws, the vote required for approval shall
be the requisite vote specified in such rule or policy or Internal Revenue Code
provision, as the case may be (or the highest such requirement if more than one
is applicable). For approval of the appointment of independent public
accountants (if submitted for a vote at the direction of the Board of
Directors), the vote required for approval shall be a majority of the votes
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cast on the matter. All other elections and questions shall, unless otherwise
provided by law, the Certificate or these By-laws, be decided by the vote of the
holders of shares of stock having a majority of the voting power of the then-
outstanding shares of Voting Stock.
Section 8. NOMINATIONS. Except for directors elected by the holders
of any series of Preferred Stock as provided for or fixed pursuant to the
provisions of Article V of the Certificate, or for directors otherwise elected
pursuant to the provisions of Section C of Section VI of the Certificate, only
individuals nominated for election to the Board of Directors pursuant to and in
accordance with the provision of this Section 8 may be elected to and may serve
upon the Board of Directors of the Corporation. Subject to the rights of
holders of any series of Preferred Stock of the Corporation to elect directors
under specified circumstances, nominations for the election of directors may be
made only (i) by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or (ii) by any stockholder of record entitled to
vote in the election of directors generally who complies with the procedures set
forth in this Section 8. Subject to the foregoing, only a stockholder of record
entitled to vote in the election of directors generally may nominate persons for
election as a director at a meeting of stockholders and only if written notice
of such stockholder's intent to make a nomination or nominations has been given,
either by personal delivery or by United States mail, postage prepaid, to the
Secretary of the Corporation and has been received by the Secretary at the
principal executive offices of the Corporation, (i) with respect to an election
to be held at an annual meeting of stockholders not less than 90 days nor more
than 120 days prior to the anniversary date of the immediately preceding annual
meeting of stockholders; provided, however, that in the event that the annual
meeting is called for a date that is not within 30 days before or after such
anniversary date, notice by the stockholder, in order to be timely, must be so
received not later than the close of business on the tenth business day
following the day on which such notice of such meeting is first mailed by the
Corporation to stockholders or public disclosure of the date of the annual
meeting was made, whichever first occurs; and (ii) with respect to an election
to be held at a special meeting of stockholders for the election of directors,
the close of business on the tenth business day following the date on which
notice of such meeting is first mailed by the Corporation to stockholders or
public disclosure of the date and purpose of such special meeting was made,
whichever first occurs. In no event shall the public disclosure of an
adjournment or postponement of a meeting commence a new time period for the
giving of a stockholder's notice as described above.
To be in proper written form, a stockholder's notice to the Secretary
must set forth (a) as to each person whom the stockholder proposes to nominate
for election as a director (i) the name, age, business address and residence
address of such person, (ii) the principal occupation or employment of such
person, (iii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record, if any, by such person
and (iv) any other information relating to such person that would be required to
be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations promulgated thereunder; and (b) as to the
stockholder giving the notice (i) the name and record address of such
stockholder, (ii) the number of shares of each class or series
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of capital stock of the Corporation that are owned beneficially or of record by
such stockholder, (iii) a description of all arrangements or understandings
between such stockholder and each proposed nominee and any other person or
persons (including their names) pursuant to which the nomination(s) are to be
made by such stockholder, (iv) a representation that such stockholder intends to
appear in person or by proxy at the meeting to nominate the persons named in its
notice and (v) any other information relating to such stockholder that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of the directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. To be effective, such notice must be accompanied by a
written consent of each proposed nominee to be named as a nominee and to serve
as a director if elected.
The chairman of the meeting shall, if the facts warrant, determine
that a nomination was not properly brought before the meeting in accordance with
the provisions hereof and, if he should so determine, he shall declare to the
meeting that such nomination was not properly brought before the meeting and
shall not be considered.
Notwithstanding anything in the first paragraph of this Section 8 to
the contrary, in the event that the number of directors to be elected to the
Board of Directors of the Corporation is increased and there is no public
disclosure by the Corporation naming all of the nominees for director or
specifying the size of the increased Board of Directors at least 100 days prior
to the first anniversary of the preceding year's annual meeting, a stockholder's
notice required by this Section 8 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 tenth business day
following the day on which such public disclosure is first made by the
Corporation.
Nothing in this Section 8 shall be interpreted or construed to require
the inclusion of information about any such nominee in any proxy statement
distributed by, at the direction of, or on behalf of the Board or the
Corporation.
For purposes of this Section 8 and Section 9 of these by-laws, "public
disclosure" shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press, PR Newswire, Bloomberg or 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.
Section 9. PROPER BUSINESS. At a meeting of the stockholders, only
such business shall be conducted as shall be a proper subject for the meeting
and shall have been properly brought before the meeting. To be properly brought
before a meeting, business must (a) be specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the Board of Directors
(or any duly authorized committee thereof), (b) otherwise be properly brought
before the meeting by or at the direction of the Board of Directors (or any duly
authorized committee thereof), or (c) otherwise (i) be properly requested to be
brought before the meeting by a stockholder of record
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entitled to vote in the election of directors generally, in compliance with the
provisions of this Section 9; and (ii) constitute a proper subject to be brought
before such meeting. For business to be properly brought before a meeting of
stockholders, any stockholder who intends to bring any matter (other than the
election of directors) before a meeting of stockholders and is entitled to vote
on such matter must deliver written notice of such stockholder's intent to bring
such matter before the meeting of stockholders, either by personal delivery or
by United States mail, postage prepaid, to the Secretary of the Corporation.
Such notice must be received by the Secretary, with respect to an annual meeting
of stockholders, not less than 90 days nor more than 120 days prior to the
anniversary date of the immediately preceding annual meeting of shareholders;
provided, however, that in the event that the annual meeting is called for a
date that is not within 30 days before or after such anniversary date, notice by
the stockholder, in order to be timely, must be so received not later than the
close of business on the tenth business day following the day on which such
notice of such meeting is first mailed by the Corporation to stockholders or
public disclosure (as defined in Section 8) of the date of the annual meeting
was made, whichever first occurs. In no event shall the public disclosure of an
adjournment of a meeting commence a new time period for the giving of a
stockholder's notice as described above.
To be in proper written form, a stockholder's notice to the Secretary
shall set forth as to each matter the stockholder proposes to bring before the
meeting of stockholders (a) a brief description of the business desired to be
brought before the meeting and the reasons for conducting such business at the
meeting (which, in case the proposal is for any alteration, amendment,
rescission or repeal of these By-laws, shall include the text of the resolution
which will be proposed to implement the same), (b) the name and record address
of the stockholder proposing such business, (c) the number of shares of each
class or series of capital stock of the Corporation that are owned beneficially
or of record by such stockholder, (d) a description of all arrangements or
understandings between such stockholder and any other person or persons
(including their names) in connection with the proposal of such business by such
stockholder and any material interest of such stockholder in such business and
(e) a representation that such stockholder intends to appear in person or by
proxy at the annual meeting to bring such business before the meeting. No
business shall be conducted at a meeting of stockholders except in accordance
with the procedures set forth in this Section 9.
The chairman of a meeting shall, if the facts warrant, determine that
(i) the business proposed to be brought before a meeting is not a proper subject
therefor and/or (ii) such business was not properly brought before the meeting
in accordance with the provisions hereof and, if he should so determine, he
shall declare to the meeting that (i) the business proposed to be brought
before a meeting is not a proper subject therefor and/or (ii) such business was
not properly brought before the meeting and shall not be transacted.
Nothing in this Section 9 shall be interpreted or construed to require
the inclusion of information about any such proposal in any proxy statement
distributed by, at the direction of, or on behalf of the Board or the
Corporation.
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Section 10. STOCKHOLDER LIST. The Secretary shall cause to be
prepared and made, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof and may be inspected by any stockholder who is present.
Section 11. PROPER BUSINESS - SPECIAL MEETING. At any special
meeting of stockholders, only such business shall be conducted as shall have
been stated in the notice of such meeting.
Section 12. INSPECTORS OF ELECTION. The Corporation shall, in
advance of any meeting of stockholders, appoint one or more inspectors of
election, who may be employees of the Corporation, to act at the meeting or any
adjournment thereof and to make a written report thereof. The Corporation may
designate one or more persons as alternate inspectors to replace any inspector
who fails to act. In the event that no inspector so appointed or designated is
able to act at a meeting of stockholders, the person presiding at the meeting
shall appoint one or more inspectors to act at the meeting. Each inspector,
before entering upon the discharge of his or her duties, shall take and sign an
oath to execute faithfully the duties of inspector with strict impartiality and
according to the best of his or her ability.
The inspector or inspectors so appointed or designated shall (i)
ascertain the number of shares of capital stock of the Corporation outstanding
and the voting power of each such share, (ii) determine the shares of capital
stock of the Corporation represented at the meeting and the validity of proxies
and ballots, (iii) count all votes and ballots, (iv) determine and retain for a
reasonable period a record of the disposition of any challenges made to any
determination by the inspectors, and (v) certify their determination of the
number of shares of capital stock of the Corporation represented at the meeting
and such inspectors' count of all votes and ballots. Such certification and
report shall specify such other information as may be required by law. In
determining the validity and counting of proxies and ballots cast at any meeting
of stockholders of the Corporation, the inspectors may consider such information
as is permitted by applicable law. No person who is a candidate for an office at
an election may serve as an inspector at such election.
ARTICLE 2
DIRECTORS
Section 1. MANAGEMENT. The affairs and business of the Corporation
shall be managed by or under the direction of the Board of Directors.
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Section 2. NUMBER. The authorized number of directors that shall
constitute the Board of Directors shall be fixed from time to time by or
pursuant to a resolution passed by a majority of the Board within the parameters
set by the Certificate.
Section 3. QUALIFICATION. Except as provided in these By-laws or as
otherwise required by law, there shall be no qualifications for directors of the
Corporation.
Section 4. MEETINGS. The Board of Directors shall meet at the
principal office of the Corporation or elsewhere in its discretion at such times
to be determined by a majority of its members, or at the call of the Chairman of
the Board or the President.
Section 5. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called at any time by the Chairman of the Board or by the
President, and shall be called upon the written request of a majority of the
then-authorized number of directors.
Section 6. QUORUM. Unless otherwise provided by law, a majority of
the directors elected and qualified shall be necessary to constitute a quorum
for the transaction of business at any meeting of the Board of Directors.
Section 7. NOTICE. Written notice of any special meeting of the
Board of Directors, and of any change in the time or place of any regular
meeting of the Board of Directors, shall be given to each director addressed or
directed to him at his residence or usual place of business, by telegram,
cablegram, facsimile transmission or other means of electronic transmission, or
shall be given to him personally or by telephone, not later than the day before
the day on which the meeting is to be held. Such notice shall state the time
and place of such meeting, but need not state the purpose or purposes for which
the meeting is called, unless otherwise required by statute.
Section 8. VACANCIES. Subject to the provisions of the Certificate,
newly created directorships resulting from any increase in the number of
directors and any vacancies on the Board resulting from death, resignation,
disqualification, removal or other cause shall be filled only by the affirmative
vote of a majority of the remaining directors then in office, even though less
than a quorum. Any director elected pursuant hereto shall hold office for the
remainder of the full term of the class of directors in which the new
directorship was created or in which the vacancy occurred, and until such
director's successor shall have been elected and qualified.
Section 9. REMOVAL. The Board of Directors may at any time remove,
with or without cause, any member of any Committee appointed by it or any
officer elected by it and may appoint or elect his successor.
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ARTICLE 3
COMMITTEES OF THE BOARD OF DIRECTORS
Section 1. EXECUTIVE COMMITTEE.
(A) COMPOSITION. The Executive Committee shall be composed of at
least two members who shall be selected by the Board of Directors from its own
members and who shall hold office at the pleasure of the Board.
(B) POWERS. The Executive Committee shall have and may exercise, to
the fullest extent permitted by law, all the powers of the Board of Directors
when it is not in session in the management of the business and affairs of the
Corporation to transact all business for and on behalf of the Corporation that
may be brought before it.
(C) MEETINGS. The Executive Committee shall meet at the principal
office of the Corporation or elsewhere in its discretion at such times to be
determined by a majority of its members. A majority of its members shall be
necessary to constitute a quorum for the transaction of business. Special
meetings of the Executive Committee may be held at any time when a quorum is
present.
(D) MINUTES. Minutes of each meeting of the Executive Committee shall
be kept and submitted to the Board of Directors at its next meeting.
Section 2. OTHER COMMITTEES.
The Board of Directors may, by resolutions adopted by a majority of
the entire Board, designate one or more of its members to constitute any other
committee or committees with such powers, duties, responsibilities and term of
existence as the Board of Directors shall determine.
Section 3. ABSENCE OR DISQUALIFICATION OF ANY MEMBER OF A COMMITTEE.
In the absence or disqualification of any member of any Committee created under
Article 3 of the By-laws of this Corporation, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member.
ARTICLE 4
OFFICERS
Section 1. The officers of the Corporation shall consist of a
Chairman of the Board, President, Secretary, Treasurer and such Executive,
Group, Senior or other Vice Presidents, and
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other officers as may be elected or appointed by the Board of Directors. Any
number of offices may be held by the same person. All officers shall hold office
until their successors are elected or appointed, except that the Board of
Directors may remove any officer at any time at its discretion.
Section 2. The officers of the Corporation shall have such powers and
duties as generally pertain to their offices, except as modified herein or by
the Board of Directors, as well as such powers and duties as from time to time
may be conferred by the Board of Directors. The Chairman of the Board shall be
the chief executive officer of the Corporation and shall have general
supervision over the business, affairs, and property of the Corporation and over
its several officers, and shall preside at meetings of the Board and at meetings
of the stockholders. The President shall be the chief operating officer of the
Corporation and shall have such duties as may be assigned to him by the Board of
Directors.
ARTICLE 5
STOCK AND STOCK CERTIFICATES
Section 1. TRANSFER. Shares of stock shall be transferable on the
books of the Corporation, and a transfer book shall be kept in which all
transfers of stock shall be recorded.
Section 2. CERTIFICATES. Every holder of stock shall be entitled to
have a certificate signed by or in the name of the Corporation by the Chairman
of the Board, the President or a Vice President, and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary, of the
Corporation. The corporate seal affixed thereto, and any of or all 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 issue.
Section 3. RECORD DATE. The Board of Directors is authorized to fix
in advance a record date for the determination of the stockholders entitled to
notice of and to vote at any meeting of stockholders and any adjournment, or
entitled to receive payment of any dividend, or to any allotment of, or to
exercise any rights in respect of any change, conversion or exchange of capital
stock, which record date shall not, unless otherwise required by law, be more
than 60 nor less than 10 days preceding the date of any meeting of stockholders
nor more than 60 days preceding 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.
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ARTICLE 6
SEAL
The corporate seal of the Corporation shall be in such form as the
Board of Directors shall prescribe.
ARTICLE 7
FISCAL YEAR
The fiscal year of the Corporation shall be the calendar year.
ARTICLE 8
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Directors of the Corporation, other than salaried officers of the
Corporation, shall be paid such reasonable fees for their services and for
attending meetings of the Board of Directors or committees thereof as the Board
of Directors may from time to time determine. Directors may be employed by the
Corporation for such special services as the Board of Directors may from time to
time determine and shall be paid for such special services so performed
reasonable compensation as may be determined by the Board of Directors.
ARTICLE 9
INDEMNIFICATION
SECTION 1. The Corporation shall indemnify, and advance Expenses to,
each Indemnitee to the fullest extent permitted by applicable law in effect on
March 23, 1998, and to such greater extent as applicable law may thereafter
permit. The rights of an Indemnitee provided under the preceding sentence shall
include, but not be limited to, the right to be indemnified to the fullest
extent permitted by Section 145(b) of the Delaware General Corporation Law
("D.G.C.L.") in Proceedings by or in the right of the Corporation and to the
fullest extent permitted by Section 145(a) of the D.G.C.L. in all other
Proceedings.
SECTION 2. If an Indemnitee is, by reason of his Corporate Status, a
witness in or a party to and is successful, on the merits or otherwise, in any
Proceeding, he shall be indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection therewith. If an Indemnitee is
not wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to any Matter in such Proceeding, the Corporation shall indemnify
such Indemnitee against all Expenses actually and reasonably incurred by him or
on his behalf relating
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to each Matter. The termination of any Matter in such a Proceeding by dismissal,
with or without prejudice, shall be deemed to be a successful result as to such
Matter.
SECTION 3. An Indemnitee shall be advanced Expenses within 10 days
after requesting them to the fullest extent permitted by Section 145(e) of the
D.G.C.L.
SECTION 4. To obtain indemnification an Indemnitee shall submit to
the Corporation a written request with such relevant information as is
reasonably available to Indemnitee. The Secretary of the Corporation shall
promptly advise the Board of Directors of such request.
SECTION 5. If there has been no Change of Control at the time the
request for indemnification is sent, an Indemnitee's entitlement to
indemnification shall be determined in accordance with Section 145(d) of the
D.G.C.L. If entitlement to indemnification is to be determined by Independent
Counsel, the Corporation shall furnish notice to the Indemnitee within 10 days
after receipt of the request for indemnification, specifying the identity and
address of Independent Counsel. The Indemnitee may, within 14 days after
receipt of such written notice of selection, deliver to the Corporation a
written objection to such selection. Such objection may be asserted only on the
ground that the Independent Counsel so selected does not meet the requirements
of the definition of Independent Counsel and the objection shall set forth with
particularity the factual basis of such assertion. If there is an objection to
the selection of Independent Counsel, either the Corporation or the Indemnitee
may petition the Court of Chancery of the State of Delaware or any other court
of competent jurisdiction for a determination that the objection is without a
reasonable basis and/or for the appointment of Independent Counsel selected by
the Court.
SECTION 6. If there has been a Change of Control at the time the
request for indemnification is sent, an Indemnitee's entitlement to
indemnification shall be determined in a written opinion by Independent Counsel
selected by the Indemnitee. The Indemnitee shall give the Corporation written
notice advising of the identity and address of the Independent Counsel so
selected. The Corporation may, within seven days after receipt of such written
notice of selection, deliver to the Indemnitee a written objection to such
selection. The Indemnitee may, within 5 days after the receipt of such
objection from the Corporation, submit the name of another Independent Counsel
and the Corporation may, within seven days after receipt of such written notice
of selection, deliver to the Indemnitee a written objection to such selection.
Any objection is subject to the limitations in Section 5. The Indemnitee may
petition the Court of Chancery of the State of Delaware or any other Court of
competent jurisdiction for a determination that the Corporation's objection to
the first and/or second selection of Independent Counsel is without a reasonable
basis and/or for the appointment as Independent Counsel of a person selected by
the Court.
SECTION 7. If a Change of Control shall have occurred before the
request for indemnification is sent by the Indemnitee, the Indemnitee shall be
presumed (except as otherwise expressly provided in this Article) to be entitled
to indemnification upon submission of a request for indemnification in
accordance with Section 4 of this Article, and thereafter the Corporation shall
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have the burden of proof to overcome the presumption in reaching a determination
contrary to the presumption. The presumption shall be used by Independent
Counsel as a basis for a determination of entitlement to indemnification unless
the Corporation provides information sufficient to overcome such presumption by
clear and convincing evidence or the investigation, review and analysis of
Independent Counsel convinces him by clear and convincing evidence that the
presumption should not apply.
Except in the event that the determination of entitlement to
indemnification is to be made by Independent Counsel, if the person or persons
empowered under Section 5 or 6 of this Article to determine entitlement to
indemnification shall not have made and furnished to the Indemnitee in writing a
determination within 60 days after receipt by the Corporation of the request
therefor, the requisite determination of entitlement to indemnification shall be
deemed to have been made and the Indemnitee shall be entitled to such
indemnification unless the Indemnitee knowingly misrepresented a material fact
in connection with the request for indemnification or such indemnification is
prohibited by law. The termination of any Proceeding or of any Matter therein,
by judgment, order, settlement or conviction, or upon a plea of nolo contendere
or its equivalent, shall not (except as otherwise expressly provided in this
Article) of itself adversely affect the right of an Indemnitee to
indemnification or create a presumption that the Indemnitee did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Corporation, or with respect to any criminal
Proceeding, that the Indemnitee had reasonable cause to believe that his conduct
was unlawful.
SECTION 8. The Corporation shall pay any and all reasonable fees and
expenses of Independent Counsel incurred acting pursuant to this Article and in
any proceeding to which it is a party or witness in respect of its investigation
and written report and shall pay all reasonable fees and expenses incident to
the procedures in which such Independent Counsel was selected or appointed. No
Independent Counsel may serve if a timely objection has been made to his
selection until a Court has determined that such objection is without a
reasonable basis.
SECTION 9. In the event that (i) a determination is made pursuant to
Section 5 or 6 that an Indemnitee is not entitled to indemnification under this
Article, (ii) advancement of Expenses is not timely made pursuant to Section 3
of this Article, (iii) Independent Counsel has not made and delivered a written
opinion determining the request for indemnification (a) within 90 days after
being appointed by the Court, or (b) within 90 days after objections to his
selection have been overruled by the Court, or (c) within 90 days after the time
for the Corporation or the Indemnitee to object to his selection, or (iv)
payment of indemnification is not made within five days after a determination of
entitlement to indemnification has been made or deemed to have been made
pursuant to Section 5, 6 or 7 of this Article, the Indemnitee shall be entitled
to an adjudication in an appropriate court of the State of Delaware, or in any
other court of competent jurisdiction, of his entitlement to such
indemnification or advancement of Expenses. In the event that a determination
shall have been made that the Indemnitee is not entitled to indemnification, any
judicial proceeding or arbitration commenced pursuant to this Section shall be
conducted in all respects as a de novo trial on the merits and the Indemnitee
shall not be prejudiced by reason of that adverse determination.
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If a Change of Control shall have occurred, in any judicial proceeding commenced
pursuant to this Section, the Corporation shall have the burden of proving that
the Indemnitee is not entitled to indemnification or advancement of Expenses, as
the case may be. If a determination shall have been made or deemed to have been
made that the Indemnitee is entitled to indemnification, the Corporation shall
be bound by such determination in any judicial proceeding commenced pursuant to
this Section 9, or otherwise, unless the Indemnitee knowingly misrepresented a
material fact in connection with the request for indemnification, or such
indemnification is prohibited by law.
The Corporation shall be precluded from asserting in any judicial
proceeding commenced pursuant to this Section 9 that the procedures and
presumptions of this Article are not valid, binding and enforceable and shall
stipulate in any such court that the Corporation is bound by all provisions of
this Article. In the event that an Indemnitee, pursuant to this Section 9,
seeks a judicial adjudication to enforce his rights under, or to recover damages
for breach of, this Article, the Indemnitee shall be entitled to recover from
the Corporation, and shall be indemnified by the Corporation against, any and
all Expenses actually and reasonably incurred by him in such judicial
adjudication, but only if he prevails therein. If it shall be determined in
such judicial adjudication that the Indemnitee is entitled to receive part but
not all of the indemnification or advancement of Expenses sought, the Expenses
incurred by the Indemnitee in connection with such judicial adjudication or
arbitration shall be appropriately prorated.
SECTION 10. The rights of indemnification and to receive advancement
of Expenses as provided by this Article shall not be deemed exclusive of any
other rights to which an Indemnitee may at any time be entitled under applicable
law, the Certificate, these By-laws, any agreement, a vote of stockholders or a
resolution of directors, or otherwise. No amendment, alteration or repeal of
this Article or any provision thereof shall be effective as to any Indemnitee
for acts, events and circumstances that occurred, in whole or in part, before
such amendment, alteration or repeal. The provisions of this Article shall
continue as to an Indemnitee whose Corporate Status has ceased and shall inure
to the benefit of his heirs, executors and administrators.
SECTION 11. If any provision or provisions of this Article shall be
held to be invalid, illegal or unenforceable for any reason whatsoever, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby; and, to the fullest extent possible,
the provisions of this Article shall be construed so as to give effect to the
intent manifested by the provision held invalid, illegal or unenforceable.
SECTION 12. For purposes of this Article:
A "Change of Control", shall be deemed to have occurred if, after the
Public Status Date, (1) there shall have occurred an event required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or in
response to any similar item on any similar schedule or form) promulgated under
the Exchange Act, whether or not the Corporation is then subject to such
reporting requirement; (2) any "person" (as such term is used in Section 13(d)
and 14(d) of the Exchange Act) shall have become the "beneficial owner" (as
defined in Rule 13d-3 under the
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Exchange Act), directly or indirectly, of securities of the Corporation
representing 40% or more of the combined voting power of the Corporation's then
outstanding voting securities without prior approval of at least two-thirds of
the members of the Board of Directors in office immediately prior to such person
attaining such percentage interest; (3) the Corporation is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy contest, as a
consequence of which members of the Board of Directors in office immediately
prior to such transaction or event constitute less than a majority of the Board
of Directors thereafter; or (4) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors (including for this purpose any new director whose election or
nomination for election by the Corporation's stockholders was approved by a vote
of at least two-thirds of the directors then still in office who were directors
at the beginning of such period) cease for any reason to constitute at least a
majority of the Board of Directors.
"Corporate Status" describes the status of a person who (a) 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 or employee of another corporation,
partnership, joint venture, trust or other enterprise, in each case which is
controlled by the Corporation, or (b) is or was serving, at the written request
of the Corporation or pursuant to an agreement in writing with the Corporation
which request or agreement provides for indemnification under these By-laws, as
a director, officer or employee of another corporation, partnership, joint
venture, trust or other enterprise not controlled by the Corporation, provided
that if such written request or agreement referred to in this clause (b)
provides for a lesser degree of indemnification by the Corporation than that
provided pursuant to this Article 9, the provisions contained in or made
pursuant to such written request or agreement shall govern. References above to
"other enterprises" shall include employee benefit plans and references to
"serving at the request of the Corporation" shall include any service as a
director, officer or employee which imposes duties on, or involves services by,
such director, officer or employee with respect to an employee benefit plan or
its participants or beneficiaries.
"Disinterested Director" means a director of the Corporation who is
not and was not a party to the Proceeding in respect of which indemnification is
sought by indemnitee.
"Expenses" shall include all reasonable attorneys' fees, retainers,
court costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, or being or preparing to be a witness in a
Proceeding.
"Indemnitee" includes any person who is, or is threatened to be made,
a witness in or a party to any Proceeding as described in Section 1 or 2 of this
Article by reason of his Corporate Status.
"Independent Counsel" means a law firm, or member of a law firm, that
is experienced in matters of corporation law and neither presently is, nor in
the five years previous to
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his selection or appointment has been, retained to represent: (i) the
Corporation or the relevant Indemnitee in any matter material to either such
party, or (ii) any other party to the Proceeding giving rise to a claim for
indemnification hereunder.
"Matter" is a claim, a material issue, or a substantial request for
relief.
"Proceeding" includes any action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing or any other
proceeding whether civil, criminal, administrative or investigative, except one
initiated by an Indemnitee (a) pursuant to Section 9 of this Article to enforce
his rights under this Article or (b) otherwise than pursuant to clause (a) of
this sentence and not authorized by the Board of Directors.
"Public Status Date" shall mean the first date on which the
Corporation has outstanding a class of equity securities registered under
Section 12 of the Exchange Act.
SECTION 13. Any communication required or permitted to the
Corporation shall be addressed to the Secretary of the Corporation and any such
communication to Indemnitee shall be addressed to his home address unless he
specifies otherwise and shall be personally delivered or delivered by overnight
mail delivery.
ARTICLE 10
AMENDMENTS TO BY-LAWS
Subject to the provisions of the Certificate, and in addition to any
affirmative vote required by law, any alteration, amendment, repeal or
rescission (any "Change") of these By-laws occurring after the Public Status
Date (as defined in Section 12 of Article 9) must be approved either (i) by the
Board of Directors by the affirmative vote of at least a majority of the then-
authorized number of directors or (ii) by the stockholders by the affirmative
vote of the holders of at least 66 2/3% of the combined voting power of the
then-outstanding shares of Voting Stock, voting together as a single class.
Subject to the foregoing, the Board of Directors of the Corporation is
expressly authorized to make, alter, amend, repeal or rescind the By-laws of the
Corporation.
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