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 17, 1996
CITIZENS UTILITIES COMPANY
(Exact name of registrant as specified in charter)
Delaware 001-11001 06-0619596
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
High Ridge Park, P.O. Box 3801, Stamford, Connecticut 06905
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(Address of principal executive offices) (Zip code)
(203) 329-8800
(Registrant's telephone number, including area code)
No change since last report
(Former name or former address, if changed since last report)
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibit
3.200.2 Bylaws, as amended, of Citizens Utilities Company, with all
amendments to December 17, 1996.
<PAGE>
SIGNATURE
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.
CITIZENS UTILITIES COMPANY
(Registrant)
Date: December 23, 1996 By:/s/ Livingston E. Ross
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Vice President and Controller
Exhibit 3.200.2
BYLAWS*
OF
CITIZENS UTILITIES COMPANY
* As amended March 9, 1937; May 12, 1942; June 15, 1946; October 1, 1946; May
23, 1947; January 7, 1948; April 1, 1948; March 31, 1949; January 26, 1951;
April 11, 1952; July 28, 1954; February 24, 1960; November 18, 1963; May 10,
1966; February 3, 1967; April 10, 1968; April 17, 1970; June 11, 1970; June 7,
1974; August 8, 1975; November 7, 1980; January 16, 1981; March 3, 1981;
February 20, 1986; June 5, 1987; August 8, 1988; May 5, 1989; May 31, 1989;
June 23, 1989; September 11, 1989 (clerical correction); May 1, 1990; April
14, 1992; and February 17, 1993, February 8, 1994 (clerical correction);
October 24, 1995, August 8, 1996 (clerical correction), December 17,1996
<PAGE>
BYLAWS
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OF
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CITIZENS UTILITIES COMPANY
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TITLE
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1. The title of this corporation is CITIZENS UTILITIES COMPANY.
LOCATION OF OFFICES
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2. The principal office of the corporation in Delaware shall be in
Wilmington and the resident agent in charge thereof shall be PRENTICE HALL
CORPORATION SYSTEM, INC., 1013 Centre Road.
The corporation may also have an office or offices at such other places
within or without the State of Delaware as the Board of Directors may from time
to time designate.
CORPORATE SEAL
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3. The corporate seal shall be circular in form and have inscribed
thereon the name of the corporation, the year of its incorporation (1935) and
the words "Incorporated Delaware".
MEETINGS OF STOCKHOLDERS
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4. All meetings of stockholders shall be held at the offices
of the corporation or such other place as shall be designated by the Board of
Directors of the corporation.
Annual Meetings of stockholders shall be held on a date and at a time
designated by the Board of Directors of the corporation. At each annual meeting
the stockholders shall elect a Board of Directors, such election to be by
majority of the stock present or represented by proxy, and entitled to vote at
the meeting.
Each stockholder shall, at every meeting of the stockholders, be
entitled to one vote in person or by written proxy signed by him, for each share
of stock held by him, but no proxy shall be voted on after one year from its
date. Such right to vote shall be
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subject to the right of the Board of Directors to close the transfer books or to
fix a record date for voting stockholders as hereinafter provided.
Special meetings of the stockholders may be called by the Chief
Executive Officer and shall be called on the request in writing or by vote of a
majority of the Board of Directors or on demand in writing of stockholders of
record owning thirty-three percent (33%) in amount of the capital stock
outstanding and entitled to vote.
Notice of each meeting of stockholders, whether annual or special,
shall be mailed by the secretary to each stockholder of record, at his or her
post office address as shown by the stock books of the Company, at least ten
days and not more than sixty days prior to the date of the meeting. If the
transfer books are closed or a record date is fixed in connection with an annual
meeting, as permitted by By-Law 17, the notice of the meeting shall be given to
the stockholders of record as of the time said books are closed or record date
is fixed, but if the transfer books are not closed or a record date is not
fixed, said notice shall be given to the stockholders of record at the time the
notice is mailed.
The holders of a majority of the stock outstanding and entitled to vote
shall constitute a quorum, but the holders of a smaller amount may adjourn any
meeting from time to time without further notice until a quorum is secured.
At the annual meeting of stockholders, only such business shall be
conducted as shall have been brought before the meeting (a) pursuant to the
corporation's notice of meeting, (b) by or at the direction of the Board of
Directors or (c) by any stockholder of the corporation who is a stockholder of
record at the time of giving of the notice provided for below, who shall be
entitled to vote at such meeting and who complies with the procedures set forth
below; provided that any such business proposed by a stockholder is otherwise
proper for consideration under applicable law, the corporation's certificate of
incorporation and these Bylaws.
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For business to be brought before an annual meeting by a stockholder,
the stockholder must have given notice thereof in writing to the Secretary of
the corporation, delivered to or mailed and received at the principal office of
the corporation no [earlier than the January 1 and no] later than the February
15 preceding the annual meeting. A stockholder's notice to the Secretary shall
set forth as to each matter the stockholder proposes to bring before the meeting
(a) a brief description of the business desired to be brought before the meeting
and the reasons for conducting such business at the meeting, (b) the name and
address, as they appear on the corporation's books, of the stockholder proposing
such business, and the name and address of the beneficial owner, if any, on
whose behalf the proposal is made, (c) the class and number of shares of the
corporation which are owned beneficially and of record by such stockholder of
record and by the beneficial owner, if any, on whose behalf the proposal is
made, together with documentary support for any claim of beneficial ownership,
(d) any material interest of such stockholder of record and the beneficial
owner, if any, on whose behalf the proposal is made in such business and (e) any
information, in addition to that required above, which may be required from time
to time by Regulation 14A of the Securities Exchange Act of 1934 with respect to
security holder proposals.
The Chairman of the meeting, in addition to making any other
determinations that may be appropriate to the conduct of the meeting, shall
determine whether such notice has been duly given and whether such business is
otherwise proper for consideration (using as a non-exclusive guideline the
provisions of Rule 14a-8(c) under the Securities Exchange Act of 1934), and
shall direct that any business not properly brought before the meeting shall not
be transacted.
DIRECTORS
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5. The property and business of the corporation shall be managed and
controlled by its Board of Directors, which shall consist of not less than seven
nor more than thirteen members. The number of Directors shall be fixed from time
to time, within
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the limits prescribed, by resolution of the Board of Directors. As of October
24, 1995, the Board of Directors shall consist of thirteen members, unless a
different number shall thereafter be fixed by resolution of the Board of
Directors. Vacancies in the Board of Directors (except vacancies resulting from
the removal of directors by stockholders), including vacancies in the Board of
Directors resulting from any increase in the number of Directors, may be filled
by a majority of the Directors then in office, though less than a quorum.
Directors shall otherwise be elected by the stockholders at the annual
meeting and shall hold office until the next annual election and until their
successors are elected and qualified. At all elections of Directors of this
corporation each stockholder shall be entitled to one vote in person or by
written proxy signed by him, for each share of stock owned by him, and election
shall be by majority vote of the stock present or represented by proxy and
entitled to vote at the meeting. The stockholders of this corporation shall have
no preemptive right to subscribe to any issue of shares of stock of this
corporation now or hereafter made.
A Director may be designated a "Director Emeritus" of the Company by
the vote of the Board of Directors. A Director Emeritus shall be invited to
attend all meetings of the Board of Directors but shall not have the right to
vote. A Director Emeritus shall receive such compensation as the Board shall
determine.
A Director Emeritus shall be designated by the Board of Directors for a
one-year term (and may be reappointed) at the Annual Meeting of the Board of
Directors following the Company's Annual Meeting of Shareholders.
The Board of Directors shall have an Executive Committee. The Executive
Committee of the Board shall consist of four (4) members, to be appointed by and
to serve at the pleasure of the Board. The Chairman of the Board shall be the
Chairman of the Executive Committee. During intervals between meetings of the
Board, the
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Committee shall have the power and authority of the Board of Directors of the
management of the business affairs and property of the Company.
A majority of the Directors in office shall be independent directors as
hereinafter defined. At the time that the nominees for the Board of Directors
are selected for proposal for election at the Annual Meeting of Shareholders,
the Board of Directors will review the circumstances of each nominee and
determine whether he or she is an independent director. If it should be
determined that a majority of the nominees are not independent directors, the
Nominating Committee shall take steps to select and recommend the nomination of
a sufficient number of individuals who are independent directors so that a
majority of members of the Board of Directors shall be independent directors.
The Board of Directors shall have a Nominating Committee. The
Nominating Committee shall consist of not less than two directors and not more
than four directors, to be appointed by and to serve at the pleasure of the
Board. Each member of the Nominating Committee shall be an independent director
as hereinafter defined. The Nominating Committee shall consider recommendations
of individuals who may be expected to make contributions to the Company or
members of the Board of Directors. The Nominating Committee shall establish
procedures for the nominating process and make recommendations to the Board of
Directors annually for the slate of nominees for the Board of Directors to be
proposed at the Annual Meeting of Shareholders.
The Board of Directors shall have a Compensation Committee. The
Compensation Committee shall consist of not less than two directors and not more
than five directors, to be appointed by and to serve at the pleasure of the
Board. Each member of the Compensation Committee shall be an independent
director as hereafter defined. The Compensation Committee shall consider matters
related to compensation of officers, directors and employees of the Company and
to make recommendations
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with respect thereto to the Board of Directors. The Compensation Committee shall
have the authority to retain independent legal counsel and compensation
advisors.
For purposes of this Article 5 of the Bylaws, "independent director"
shall mean a director who is:
(a) an individual who is not and has not been employed
as an executive officer by the Company (or any corporation, the
majority of the voting stock of which is owned, directly or
indirectly through one or more other subsidiaries, by the Company)
within three (3) fiscal years immediately prior to his or her most
recent election or appointment as a member of the Board of Directors;
or
(b) an individual who is not a regular paid advisor or
consultant to the Company and who is not an affiliate (within the
meaning of Exchange Act Rule 12b-2 of the Securities and Exchange
Commission) of any entity that is a regular paid advisor or consultant
to the Company; or
(c) an individual who is not an employee or owner of five
percent (5%) or more of the voting stock of any business or
professional entity that has made, during the Company' s last full
fiscal year, payments to the Company or its subsidiaries for property,
goods or services in excess of five percent (5%) of the lesser of (i)
the Company's consolidated gross revenues for its last full fiscal
year, or (ii) such other entity's consolidated gross revenues for its
last full fiscal year; or (d) an individual who is not an employee or
owner of five percent (5%) or more of the voting stock of any business
or professional entity to which the Company or its subsidiaries have
made, during the Company's last full fiscal year, payments for
property, goods or services in excess of five percent (5%) of the
lesser of (i) the Company's consolidated gross revenues for its last
full fiscal year, or (ii) such other entity's consolidated gross
revenues for its last full fiscal year; or (e) an individual who is not
a party to a personal service
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<PAGE>
contract with the Company pursuant to which fees or other compensation
received by the individual from the Company during his or her last
full fiscal year (other than fees received as a member of the Company's
Board of Directors or a committee thereof) so as to require description
of such contract under Item 404(a)of Regulation S-K promulgated by
the Securities and Exchange Commission, as in effect on January 1,
1994; or
(f) an individual who is not employed by a tax-exempt
organization that received, during its last full fiscal year,
contributions from the Company in excess of five percent (5%) of the
lesser of (i) the consolidated gross revenues of the Company during its
last full fiscal year, or (ii) the contributions received by the
tax-exempt organization during its last full fiscal year; or
(g) an individual who has not carried out a transaction or did
not have a relationship, during the Company's last full fiscal year,
such that the specifics of a transaction would be required to be
described under Item 404 of Regulation S-K promulgated by the
Securities and Exchange Commission, as in effect on January 1, 1994; or
(h) an individual who is not employed by a public company
at which an executive officer of the Company serves as a member of the
board of directors; or
(i) an individual who has not had any relationship described
in paragraphs (a) - (h) with any corporation, the majority of the
voting stock of which is owned directly or indirectly, through one or
more subsidiaries, by the Company; or
(j) an individual who is not a member of the immediate family
of any person described in paragraphs (a) - (i). For these purposes, an
individual's immediate family shall include such individual's spouse,
parents, children,
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siblings, mothers- and fathers-in-law, sons- and daughters-in-laws,
and brothers- and sisters-in-law.
The term "independent director" shall have no legal significance
under applicable corporate or securities law or in any respect other than for
the purposes of this Bylaw. No inference shall be drawn that a director is "not
independent," "interested," or "a party to a contract or transaction" or has a
"financial interest" in any contract or transaction within the meaning of any
applicable corporate or securities law, and no director shall be disqualified
from taking action or refraining from acting on any matter coming before the
Board of Directors by reason of his or her status as an independent director
under this Bylaw.
Nominations of persons for election to the Board of Directors of the
corporation may be made by any stockholder of the corporation who is a
stockholder of record at the time of giving of the notice provided for below,
who shall be entitled to vote for the election of Directors at the meeting and
who complies with the notice procedures set forth below.
Nominations by stockholders shall be made pursuant to notice in writing
to the Nominating Committee of the corporation, delivered to or mailed and
received at the principal office of the corporation no [earlier than the January
1 and no] later than the February 15 preceding the annual meeting. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election as a Director all information relating to such
person that is required to be disclosed in solicitations of proxies for election
of Directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934 (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
Director if elected); (b) as to the stockholder giving the notice (i) the name
and address, as they appear on the corporation's books, of such stockholder and
(ii) the class and number of shares of the corporation which are beneficially
owned by such
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stockholder and also which are owned of record by such stockholder and (iii)
documentary support for such claim of beneficial ownership; (c) as to the
beneficial owner, if any, on whose behalf the nomination is made, (i) the name
and address of such person, (ii) the class and number of shares of the
corporation which are beneficially owned by such person and (iii) documentary
support for such claim of beneficial ownership and (d), a description of all
arrangements or understandings between the stockholder giving notice, the
beneficial owner and each nominee and any other person or persons (naming such
person or persons) relating to the nomination to be made or resulting
directorship.
The Nominating Committee shall determine whether a stockholder
nomination was made in accordance with the procedures prescribed herein and
whether the stockholder's nominee should be recommended as a member of the slate
of nominees to be proposed at the annual meeting, and the Nominating Committee
may disregard any nomination not made in accordance with these Bylaws. The
Chairman of the meeting shall not nominate for election to the Board of
Directors any stockholder nominee who has been disregarded by the Nominating
Committee.
POWERS OF DIRECTORS
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6. The Board of Directors shall have all such powers as may
be exercised by the Corporation, subject to the provisions of the statutes, the
Certificate of Incorporation, and the Bylaws.
MEETINGS OF DIRECTORS
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7. Meetings of the Board of Directors shall be held at such place
within or without the State of Delaware as may from time to time be fixed by
resolution of the Board of Directors, or as may be specified by the Chief
Executive Officer in the call of any meeting. Regular meetings of the Board of
Directors shall be held at such times as may from time to time be fixed by
resolution of the Board of Directors and special meetings may be held at any
time upon the call of two (2) Directors or of the Chief
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<PAGE>
Executive Officer, by oral, telegraphic or written notice duly served or sent or
mailed to each Director not less than five (5) days before such meeting. A
meeting of the Board may be held without notice immediately after the annual
meeting of stockholders at the same place at which such meeting is held. Notice
need not be given of regular meetings of the Board held at times fixed by
resolution of the Board. Meetings may be held at any time without notice if all
the Directors are present or if those not present waive notice of the meeting in
writing.
(Telephone Participation in Meetings)
Members of the Board of Directors (or any committees thereof) may
participate in a meeting of the Board of Directors (or of such committees) by
means of conference telephone or other communications equipment via which all
persons participating can hear each other. Such participation in the substantive
discussion and determinations of a meeting shall constitute presence in person
at such meeting.
A majority of the Directors shall constitute a quorum, but a smaller
number may adjourn any meeting from time to time without further notice until a
quorum is secured.
OFFICERS OF THE COMPANY
-----------------------
8. The officers of the Company shall be a Chairman of the Board of
Directors, a President, one or more vice presidents (with such duties and titles
as may be assigned to them), a secretary, a treasurer, one or more assistant
vice presidents (with such duties and titles as may be assigned to them), and
such other officers as may from time to time be chosen by the Board of
Directors.
The officers of the Company shall hold office until their successors
are elected and qualified. If the office of any officer or officers becomes
vacant for any reason, the vacancy shall be filled by the affirmative vote of a
majority of the whole Board of Directors.
DUTIES OF THE CHAIRMAN
----------------------
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9. The Chairman presides at all meetings of the Board of Directors and
at all meetings of the shareholders. It shall be his prerogative to see that all
orders, resolutions, and policy determinations of the Board of Directors are
carried into effect. He acts in a general oversight and advisory capacity with
respect to the affairs of the Company. He provides leadership to the Board in
reviewing and deciding upon matters which constitute major policies of the
Company, what the Company does and the manner in which the Company business is
conducted.
DUTIES OF THE CHIEF EXECUTIVE OFFICER
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9A. It shall be the duty of the Chief Executive Officer to carry into
effect all orders, resolutions, and policy determinations of the Board of
Directors; to execute all contracts and agreements; to keep the seal of the
Company; and to sign and to affix the seal of the Company to any instrument
requiring the same, which seal shall be attested by the signature of the
Secretary or Treasurer or Assistant Secretary or Assistant Treasurer. He shall
have the general supervision and direction of the other officers of the Company.
He shall submit a report of the operations of the Company for the year
to the Directors at their meeting next preceding the annual meeting of the
stockholders and to the stockholders at their annual meeting.
He shall have the general duties and powers of supervision and
management usually vested in the chief executive officer of a corporation.
The Chief Executive may also hold another office with the Company.
Accordingly, the duties and responsibilities of the position may be assigned by
the Board of Directors to any Company officer.
DUTIES OF THE PRESIDENT
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9B. Unless otherwise decided by the Board of Directors, the President
shall be the chief executive and administrative officer of the Company. It shall
be his duty to see that all orders and policy determination conveyed by the
Chairman are carried into
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effect. He shall have the general supervision and direction of the operations
and administration of the affairs of the Company and general supervision and
direction of the other officers and employees of the Company and shall see that
their duties are properly performed.
VICE PRESIDENT
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10. The vice president or vice presidents, in the order of their
seniority, shall be vested with all the powers and required to perform all the
duties of the President in his absence or disability and shall perform such
other duties as may be prescribed by the Board of Directors.
CHIEF EXECUTIVE PRO TEM
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11. In the absence or disability of both the Chairman and
President, the Board may appoint a chief executive pro tem.
SECRETARY
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12. The secretary shall attend all meetings of the corporation and the
Board of Directors. He shall act as clerk thereof and shall record all of the
proceedings of such meetings in a book kept for that purpose. He shall give
proper notice of meetings of stockholders and Directors and shall perform such
other duties as shall be assigned to him by the Chairman, President or the Board
of Directors.
TREASURER
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13. The treasurer shall have custody of the funds and securities of the
corporation and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the Board of Directors.
He shall disburse the funds of the corporation as may be ordered by the
Board, or Chairman or President, taking proper vouchers for such disbursements
and shall render to the Chairman, President and Directors, whenever they may
require it, an
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account of all his transactions as treasurer and of the financial condition
of the corporation.
He shall keep an account of stock and income notes registered and
transferred in such manner and subject to such regulations as the Board of
Directors may prescribe.
He shall give the corporation a bond, if required by the Board of
Directors, in such sum and in form and with security satisfactory to the Board
of Directors for the faithful performance of the duties of his office and the
restoration to the corporation, in case of his death, resignation, or removal
from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession, belonging to the corporation. He shall perform
such other duties as the Board of Directors may from time to time prescribe or
require.
DUTIES OF OFFICERS MAY BE DELEGATED
-----------------------------------
14. In case of the absence or disability of any officer of the
corporation or for any other reason deemed sufficient by a majority of the
Board, the Board of Directors may delegate his powers or duties to any other
officer or to any Director for the time being. The duties relating to the
execution of contracts and agreements and the signing of instruments and
affixing the seal of the Company and other matters may be delegated to any
officer, from time to time, as the Board shall see fit.
CERTIFICATES OF STOCK
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15. Certificates of stock shall be signed by the Chairman, President or
a vice president and either the treasurer, assistant treasurer, secretary or
assistant secretary. If a certificate of stock be lost or destroyed, another may
be issued in its stead upon proof of such loss or destruction and the giving of
a satisfactory bond of indemnity, in an amount sufficient to indemnify the
corporation against any claim.
TRANSFER OF STOCK
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16. All transfer of stock of the corporation shall be made upon its
books upon presentation of the certificate or certificates therefor, properly
endorsed by the holder of the shares in person or by his lawfully constituted
representative, and upon surrender of such certificate or certificates of stock
for cancellation.
CLOSING OF TRANSFER BOOKS
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17. The Board of Directors shall have the power to close the stock
transfer books of the corporation for a period not exceeding sixty days
preceding the date for any meeting of stockholders or for payment of any
dividend or for the allotment of rights or when any change or conversion or
exchange of capital stock shall go into effect, or for a period of not exceeding
sixty days in connection with obtaining the consent of stockholders for any
purpose. In lieu of so closing the books, the Board of Directors may fix in
advance a date, not exceeding sixty days preceding the said above mentioned
dates, as a record date for the determination of the stockholders entitled to
notice of or to vote at any such meeting, and any adjournment thereof, or
entitled to dividends or other rights hereinbefore mentioned, or to give such
consent.
STOCKHOLDERS OF RECORD
----------------------
18. 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 the laws of Delaware.
FISCAL YEAR
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19. The fiscal year of the corporation shall begin on the first
day in January in each year.
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DIVIDENDS
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20. Dividends, to the extent not restricted by provisions of the
corporation's Certificate of Incorporation or by subsisting agreements of the
corporation, may be declared by the Board of Directors and paid in cash, in
property, or in shares of the capital stock of the corporation to the extent
permitted by law, out of net assets in excess of its capital or out of its net
profits, provided there shall be no impairment of the capital of the corporation
represented by its issued and outstanding stock of all classes having a
preference upon the distribution of assets.
BOOKS AND RECORDS
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21. The books, accounts, and records of the corporation may be kept
within or without the State of Delaware, at such place or places as may from
time to time be designated by the Bylaws or by resolution of the Directors.
NOTICES
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22. Notice required to be given under the provisions of these Bylaws to
any Director, officer or stockholder shall not be construed to mean personal
notice, but may be given in writing by depositing the same in a post office or
letter box, in a postpaid sealed or unsealed wrapper, addressed to such
stockholder, officer or Director at such address as appears on the books of the
corporation, and such notice shall be deemed to be given at the time when the
same shall be thus mailed. In computing the number of days notice required for
any meeting, the day on which the notice shall be deposited in the mail or sent
by telegraph shall be excluded.
WAIVER OF NOTICE
----------------
23. Any stockholder, officer, or Director may waive in writing, or by
telegraph, any notice required to be given under these Bylaws, whether before or
after the time stated therein.
INDEMNIFICATION OF
DIRECTORS AND OFFICERS
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24. Paragraph (a). Right of Indemnification. The Corporation shall, to
the fullest extent permitted by applicable law as then in effect, indemnify any
person (the "indemnitee") who was or is involved in any manner (including,
without limitation, as a party or a witness) or was or is threatened to be made
so involved in any threatened, pending or completed investigation, claim,
action, suit or proceeding, whether civil, criminal administrative or
investigative (including, without limitation, any action or proceeding by or in
the right of the Corporation to procure a judgement in its favor) (a
"Proceeding") by reason of the fact that he is or was a director or officer of
the Corporation, or is or was serving at the request of the Corporation as a
director or officer of another corporation, or of a partnership, joint venture,
trust or other enterprise (including, without limitation, service with respect
to any employee benefit plan), whether the basis of any such Proceeding is
alleged action in an official capacity as director or officer or in any other
capacity while serving as a director or officer, against all expenses, liability
and loss (including, without limitation, attorneys' fees, judgments, fines,
ERISA excise taxes or penalties, and amounts paid or to be paid in settlement)
actually and reasonably incurred by him in connection with such Proceeding. Such
indemnification shall continue as to a person who has ceased to be a director or
officer and shall inure to the benefit of his heirs, executors, administrators
and legal representatives. The right to indemnification conferred in this By-law
shall include the right to receive payment of any expenses incurred by the
indemnitee in connection with such Proceeding in advance of the final
disposition of the Proceeding, consistent with applicable law as then in effect.
All rights to indemnification conferred in this By-law, including rights to the
advancement of expenses and the evidentiary, procedural and other provisions of
this By-law, shall be contract rights. The Corporation may, by action of its
Board of Directors, provide indemnification for employees, agents, attorneys and
representatives of the Corporation with the same, or with more or less, scope
and extent as herein provided for officers and directors. No amendment to the
Restated
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Certificate of Incorporation or amendment or repeal of the By-laws purporting to
have the effect of modifying or repealing any of the provisions of this By-law
in a manner adverse to the indemnitee shall abridge or adversely affect any
right to indemnification or other similar rights and benefits with respect to
any acts or omissions occurring prior to such amendment or repeal. This By-law
shall be applicable to all Proceedings, whether arising from acts or omissions
occurring before or after the adoption of this By-law. The phrases "this By-law"
and "By-law" shall refer to "By-laws 24 and 24A," and for all purposes, except
the corporate procedure required for amendment of the By-law, this By-law shall
be considered as one By-law.
Paragraph (b). By-Law Not Exclusive. The right of indemnification,
including the right to receive payment in advance of expenses, conferred in this
By-law shall not be exclusive of any other rights to which any person seeking
indemnification may otherwise be entitled under any provision of the Restated
Certificate of Incorporation, By-law, agreement, applicable corporate law and
statute, vote of disinterested directors or stockholders or otherwise. The
indemnitee is free to proceed under any of the rights or procedures available to
him.
Paragraph (c). Burden of Proof. In any determination, review of a
determination, action, arbitration, or other proceeding relating to the right to
indemnification conferred in this By-law, the Corporation shall have the burden
of proof that the indemnitee has not met any standard of conduct or belief which
may be required by applicable law to be applied in connection with a
determination that the indemnitee is not entitled to indemnity and also the
burden of proof on any of the issues which may be material to a determination
that the indemnitee is not entitled to indemnification. Neither a failure to
make such a determination of entitlement nor an adverse determination of
entitlement to indemnity shall be a defense of the Corporation in an action or
proceeding brought by the indemnitee or by or on behalf of the Corporation
relating to indemnification or create any presumption that the indemnitee has
not met any such standard of conduct
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or belief or is otherwise not entitled to indemnity. If successful in whole or
in part in such an action or proceeding, the indemnitee shall be entitled to be
further indemnified by the Corporation for the expenses actually and reasonably
incurred by him in connection with such action or proceeding.
Paragraph (d). Advancement of Expenses. All reasonable expenses
incurred by or on behalf of indemnitee in connection with any Proceeding shall
be advanced from time to time to the indemnitee by the Corporation promptly
after the receipt by the Corporation of a statement from the indemnitee
requesting such advance, whether prior to or after final disposition of such
Proceeding.
Paragraph (e). Insurance, Contracts and Funding. The Corporation may
purchase and maintain insurance to protect itself and any person who is, or may
become an officer, director, employee, agent, attorney, trustee or
representative (any of the foregoing being herein referred to as a
"Representative") of the Corporation or, at the request of the Corporation, a
Representative of another corporation or entity, against any expenses, liability
or loss asserted against him or incurred by him in connection with any
Proceeding in any such capacity, or arising out of his status as such, whether
or not the Corporation would have the power to indemnify him against such
expense, liability or loss under the provisions of this By-law or otherwise. The
Corporation may enter into contracts with any Representative of the Corporation,
or any person serving as such at the request of the Corporation for another
corporation or entity, in furtherance of the provisions of this By-law. Such
contracts shall be deemed specifically approved and authorized by the
stockholders of the Corporation and not subject to invalidity by reason of any
interested directors. The Corporation may create a trust fund, grant a security
interest or use other means (including, without limitation, a letter of credit)
to ensure the payment of such amounts as may be necessary to effect
indemnification of any person entitled thereto.
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Paragraph (f). Severability; Statutory Alternative. If any provision or
provisions of this By-law shall be held to be invalid, illegal or unenforceable
for any reason whatsoever (i) the validity, legality and enforceability of all
of the remaining provisions of this By-law shall not in any way be affected or
impaired thereby; and (ii) to the fullest extent possible, the remaining
provisions of this By-law shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable. In the event
that the indemnitee elects, as an alternative to the procedures specified in
this By-law, to follow one of the procedures authorized by applicable corporate
law or statute to enforce his right to indemnification and notifies the
Corporation of his election, the Corporation agrees to follow the procedure so
elected by the indemnitee. If in accordance with the preceding sentence, the
procedure therefor contemplated herein or the procedure elected by the
indemnitee in any specific circumstances (or such election by the indemnitee)
shall be invalid or ineffective in bringing about a valid and binding
determination of the entitlement of the indemnitee to indemnification, the most
nearly comparable procedure authorized by applicable corporate law or statute
shall be followed by the Corporation and the indemnitee.
24A. Procedures; Presumptions and Effect of Certain Proceedings;
Remedies.
In furtherance, but not in limitation, of the foregoing provisions of
this By-law, the following procedures, presumptions and remedies shall apply
with respect to advancement of expenses and the right to indemnification under
this By-law:
Section 1. Advancement of Expenses. The advancement or reimbursement of
expenses to an indemnitee shall be made within 20 days after the receipt by the
Corporation of a request therefor from the indemnitee. Such request shall
reasonably evidence the expenses incurred or about to be incurred by the
indemnitee and, if required by law at the time of such advance, shall include or
be accompanied by an undertaking by or on behalf of the indemnitee to repay the
amounts
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advanced if it should ultimately be determined that the indemnitee is
not entitled to be indemnified against such expenses.
Section 2. Procedure for Determination of Entitlement to
Indemnification.
Section 2.1. To obtain indemnification (except with respect to the
advancement of expenses), an indemnitee shall submit to the Chief Executive
Officer or Secretary of the Corporation a written request, including such
documentation and information as is reasonably available to the indemnitee and
reasonably necessary to determine whether and to what extent the indemnitee is
entitled to indemnification (the "Supporting Documentation"). The Secretary of
the Corporation shall promptly advise the Board of Directors in writing that the
indemnitee has requested indemnification. The determination of the indemnitee's
entitlement to indemnification shall be made not later than 60 days after
receipt by the Corporation of the written request and Supporting Documentation.
Section 2.2. The indemnitee's entitlement to indemnification shall be
determined in one of the following ways: (a) by a majority vote of the
Disinterested Directors (as hereinafter defined) (which term shall mean the
Disinterested Director, if there is only one); (b) by a written opinion of the
Independent Counsel (as hereinafter defined) if (i) a majority of the
Disinterested Directors so directs; (ii) there is no Disinterested Director, or
(iii) a Change of Control (as hereinafter defined) shall have occurred and the
indemnitee so requests in which case the Disinterested Directors shall be deemed
to have so directed; (c) by the stockholders of the Corporation (but only if a
majority of the Disinterested Directors determines that the issue of entitlement
to indemnification should be submitted to the stockholders for their
determination); or (d) as provided in Section 3 of this By-law.
Section 2.3. In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to Section 2.2 of
this By-law, a majority of the Disinterested Directors shall select the
Independent Counsel, but only an
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Independent Counsel to which the indemnitee does not reasonably object;
provided, however, that if a Change of Control shall have occurred, the
indemnitee shall select such Independent Counsel, but only an Independent
Counsel to which the Board of Directors does not reasonably object.
Section 3. Presumptions and Effect of Certain Proceedings. Except as
otherwise expressly provided in this By-law, the indemnitee shall be presumed to
be entitled to indemnification upon submission of a request for indemnification
together with the Supporting Documentation, and thereafter in any determination
or review of any determination, and in any arbitration, proceeding or
adjudication the Corporation shall have the burden of proof to overcome that
presumption in reaching a contrary determination. In any event, if the person or
persons empowered under Section 2.2 of this By-law to determine entitlement to
indemnification shall not have been appointed or shall not have made a
determination within 60 days after receipt by the Corporation of the request
therefor together with the Supporting Documentation, the indemnitee shall be
deemed to be entitled to indemnification. In either case, the indemnitee shall
be entitled to such indemnification, unless (a) the indemnitee misrepresented or
failed to disclose a material fact in making the request for indemnification or
in the Supporting Documentation or (b) such indemnification is prohibited by
law, in either case as finally determined by adjudication or, at the
indemnitee's sole option, arbitration (as provided in Section 4 of this By-law).
The termination of any Proceeding, or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, adversely affect the right of the
indemnitee to indemnification or create any presumption with respect to any
standard of conduct or belief or any other matter which might form a basis for a
determination that the indemnitee is not entitled to indemnification. With
regard to the right to indemnification for expenses, (a) if and to the extent
that the indemnitee has been successful on the merits or otherwise in any
Proceeding, or (b) if a Proceeding was
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terminated without a determination of liability on the part of the indemnitee
with respect to any claim, issue or matter therein or without any payments in
settlement or compromise being made by the indemnitee with respect to a claim,
issue or matter therein, or (c) if and to the extent that the indemnitee was not
a party to the Proceeding, the indemnitee shall be deemed to be entitled to
indemnification, which entitlement shall not be defeated or diminished by any
determination which may be made pursuant to clauses (a), (b) or (c) of Section
2.2. The indemnitee shall be presumptively entitled to indemnification in all
respects for any act, omission or conduct taken or occurring which (whether by
condition or otherwise) is required, authorized or approved by any order issued
or other action by any commission or governmental body pursuant to any federal
statute or state statute regulating the Corporation or any of its subsidiaries
by reason of its status as a public utility or public utility holding company or
by reason of its activities as such. To the extent permitted by law, the
presumption shall be conclusive on all parties with respect to acts, omissions
or conduct of the indemnitee if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation or its subsidiary. No presumption adverse to an indemnitee shall be
drawn with respect to any act, omission or conduct of the indemnitee if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation or its subsidiary taken or occurring in
the absence of, or inconsistent with, any order issued or action by any
commission or governmental body.
Section 4. Remedies of Indemnitee.
Section 4.1. In the event that a determination is made pursuant to
Section 2 of this By-law that the indemnitee is not entitled to indemnification
under this By-law, (a) the indemnitee shall be entitled to seek an adjudication
of his entitlement to such indemnification either, at the indemnitee's sole
option, in (i) an appropriate court of the
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State of Delaware or any other court of competent jurisdiction or (ii) to the
extent consistent with law, arbitration to be conducted by three arbitrators
(or, if the dispute involves less than $100,000, by a single arbitrator)
pursuant to the rules of the American Arbitration Association; (b) any such
judicial Proceeding or arbitration shall be de novo and the indemnitee shall not
be prejudiced by reason of such adverse determination; and (c) in any such
judicial Proceeding or arbitration the Corporation shall have the burden of
proof that the indemnitee is not entitled to indemnification under this By-law.
Section 4.2. If a determination shall have been made or deemed to have
been made, pursuant to Sections 2 or 3 of this By-law, that the indemnitee is
entitled to indemnification, the Corporation shall be obligated to pay the
amounts constituting such indemnification within five days after such
determination has been made or deemed to have been made and shall be
conclusively bound by such determination, unless (a) the indemnitee
misrepresented or failed to disclose a material fact in making the request for
indemnification or in the Supporting Documentation or (b) such indemnification
is prohibited by law, in either case as finally determined by adjudication or,
at the indemnitee's sole option, arbitration (as provided in Section 4.1 of this
By-law). In the event that (i) advancement of expenses is not timely made by the
Corporation pursuant to this By-law or (ii) 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 2 or 3 of this
By-law, the indemnitee shall be entitled to seek judicial enforcement of the
Corporation's obligations to pay to the indemnitee such advancement of expense
of indemnification. Notwithstanding the foregoing, the Corporation may bring an
action, in an appropriate court in the State of Delaware or any other court of
competent jurisdiction, contesting the right of the indemnitee to receive
indemnification hereunder due to the occurrence of a circumstance described in
subclause (a) of this Section 4.2 or a prohibition of law (both of which are
herein
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referred to as a "Disqualifying Circumstance"). In either instance, if
the indemnitee shall elect, at his sole option, that such dispute shall be
determined by arbitration (as provided in Section 4.1 of this By-law), the
indemnitee and the Corporation shall submit the controversy to arbitration. In
any such enforcement action or other proceeding whether brought by the
indemnitee or the Corporation, indemnitee shall be entitled to indemnification
unless the Corporation can satisfy the burden or proof that indemnification is
prohibited by reason of a Disqualifying Circumstance.
Section 4.3. The Corporation shall be precluded from asserting in any
judicial Proceeding or arbitration commenced pursuant to this Section 4 that the
procedures and presumptions of this By-law are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
or arbitrators that the Corporation is bound by all the provisions of this
By-law.
Section 4.4. In the event that the indemnitee, pursuant to this By-law,
seeks a judicial adjudication of or an award in arbitration to enforce his
rights under, or to recover damages for breach of, this By-law, or is otherwise
involved in any adjudication or arbitration with respect to his right to
indemnification, the indemnitee shall be entitled to recover from the
Corporation, and shall be indemnified by the Corporation against, any expenses
actually and reasonably incurred by him if the indemnitee prevails in such
judicial adjudication or arbitration. If it shall be determined in such judicial
adjudication or arbitration 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 prorated accordingly.
Section 5. Definitions. For purposes of indemnification under this
By-law or otherwise.
Section 5.1. "Change in Control" means a change in control of the
Corporation of a nature that would be required to be reported in response to
Schedule 14A of
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Regulation 14A promulgated under the Securities Exchange Act of 1934 (the
"Act"), whether or not the Corporation is then subject to such reporting
requirement; provided that, without limitation, such a change in control shall
be deemed to have occurred if (a) any "person" (as such term is used in Sections
13(d) and 14(d) of the Act) is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Act), directly or indirectly, of securities of the
Corporation representing 20 percent or more of the combined voting power of the
Corporation's then outstanding securities without the prior approval of at least
two-thirds of the members of the Board of Directors in office immediately prior
to such acquisition; (b) 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 (c) 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.
Section 5.2. "Disinterested Director" means a Director of the
Corporation who is not or was not a material party to the Proceeding in respect
of which indemnification is sought by the indemnitee.
Section 5.3. "Independent Counsel" means a law firm or a member of a
law firm that neither presently is, nor in the past five years has been,
retained to represent (a) the Corporation or the indemnitee in any manner or (b)
any other party to the Proceeding giving rise to a claim for indemnification
under this By-law. Notwithstanding the foregoing, the term "Independent Counsel"
shall not include any person who, under the applicable standards of professional
conduct then prevailing under the law of the
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State of Delaware, would have a conflict of interest in representing either the
Corporation or the indemnitee in an action to determine the indemnitee's rights
under this By-law.
Section 6. Acts of Disinterested Directors. Disinterested Directors
considering or acting on any indemnification matter under this By-law or under
governing corporate law or otherwise may consider or take action as the Board of
Directors or may consider or take action as a committee or individually or
otherwise. In the event that Disinterested Directors consider or take action as
the Board of Directors, one-third of the total number of Directors in office
shall constitute a quorum.
AMENDMENTS OF BYLAWS
--------------------
25. These By-laws may be amended or altered by the vote of a
majority of the whole Board of Directors at any meeting provided that notice of
such proposed amendment shall have been given in the notice given to the
Directors of such meeting. Such authority in the Board of Directors is subject
to the power of the stockholders to change or repeal any By-laws by a majority
vote of the stockholders present and represented at any annual meeting or at any
special meeting called for such purpose, and the Board of Directors shall not
repeal or alter any By-laws, other than By-law 24A, adopted by the stockholders.
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