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) July 9, 1993
THE HERTZ CORPORATION
(Exact Name of registrant as specified in its
charter)
Delaware 1-7541 13-1938568
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
225 Brae Boulevard, Park Ridge, New Jersey 07656-0713
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (201) 307-2000
Not Applicable
(Former name or former address, if changed since last report)
Page 1 of 61 pages.
The Exhibit Index is on page 3 .
Item 5. Other Events.
An exhibit is filed herewith in connection with the Registration
Statement on Form S-3 (File No. 33-62902) filed by The Hertz
Corporation ("Hertz"), with the Securities and Exchange
Commission covering Debt Securities issuable under an Indenture
dated as of July 1, 1993, between Hertz and Citibank, N.A. as
Trustee (the "Junior Subordinated Indenture"). On July 9, 1993,
Hertz offered for sale $150,000,000 aggregate principal amount of
6-5/8% Junior Subordinated Notes due July 15, 2000 and
$250,000,000 aggregate principal amount of 7% Junior Subordinated
Notes due July 15, 2003, to be issued under the Junior
Subordinated Indenture. The exhibits filed herewith include the
form of such Notes.
Pursuant to the merger of Park Ridge Corporation with and into
Hertz effective July 19, 1993, Hertz amended and restated its
Certificate of Incorporation and adopted new By-laws. These
documents are filed herewith as exhibits.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
3(i) Restated Certificate of Incorporation of Hertz filed
with the Secretary of State of Delaware on July 19,
1993.
3(ii) By-laws of Hertz adopted by its Board of Directors on
July 19, 1993.
4(a) Form of 6-5/8% Junior Subordinated Notes due July 15,
2000, issued by Hertz under the Junior Subordinated
Indenture.
4(b) Form of 7% Junior Subordinated Notes due July 15, 2003,
issued by Hertz under the Junior Subordinated
Indenture.
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 hereunto duly authorized.
THE HERTZ CORPORATION
(Registrant)
By: /s/Leo A. Massad, Jr.
Leo A. Massad, Jr.
Staff Vice President
and Controller
(Principal Accounting Officer)
Date: July 20, 1993
Exhibit Index
Exhibit No. Description
Page
3(i) Restated Certificate of Incorporation
of Hertz filed with the Secretary of
State of Delaware on July 19, 1993.
4-20
3(ii) By-laws of Hertz adopted by its Board
of Directors on July 19, 1993.
21-49
4(a) Form of 6-5/8% Junior Subordinated
Notes due July 15, 2000, issued by Hertz
under the Junior Subordinated Indenture.
50-55
4(b) Form of 7% Junior Subordinated Notes due
July 15, 2003, issued by Hertz under the
Junior Subordinated Indenture.
56-61
EXHIBIT 3(i)
RESTATED CERTIFICATE OF INCORPORATION
OF
THE HERTZ CORPORATION
Under Section 245 of the General Corporation Law
of the State of Delaware
This Restated Certificate of Incorporation of The
Hertz Corporation restates and amends such corporation's amended
Certificate of Incorporation, such corporation's original
Certificate of Incorporation having been filed with the Secretary
of State of the State of Delaware on April 19, 1967 under the
name New Aitch, Inc., and was duly adopted in the manner and by
the vote prescribed by Section 242, in accordance with the
provisions of Section 245, of the General Corporation Law of the
State of Delaware.
FIRST: The name of the corporation (hereinafter
called the "Corporation") is:
The Hertz Corporation.
SECOND: The address of the registered office of
the
Corporation in the State of Delaware is Corporation Trust Center,
1209 Orange Street, City of Wilmington, County of New Castle.
The name of the registered agent of the Corporation at such
address is The Corporation Trust Company.
THIRD: 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.
FOURTH: The total number of shares of all classes
of stock which the Corporation shall have authority to issue is
5,501,800 shares, consisting of 4,500,000 shares of 10%
Cumulative Series A Preferred Stock, par value $100 per share
("Series A Preferred Stock"), 1,000,000 shares of Variable Rate
Cumulative Series B Preferred Stock, par value $100 per share
("Series B Preferred Stock", and together with the Series A
Preferred Stock, "Preferred Stock"). 200 shares of Class A
Common Stock, par value $1.00 per share ("Class A Stock"), 800
shares of Class B Common Stock, par value $1.00 per share ("Class
B Stock") and 800 shares of Class C Common Stock, par value $1.00
per share ("Class C Stock", and together with the Class A Stock
and Class B Stock, "Common Stock").
PREFERRED STOCK
Section 1.1. Voting Rights. (a) The holders of
shares of Preferred Stock shall not have any voting powers either
general or special, except as required by law or as provided in
this Article FOURTH.
(b) If an Event of Default (as defined below)
shall
have occurred and be continuing, the number of directors
constituting the Board of Directors shall, without further
action, be increased by two and the holders of shares of Series A
Preferred Stock, voting separately as a class, shall be entitled
to elect such additional directors (the "Series A Directors") at
a special meeting of such holders called by the Secretary of the
Corporation in accordance with a written request of the holders
of at least 10% of the outstanding shares of Series A Preferred
Stock. Except as set forth in this Section 1.1(b), each of the
Series A Directors shall hold office until his successor shall be
duly elected by the holders of shares of Series A Preferred
Stock, voting separately as a class, at any annual or other
meeting of stockholders of the Corporation held to elect
directors. The right of the holders of the shares of Series A
Preferred Stock to elect the Series A Directors shall continue
until no Event of Default shall be continuing, whether as a
result of such Event of Default being cured or otherwise,
whereupon the holders of shares of Series A Preferred Stock shall
be divested of such right, subject to such right vesting again
upon the reoccurrence of any Event of Default. Upon such
divestment, the terms of office of the Series A Directors shall
terminate and the number of the directors of the Corporation
shall be reduced correspondingly. Any Series A Director may be
removed, with or without cause, by the holders of Series A
Preferred Stock or, with cause, by the Board of Directors. Any
vacancy among the Series A Directors may be filled solely by the
holders of shares of Series A Preferred Stock, voting separately
as a class. For the purposes of this Certificate of
Incorporation, "Event of Default" shall mean failure to pay the
full Redemption Price upon redemption of Preferred Stock pursuant
to Section 1.4 and "Redemption Price" shall mean an amount per
share equal to the par value thereof plus accrued and unpaid
dividends thereon.
(c) If a Consolidation Event (as defined below)
shall have occurred and be continuing, the number of directors
constituting the Board of Directors shall, without further
action, be increased by the smallest number of directors which
when added to the number of directors entitled to be elected by
the Class C Stock shall constitute at least 80% of the total
number of directors then comprising the Board of Directors, after
giving effect to such increase, and the holders of shares of
Series B Preferred Stock, voting separately as a class, shall be
entitled to elect such additional directors (the "Series B
Directors") by written consent delivered to the Secretary of the
Corporation. Except as set forth in this Section 1.1(c), each of
the Series B Directors shall hold office until his successor
shall be duly elected by the holders of shares of Series B
Preferred Stock, voting separately as a class, at any annual or
other meeting of stockholders of the Corporation held to elect
directors. The right of the holders of the shares of Series B
Preferred Stock to elect the Series B Directors shall continue
until the Consolidation Event is cured, whereupon the holders of
shares of Series B Preferred Stock shall be divested of such
right, subject to such right vesting again upon the reoccurrence
of a Consolidation Event. Upon such divestment, the terms of
office of the Series B Directors shall terminate and the number
of the directors of the Corporation shall be reduced
correspondingly. Any Series B Director may be removed, with or
without cause, by the holders of Series B Preferred Stock or,
with cause, by the Board of Directors. Any vacancy among the
Series B Directors may be filled solely by the holders of shares
of Series B Preferred Stock, voting separately as a class. For
the purposes of this Section 1.1(c), a "Consolidation Event"
shall occur if (i) the Corporation shall experience a net
operating loss for Federal income tax purposes for any taxable
year, (ii) the Corporation shall forecast in good faith that for
the immediately following taxable year it also expects to have
significant and continuing net operating losses for Federal
income tax purposes and (iii) Ford Motor Company, a Delaware
corporation ("Ford"), as holder of all the shares of the Series B
Preferred Stock, shall certify in a writing delivered to the
Secretary of the Corporation that (A) Ford intends to exercise
the rights granted to it as holder of the shares of Series B
Preferred Stock pursuant to this Section 1.1(c) (and any Series B
Directors named in such certificate shall thereby be deemed
elected to the Board of Directors of the Corporation), (B) Ford
will thereafter be legally entitled to file a Federal
consolidated income tax return that includes the Corporation for
the taxable year next following the Corporation's net operating
loss referred to in clause (i) above and (C) Ford and the
Corporation have entered into a tax sharing agreement which
satisfies the provisions of Paragraph 2.1(c) of the Stockholders
Agreement dated as of July 7, 1993, among the Corporation, Park
Ridge Corporation and the stockholders of the Corporation
("Stockholders Agreement"). For the purposes of this Section
1.1(c), a Consolidation Event shall be deemed cured and no longer
continuing if (x) the Corporation shall realize gross income in
excess of deductions for Federal income tax purposes for any
taxable year, (y) the Corporation shall forecast in good faith
during the immediately following taxable year that it also
expects to have gross income in excess of deductions for Federal
income tax purposes and (z) the Board of Directors of the
Corporation shall by resolution declare the Consolidation Event
to be cured.
Section 1.2. Dividends. (a) The holders of
shares
of Series A Preferred Stock shall be entitled to receive, when
and as declared by the Board of Directors out of any funds
legally available for the payment of dividends, cumulative cash
dividends per share of Series A Preferred Stock which shall
accrue from the date on which the merger of Park Ridge
Corporation into the Corporation (The "Park Ridge Merger") became
effective, with respect to the par value thereof through and
including December 31, 1998, at the rate of 10% per annum and for
each calendar year thereafter at the Adjusted Rate for such
calendar year. Each share of Series A Preferred Stock issued
pursuant to the Park Ridge Merger shall, upon issuance, be
entitled to receive, when and as declared by the Board of
Directors out of funds legally available for the payment of
dividends, cumulative cash dividends equal to the amount of cash
dividends accrued but not declared and paid on a share of 10%
Cumulative Series A Preferred Stock, par value $100 per share, of
Park Ridge Corporation at the time of the Park Ridge Merger.
(b) The holders of shares of Series B Preferred
Stock shall be entitled to receive, when and as declared by the
Board of Directors out of any funds legally available for the
payment of dividends, cumulative cash dividends per share of
Series B Preferred Stock which shall accrue from the date on
which the Park Ridge Merger became effective, with respect to the
par value thereof during each year listed below at the annual
rate specified for such year under the column entitled "Variable
Rate" and for each calendar year thereafter at the Adjusted Rate
for such calendar year:
Calendar Variable
Year Rate
1993 4.66%
1994 4.05
1995 3.39
1996 2.68
1997 1.89
1998 1.01
Each share of Series B Preferred Stock issued pursuant to the
Park Ridge Merger shall, upon issuance, be entitled to receive,
when and as declared by the Board of Directors out of funds
legally available for the payment of dividends, cumulative cash
dividends equal to the amount of cash dividends accrued but not
declared and paid on a share of Variable Rate Cumulative Series B
Preferred Stock, par value $100 per share, of Park Ridge
Corporation at the time of the Park Ridge Merger.
(c) The cumulative cash dividends for any share
of Preferred Stock which remain unpaid at the end of any calendar
year shall accrue additional cumulative cash dividends for each
subsequent calendar year at the rate established for the accrual
of dividends on such share of Preferred Stock during such
subsequent year pursuant to Sections 1.2(a) or 1.2(b) above.
Except as set forth in this Section 1.2, no other dividends shall
accrue, cumulate, be declared or paid with respect to shares of
Preferred Stock. For the purposes of this Section 1.2, "Adjusted
Rate" for any calendar year shall mean an annual dividend rate
equal to 105% of the current dividend rate at January 1 of such
year for comparable securities, as determined by an investment
banking firm approved by the holders of a majority of the
outstanding Class A Stock, voting separately as a class, and by
the holders of a majority of the outstanding Preferred Stock,
voting together as a single class (with each such share of
Preferred Stock entitled to one vote). All dividends provided
for by this Section 1.2 shall accrue based on the actual number
of days in a year of 365 or 366 days, as the case may be.
Section 1.3. Rights Upon Liquidation. In the
event of dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, the holders of the
shares of Preferred Stock shall be entitled to receive the
Redemption Price for each such share before any dividend or
distribution shall be made to the holders of the Common Stock of
the Corporation. If the assets of the Corporation distributable
to the stockholders on liquidation, dissolution or winding up
shall be insufficient to pay the aggregate amount to be paid to
the holders of the shares of Preferred Stock, such assets shall
be distributed to the holders of the shares of Preferred Stock
ratably, without preference or priority, in proportion to the
amounts which would otherwise be paid to each such holder under
this Section 1.3.
Section 1.4. Optional Redemption. The
Preferred
Stock is redeemable at the option of the Corporation, in whole at
any time, or in part from time to time, on not less than 10 days'
notice, at an amount per share equal to the Redemption Price. On
and after the later of the redemption date established pursuant
to the notice set forth above and the date on which funds are
made available for such redemption, dividends will cease to
accumulate on shares of Preferred Stock called for redemption.
The Board of Directors may cause the transfer books of the
Corporation to be closed as to the shares of Preferred Stock to
be redeemed and such shares shall be canceled and not reissued
and the authorized capital correspondingly reduced.
COMMON STOCK
Section 2.1. Voting. (a) Except as provided
by
law or as otherwise set forth in this Certificate of
Incorporation, the holders of shares of Common Stock shall be
entitled to vote in all matters at all meetings of the
stockholders of the Corporation, shall be entitled to one vote
for each share of Common Stock so held and shall vote together
and not as separate classes.
(b) Until the total number of outstanding
shares
of Class C Stock shall first fall below 40, the holders of shares
of Class C Stock, voting separately as a class, shall be entitled
to elect that number of directors of the Corporation (the "Class
C Directors") equal to the greater of (i) three and (ii) the
smallest number of directors of the Corporation which shall
represent at least 40% of its Board of Directors as then
constituted, and the holders of shares of Class C Stock shall,
for each such share, be entitled at every meeting of the
stockholders of the Corporation to that number of votes, which
may be or include a fraction of a vote, equal to the greater of
(x) one and (y) the quotient derived by dividing the total number
of outstanding shares of Class C Stock into a number equal to
two-thirds of the aggregate number of votes which could be cast
by the holders of all of the outstanding shares of Common Stock
other than Class C Stock if they were present at such meeting.
Any Class C Directors may be removed, with or without cause, by
the holders of Class C Stock or, with cause, by the Board of
Directors. Any vacancy among the Class C Directors may be filled
solely by the holders of shares of Class C Stock, voting
separately as a class. From and after the time when the total
number of outstanding shares of Class C Stock shall first fall
below 40, the holders of the shares of Class C Stock shall be
entitled only to one vote per share and shall have no right to
vote separately as a class for directors of the Corporation.
Section 2.2. Dividends. (a) Subject to
Section 2.2(c) below, the holders of shares of Class A Stock
shall be entitled to receive, when and as declared by the Board
of Directors out of any funds legally available for the payment
of dividends, cumulative cash dividends per share of Class A
Stock which shall accrue from December 31, 1987, at the rate of
9.85% per annum on the amount of $100,000 per share. Subject to
Section 2.2(c) below, each share of Class A Stock issued pursuant
to the Park Ridge Merger shall, upon issuance, be entitled to
receive, when and as declared by the Board of Directors out of
funds legally available for the payment of dividends, cumulative
cash dividends equal to the amount of cash dividends accrued but
not declared and paid on a share of Class A Common Stock, par
value $1.00 per share, of Park Ridge Corporation at the time of
the Park Ridge Merger. The cumulative dividends for any share of
Class A Stock which remain unpaid at the end of any calendar year
shall accrue additional cumulative cash dividends for each
subsequent year at the rate of 9.85% per annum. All dividends
shall accrue on a daily basis based on the actual number of days
in a year of 365 or 366 days, as the case may be.
(b) Subject to Section 2.2(c) below, holders of
Common Stock shall be entitled to receive dividends (other than
dividends declared with respect to Class A Stock above) as may be
declared from time to time by the Board of Directors in its
discretion from assets legally available for the payment of
dividends, provided that 80% of such dividends are to be
distributed to the holders of Class B Stock and Class C Stock,
considered as a single class, and 20% of such dividends are to be
distributed to the holders of Class A Stock, as a class, unless
the aggregate amount of such dividends declared during any fiscal
year of the Corporation exceeds 50% of the net profits of the
Corporation for such fiscal year, in which case such excess
dividends ("Special Dividends") shall be distributed to the
holders of shares of Common Stock in the priority set forth in
Section 2.3 below giving effect to all prior Special Dividends.
No dividends shall be declared or paid on the Class B Stock or
Class C Stock except as provided for in this Section 2.2(b).
(c) No cash dividends shall be declared or paid
on the Common Stock while any shares of Preferred Stock remain
outstanding.
Section 2.3. Rights Upon Liquidation. In the
event of the dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, after distribution
to the holders of all shares of Preferred Stock of the full
preferential amounts to which the holders of Preferred Stock are
entitled, the holders of Common Stock shall be entitled to share
in the distribution of the assets of the Corporation or the
proceeds thereof in the following priority of distribution giving
effect to distributions of Special Dividends as distributions
having been made under this Section 2.3:
(i) first, the holders of shares of Class B Stock and
Class C Stock shall be entitled to be paid in cash a
liquidation value of $100,000 for each such share;
(ii) second, the holders of Class A Stock shall be
entitled to be paid a liquidation value of $100,000 per share
of Class A Stock plus accrued and unpaid dividends to the
date of payment;
(iii) third, the holders of Class B Stock and Class C
Stock, considered as a single class, and the holders of Class
A Stock, as a class, shall each, to the extent of the next
$300 million of assets and proceeds, be entitled to receive
50% of the distributions of assets and proceeds (up to
$150 million for each of such two classes); and
(iv) fourth, the holders of shares of Common Stock shall
be entitled to all remaining assets and proceeds pro rata in
accordance with the number of such shares so held.
Assets and proceeds of the Corporation distributable to the
holders of Class B Stock and Class C Stock, considered as a
single class, and assets and proceeds of the Corporation
distributable to the holders of the Class A Stock, as a class,
shall, in each such case, be distributed to such holders ratably,
without preference or priority, in proportion to the number of
shares which are part of such class held by such holder.
Section 2.4. Convertibility of Class C Stock.
Any holder of shares of Class C Stock shall be
entitled at any time and from time to time to convert any and all
of such shares held by him into the same number of shares of
Class B Stock by surrendering certificates representing the
shares to be converted at the office of the Secretary of the
Corporation together with proper instruments of transfer to the
Corporation or in blank, stock transfer tax stamps as may be
required, if any, and a notice signed by such holder setting
forth the number of such shares that such holder elects to
convert and the name or names in which the certificate or
certificates for shares of Class B Stock are to be issued. The
Corporation shall, as soon as practicable after such surrender of
certificates representing shares of Class C Stock together with
funds necessary to reimburse the Corporation for transfer taxes,
if any, issue and deliver at its expense to the person for whose
account such certificates were surrendered certificates for the
number of shares of Class B Stock to which such person shall be
entitled. Any such conversion shall be deemed to have been made
as of the date such surrender of certificates for shares of Class
C Stock to be converted was duly made. The Corporation shall not
reissue or resell any shares of Class C Stock which shall have
been so converted into shares of Class B Stock.
FIFTH: For the management of the business and for the
conduct of the affairs of the Corporation, and in further
definition, limitation and regulation of the powers of the
Corporation and of its directors and stockholders, it is
further provided that:
(i) subject to the provisions of this Certificate of
Incorporation, the number of directors of the Corporation
shall be fixed by, or in the manner provided in, the By-laws
of the Corporation;
(ii) in furtherance and not in limitation of the powers
conferred by the laws of the State of Delaware, the Board of
Directors is expressly authorized and empowered to adopt,
alter, amend or repeal the By-laws of the Corporation,
subject to any limitation of such authority and power
expressly set forth herein or in such By-laws; and
(iii) unless and except to the extent that the By-laws of
the Corporation shall so require, the election of directors
of the Corporation need not be by written ballot.
SIXTH: The Corporation reserves the right at any time,
and from time to time, to alter, amend or repeal any provision
contained in this Certificate of Incorporation; 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 this Certificate of
Incorporation; 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 (other
than by and pursuant to the last sentence of Article SEVENTH of
this Certificate of Incorporation) are granted subject to the
right reserved in this Article SIXTH.
SEVENTH: To the fullest extent permitted by the General
Corporation Law of the State of Delaware as it exists on the date
hereof or as it may hereafter be amended, a director of the
Corporation shall not be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as
a director. No amendment to or repeal of this Article SEVENTH
shall apply to or have any effect on the liability or alleged
liability of any director of the Corporation for or with respect
to any acts or omissions of such director occurring prior to such
amendment or repeal.
IN WITNESS WHEREOF, this Restated Certificate of
Incorporation has been signed in the name and on behalf of the
Corporation, and attested to, by the duly elected officers of the
Corporation as indicated below this 19th day of July, 1993.
___________________________
Attest:
_________________________
Secretary
EXHIBIT 3(ii)
BY-LAWS
OF
THE HERTZ CORPORATION
(a Delaware corporation)
ARTICLE I
Offices
SECTION 1.01. Registered Office. The
registered
office of the Corporation in the State of Delaware shall be at
1209 Orange Street, City of Wilmington, County of New Castle.
The name of the registered agent in charge thereof is The
Corporation Trust Company.
SECTION 1.02. Other Offices. The Corporation
may
also have offices at other places, either within or without the
State of Delaware, as the Board of Directors may from time to
time determine or as the business of the Corporation may require.
ARTICLE II
Meetings of Stockholders
SECTION 2.01. Annual Meetings. The annual
meeting of the stockholders for the election of directors and for
the transaction of such other business as may properly come
before the meeting shall be held at such place (within or without
the State of Delaware), date and hour as shall be designated in
the notice thereof.
SECTION 2.02. Special Meetings. Special
meetings
of the stockholders for any purpose or purposes may be called by
the Board, the Executive Committee, the Chairman of the Board, or
if that office be vacant, the President, if elected, or by a
stockholder or stockholders holding of record at least 25% of all
shares of the Corporation entitled to vote thereat to be held at
such place (within or without the State of Delaware), date and
hour as shall be designated in the notice thereof.
SECTION 2.03. Notice of Meetings. Except as
otherwise expressly required by law, notice of each meeting of
the stockholders shall be given not less than 10 nor more than 60
days before the date of the meeting to each stockholder entitled
to vote at such meeting by mailing such notice, postage prepaid,
directed to each stockholder at the address thereof as it appears
on the records of the Corporation. Every such notice shall state
the place, date and hour of the meeting and, in the case of a
special meeting, the purpose or purposes for which the meeting is
called. Except as provided in the immediately succeeding
sentence or as otherwise required by law, notice of any adjourned
meeting of the stockholders need not be given if the time and
place thereof are announced at the meeting theretofore adjourned.
If the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting,
notice of the adjourned meeting shall be given to each
stockholder entitled to vote at such adjourned meeting. A
written waiver of notice signed by a stockholder entitled
thereto, whether before or after the time stated therein, shall
be deemed equivalent to notice. Attendance of a stockholder in
person or by proxy at a stockholders' meeting shall constitute a
waiver of notice to such stockholder of such meeting, except when
such stockholder attends the meeting for the express purpose of
objecting at the beginning of the meeting to the transaction of
any business because the meeting is not lawfully called or
convened.
SECTION 2.04. List of Stockholders. It shall
be
the duty of the Secretary or other officer of the Corporation who
shall have charge of its stock ledger to prepare and make, at
least 10 days before every meeting of the 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
10 days prior to the meeting either at a place specified in the
notice of the meeting within the city where the meeting is to be
held, or, if not so specified, at the place where the meeting is
to be held. Such 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 2.05. Quorum. At each meeting of the
stockholders, except as otherwise expressly required by law,
stockholders holding a majority of the shares of stock of the
Corporation issued and outstanding, and entitled to be voted at
the meeting, shall be present in person or by proxy to constitute
a quorum for the transaction of business. In the absence of a
quorum at any such meeting or any adjournment or adjournments
thereof, a majority in voting interest of those present in person
or by proxy and entitled to vote thereat, or, in the absence
therefrom of all the stockholders, any officer entitled to
preside at, or to act as secretary of, such meeting may adjourn
such meeting from time to time until stockholders holding the
amount of stock requisite for a quorum shall be present in person
or by proxy. At any such adjourned meeting at which a quorum may
be present, any business may be transacted that might have been
transacted at the meeting as originally called.
SECTION 2.06. Organization. At each meeting of
the stockholders, one of the following shall act as chairman of
the meeting and preside thereat, in the following order of
precedence:
(a) the Chairman of the Board;
(b) the President, if elected;
(c) any other officer of the Corporation
designated by the Board or the Executive Committee to act as
chairman of such meeting and to preside thereat if the
Chairman of the Board and the President, if elected, shall be
absent from such meeting; or
(d) a stockholder of record of the Corporation
who
shall be chosen chairman of such meeting by a majority in
voting interest of the stockholders present in person or by
proxy and entitled to vote thereat.
The Secretary or, if he or she shall be presiding over the
meeting in accordance with the provisions of this Section or if
he or she shall be absent from such meeting, the person (who
shall be an Assistant Secretary if an Assistant Secretary shall
be present thereat) whom the chairman of such meeting shall
appoint, shall act as secretary of such meeting and keep the
minutes thereof.
SECTION 2.07. Order of Business. The order of
business at each meeting of the stockholders shall be determined
by the chairman of such meeting, but such order of business may
be changed by a majority in voting interest of those present in
person or by proxy at such meeting and entitled to vote thereat.
SECTION 2.08. Voting. Each holder of voting
stock of the Corporation shall, at each meeting of the
stockholders, be entitled to one vote in person or by proxy for
each share of stock of the Corporation held by the holder and
registered in the holder's name on the books of the Corporation
(a) on the date fixed pursuant to the provisions
of Section 8.04 of Article VIII of these By-laws as the
record date for the determination of stockholders who shall
be entitled to receive notice of and to vote at such meeting,
or
(b) if no record date shall have been so fixed,
then at the close of business on the day next preceding the
day on which notice of the meeting shall be given or, if
notice shall be waived, at the close of business on the day
next preceding the day on which the meeting shall be held.
Shares of its own stock belonging to the Corporation or to
another corporation, if a majority of the shares entitled to vote
in the election of directors of such other corporation is held by
the Corporation, shall neither be entitled to vote nor be counted
for quorum purposes. Any vote of stock of the Corporation may be
given at any meeting of the stockholders by the stockholders
entitled thereto in person or by proxy appointed by an instrument
in writing delivered to the Secretary or an Assistant Secretary
of the Corporation or the secretary of the meeting. The
attendance at any meeting of a stockholder who may theretofore
have given a proxy shall not have the effect of revoking the same
unless the stockholder shall in writing so notify the secretary
of the meeting prior to the voting of the proxy. At all meetings
of the stockholders, all matters, except as otherwise required by
law or in these By-laws, shall be decided by the vote of a
majority of the votes cast by stockholders present in person or
by proxy and entitled to vote thereat, a quorum being present.
Except as otherwise required by law, the vote at any meeting of
the stockholders on any question need not be by ballot, unless so
directed by the chairman of the meeting. On a vote by ballot,
each ballot shall be signed by the stockholder voting, or by the
stockholder's proxy, if there be such proxy, and shall state the
number of shares voted.
SECTION 2.09. Action by Written Consent. Any
action required or permitted to be taken at any annual or special
meeting of the stockholders may be taken without a meeting,
without prior notice and without a vote if a consent in writing,
setting forth the action so taken, shall be signed by the holders
of outstanding stock of the Corporation having not less than the
minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to
vote thereon were present and voted. The Secretary or Assistant
Secretary shall file such consent or consents with the minutes of
stockholders' meetings and shall give prompt notice (in the
manner provided in Section 2.03 of this Article II) of the taking
of any action without a meeting by less than unanimous written
consent to those stockholders who have not consented in writing.
If no record date for determining the shareholders entitled to
express consent to corporate action without a meeting is fixed by
the Board, the record date therefor shall be the day on which the
first written consent is received.
ARTICLE III
Board of Directors
SECTION 3.01. General Powers. The business and
affairs of the Corporation shall be managed by or under the
direction of the Board of Directors, which may exercise all such
powers of the Corporation and do all such lawful acts and things
as are not by law or by the Certificate of Incorporation directed
or required to be exercised or done by the stockholders.
SECTION 3.02. Number and Term of Office. The
number of directors which shall constitute the whole Board shall
be fixed from time to time by a vote of a majority of the whole
Board. The term "whole Board" is used herein to refer to the
number of directors from time to time authorized to be on the
Board of Directors regardless of the number of directors then in
office. Directors need not be stockholders or citizens or
residents of the United States of America. Each of the directors
of the Corporation shall hold office until the annual meeting of
the stockholders held next after his or her election at which his
or her term expires and until his or her successor is elected and
qualified or until his or her earlier death or until his or her
earlier resignation or removal in the manner hereinafter
provided.
SECTION 3.03. Election. At each meeting of the
stockholders for the election of directors at which a quorum is
present, the persons receiving the greatest number of votes, up
to the number of directors to be elected, shall be the directors.
SECTION 3.04. Resignation, Removal and
Vacancies.
Any director may resign at any time by giving written notice of
his or her resignation to the Chairman of the Board or the
Secretary of the Corporation. Any such resignation shall take
effect at the time specified therein, or, if the time when it
shall become effective shall not be specified therein, then it
shall take effect when accepted by action of the Board. Except
as aforesaid, the acceptance of such resignation shall not be
necessary to make it effective. A director may be removed,
either with or without cause, at any time by a vote of a majority
in voting interest of the stockholders. Any vacancy occurring on
the Board for any reason may be filled by a majority of the
directors then in office, though less than a quorum, or by a sole
remaining director. The director elected to fill such vacancy
shall hold office for the unexpired term in respect of which such
vacancy occurred.
SECTION 3.05. Meetings. (a) Annual Meetings.
As soon as practicable after each annual election of directors,
the Board shall meet for the purpose of organization and the
transaction of other business.
(b) Regular Meetings. Regular meetings of the
Board shall be held at such times and places as the Board shall
from time to time determine.
(c) Special Meetings. Special meetings of the
Board shall be held whenever called by the Chairman of the Board,
the President, if elected, or a majority of the directors then in
office. Any and all business may be transacted at a special
meeting that may be transacted at a regular meeting of the Board.
(d) Place of Meeting. The Board may hold its
meetings at such place or places within or without the State of
Delaware as the Board may from time to time by resolution
determine or as shall be designated in the respective notices or
waivers of notice thereof.
(e) Notice of Meetings. Notices of regular
meetings of the Board or of any adjourned meeting need not be
given. Notices of special meetings of the Board, or of any
meeting of any committee of the Board that has not been fixed in
advance as to time and place by such committee, shall be mailed
by the Secretary or an Assistant Secretary to each director or
member of such committee, addressed to him or her at his or her
residence or usual place of business, at least two days before
the day on which such meeting is to be held, or shall be sent to
him by telegraph, telecopy or other form of recorded
communication or be delivered personally or by telephone not
later than the day before the day on which such meeting is to be
held. Such notice shall include the time and place of such
meeting. Notice of any such meeting need not be given to any
director or member of any committee, however, if waived by him or
her in writing or by telegraph, telecopy or other form of
recorded communication, whether before or after such meeting
shall be held, or if he or she shall be present at such meeting.
(f) Quorum and Manner of Acting. Except as
otherwise required by law, the Certificate of Incorporation or
these By-laws, at least one-half of the total number of directors
shall be present in person at any meeting of the Board in order
to constitute a quorum for the transaction of business at such
meeting. In each case the vote of a majority of those directors
present at any such meeting at which a quorum is present shall be
necessary for the passage of any resolution or any act of the
Board, except as otherwise required by law or these By-laws. In
the absence of a quorum for any such meeting, a majority of the
directors present thereat may adjourn such meeting from time to
time until a quorum shall be present thereat.
(g) Action by Communications Equipment. The
directors, or the members of any committee of the Board, may
participate in a meeting of the Board, or of such committee, by
means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can
hear each other, and such participation shall constitute presence
in person at such meeting.
(h) Action by Consent. Any action required or
permitted to be taken at any meeting of the Board, or of any
committee thereof, may be taken without a meeting if all members
of the Board or committee, as the case may be, consent thereto in
writing and such writing is filed with the minutes of the
proceedings of the Board or such committee.
(i) Organization. At each such meeting of the
Board, either the Chairman of the Board or, if the Chairman of
the Board shall be absent from such meeting, a director chosen by
a majority of the directors present thereat shall act as chairman
of the meeting and preside thereat. The Secretary or, in case of
his or her absence, any person (who shall be an Assistant
Secretary, if an Assistant Secretary shall be present thereat)
whom the chairman shall appoint, shall act as secretary of such
meeting and keep the minutes thereof.
SECTION 3.06. Compensation. Directors, as
such,
shall not receive any stated salary for their services, but by
resolution of the Board may receive a fixed sum and expenses
incurred in performing the functions of director and member of
any committee of the Board. Nothing herein contained shall be
construed so as to preclude any director from serving the
Corporation in any other capacity and receiving compensation
therefor.
ARTICLE IV
Committees
SECTION 4.01. Executive Committee. (a)
Designa-
tion and Membership. The Board may, by resolution passed by a
majority of the whole Board, designate an Executive Committee
consisting of the Chairman of the Board and such number of other
directors, not less than two, as the Board shall appoint.
Vacancies occurring on the Executive Committee for any reason may
be filled by the Board at any time. Any member of the Executive
Committee shall be subject to removal, with or without cause, at
any time by the Board or by a majority in voting interest of the
stockholders.
(b) Functions and Powers. The Executive
Committee, subject to any limitations prescribed by the Board,
shall possess and may exercise, during the intervals between
meetings of the Board, all the powers and authority of the Board
in the management of the business and affairs of the Corporation,
and may authorize the seal of the Corporation to be affixed to
all papers that may require it; provided, however, that the
Executive Committee shall not have such power or authority in
reference to amending the Certificate of Incorporation of the
Corporation (except that the Executive Committee may, to the
extent authorized in resolutions providing for the issuance of
shares of stock adopted by the Board of Directors, fix the
designations and any of the preferences or rights of such shares
relating to dividends, redemption, dissolution, any distribution
of assets of the Corporation or the conversion into, or the
exchange of such shares for, shares of any other class or classes
or any other series of the same or any other class or classes of
stock of the Corporation or fix the number of shares of any
series of stock or authorize the increase or decrease of the
shares of any series), adopting an agreement of merger or
consolidation under Section 251 or 252 of the General Corporation
Law of the State of Delaware, recommending to the stockholders
the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of
a dissolution, filling vacancies on the Board, changing the
membership or filling vacancies on the Executive Committee or
amending these By-laws. The Executive Committee shall not have
the power and authority to declare dividends, to authorize the
issuance of stock of the Corporation or to adopt a certificate of
ownership and merger pursuant to Section 253 of the General
Corporation Law of the State of Delaware unless such power and
authority shall be expressly delegated to it by a resolution
passed by a majority of the whole Board. At each meeting of the
Board, the Executive Committee shall make a report of all action
taken by it since its last report to the Board.
(c) Meetings, Quorum and Manner of Acting. The
Executive Committee shall meet annually immediately after the
annual meeting of the Board if necessary to elect officers not
elected by the Board and shall meet at such other times and as
often as may be deemed necessary and expedient and at such places
as shall be determined by the Executive Committee. A majority of
the Executive Committee shall constitute a quorum, and the vote
of a majority of those members of the Executive Committee present
at any meeting thereof at which a quorum is present shall be
necessary for the passage of any resolution or act of the
Executive Committee. The Board may designate a chairman for the
Executive Committee, who shall preside at meetings thereof, and a
vice chairman, who shall preside at such meetings in the absence
of the chairman.
SECTION 4.02. Other Committees. The Board may,
by resolution passed by a majority of the whole Board, designate
committees of the Board, each such committee to consist of two or
more directors and to have such duties and functions as shall be
provided in such resolution. The Board shall have the power to
change the members of any such committee at any time, to fill
vacancies and to discharge any such committee, either with or
without cause, at any time.
ARTICLE V
Officers
SECTION 5.01. Officers. The officers of the
Corporation shall be a Chairman (who shall be a director), one or
more Vice Presidents, a Secretary, and a Treasurer. The Chairman
shall be elected by the Board, so far as practicable at its
annual meeting, and all other officers may be elected by the
Board or Executive Committee. The Board or Executive Committee
may also elect a President, a Controller, and one or more
Assistant Secretaries, Assistant Treasurers, and such other
officers and agents as from time to time may appear to be
necessary or advisable in the conduct of the affairs of the
Corporation. Any number of offices may be held by the same
person. Each such officer shall have such authority and shall
perform such duties as may be provided herein or as the Board or
Executive Committee may prescribe.
SECTION 5.02. Term of Office. So far as
practicable, each elected officer shall be elected at the annual
meeting of the Board or Executive Committee, and shall hold
office until the next annual meeting of the Board or the
Executive Committee, as the case may be, and until his or her
successor is elected or until his or her earlier death,
resignation or removal in the manner hereinafter provided. If
additional officers are elected during the year, each of them
shall hold office until the next annual meeting of the Board or
Executive Committee at which officers are regularly elected and
until his or her successor is elected or until his or her earlier
death or until his or her earlier resignation or removal in the
manner hereinafter provided.
SECTION 5.03. Resignation, Removal and
Vacancies.
Any officer may resign at any time by giving written notice to
the Chairman of the Board or the Secretary, and such resignation
shall take effect at the time specified therein or, if the time
when it shall become effective shall not be specified therein,
then it shall take effect when accepted by action of the Board or
Executive Committee. Except as aforesaid, the acceptance of such
resignation shall not be necessary to make it effective. All
officers elected by the Board or Executive Committee shall be
subject to removal at any time by the Board or the Executive
Committee, as the case may be, with or without cause. A vacancy
in any office may be filled for the unexpired portion of the term
in the same manner as provided for election to such office.
SECTION 5.04. Chairman of the Board. The Board
shall elect a Chairman of the Board, who may, but need not, be
designated Chief Executive Officer or Chief Operating Officer of
the Corporation, or both. The Chairman of the Board shall
preside at all meetings of stockholders and of the Board at which
he or she may be present, and shall have such other powers and
duties as may from time to time be prescribed by the Board or the
Executive Committee.
SECTION 5.05. President. The President, if
elected, shall share with the Chairman of the Board in the
general management of the business and affairs of the Corporation
and direction of all other officers of the Corporation. In the
event of the absence, disability or vacancy in the office of the
Chairman of the Board, the President shall act in his or her
place with authority to exercise all his or her powers and
perform his or her duties.
SECTION 5.06. Chief Executive Officer. The
Board
shall designate either the Chairman of the Board or the President
as the Chief Executive Officer of the Corporation. As Chief
Executive Officer, such officer shall be the direct
representative of the Board, and, subject to the Board, shall
have the final control of the affairs and policies of the
Corporation. He or she shall perform such duties and exercise
such powers usually and customarily performed by the Chief
Executive Officer of a corporation. He or she shall be arbiter of
all differences between officers of the Corporation, and his or
her decision shall be final and binding, subject only to review
by the Board.
SECTION 5.07. Chief Operating Officer. The
Board
shall designate either the Chairman of the Board or the President
as the Chief Operating Officer of the Corporation. Subject to
the authority of the Chief Executive Officer of the Corporation,
he or she shall have general and active control of the business
of the Corporation.
SECTION 5.08. Vice Presidents. The several
Vice
Presidents shall perform all such duties and services as shall be
assigned to or required of them, from time to time, by the Board,
the Executive Committee or the Chief Executive Officer. In the
event of the absence or disability of both the Chairman of the
Board and the President, the Chief Executive Officer may
designate one of the several Vice Presidents to act in his or her
place with authority to exercise all of his or her powers and
perform his or her duties, provided that the Board or Executive
Committee may change such designation, or if the Chief Executive
Officer fails or is unable to make such designation, the Board or
Executive Committee may make such designation at a regular or
special meeting called for that purpose.
SECTION 5.09. Secretary. The Secretary shall
attend to the giving of notice of all meetings of stockholders
and of the Board and shall keep and attest true records of all
proceedings thereat. He or she shall have charge of the
corporate seal and have authority to attest any and all
instruments or writing to which the same may be affixed. He or
she shall keep and account for all books, documents, papers and
records of the Corporation, except those which are hereinafter
directed to be in charge of the Treasurer. He or she shall have
authority to sign stock certificates and shall generally perform
all the duties usually appertaining to the office of secretary of
a corporation. In the absence of the Secretary, an Assistant
Secretary or Secretary pro tempore shall perform his or her
duties.
SECTION 5.10. Treasurer. The Treasurer shall
be
responsible for the collection, receipt, care, custody and
disbursement of the funds of the Corporation, and shall deposit
or cause to be deposited all funds of the Corporation in and with
such depositories as the Board or the Executive Committee shall,
from time to time, direct. He or she shall have the care and
custody of all securities owned by the Corporation and shall
deposit such securities with such banks or in such safe deposit
vaults, and under such controls, as the Board or the Executive
Committee shall, from time to time, direct. He or she shall
disburse funds of the Corporation on the basis of vouchers
properly approved for payment. He or she shall be responsible
for the maintenance of detailed records thereof as may be
required. He or she shall have the power to sign stock
certificates; and to endorse for deposit or collection, or
otherwise, all checks, drafts, notes, bills of exchange or other
commercial paper payable to the Corporation, and to give proper
receipts or discharges therefor. He or she shall have such other
duties as are commonly incidental to the office of Treasurer or
as may be prescribed by the Board, the Executive Committee, the
Chief Executive Officer, or a Vice President designated by the
Chief Executive Officer. In the absence of the Treasurer, an
Assistant Treasurer shall perform his or her duties.
SECTION 5.11. Controller. The Controller or
Controllers, if elected, shall perform such duties as the Board,
the Executive Committee or the Chairman of the Board may from
time to time assign, and shall, upon assignment by the Chairman,
keep or cause to be kept the books of account of the Corporation
and prepare and submit to the Board, the Executive Committee or
the Chairman, whenever requested, reports of the financial
condition or operating results of the Corporation.
SECTION 5.12. Additional Powers and Duties. In
addition to the foregoing especially enumerated duties and
powers, the several officers of the Corporation shall perform
such other duties and exercise such further powers as may be
provided in these By-laws or as the Board may, from time to time,
determine, or as may be assigned to them by any competent
superior officer.
SECTION 5.13. Compensation. The compensation
of
the Chairman and the President shall be fixed, from time to time,
by the Board. The compensation of all other officers of the
Corporation shall be fixed by the Chief Executive Officer,
subject to review at the discretion of the Board.
ARTICLE VI
Contracts, Checks, Drafts,
Bank Accounts, Proxies, Etc.
SECTION 6.01. Execution of Documents. The
Chief
Executive Officer or any other officer, employee or agent of the
Corporation designated by the Board or the Executive Committee,
or designated in accordance with corporate policy as approved by
the Board, shall have power to execute and deliver deeds, leases,
contracts, mortgages, bonds, debentures, checks, drafts and other
orders for the payment of money and other documents for and in
the name of the Corporation, and such power may be delegated
(including power to redelegate) by written instrument to other
officers, employees or agents of the Corporation.
SECTION 6.02. Deposit. All funds of the
Corporation not otherwise employed shall be deposited from time
to time to the credit of the Corporation or otherwise in
accordance with corporate policy as approved by the Board.
SECTION 6.03. Proxies in Respect of Stock or
Other Securities of Other Corporations. The Chief Executive
Officer or any other officer of the Corporation designated by the
Board shall have the authority (a) to appoint from time to time
an agent or agents of the Corporation to exercise in the name and
on behalf of the Corporation the powers and rights which the
Corporation may have as the holder of stock or other securities
in any other corporation, (b) to vote or consent in respect of
such stock or securities and (c) to execute or cause to be
executed in the name and on behalf of the Corporation and under
its corporate seal, or otherwise, such written proxies, powers of
attorney or other instruments as he or she may deem necessary or
proper in order that the Corporation may exercise such powers and
rights. The Chief Executive Officer or any such designated
officer may instruct any person or persons appointed as aforesaid
as to the manner of exercising such powers and rights.
ARTICLE VII
Books and Records
The books and records of the Corporation may be
kept at such places within or without the State of Delaware as
the Board may from time to time determine.
ARTICLE VIII
Shares and Their Transfer; Fixing Record Date
SECTION 8.01. Certificate for Stock. Every
owner
of stock of the Corporation shall be entitled to have a
certificate certifying the number of shares owned by him in the
Corporation and designating the class of stock to which such
shares belong, which shall otherwise be in such form as the Board
shall prescribe. Each such certificate shall be signed by, or in
the name of the Corporation by, the Chairman of the Board or the
President or a Vice President and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary of
the Corporation. Any or all the signatures on the certificate
may be a facsimile. In case any officer who has signed or whose
facsimile signature has been placed upon a certificate shall have
ceased to be such officer before such certificate is issued, it
may nevertheless be issued by the Corporation with the same
effect as if he or she were such officer at the date of issue.
SECTION 8.02. Record. A record shall be kept
of
the name of the person, firm or corporation owning the stock
represented by each certificate for stock of the Corporation
issued, the number of shares represented by each such certificate
and the date thereof, and, in the case of cancellation, the date
of cancellation. Except as otherwise expressly required by law,
the person in whose name shares of stock stand on the books of
the Corporation shall be deemed the owner thereof for all
purposes as regards the Corporation.
SECTION 8.03. Lost, Stolen, Destroyed or
Mutilated Certificates. The holder of any stock of the
Corporation shall immediately notify the Corporation of any loss,
theft, destruction or mutilation of the certificate therefor.
The Corporation may issue a new certificate for stock in the
place of any certificate theretofore issued by it and alleged to
have been lost, stolen, destroyed or mutilated. The Corporation
shall, in the case of any mutilated certificate, require the
surrender of the mutilated certificate and the Board or the Chief
Executive Officer or the Secretary may, in its or his or her
discretion, in the case of any allegedly lost, stolen or
destroyed certificate, require the owner of the lost, stolen or
destroyed certificate or his or her legal representatives to give
the Corporation a bond in such sum, limited or unlimited, in such
form and with such surety or sureties as the Board or such
officer shall in its or his or her discretion determine, to
indemnify the Corporation against any claim that may be made
against it on account of the alleged loss, theft or destruction
of any such certificate or the issuance of any such new
certificate.
SECTION 8.04. Fixing Date for Determination of
Stockholders of Record. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or to
express consent to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise
any rights in respect of any change, conversion or exchange of
stock or for the purpose of any other lawful action, the Board
may fix, in advance, a record date, which shall not be more than
60 nor less than 10 days before the date of such meeting, nor
more than 60 days prior to any other action.
ARTICLE IX
Indemnification
SECTION 9.01. Right to Indemnification. The
Corporation shall indemnify, to the fullest extent permitted
under the laws of the State of Delaware from time to time in
effect, any person who was or is a party or is threatened to be
made a party to or is otherwise involved in any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact
that such person or such person's testator or intestate is or was
a director, officer, employee or agent of the Corporation or any
corporation absorbed in a consolidation or merger with the
Corporation, which if its separate existence had continued, would
have had power and authority to indemnify such person, or by
reason of the fact that such person or such person's testator or
intestate is or was serving at the request of the Corporation as
director, officer, employee or agent of any corporation or any
partnership, joint venture, trust or other enterprise or as a
fiduciary of any employee benefit plan, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding.
SECTION 9.02. Advancement of Expenses. Costs,
charges, and expenses (including attorneys' fees) incurred by an
officer or director of the Corporation in defending any such
civil, criminal, administrative, or investigative action, suit or
proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit, or proceeding; provided,
however, that the payment of such costs, charges, and expenses
incurred by a director or officer in such person's capacity as a
director or officer (and not in any other capacity in which
service was or is rendered while a director or officer) in
advance of the final disposition of such action, suit or
proceeding shall be made only upon receipt of an undertaking by
or on behalf of the director or officer to repay all amounts so
advanced in the event that it shall ultimately be determined that
such person is not entitled to be indemnified by the Corporation
as authorized under the laws of the State of Delaware from time
to time in effect. Such costs, charges, and expenses (including
attorneys' fees) incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the Board deems
appropriate.
SECTION 9.03. Not Exclusive Right; Continuation
of Benefit. The right of indemnification provided hereunder
shall not be deemed exclusive of any other right to which any
person may be entitled under the Certificate of Incorporation or
otherwise, or of any other indemnification that may lawfully be
granted to any person in addition to the indemnification provided
hereunder. Indemnification provided hereunder shall continue as
to a person who has ceased to be a director, officer, employee or
agent of the Corporation and, in the case of death of a person
indemnified, inure to the benefit of such person's heirs,
executors or other lawful representatives.
SECTION 9.04. Application. The indemnification
provided or permitted under this Article IX shall apply in
respect of any costs, charges and expenses (including attorneys'
fees) whether or not the claim or cause of action in respect
thereof occurred or arose before or after the effective date of
this Article IX.
SECTION 9.05. Contract Right; Modification.
The
right of indemnification provided hereunder shall be a contract
right and any repeal or modification of the foregoing provisions
of this Article IX shall not adversely affect any right or
protection hereunder of any person in respect of any act or
omission occurring prior to the time of such repeal or
modification.
ARTICLE X
Seal
The Board shall provide a corporate seal, which
shall be in the form of a circle and shall bear the full name of
the Corporation, the words "Corporate Seal Delaware" and in
figures the year of its incorporation.
Article XI
Fiscal Year
The fiscal year of the Corporation shall be the
calendar year.
ARTICLE XII
Amendments
These By-laws may be amended or repealed by the
Board at any regular or special meeting thereof, subject to the
power of the holders of a majority of the outstanding stock of
the Corporation entitled to vote in respect thereof, by their
vote given at an annual meeting or at any special meeting, to
amend or repeal any By-law.
EXHIBIT 4(a)
REGISTERED REGISTERED
NUMBER HERTZ
$
R THE HERTZ CORPORATION
6 5/8% Junior Subordinated Note due July 15, 2000
ORIGINAL ISSUE DATE: July 19, 1993
INTEREST PAYMENT DATES: July 15 and January
15
MATURITY DATE: July 15, 2000
THE HERTZ CORPORATION, a Delaware corporation (such corporation
and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), for value
received, hereby promises to pay to
CUSIP 428040 AW
9
,or registered assigns, the principal sum of
DOLLARS
on the Maturity Date shown above, and to pay interest thereon at
the rate per annum shown above. The Company will pay interest
semi-annually on the Interest Payment Dates, commencing with
January 15, 1994. Interest on this Note will accrue from the
most recent date to which interest has been paid or, if no
interest has been paid, from the Original Issue Date shown above.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Note (or one
or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which
shall be the July 1 or the January 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the registered Holder
on such Regular Record Date, and may be paid to the Person in
whose name this Note (or one or more Predecessor Securities) is
registered on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Company, notice whereof
shall be given to Holders of Notes not less than 15 days prior to
such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any
securities exchange upon which the Notes may be listed, and upon
such notice as may be required by such exchange, all as more
fully provided in such Indenture. Payment of the principal of
and interest on this Note will be made at the office or agency of
the Company maintained for that purpose in New York, New York
(the Place of Payment), in such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that
payment of interest may be made at the option of the Company by
check mailed to the address of the Person entitled thereto as
such address shall appear on the Security Register.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been
executed by the Trustee under such Indenture, this Note shall not
be entitled to any benefit under such Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed manually or in facsimile, and a facsimile of
its corporate seal to be imprinted hereon.
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein,
referred to in the within-mentioned Indenture.
CITIBANK, N.A.,
as Trustee
By Authorized Signatory
THE HERTZ CORPORATION
By /s/ F.A. Olson
Chairman of the
Board
Attest: /s/ P.M.
Tschirhart
Secretary
THE HERTZ CORPORATION
6 5/8% Junior Subordinated Note due July 15, 2000
This Note is one of a duly authorized issue of securities of
the Company (herein referred to as the "Securities") evidencing
its unsecured junior subordinated indebtedness, of the series
hereinafter specified, all issued under and pursuant to an
indenture, dated as of July 1, 1993 (herein referred to as the
"Indenture"), duly executed and delivered by the Company and
Citibank, N.A., as trustee (such trustee, and its successors
under the Indenture, being herein called the "Trustee"), to which
Indenture and all indentures supplemental thereto reference is
hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the
Trustee, the Company and Holders of the Securities. The
Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest, if any, at
different rates, may be subject to different redemption
provisions, if any, may be subject to different sinking, purchase
or analogous funds, if any, may be subject to different covenants
and Events of Default and may otherwise vary as in the Indenture
provided. This Note is one of a series designated as the 6 5/8%
Junior Subordinated Notes due July 15, 2000 of the Company
(herein referred to as the "Notes"), limited except as provided
in the Indenture to the aggregate principal amount of One Hundred
Fifty Million Dollars ($150,000,000).
Payment of the principal of, premium, if any, and interest on
the Securities is expressly subordinated in right of payment as
set forth in the Indenture, to payment when due of all Senior
Indebtedness as defined in the Indenture, and this Note is issued
subject to such provisions, and each Holder of this Note, by
accepting the same, agrees to and shall be bound by such
provisions and authorizes and directs the Trustee in his behalf
to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination as provided in the
Indenture and appoints the Trustee his attorney-in-fact for any
and all such purposes.
In case an Event of Default, as defined in the Indenture,
with respect to the Notes shall have occurred and be continuing,
the principal hereof may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture. The
Indenture provides that in certain events such declaration and
its consequences may be waived by the Holders of a majority in
aggregate principal amount of the Notes then Outstanding. Any
such waiver by the Holder of this Note (unless revoked as
provided in the Indenture) shall be conclusive and binding upon
such Holder and upon all future Holders and owners of this Note
and of any Note issued upon the transfer hereof or in exchange or
substitution herefor, irrespective of whether or not any notation
of such waiver is made upon this Note or such other Notes.
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations with respect to the
Securities of a particular series if the Company deposits with
the Trustee money or U.S. Government Obligations for the payment
of principal and interest on the Securities of such series to
redemption or maturity, as the case may be.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the
Holders of the Securities at any time by the Company and the
Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Outstanding Securities or, in
certain cases, of the Outstanding Securities of each series to be
affected. The Indenture also contains provisions permitting the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of a particular series, on behalf of the
Holders of all the Securities of such series, to waive certain
past defaults under the Indenture and their consequences. Any
such consent or waiver by the Holder of this Note (unless revoked
as provided in the Indenture) shall be conclusive and binding
upon such Holder and upon all future Holders and owners of this
Note and of any Note issued upon transfer hereof or in exchange
or substitution herefor, irrespective of whether or not any
notation of such consent or waiver is made upon this Note or such
other Notes. The Indenture also permits, with certain exceptions
as therein provided, the Company and the Trustee, without the
consent of any Holder of Securities, to amend the Indenture or
the Securities as provided therein, including: to evidence the
succession of another corporation to the Company; to add
additional covenants or surrender Company rights; to cure any
ambiguity or correct any defect or inconsistency or to make any
other provisions with respect to matters or questions arising
under the Indenture, provided such other provisions shall not
adversely affect the interest of the Holders of the then
Outstanding Securities or of the then Outstanding Securities of
any particular series in any material respect; to evidence the
appointment thereunder of a successor Trustee; to secure the
Securities as provided in the Indenture; to provide for
uncertificated Securities in addition to or in place of
certificated Securities; and to comply with the Trust Indenture
Act.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the
principal of and interest on this Note at the time, place and
rate, and in the coin or currency, herein and in the Indenture
prescribed. Subject to certain conditions, upon the assumption
of the Company's obligations under the Indenture and the
Securities by a successor to the Company, the Company shall be
discharged from all liability under the Indenture and in respect
of the Securities.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is
registrable by the Holder hereof on the Security Register of the
Company, upon due presentment of this Note for registration of
transfer at the office of the Security Registrar, or at the
office of any Security Co-Registrar duly endorsed by, or
accompanied by a written instrument of transfer in form
satisfactory to, the Company and the Security Registrar or any
such Security Co-Registrar duly executed by, the Holder hereof or
his attorney duly authorized in writing, and thereupon one or
more new Notes of authorized denominations and for the same
aggregate principal amount will be issued to the designated
transferee or transferees.
The Notes are issuable only as registered Notes without
coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Notes are exchangeable for new
Notes of any authorized denominations of the same aggregate
principal amount as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment for registration of transfer, the
Company, the Trustee, the Security Registrar, any Security Co-
Registrar and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the absolute
owner hereof for all purposes, whether or not this Note be
overdue, and neither the Company, the Trustee, the Security
Registrar, any Security Co-Registrar nor any such agent shall be
affected by notice to the contrary.
The Holder of this Note shall not have recourse for the
payment of principal of or interest on this Note or for any claim
based on this Note or the Indenture against any director, officer
or stockholder, past, present or future, of the Company. By
acceptance of this Note, the Holder waives any such claim against
any such Person.
The Indenture and this Note shall be governed by and
construed in accordance with the laws of the State of New York.
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE
Please print or typewrite name and address of assignee
the within Note of THE HERTZ CORPORATION and hereby does
irrevocably constitute and appoint
Attorney
to transfer said Note on the books of the within-mentioned
Company, with full power of substitution in premises.
Dated
NOTICE: The signature to this assignment
must
correspond with the name as written upon
the
face of the Note in every particular,
without
alteration or enlargement or any change
whatever.
EXHIBIT 4(b)
REGISTERED REGISTERED
NUMBER HERTZ
$
R THE HERTZ CORPORATION
7% Junior Subordinated Note due July 15, 2003
ORIGINAL ISSUE DATE: July 19, 1993
INTEREST PAYMENT DATES: July 15 and January
15
MATURITY DATE: July 15, 2003
THE HERTZ CORPORATION, a Delaware corporation (such corporation
and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), for value
received, hereby promises to pay to
CUSIP 428040 AX
7
,or registered assigns, the principal sum of
DOLLARS
on the Maturity Date shown above, and to pay interest thereon at
the rate per annum shown above. The Company will pay interest
semi-annually on the Interest Payment Dates, commencing with
January 15, 1994. Interest on this Note will accrue from the
most recent date to which interest has been paid or, if no
interest has been paid, from the Original Issue Date shown above.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Note (or one
or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which
shall be the July 1 or the January 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the registered Holder
on such Regular Record Date, and may be paid to the Person in
whose name this Note (or one or more Predecessor Securities) is
registered on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Company, notice whereof
shall be given to Holders of Notes not less than 15 days prior to
such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any
securities exchange upon which the Notes may be listed, and upon
such notice as may be required by such exchange, all as more
fully provided in such Indenture. Payment of the principal of
and interest on this Note will be made at the office or agency of
the Company maintained for that purpose in New York, New York
(the Place of Payment), in such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that
payment of interest may be made at the option of the Company by
check mailed to the address of the Person entitled thereto as
such address shall appear on the Security Register.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been
executed by the Trustee under such Indenture, this Note shall not
be entitled to any benefit under such Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed manually or in facsimile, and a facsimile of
its corporate seal to be imprinted hereon.
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein,
referred to in the within-mentioned Indenture.
CITIBANK, N.A.,
as Trustee
By Authorized Signatory
THE HERTZ CORPORATION
By /s/ F.A. Olson
Chairman of the
Board
Attest: /s/ P.M.
Tschirhart
Secretary
THE HERTZ CORPORATION
7% Junior Subordinated Note due July 15, 2003
This Note is one of a duly authorized issue of securities of
the Company (herein referred to as the "Securities") evidencing
its unsecured junior subordinated indebtedness, of the series
hereinafter specified, all issued under and pursuant to an
indenture, dated as of July 1, 1993 (herein referred to as the
"Indenture"), duly executed and delivered by the Company and
Citibank, N.A., as trustee (such trustee, and its successors
under the Indenture, being herein called the "Trustee"), to which
Indenture and all indentures supplemental thereto reference is
hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the
Trustee, the Company and Holders of the Securities. The
Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest, if any, at
different rates, may be subject to different redemption
provisions, if any, may be subject to different sinking, purchase
or analogous funds, if any, may be subject to different covenants
and Events of Default and may otherwise vary as in the Indenture
provided. This Note is one of a series designated as the 7%
Junior Subordinated Notes due July 15, 2003 of the Company
(herein referred to as the "Notes"), limited except as provided
in the Indenture to the aggregate principal amount of Two Hundred
Fifty Million Dollars ($250,000,000).
Payment of the principal of, premium, if any, and interest on
the Securities is expressly subordinated in right of payment as
set forth in the Indenture, to payment when due of all Senior
Indebtedness as defined in the Indenture, and this Note is issued
subject to such provisions, and each Holder of this Note, by
accepting the same, agrees to and shall be bound by such
provisions and authorizes and directs the Trustee in his behalf
to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination as provided in the
Indenture and appoints the Trustee his attorney-in-fact for any
and all such purposes.
In case an Event of Default, as defined in the Indenture,
with respect to the Notes shall have occurred and be continuing,
the principal hereof may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture. The
Indenture provides that in certain events such declaration and
its consequences may be waived by the Holders of a majority in
aggregate principal amount of the Notes then Outstanding. Any
such waiver by the Holder of this Note (unless revoked as
provided in the Indenture) shall be conclusive and binding upon
such Holder and upon all future Holders and owners of this Note
and of any Note issued upon the transfer hereof or in exchange or
substitution herefor, irrespective of whether or not any notation
of such waiver is made upon this Note or such other Notes.
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations with respect to the
Securities of a particular series if the Company deposits with
the Trustee money or U.S. Government Obligations for the payment
of principal and interest on the Securities of such series to
redemption or maturity, as the case may be.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the
Holders of the Securities at any time by the Company and the
Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Outstanding Securities or, in
certain cases, of the Outstanding Securities of each series to be
affected. The Indenture also contains provisions permitting the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of a particular series, on behalf of the
Holders of all the Securities of such series, to waive certain
past defaults under the Indenture and their consequences. Any
such consent or waiver by the Holder of this Note (unless revoked
as provided in the Indenture) shall be conclusive and binding
upon such Holder and upon all future Holders and owners of this
Note and of any Note issued upon transfer hereof or in exchange
or substitution herefor, irrespective of whether or not any
notation of such consent or waiver is made upon this Note or such
other Notes. The Indenture also permits, with certain exceptions
as therein provided, the Company and the Trustee, without the
consent of any Holder of Securities, to amend the Indenture or
the Securities as provided therein, including: to evidence the
succession of another corporation to the Company; to add
additional covenants or surrender Company rights; to cure any
ambiguity or correct any defect or inconsistency or to make any
other provisions with respect to matters or questions arising
under the Indenture, provided such other provisions shall not
adversely affect the interest of the Holders of the then
Outstanding Securities or of the then Outstanding Securities of
any particular series in any material respect; to evidence the
appointment thereunder of a successor Trustee; to secure the
Securities as provided in the Indenture; to provide for
uncertificated Securities in addition to or in place of
certificated Securities; and to comply with the Trust Indenture
Act.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the
principal of and interest on this Note at the time, place and
rate, and in the coin or currency, herein and in the Indenture
prescribed. Subject to certain conditions, upon the assumption
of the Company's obligations under the Indenture and the
Securities by a successor to the Company, the Company shall be
discharged from all liability under the Indenture and in respect
of the Securities.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is
registrable by the Holder hereof on the Security Register of the
Company, upon due presentment of this Note for registration of
transfer at the office of the Security Registrar, or at the
office of any Security Co-Registrar duly endorsed by, or
accompanied by a written instrument of transfer in form
satisfactory to, the Company and the Security Registrar or any
such Security Co-Registrar duly executed by, the Holder hereof or
his attorney duly authorized in writing, and thereupon one or
more new Notes of authorized denominations and for the same
aggregate principal amount will be issued to the designated
transferee or transferees.
The Notes are issuable only as registered Notes without
coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Notes are exchangeable for new
Notes of any authorized denominations of the same aggregate
principal amount as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment for registration of transfer, the
Company, the Trustee, the Security Registrar, any Security Co-
Registrar and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the absolute
owner hereof for all purposes, whether or not this Note be
overdue, and neither the Company, the Trustee, the Security
Registrar, any Security Co-Registrar nor any such agent shall be
affected by notice to the contrary.
The Holder of this Note shall not have recourse for the
payment of principal of or interest on this Note or for any claim
based on this Note or the Indenture against any director, officer
or stockholder, past, present or future, of the Company. By
acceptance of this Note, the Holder waives any such claim against
any such Person.
The Indenture and this Note shall be governed by and
construed in accordance with the laws of the State of New York.
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE
Please print or typewrite name and address of assignee
the within Note of THE HERTZ CORPORATION and hereby does
irrevocably constitute and appoint
Attorney
to transfer said Note on the books of the within-mentioned
Company, with full power of substitution in premises.
Dated
NOTICE: The signature to this assignment
must
correspond with the name as written upon
the
face of the Note in every particular,
without
alteration or enlargement or any change
whatever.
