SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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Form 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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June 2, 1999 (May 27, 1999)
(Date of Report (date of earliest event reported))
Cendant Corporation
(Exact name of Registrant as specified in its charter)
Delaware 1-10308 06-0918165
(State or other jurisdiction (Commission File No.) (I.R.S. Employer
of incorporation or Identification Number)
organization)
9 West 57th Street
New York, NY 10019
(Address of principal (Zip Code)
executive office)
(212) 413-1800
(Registrant's telephone number, including area code)
None
(Former name, former address and former fiscal year, if applicable)
<PAGE>
Item 5. Other Events
At our Annual Meeting of Stockholders held on May 27, 1999, our
stockholders approved amendments to Article V, Section 1(a), 1(d), 3(d) and 4 of
our By-Laws to eliminate the provision requiring the Executive Committee of the
Board of Directors to nominate certain persons nominated by the former directors
of CUC International Inc. and to eliminate the Litigation Committee of the Board
of Directors. At the Annual Meeting, 702,522,495 votes were duly cast FOR the
approval of such amendments representing more than 80% of our outstanding shares
of common stock. The Amended and Restated By-Laws are attached hereto as Exhibit
3.1
Item 7. Exhibits
Exhibit
No. Description
- ------- -------------------------------------------------------------
3.1 Amended and Restated By-Laws
<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 hereunto duly authorized.
CENDANT CORPORATION
By: /s/ James E. Buckman
James E. Buckman
Vice Chairman and
General Counsel
Date: June 2, 1999
<PAGE>
CENDANT CORPORATION
CURRENT REPORT ON FORM 8-K
Report Dated June 2, 1999 (May 27, 1999)
EXHIBIT INDEX
Exhibit
No. Description
- -------- -------------------------------------------------------------
3.1 Amended and Restated By-Laws
EXHIBIT 99.1
Exhibit 3.1
AMENDED AND RESTATED BY-LAWS
(As of May 27, 1999)
OF
CENDANT CORPORATION
(the "Corporation")
ARTICLE I.
Offices
SECTION 1. Offices.
The registered office of the Corporation in the State of Delaware shall
be in the City of Wilmington, County of New Castle, State of Delaware.
The Corporation shall have offices at such other places as the Board of
Directors may from time to time determine.
ARTICLE II.
Stockholders
SECTION 1. Annual Meeting.
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,
and hour as shall be determined by the Board of Directors. The day, place and
hour of each annual meeting shall be specified in the notice of annual meeting.
The meeting may be adjourned from time to time and place to place until
its business is completed.
At an annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be (a) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the Board
of Directors, (b) otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (c) otherwise properly brought before
the meeting by a stockholder. For business to be properly brought before an
annual meeting by a stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation, not less than sixty days nor
more than ninety days prior to the meeting; provided, however, that in the event
that less than seventy days' notice or prior public disclosure of the date of
the meeting is given or made to stockholders, notice by the stockholder to be
timely must be so received not later than the close of business on the tenth day
following the date on which such notice of the date of the annual meeting was
mailed or such public disclosure was made. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the annual meeting: (a) a brief description of the business desired to be
brought before the annual meeting, (b) the name and address, as they appear on
the Corporation's books, of the stockholder proposing such business, (c) the
class and number of shares of the Corporation which are beneficially owned by
the stockholder, and (d) any material interest of the stockholder in such
business. Notwithstanding anything in the By-Laws to the contrary, no business
shall be conducted at an annual meeting except in accordance with the procedures
set forth in this Section 1. The presiding officer of an annual meeting shall,
if the facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting and in accordance with the provisions of
this Section 1, and if he should so determine, he shall so declare to the
meeting and any such business not properly brought before the meeting shall not
be transacted.
SECTION 2. Special Meeting.
Except as otherwise required by law, special meetings of the
stockholders may be called only by the Chairman of the Board, the President, or
the Board of Directors pursuant to a resolution approved by a majority of the
entire Board of Directors.
<PAGE>
SECTION 3. Stockholder Action; How Taken.
Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of such
holders and may not be effected by any consent in writing by such holders.
SECTION 4. Notice of Meeting.
Notice of every meeting of the stockholders shall be given in the
manner prescribed by law.
SECTION 5. Quorum.
Except as otherwise required by law, the Certificate of Incorporation
or these By-Laws, the holders of not less than one-third of the shares entitled
to vote at any meeting of the stockholders, present in person or by proxy, shall
constitute a quorum and the act of the majority of such quorum shall be deemed
the act of the stockholders.
If a quorum shall fail to attend any meeting, the chairman of the
meeting may adjourn the meeting to another place, date or time.
If a notice of any adjourned special meeting of stockholders is sent to
all stockholders entitled to vote thereat, stating that it will be held with
those present constituting a quorum, then, except as otherwise required by law,
those present at such adjourned meeting shall constitute a quorum and all
matters shall be determined by a majority of votes cast at such meeting.
SECTION 6. Qualification of Voters.
The Board of Directors (hereinafter sometimes referred to as the
"Board") may fix a day and hour not more than sixty nor less than ten days prior
to the day of holding any meeting of the stockholders as the time which the
stockholders entitled to notice of and to vote at such meeting shall be
determined. Only those persons who were holders of record of voting stock at
such time shall be entitled to notice of and to vote at such meeting.
SECTION 7. Procedure.
The order of business and all other matters of procedure at every
meeting of the stockholders may be determined by the presiding officer.
The Board shall appoint two or more Inspectors of Election to serve at
every meeting of the stockholders at which Directors are to be elected.
ARTICLE III.
Directors
SECTION 1. Number, Election and Terms.
The number of Directors shall be fixed from time to time by the Board
of Directors but shall not be less than three. The Directors shall be
classified, with respect to the time for which they severally hold office, into
three classes, as nearly equal in number as possible, as determined by the Board
of Directors, one class to hold office initially for a term expiring at the
annual meeting of stockholders to be held in 1986, another class to hold office
initially for a term expiring at the annual meeting of stockholders to be held
in 1987, and another class to hold office initially for a term expiring at the
annual meeting of stockholders to be held in 1988, with the members of each
class to hold office until their successors are elected and qualified. At each
annual meeting of stockholders, the successors of the class of Directors whose
term expires at that meeting shall be elected to hold office for a term expiring
at the annual meeting of stockholders held in the third year following the year
of their election.
The term "entire Board" as used in these By-Laws means the total number
of Directors which the Corporation would have if there were no vacancies.
<PAGE>
Nominations for the election of Directors may be made by the Board of
Directors or a committee appointed by the Board of Directors or by any
stockholder entitled to vote in the election of Directors generally. However,
any stockholder entitled to vote in the election of Directors generally may
nominate one or more persons for election as Directors at a meeting only if
written notice of such stockholder's intent to make such nomination or
nominations has been given, either by personal delivery or by United States
mail, postage prepaid, to the Secretary of the Corporation not later than (i)
with respect to an election to be held at an annual meeting of stockholders,
ninety days prior to the anniversary date of the immediately preceding annual
meeting, and (ii) with respect to an election to be held at a special meeting of
stockholders for the election of Directors, the close of business on the tenth
day following the date on which notice of such meeting is first given to
stockholders. Each such notice shall set forth: (a) the name and address of the
stockholder who intends to make the nomination and of the person or persons to
be nominated; (b) a representation that the stockholder is a holder of record of
stock of the Corporation entitled to vote at such meeting and intends to appear
in person or by proxy at the meeting to nominate the person or persons specified
in the notice; (c) a description of all arrangements or understandings between
the stockholder and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination or nominations are to be
made by the stockholder; (d) such other information regarding each nominee
proposed by such stockholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission; and (e) the consent of each nominee to serve as a Director of the
Corporation of so elected. The presiding officer of the meeting may refuse to
acknowledge the nomination of any person not made in compliance with the
foregoing procedure.
SECTION 2. Newly Created Directorships and Vacancies.
Newly created directorships resulting from any increase in the number
of Directors and any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other cause shall be filled solely by
the affirmative vote of a majority of the remaining Directors then in office,
even though less than a quorum of the Board of Directors. Any Directors elected
in accordance with the preceding sentence shall hold office for the remainder of
the full term of the class of Directors in which the new directorship was
created or the vacancy occurred and until such Director's successor shall have
been elected and qualified. No decrease in the number of Directors constituting
the Board of Directors shall shorten the term of any incumbent Director.
SECTION 3. Removal.
Any Director may be removed from office, without cause, only by the
affirmative vote of the holders of 80% of the combined voting power of the then
outstanding shares of stock entitled to vote generally in the election of
Directors, voting together as a single class.
SECTION 4. Regular Meetings.
Regular meetings of the Board shall be held at such times and places as
the Board may from time to time determine.
SECTION 5. Special Meetings.
Special meetings of the Board may be called at any time, at any place
and for any purpose by the Chairman of the Executive Committee, the Chairman of
the Board, or the President, or by any officer of the Corporation upon the
request of a majority of the entire Board.
SECTION 6. Notice of Meeting.
Notice of regular meetings of the Board need not be given.
Notice of every special meeting of the Board shall be given to each
Director at his usual place of business, or at such other address as shall have
been furnished by him for the purpose. Such notice shall be given at least
twenty-four hours before the meeting by telephone or by being personally
delivered, mailed, or telegraphed. Such notice need not include a statement of
the business to be transacted at, or the purpose of, any such meeting.
SECTION 7. Quorum.
Except as may be otherwise provided by law or in these By-Laws, the
presence of a majority of the Board shall be necessary and sufficient to
constitute a quorum for the transaction of business at any meeting of the Board,
and the act of a majority of such quorum shall be deemed the act of the Board.
Less than a quorum may adjourn any meeting of the Board from time to
time without notice.
<PAGE>
SECTION 8. Participation In Meetings By Conference Telephone.
Members of the Board, or of any committee thereof, may participate in a
meeting of such Board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other and such participation shall constitute presence in
person at such meeting.
SECTION 9. Powers.
The business, property and affairs of the Corporation shall be managed
by or under the direction of its Board of Directors, which shall have and may
exercise all the powers of the Corporation to do all such lawful acts and things
as are not by law, or by the Certificate of Incorporation, or by these By-Laws,
directed or required to be exercised or done by the stockholders.
SECTION 10. Compensation of Directors.
Directors shall receive such compensation for their services as shall
be determined by a majority of the Board provided that Directors who are serving
the Corporation as officers or employees and who receive compensation for their
services as such officers or employers shall not receive any salary or other
compensation for their services as Directors.
<PAGE>
ARTICLE IV.
Officers
SECTION 1. Number.
a) General. The officers of the Corporation shall be appointed or
elected by the Board of Directors. The officers shall be a Chairman of the
Board, a President and Chief Executive Officer, one or more Vice Chairmen of the
Board, a Chief Financial Officer, a General Counsel, such number of vice
presidents as the Board may from time to time determine and a Secretary. The
Chairman of the Board or, in his absence or if such office be vacant, the
President, shall preside at all meetings of the stockholders and of the Board.
In the absence of the Chairman of the Board and the President, a Vice Chairman
of the Board shall preside at all meetings of the stockholders and of the Board.
Any person may hold two or more offices, other than the offices of Chairman of
the Board and Vice Chairman of the Board, at the same time. Subject to this
Section 1, the Chairman of the Board and the Vice Chairmen of the Board shall be
chosen from among the Board of Directors, but the other officers need not be
members of the Board.
b) Chairman of the Board. The Chairman of the Board shall be a member
of the Board of Directors and shall be an officer of the Corporation.
c) President and Chief Executive Officer. The President and Chief
Executive Officer shall be a member of the Board of Directors and an officer of
the Corporation. The President and Chief Executive Officer shall be the chief
executive officer of the Corporation and shall supervise, coordinate and manage
the Corporation's business and activities and supervise, coordinate and manage
its operating expenses and capital allocation, shall have general authority to
exercise all the powers necessary for the President and Chief Executive Officer
of the Corporation and shall perform such other duties and have such other
powers as may be prescribed by the Board or these By-laws, all in accordance
with basic policies as established by and subject to the oversight of the Board.
In the absence or disability of the Chairman of the Board, the duties of the
Chairman of the Board shall be performed and the Chairman of the Board's
authority may be exercised by the President and Chief Executive Officer.
d) Chief Financial Officer. The Chief Financial Officer shall have
responsibility for the financial affairs of the Corporation and shall exercise
supervisory responsibility for the performance of the duties of the Treasurer
and the Controller. The Chief Financial Officer shall perform such other duties
and have such other powers as may be prescribed by the Board or these By-laws,
all in accordance with basic policies as established by and subject to the
oversight of the Board, the Chairman of the Board and the President and Chief
Executive Officer.
e) General Counsel. The General Counsel shall have responsibility for
the legal affairs of the Corporation and for the performance of the duties of
the Secretary. The General Counsel shall perform such other duties and have such
other powers as may be prescribed by the Board or these By-laws, all in
accordance with basic policies as established by and subject to the oversight of
the Board, the Chairman of the Board and the President and Chief Executive
Officer.
SECTION 2. Additional Officers.
The Board may appoint such other officers, agents and employees as it
shall deem appropriate. All references in these By-laws to a particular officer
shall be deemed to refer to the person holding such office regardless of whether
such person holds additional offices.
SECTION 3. Terms of Office.
All officers, agents and employees of the Corporation shall hold their
respective offices or positions at the pleasure of the Board of Directors and
may be removed at any time by the Board of Directors with or without cause.
SECTION 4. Duties.
The officers, agents and employees shall perform the duties and
exercise the powers usually incident to the offices or positions held by them
respectively, and/or such other duties and powers as may be assigned to them
from time to time by the Board of Directors or the Chief Executive Officer.
<PAGE>
ARTICLE V.
Committees of the Board of Directors
SECTION 1. Designation.
The Board of Directors of the Corporation shall have the following
committees:
a) An Executive Committee consisting of not less than three Directors
may be elected by a majority vote of the Board to serve until the Board shall
otherwise determine. The Executive Committee shall have and may exercise all of
the powers of the Board of Directors when the Board is not in session, including
the power to authorize the issuance of stock, except that the Executive
Committee shall have no power to (i) alter, amend or repeal these By-Laws or any
resolution or resolutions of the Board of Directors; (ii) declare any dividend
or make any other distribution to the stockholders of the Corporation; (iii)
appoint any member of the Executive Committee; or (iv) take any other action
which legally may be taken only by the Board. The Executive Committee shall also
act as the nominating committee, nominating persons for election as Directors.
The Chairman of the Board will also serve as Chairman of the Executive
Committee. Each resolution of the Executive Committee will require approval by a
majority of the members of such Committee.
b) A Compensation Committee consisting of not less than three Directors
may be elected by a majority vote of the Board to serve until the Board shall
otherwise determine. The Compensation Committee will have the following powers
and authority: (i) determining and fixing the compensation for all senior
officers of the Corporation and those of its subsidiaries that the Compensation
Committee shall from time to time consider appropriate, as well as all employees
of the Corporation and its subsidiaries compensated at a rate in excess of such
amount per annum as may be fixed or determined from time to time by the Board;
(ii) performing the duties of the committees of the Board provided for in any
present or future stock option, incentive compensation or employee benefit plan
of the Corporation or, if the Compensation Committee shall so determine, any
such plan of any subsidiary; and (iii) reviewing the operations of and policies
pertaining to any present or future stock option, incentive compensation or
employee benefit plan of the Corporation or any subsidiary that the Compensation
Committee shall from time to time consider appropriate. Each resolution of the
Compensation Committee will require approval by a majority of the members of
such committee.
c) An Audit Committee consisting of not less than four Directors may be
elected by a majority vote of the Board to serve until the Board shall otherwise
determine. The Audit Committee will have the following powers and authority: (i)
employing independent public accountants to audit the books of account,
accounting procedures, and financial statements of the Corporation and to
perform such other duties from time to time as the Audit Committee may
prescribe; (ii) receiving the reports and comments of the Corporation's internal
auditors and of the independent public accountants employed by the Audit
Committee and to take such action with respect thereto as may seem appropriate;
(iii) requesting the Corporation's consolidated subsidiaries and affiliated
companies to employ independent public accountants to audit their respective
books of account, accounting procedures, and financial statements; (iv)
requesting the independent public accountants to furnish to the Compensation
Committee the certifications required under any present or future stock option,
incentive compensation or employee benefit plan of the Corporation; (v)
reviewing the adequacy of internal financial controls; (vi) approving the
accounting principles employed in financial reporting; (vii) approving the
appointment or removal of the Corporation's general auditor; and (viii)
reviewing the accounting principles employed in financial reporting. Each
resolution of the Audit Committee will require approval by a majority of the
members of such committee. Notwithstanding the foregoing, there will be no
changes in the composition of the Audit Committee prior to the date of the
adoption of a resolution of the Audit Committee approving its final report
concerning the Accounting Issues (as defined in Section 1(d)).
<PAGE>
SECTION 2. Meetings; Notice.
Regular meetings of committees shall be held at such times and places
as the Board or the committee in question may from time to time determine.
Special meetings of any committee may be called at any time, at any place and
for any purpose by the Chairman of such committee, the Chairman of the Board, or
the President, or by any officer of the Corporation upon the request of a
majority of the members of such committee. Notice of regular meetings of the
committees need not be given. Notice of every special meeting of any committee
shall be given to each member at his usual place of business, or at such other
address as shall have been furnished by him for the purpose. Such notice shall
be given at least twenty-four hours before the meeting by telephone or by being
personally delivered, mailed, or telegraphed. Such notice need not include a
statement of the business to be transacted at, or the purpose of, any such
meeting.
SECTION 3. Committee Members; Board of Director Nominations.
a) Each member of any committee of the Board shall hold office until
such member's successor is elected and has qualified, unless such member sooner
dies, resigns or is removed.
b) Subject to Section 3(d) of this Article V, the Board may remove a
director from a committee or change the chairmanship of a committee by
resolution adopted by a majority of the Board.
c) Subject to Section 3(d) of this Article V, the Board may designate
one or more Directors as alternate members of any committee to fill any vacancy
on a committee and to fill a vacant chairmanship of a committee, occurring as a
result of a member or chairman leaving the committee, whether through death,
resignation, removal or otherwise. Any such designation may be made or amended
by the affirmative vote of a majority of the Board.
(d) From and after August 28, 1998, any new appointees to the Audit
Committee shall be composed solely of independent directors. For this purpose,
an independent director is one who:
(1) has not been employed by the Corporation or an affiliate of the
Corporation in an executive capacity within the last five years;
(2) is not an employee of a company that is one of the Corporation's
paid advisors or consultants;
(3) is not employed by a significant customer or supplier of the
Corporation;
(4) is not remunerated by the Corporation for personal services
(consisting of legal, accounting, investment banking, and management
consulting services) whether or not as an employee of a corporation,
division, or similar organization that actually provides the personal
services, nor is an employee of an entity which derives more than 50
percent of its gross revenues from the Corporation;
(5) is not employed by a tax-exempt organization that receives
significant contributions from the Corporation;
(6) is not a relative of any member of the senior management of the
Corporation;
(7) has no business or financial ties to the Corporation's Chief
Executive Officer or other executive officers or directors other than
relationships with the Corporation; and
(8) is not part of an interlocking directorate in which the Chief
Executive Officer or another executive officer of the Corporation
serves on the board of another corporation that employs the director.
<PAGE>
ARTICLE VI.
Indemnification of Directors, Officers and Employees
SECTION 1. Power to Indemnify in Actions, Suits or Proceedings other than Those
by or in the Right of the Corporation.
Subject to Section 3 of this Article VI, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that such person is or was a
director or officer of the Corporation, or is or was a director or officer of
the Corporation serving at the request of the Corporation as a director or
officer, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, 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 if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person's conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which such
person reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that such person's conduct was unlawful.
SECTION 2. Power to Indemnify in Actions, Suits or Proceedings by or in the
Right of the Corporation.
Subject to Section 3 of this Article VI, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the Corporation, or is or was a
director or officer of the Corporation serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the Corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
SECTION 3. Authorization of Indemnification.
Any indemnification under this Article VI (unless ordered by a court)
shall be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standard of conduct set
forth in Section 1 or Section 2 of this Article VI, as the case may be. Such
determination shall be made (i) by a majority vote of the Directors who are not
parties to such action, suit or proceeding, even though less than a quorum, or
(ii) if there are no such Directors, or if such Directors so direct, by
independent legal counsel in a written opinion or (iii) by the stockholders.
Notwithstanding the foregoing, with respect to any request for indemnification
arising out of or relating to the Accounting Issues, it will be presumed that
indemnification is proper and appropriate, and any disagreement concerning
indemnification of any person who resigned from the Board pursuant to a
resignation dated July 28, 1998 shall be resolved by independent legal counsel,
reasonably acceptable to either Mr. Rittereiser or Mr. Stapleton (whoever was
the last of the two to cease being a director), on the one hand, and the General
Counsel of the Corporation, on the other hand, in a written opinion. To the
extent, however, that a director or officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein,
such person shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection therewith, without
the necessity of authorization in the specific case.
SECTION 4. Good Faith Defined.
For purposes of any determination under Section 3 of this Article VI, a
person shall be deemed to have acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Corporation, or, with respect to any criminal action or proceeding, to have had
no reasonable cause to believe such person's conduct was unlawful, if such
person's action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to such person by the officers
of the Corporation or another enterprise in the course of their duties, or on
the advice of legal counsel for the Corporation or another enterprise or on
information or records given or reports made to the Corporation or another
enterprise by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Corporation or another
enterprise. The term "another enterprise" as used in this Section 4 shall mean
any other corporation or any partnership, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request
of the Corporation as a director, officer, employee or agent. The provisions of
this Section 4 shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or 2 of this Article VI, as the case
may be.
SECTION 5. Indemnification by a Court.
Notwithstanding any contrary determination in the specific case under
Section 3 of this Article VI, and notwithstanding the absence of any
determination thereunder, any director or officer may apply to the Court of
Chancery in the State of Delaware for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VI. The basis of such
indemnification by a court shall be a determination by such court that
indemnification of the director or officer is proper in the circumstances
because such person has met the applicable standards of conduct set forth in
Section 1 or 2 of this Article VI, as the case may be. Neither a contrary
determination in the specific case under Section 3 of this Article VI nor the
absence of any determination thereunder shall be a defense to such application
or create a presumption that the director or officer seeking indemnification has
not met any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in
part, the director or officer seeking indemnification shall also be entitled to
be paid the expense of prosecuting such application.
SECTION 6. Expenses Payable in Advance.
Expenses incurred by a current or former director or officer in
defending any 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 upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately
be determined that such person is not entitled to be indemnified by the
Corporation as authorized in this Article VI. Any disagreement concerning the
foregoing expense advancement provisions shall be resolved in a summary
proceeding as expeditiously as possible.
SECTION 7. Nonexclusivity of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by or granted
pursuant to this Article VI shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under the Certificate of Incorporation, any By-Law, agreement, vote of
stockholders or disinterested Directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office, it being the policy of the Corporation that indemnification of the
persons specified in Sections 1 and 2 of this Article VI shall be made to the
fullest extent permitted by law. The provisions of this Article VI shall not be
deemed to preclude the indemnification of any person who is not specified in
Section 1 or 2 of this Article VI but whom the Corporation has the power or
obligation to indemnify under the provisions of the General Corporation Law of
the State of Delaware, or otherwise.
SECTION 8. Insurance.
The Corporation may purchase and maintain insurance on behalf of any
person who is or was a director or officer of the Corporation, or is or was a
director or officer of the Corporation serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise against any
liability asserted against such person and incurred by such person in any such
capacity, or arising out of such person's status as such, whether or not the
Corporation would have the power or the obligation to indemnify such person
against such liability under the provisions of this Article VI.
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SECTION 9. Certain Definitions.
For purposes of this Article VI, references to "the Corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its Directors or officers, so that any person who is or
was a director or officer of such constituent corporation, or is or was a
director or officer of such constituent corporation serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, shall stand in the same position under the provisions of this
Article VI with respect to the resulting or surviving corporation as such person
would have with respect to such constituent corporation if its separate
existence had continued. For purposes of this Article VI, references to "fines"
shall include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such director or
officer with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this Article
VI.
SECTION 10. Survival of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article VI shall continue as to a person who has ceased to be
a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
SECTION 11. Limitation on Indemnification.
Notwithstanding anything contained in this Article VI to the contrary,
except for proceedings to enforce rights to indemnification (which shall be
governed by Section 5 hereof), the Corporation shall not be obligated to
indemnify any director or officer in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding (or part thereof) was
authorized or consented to by the Board of Directors of the Corporation.
SECTION 12. Indemnification of Employees and Agents.
The Corporation may, to the extent authorized from time to time by the
Board of Directors, provide rights to indemnification and to the advancement of
expenses to employees and agents of the Corporation similar to those conferred
in this Article VI to Directors and officers of the Corporation.
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ARTICLE VII.
Seal
SECTION 1.
The Corporate seal shall bear the name of the Corporation and the words
"Corporate Seal, Delaware."
ARTICLE VIII.
Amendments
SECTION 1. Amendments of By-Laws.
Subject to the provisions of the Certificate of Incorporation and the
provisions of these By-Laws, these By-Laws may be altered, amended or repealed
at any regular meeting of the stockholders (or at any special meeting thereof
duly called for that purpose) by the vote of a majority of the shares
outstanding and entitled to vote at such meeting; provided that in the notice of
such special meeting notice of such purpose shall be given. Subject to the laws
of the State of Delaware, the provisions of Certificate of Incorporation and the
provisions of these By-Laws, the Board of Directors may by majority vote of
those present at any meeting at which a quorum is present amend these By-Laws,
or enact such other bylaws as in their judgment may be advisable for the
regulation of the conduct of the affairs of the Corporation.
