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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K/A
(AMENDMENT NO. 1)
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1994 COMMISSION FILE NO. 1-5591
PENNZOIL COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 74-1597290
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
PENNZOIL PLACE, P.O. BOX 2967
HOUSTON, TEXAS 77252-2967
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
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Registrant's telephone number, including area code: (713) 546-4000
Securities registered pursuant to Section 12(b) of the Act:
NAME OF EACH EXCHANGE
TITLE OF EACH CLASS ON WHICH REGISTERED
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Common Stock, par value $0.83 1/3 per share New York Stock Exchange
Pacific Stock Exchange
Debentures New York Stock Exchange
6 1/2% Exchangeable Senior Debentures due January 15, 2003
4 3/4% Exchangeable Senior Debentures due October 1, 2003
Rights to Purchase Preferred Stock New York Stock Exchange
Pacific Stock Exchange
Securities registered pursuant to Section 12(g) of the Act: None
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Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
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Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. X
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Aggregate market value of the voting stock held by non-affiliates of the
registrant: $2.1 billion as of January 31, 1995.
Number of shares outstanding of each of the registrant's classes of common
stock, as of the latest practicable date, January 31, 1995: Common Stock, par
value $0.83 1/3 per share -- 46,145,528.
DOCUMENTS INCORPORATED BY REFERENCE: PORTIONS OF THE PROXY STATEMENT TO BE
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO REGULATION 14A
UNDER THE SECURITIES EXCHANGE ACT OF 1934 IN CONNECTION WITH THE COMPANY'S 1995
ANNUAL MEETING OF SHAREHOLDERS ARE INCORPORATED BY REFERENCE INTO PART III
HEREOF (TO THE EXTENT SET FORTH IN ITEMS 10, 11, 12 AND 13 OF PART III OF THIS
ANNUAL REPORT ON FORM 10-K).
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Pennzoil Company (the "Company") has prepared this Amendment No. 1
("Amendment No. 1") on Form 10-K/A to the Company's Annual Report on Form 10-K
for the year ended December 31, 1994 (the "Annual Report") for the purposes of
making certain corrections to the cover page of the Annual Report and filing
Exhibit 3(b) to the Annual Report. Amendment No. 1 does not modify any other
item of the Annual Report. Accordingly, the text of the Annual Report is not
included herein.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K.
(A)(1) FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
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Report of Independent Public Accountants............................. F-1
Consolidated Statement of Income..................................... F-3
Consolidated Balance Sheet........................................... F-4
Consolidated Statement of Shareholders' Equity....................... F-6
Consolidated Statement of Cash Flows................................. F-7
Notes to Consolidated Financial Statements........................... F-8
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The supplementary financial data specified by Item 302 of Regulation S-K
are included in the Supplemental Financial and Statistical Information --
Unaudited beginning on page F-30.
(A)(2) FINANCIAL STATEMENT SCHEDULES.
Schedules of Pennzoil and its subsidiaries are omitted because of the
absence of the conditions under which they are required or because the required
information is included in the financial statements or notes thereto.
(A)(3) EXHIBITS.
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*3(a) -- Restated Certificate of Incorporation of Pennzoil Company, as amended
through September 17, 1993 (Registration No. 33-50953, Exhibit 3(a)).
3(b) -- By-laws of Pennzoil Company, as amended through December 8, 1994.
*4(a) -- Indenture dated as of February 15, 1986 (the "1986 Indenture")
between Pennzoil Company and Mellon Bank, N.A., Trustee (Pennzoil
Company 10-Q (June 30, 1986), SEC File No. 1-5591, Exhibit 4(a)).
*4(b) -- Officer's Certificate dated as of March 16, 1987 delivered pursuant
to the terms of the 1986 Indenture setting forth the terms of
Pennzoil Company's 9% Debentures due April 1, 2017 (Pennzoil Company
10-Q (March 31, 1987), SEC File No. 1-5591, Exhibit 4(a)).
*4(c) -- Officer's Certificate dated as of April 14, 1989 delivered pursuant
to the terms of the 1986 Indenture setting forth the terms of
Pennzoil Company's 10 5/8% Debentures due June 1, 2001 (Pennzoil
Company 10-Q (March 31, 1989), SEC File No. 1-5591, Exhibit 4(a)).
*4(d) -- Officer's Certificate dated as of November 14, 1989 delivered
pursuant to the terms of the 1986 Indenture setting forth the terms
of Pennzoil Company's 10 1/8% Debentures due November 15, 2009 and
9 5/8% Notes due November 15, 1999 (Pennzoil Company 10-K (1989), SEC
File No. 1-5591, Exhibit 4(n)).
*4(e) -- Officer's Certificate dated as of November 19, 1990 delivered
pursuant to the terms of the 1986 Indenture setting forth the terms
of Pennzoil Company's 10 1/4% Debentures due November 1, 2005
(Pennzoil Company 10-K (1990), SEC File No. 1-5591, Exhibit 4(n)).
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*4(f) -- Instrument of Resignation, Appointment and Acceptance dated as of
April 1, 1991 among Pennzoil Company, Mellon Bank, N.A., as Retiring
Trustee, and Texas Commerce Bank National Association, as Successor
Trustee, under the 1986 Indenture (Pennzoil Company 10-K (1991), SEC
File No. 1-5591, Exhibit 4(p)).
*4(g) -- Indenture dated as of December 15, 1992 (the "1992 Indenture")
between Pennzoil Company and Texas Commerce Bank National
Association, Trustee (Pennzoil Company 10-K (1992), SEC File No.
1-5591, Exhibit 4(o)).
*4(h) -- First Supplemental Indenture dated as of January 13, 1993 to the 1992
Indenture (Pennzoil Company 10-K (1992), SEC File No. 1-5591, Exhibit
4(p)).
*4(i) -- Second Supplemental Indenture dated as of October 12, 1993 to the
1992 Indenture (Pennzoil Company 10-K (1993), SEC File No. 1-5591,
Exhibit 4(i)).
*4(j) -- Rights Agreement dated as of October 28, 1994 between Pennzoil
Company and Chemical Bank, as Rights Agent (Pennzoil Company 8-K
(October 28, 1994), SEC File No. 1-5591, Exhibit 1).
Pennzoil Company agrees to furnish to the Commission upon request a copy
of any agreement defining the rights of holders of long-term debt of
Pennzoil Company and all its subsidiaries for which consolidated or
unconsolidated financial statements are required to be filed, under
which the total amount of securities authorized does not exceed 10%
of the total assets of Pennzoil Company and its subsidiaries on a
consolidated basis.
+*10(a) -- 1978 Stock Option Plan of Pennzoil Company, as amended (Registration
No. 2-67268, Exhibit 4(a)).
+*10(b) -- 1981 Stock Option Plan of Pennzoil Company (Registration No. 2-76935,
Exhibit 4(a)).
+*10(c) -- 1982 Stock Option Plan of Pennzoil Company (Pennzoil Company 10-K
(1982), SEC File No. 1-5591, Exhibit 10(e)).
+*10(d) -- Pennzoil Company Salary Continuation Plan (Pennzoil Company 10-K
(1982), SEC File No. 1-5591, Exhibit 10(g)).
+*10(e) -- Pennzoil Company Supplemental Disability Plan effective January 1,
1978 (Pennzoil Company 10-K(1977), SEC File No. 1-5591, Exhibit
5(y)).
+*10(f) -- Pennzoil Company Supplemental Life Insurance Plan effective January
1, 1978, as amended (Pennzoil Company 10-K (1980), SEC File No.
1-5591, Exhibit 10(g)).
+*10(g) -- Pennzoil Company Deferred Compensation Plan (Pennzoil Company 10-K
(1981), SEC File No. 1-5591, Exhibit 10(i)).
+*10(h) -- Specimen of Pennzoil Company Deferred Compensation Agreement
(Pennzoil Company 10-K (1982), SEC File No. 1-5591, Exhibit
10(j)(1)).
+*10(i) -- Specimen of Pennzoil Company agreements regarding certain benefits
payable in the event of a change in control (Pennzoil 10-Q (September
30, 1982), SEC File No. 1-5591, Exhibit 28).
+*10(j) -- Pennzoil Company Section 415 Excess Benefit Agreements (Pennzoil
Company 10-Q (March 31, 1980), SEC File No. 1-5591, Exhibit 5).
+*10(k) -- Pennzoil Company Medical Expenses Reimbursement Plan effective
January 1, 1978 (Pennzoil Company 10-K(1977), SEC File No. 1-5591,
Exhibit 5(v)).
+*10(l) -- Pennzoil Company 1985 Conditional Stock Award Program (Pennzoil
Company definitive proxy material (April 25, 1985), SEC File No.
1-5591, Exhibit B).
+*10(m) -- Pennzoil Company Executive Severance Plan (Pennzoil Company 10-K
(1987), SEC File No. 1-5591, Exhibit 10(t)).
+*10(n) -- 1990 Stock Option Plan of Pennzoil Company (Pennzoil Company
definitive proxy material (April 26, 1990), SEC File No. 1-5591,
Exhibit A).
+*10(o) -- Pennzoil Company 1990 Conditional Stock Award Program (Pennzoil
Company definitive proxy material (April 26, 1990), SEC File No.
1-5591, Exhibit B).
+*10(p) -- 1992 Stock Option Plan of Pennzoil Company (Pennzoil Company
definitive proxy material (April 13, 1993), SEC File No. 1-5591,
Exhibit A).
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+*10(q) -- Pennzoil Company 1993 Conditional Stock Award Program (Pennzoil
Company definitive proxy material (April 13, 1993), SEC File No.
1-5591, Exhibit B).
**11 -- Computation of Ratio of Earnings to Fixed Charges for the years ended
December 31, 1994, 1993, 1992, 1991 and 1990.
**21 -- List of Subsidiaries of Pennzoil Company.
**23(a) -- Consent of Arthur Andersen LLP.
**23(b) -- Consent of Ryder Scott Company Petroleum Engineers.
**23(c) -- Consent of Outtrim Szabo Associates Ltd.
**24 -- Powers of Attorney.
**27 -- Financial Data Schedule.
**99(a) -- Summary of Reserve Report of Ryder Scott Company Petroleum Engineers
as of December 31, 1994 relating to oil and gas reserves.
**99(b) -- Summary of Reserve Report of Outtrim Szabo Associates, Ltd. as of
December 31, 1994 relating to oil and gas reserves.
</TABLE>
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* Incorporated by reference.
** Previously filed.
+ Management contract or compensatory plan or arrangement required to be filed
as an exhibit pursuant to the requirements of Item 14(c) of Form 10-K.
(B) REPORTS ON FORM 8-K.
During the fourth quarter of 1994, Pennzoil filed a Current Report on Form
8-K with the SEC dated as of October 28, 1994 to report the declaration of a
dividend of one right to purchase preferred stock for each outstanding share of
Pennzoil's common stock.
3
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934, THE REGISTRANT HAS DULY CAUSED THIS REPORT TO BE SIGNED ON
ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED.
PENNZOIL COMPANY
By: JAMES L. PATE
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(JAMES L. PATE, CHAIRMAN OF THE
BOARD, PRESIDENT AND
CHIEF EXECUTIVE OFFICER)
Date: March 16, 1995
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INDEX TO EXHIBITS
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EXHIBIT NO.
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*3(a) -- Restated Certificate of Incorporation of Pennzoil Company, as amended
through September 17, 1993 (Registration No. 33-50953, Exhibit 3(a)).
3(b) -- By-laws of Pennzoil Company, as amended through December 8, 1994.
*4(a) -- Indenture dated as of February 15, 1986 (the "1986 Indenture")
between Pennzoil Company and Mellon Bank, N.A., Trustee (Pennzoil
Company 10-Q (June 30, 1986), SEC File No. 1-5591, Exhibit 4(a)).
*4(b) -- Officer's Certificate dated as of March 16, 1987 delivered pursuant
to the terms of the 1986 Indenture setting forth the terms of
Pennzoil Company's 9% Debentures due April 1, 2017 (Pennzoil Company
10-Q (March 31, 1987), SEC File No. 1-5591, Exhibit 4(a)).
*4(c) -- Officer's Certificate dated as of April 14, 1989 delivered pursuant
to the terms of the 1986 Indenture setting forth the terms of
Pennzoil Company's 10 5/8% Debentures due June 1, 2001 (Pennzoil
Company 10-Q (March 31, 1989), SEC File No. 1-5591, Exhibit 4(a)).
*4(d) -- Officer's Certificate dated as of November 14, 1989 delivered
pursuant to the terms of the 1986 Indenture setting forth the terms
of Pennzoil Company's 10 1/8% Debentures due November 15, 2009 and
9 5/8% Notes due November 15, 1999 (Pennzoil Company 10-K (1989), SEC
File No. 1-5591, Exhibit 4(n)).
*4(e) -- Officer's Certificate dated as of November 19, 1990 delivered
pursuant to the terms of the 1986 Indenture setting forth the terms
of Pennzoil Company's 10 1/4% Debentures due November 1, 2005
(Pennzoil Company 10-K (1990), SEC File No. 1-5591, Exhibit 4(n)).
*4(f) -- Instrument of Resignation, Appointment and Acceptance dated as of
April 1, 1991 among Pennzoil Company, Mellon Bank, N.A., as Retiring
Trustee, and Texas Commerce Bank National Association, as Successor
Trustee, under the 1986 Indenture (Pennzoil Company 10-K (1991), SEC
File No. 1-5591, Exhibit 4(p)).
*4(g) -- Indenture dated as of December 15, 1992 (the "1992 Indenture")
between Pennzoil Company and Texas Commerce Bank National
Association, Trustee (Pennzoil Company 10-K (1992), SEC File No.
1-5591, Exhibit 4(o)).
*4(h) -- First Supplemental Indenture dated as of January 13, 1993 to the 1992
Indenture (Pennzoil Company 10-K (1992), SEC File No. 1-5591, Exhibit
4(p)).
*4(i) -- Second Supplemental Indenture dated as of October 12, 1993 to the
1992 Indenture (Pennzoil Company 10-K (1993), SEC File No. 1-5591,
Exhibit 4(i)).
*4(j) -- Rights Agreement dated as of October 28, 1994 between Pennzoil
Company and Chemical Bank, as Rights Agent (Pennzoil Company 8-K
(October 28, 1994), SEC File No. 1-5591, Exhibit 1).
Pennzoil Company agrees to furnish to the Commission upon request a copy
of any agreement defining the rights of holders of long-term debt of
Pennzoil Company and all its subsidiaries for which consolidated or
unconsolidated financial statements are required to be filed, under
which the total amount of securities authorized does not exceed 10%
of the total assets of Pennzoil Company and its subsidiaries on a
consolidated basis.
+*10(a) -- 1978 Stock Option Plan of Pennzoil Company, as amended (Registration
No. 2-67268, Exhibit 4(a)).
+*10(b) -- 1981 Stock Option Plan of Pennzoil Company (Registration No. 2-76935,
Exhibit 4(a)).
+*10(c) -- 1982 Stock Option Plan of Pennzoil Company (Pennzoil Company 10-K
(1982), SEC File No. 1-5591, Exhibit 10(e)).
+*10(d) -- Pennzoil Company Salary Continuation Plan (Pennzoil Company 10-K
(1982), SEC File No. 1-5591, Exhibit 10(g)).
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EXHIBIT NO.
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+*10(e) -- Pennzoil Company Supplemental Disability Plan effective January 1,
1978 (Pennzoil Company 10-K(1977), SEC File No. 1-5591, Exhibit
5(y)).
+*10(f) -- Pennzoil Company Supplemental Life Insurance Plan effective January
1, 1978, as amended (Pennzoil Company 10-K (1980), SEC File No.
1-5591, Exhibit 10(g)).
+*10(g) -- Pennzoil Company Deferred Compensation Plan (Pennzoil Company 10-K
(1981), SEC File No. 1-5591, Exhibit 10(i)).
+*10(h) -- Specimen of Pennzoil Company Deferred Compensation Agreement
(Pennzoil Company 10-K (1982), SEC File No. 1-5591, Exhibit
10(j)(1)).
+*10(i) -- Specimen of Pennzoil Company agreements regarding certain benefits
payable in the event of a change in control (Pennzoil 10-Q (September
30, 1982), SEC File No. 1-5591, Exhibit 28).
+*10(j) -- Pennzoil Company Section 415 Excess Benefit Agreements (Pennzoil
Company 10-Q (March 31, 1980), SEC File No. 1-5591, Exhibit 5).
+*10(k) -- Pennzoil Company Medical Expenses Reimbursement Plan effective
January 1, 1978 (Pennzoil Company 10-K(1977), SEC File No. 1-5591,
Exhibit 5(v)).
+*10(l) -- Pennzoil Company 1985 Conditional Stock Award Program (Pennzoil
Company definitive proxy material (April 25, 1985), SEC File No.
1-5591, Exhibit B).
+*10(m) -- Pennzoil Company Executive Severance Plan (Pennzoil Company 10-K
(1987), SEC File No. 1-5591, Exhibit 10(t)).
+*10(n) -- 1990 Stock Option Plan of Pennzoil Company (Pennzoil Company
definitive proxy material (April 26, 1990), SEC File No. 1-5591,
Exhibit A).
+*10(o) -- Pennzoil Company 1990 Conditional Stock Award Program (Pennzoil
Company definitive proxy material (April 26, 1990), SEC File No.
1-5591, Exhibit B).
+*10(p) -- 1992 Stock Option Plan of Pennzoil Company (Pennzoil Company
definitive proxy material (April 13, 1993), SEC File No. 1-5591,
Exhibit A).
+*10(q) -- Pennzoil Company 1993 Conditional Stock Award Program (Pennzoil
Company definitive proxy material (April 13, 1993), SEC File No.
1-5591, Exhibit B).
**11 -- Computation of Ratio of Earnings to Fixed Charges for the years ended
December 31, 1994, 1993, 1992, 1991 and 1990.
**21 -- List of Subsidiaries of Pennzoil Company.
**23(a) -- Consent of Arthur Andersen LLP.
**23(b) -- Consent of Ryder Scott Company Petroleum Engineers.
**23(c) -- Consent of Outtrim Szabo Associates Ltd.
**24 -- Powers of Attorney.
**27 -- Financial Data Schedule.
**99(a) -- Summary of Reserve Report of Ryder Scott Company Petroleum Engineers
as of December 31, 1994 relating to oil and gas reserves.
**99(b) -- Summary of Reserve Report of Outtrim Szabo Associates, Ltd. as of
December 31, 1994 relating to oil and gas reserves.
</TABLE>
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* Incorporated by reference.
** Previously filed.
+ Management contract or compensatory plan or arrangement required to be filed
as an exhibit pursuant to the requirements of Item 14(c) of Form 10-K.
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PENNZOIL COMPANY
BY-LAWS
(AS AMENDED)
ARTICLE I.
MEETINGS OF SHAREHOLDERS
SECTION 1. The annual meeting of the shareholders of this Corporation
shall be held on the fourth Thursday of April in each year, at ten o'clock
A.M., and on any subsequent day or days to which such meeting may be adjourned,
for the purposes of electing directors and of transacting such other business
as may properly come before the meeting. The Board of Directors shall
designate the place for the holding of such meeting, and at least ten days'
notice shall be given to the shareholders of the place so fixed. If the day
designated herein is a legal holiday, the annual meeting shall be held on the
first succeeding day which is not a legal holiday. If for any reason the
annual meeting shall not be held on the day designated herein, the Board of
Directors shall cause the annual meeting to be held as soon thereafter as may
be convenient.
SECTION 2. Special meetings of the shareholders may be called at any
time by the Board of Directors, the Chairman of the Board, the Executive
Committee, the Chairman of the Executive Committee or the President. Upon
written request of any person or persons who have duly called a special
meeting, it shall be the duty of the Secretary of the Corporation to fix the
date of the meeting to be held not less than ten nor more than sixty days after
the receipt of the request and to give due notice thereof. If the Secretary
shall neglect or refuse to fix the date of the meeting and give notice thereof,
the person or persons calling the meeting may do so.
SECTION 3. Every special meeting of the shareholders shall be held at
such place within or without the State of Delaware as the Board of Directors
may designate, or in the absence of such designation, at the registered office
of the Corporation in the State of Delaware.
SECTION 4. Written notice of every meeting of the shareholders shall
be given by the Secretary of the Corporation to each shareholder of record
entitled to vote at the meeting, by placing such notice in the mail at least
ten days, but not more than sixty days, prior to the day named for the meeting
addressed to each shareholder at his address appearing on the books of the
Corporation or supplied by him to the Corporation for the purpose of notice.
SECTION 5. The Board of Directors may fix a date, not less than ten
nor more than sixty days preceding the date of any meeting of shareholders, as
a record date for the determination of shareholders entitled to notice of, or
to vote at, any such meeting. The Board of Directors shall not close the books
of the Corporation against transfers of shares during the whole or any part of
such period.
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SECTION 6. The notice of every meeting of the shareholders may be
accompanied by a form of proxy approved by the Board of Directors in favor of
such person or persons as the Board of Directors may select.
SECTION 7. A majority of the outstanding shares of stock of the
Corporation entitled to vote, present in person or represented by proxy, shall
constitute a quorum at any meeting of the shareholders, and the shareholders
present at any duly convened meeting may continue to do business until
adjournment notwithstanding any withdrawal from the meeting of holders of
shares counted in determining the existence of a quorum. Directors shall be
elected by a plurality of the votes cast in the election. For all matters as
to which no other voting requirement is specified by the General Corporation
Law of the State of Delaware (the "General Corporation Law"), the Restated
Certificate of Incorporation of the Corporation, as amended (the "Certificate
of Incorporation") or these By-laws, the affirmative vote required for
shareholder action shall be that of a majority of the shares present in person
or represented by proxy at the meeting (as counted for purposes of determining
the existence of a quorum at the meeting). In the case of a matter submitted
for a vote of the shareholders as to which a shareholder approval requirement
is applicable under the shareholder approval policy of the New York Stock
Exchange, the requirements of Rule 16b-3 under the Securities Exchange Act of
1934 or any provision of the Internal Revenue Code, in each case for which no
higher voting requirement is specified by the General Corporation Law, the
Certificate of Incorporation or these By-laws, the vote required for approval
shall be the requisite vote specified in such shareholder approval policy, Rule
16b-3 or Internal Revenue Code provision, as the case may be (or the highest
such requirement if more than one is applicable). For the approval of the
appointment of independent public accountants (if submitted for a vote of the
shareholders), the vote required for approval shall be a majority of the votes
cast on the matter.
SECTION 8. Any meeting of the shareholders may be adjourned from time
to time, without notice other than by announcement at the meeting at which such
adjournment is taken, and at any such adjourned meeting at which a quorum shall
be present any action may be taken that could have been taken at the meeting
originally called; provided that if the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each shareholder
of record entitled to vote at the adjourned meeting.
SECTION 9. Subject to such rights of the holders of Preferred Stock or
Preference Common Stock or any series thereof as shall be prescribed in the
Certificate of Incorporation or in the resolutions of the Board of Directors
providing for the issuance of any such series, only persons who are nominated
in accordance with the procedures set forth in this Section 9 shall be eligible
for election as, and to serve as, directors. Nominations of persons for
election to the Board of Directors may be made at a meeting of the shareholders
at which Directors are to be elected (a) by or at the direction of the Board of
Directors or (b) by any shareholder of the Corporation entitled to vote at such
meeting in the election of directors who complies with the requirements of this
Section 9. Such nominations, other than those made by
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or at the direction of the Board of Directors, shall be preceded by timely
advance notice in writing to the Secretary of the Corporation. To be timely, a
shareholder's notice shall be delivered to, or mailed and received at, the
principal executive offices of the Corporation not less than 60 days prior to
the scheduled meeting date, regardless of any postponements, deferrals or
adjournments of the meeting to a later date; provided, however, that if the
scheduled meeting date differs from the annual meeting date prescribed by the
By-laws as in effect on the date of the next preceding annual meeting of
shareholders and if less than 70 days' notice or prior public disclosure of the
scheduled meeting date is given or made, notice by the shareholder, to be
timely, must be so delivered or received not later than the close of business
on the tenth day following the earlier of the day on which the notice of such
meeting was mailed to shareholders or the day on which such public disclosure
was made. A shareholder's notice to the Secretary shall set forth (x) as to
each person whom the shareholder proposes to nominate for election or
re-election as a director, (i) the name, age, business address and residence
address of such person, (ii) the principal occupation or employment of such
person, (iii) the number of shares of each class of capital stock of the
Corporation beneficially owned by such person and (iv) the written consent of
such person to having such person's name placed in nomination at the meeting
and to serve as a director if elected, and (y) as to the shareholder giving the
notice, (i) the name and address, as they appear on the Corporation's books, of
such shareholder and (ii) the number of shares of each class of voting stock of
the Corporation which are then beneficially owned by such shareholder. The
presiding officer of the meeting of shareholders shall determine whether the
requirements of this Section 9 have been met with respect to any nomination or
intended nomination. If the presiding officer determines that any nomination
was not made in accordance with the requirements of this Section 9, he shall so
declare at the meeting and the defective nomination shall be disregarded.
SECTION 10. At an annual meeting of shareholders, only such business
shall be conducted, and only such proposals shall be acted upon, as shall have
been brought before the annual meeting (a) by or at the direction of the Board
of Directors or (b) by any shareholder of the Corporation who complies with the
requirements of this Section 10 and as shall otherwise be proper subjects for
shareholder action and shall be properly introduced at the meeting. For a
proposal to be properly brought before an annual meeting by a shareholder, the
shareholder must have given timely advance notice thereof in writing to the
Secretary of the Corporation. To be timely, a shareholder's notice must be
delivered to, or mailed and received at, the principal executive offices of the
Corporation not less than 60 days prior to the scheduled meeting date,
regardless of any postponements, deferrals or adjournments of that meeting to a
later date; provided, however, that if the scheduled meeting date differs from
the meeting date prescribed by the By-laws as in effect on the date of the next
preceding annual meeting of shareholders and if less than 70 days' notice or
prior public disclosure of the scheduled meeting date is given or made, notice
by the shareholder, to be timely, must be so delivered or received not later
than the close of business on the tenth day following the earlier of the day on
which the notice of such meeting was mailed to shareholders or the day on which
such public disclosure was made. A shareholder's notice to the Secretary shall
set forth as to each matter the shareholder proposes to bring before the annual
meeting (a) a description of the proposal desired to be brought before the
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annual meeting and the reasons for conducting such business at the annual
meeting, (b) the name and address, as they appear on the Corporation's books,
of the shareholder proposing such business and any other shareholders known by
such shareholder to be supporting such proposal, (c) the class and number of
shares of the Corporation's stock which are beneficially owned by the
shareholder on the date of such notice and (d) any financial interest of the
shareholder in such proposal.
The presiding officer of the annual meeting shall determine whether the
requirements of this Section 10 have been met with respect to any shareholder
proposal. If the presiding officer determines that a shareholder proposal was
not made in accordance with the terms of this Section 10, he shall so declare
at the meeting and any such proposal shall not be acted upon at the meeting.
At a special meeting of shareholders, only such business shall be acted
upon as shall have been set forth in the notice relating to the meeting or as
shall constitute matters incident to the conduct of the meeting as the
presiding officer of the meeting shall determine to be appropriate.
ARTICLE II.
BOARD OF DIRECTORS
SECTION 1. The business affairs and property of the Corporation shall
be managed by a board of ten directors divided into three classes as provided
in the Certificate of Incorporation of the Corporation. Each director shall
hold office for the full term to which he shall have been elected and until his
successor is duly elected and shall qualify, or until his earlier death,
resignation or removal. A director need not be a resident of the State of
Delaware or a shareholder of the Corporation.
SECTION 2. Except as provided in the Certificate of Incorporation of
the Corporation, 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 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 director elected
in accordance with the preceding sentence shall hold office for the remainder
of the full term of the class of directors in which the new directorship was
created or 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. No director of the Corporation shall be removed from his
office as a director by vote or other action of shareholders or otherwise
except for cause.
SECTION 4. Regular meetings of the Board of Directors shall be held at
such place or places within or without the State of Delaware, at such hour and
on such day as may
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be fixed by resolution of the Board of Directors, without further notice of
such meetings. The time or place of holding regular meetings of the Board of
Directors may be changed by the Chairman of the Board or the President by
giving written notice thereof as provided in Section 6 of this Article II.
SECTION 5. Special meetings of the Board of Directors shall be held,
whenever called by the Chairman of the Board, the Chairman of the Executive
Committee, the President, by four directors or by resolution adopted by the
Board of Directors, at such place or places within or without the State of
Delaware as may be stated in the notice of the meeting.
SECTION 6. Written notice of the time and place of, and general nature
of the business to be transacted at, all special meetings of the Board of
Directors, and written notice of any change in the time or place of holding the
regular meetings of the Board of Directors, shall be given to each director
personally or by mail or by telegraph, telecopier or similar communication at
least one day before the day of the meeting; provided, however, that notice of
any meeting need not be given to any director if waived by him in writing, or
if he shall be present at such meeting.
SECTION 7. A majority of the directors in office shall constitute a
quorum of the Board of Directors for the transaction of business; but a lesser
number may adjourn from day to day until a quorum is present. Except as
otherwise provided by law or in these By-laws, all questions shall be decided
by the vote of a majority of the directors present.
SECTION 8. Any action which may be taken at a meeting of the directors
or members of the Executive Committee may be taken without a meeting if consent
in writing setting forth the action so taken shall be signed by all of the
directors or members of the Executive Committee as the case may be and shall be
filed with the Secretary of the Corporation.
SECTION 9. The Board of Directors may designate one or more of its
number to be Vice Chairman of the Board, Chairman of the Executive Committee,
and Chairman of any other committees of the Board and to hold such other
positions on the Board as the Board of Directors may designate.
ARTICLE III.
EXECUTIVE COMMITTEE
The Board of Directors may, by resolution adopted by a majority of the
whole Board, designate two or more of its number to constitute an Executive
Committee which committee, during intervals between meetings of the Board,
shall have and exercise the authority of the Board of Directors in the
management of the business of the Corporation to the extent permitted by law,
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ARTICLE IV.
OFFICERS
SECTION 1. The officers of the Corporation shall consist of a Chairman
of the Board, President, Secretary, Treasurer and such Executive, Group, Senior
or other Vice Presidents, and other officers as may be elected or appointed by
the Board of Directors. Any number of offices may be held by the same person.
All officers shall hold office until their successors are elected or appointed,
except that the Board of Directors may remove any officer at any time at its
discretion.
SECTION 2. The officers of the Corporation shall have such powers and
duties as generally pertain to their offices, except as modified herein or by
the Board of Directors, as well as such powers and duties as from time to time
may be conferred by the Board of Directors. The Chairman of the Board shall
have such duties as may be assigned to him by the Board of Directors and shall
preside at meetings of the Board and at meetings of the stockholders. The
President shall be the chief executive officer of the Corporation and shall
have general supervision over the business, affairs, and property of the
Corporation.
ARTICLE V.
SEAL
The seal of the Corporation shall be in such form as the Board of
Directors shall prescribe.
ARTICLE VI.
CERTIFICATES OF STOCK
The shares of stock of the Corporation shall be represented by
certificates of stock, signed by the President or such Vice President or other
officer designated by the Board of Directors, countersigned by the Treasurer or
the Secretary; and such signature of the President, Vice President, or other
officer, such countersignature of the Treasurer or Secretary, and such seal, or
any of them, may be executed in facsimile, engraved or printed. In case any
officer who has signed or whose facsimile signature has been placed upon any
share certificate shall have ceased to be such officer because of death,
resignation or otherwise before the certificate is issued, it may be issued by
the Corporation with the same effect as if the officer had not ceased to be
such at the date of its issue. Said certificates of stock shall be in such
form as the Board of Directors may from time to time prescribe.
ARTICLE VII.
INDEMNIFICATION
SECTION 1. The Corporation shall indemnify, and advance Expenses (as
this and all other capitalized words are defined in Section 12) to, Indemnitee
to the fullest extent permitted
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by applicable law in effect on July 24, 1986, and to such greater extent as
applicable law may thereafter permit. The rights of Indemnitee provided under
the preceding sentence shall include, but not be limited to, the right to be
indemnified to the fullest extent permitted by Section 145(b) of the D.G.C.L.
in Proceedings by or in the right of the Corporation and to the fullest extent
permitted by Section 145(a) of the D.G.C.L. in all other Proceedings.
SECTION 2. If Indemnitee is, by reason of his Corporate Status, a
witness in or a party to and is successful, on the merits or otherwise, in any
Proceeding, he shall be indemnified against all Expenses actually and
reasonably incurred by him or on his behalf in connection therewith. If
Indemnitee is not wholly successful in such Proceeding but is successful, on
the merits or otherwise, as to any Matter in such Proceeding, the Corporation
shall indemnify Indemnitee against all Expenses actually and reasonably
incurred by him or on his behalf relating to each Matter. The termination of
any Matter in such a Proceeding by dismissal, with or without prejudice, shall
be deemed to be a successful result as to such Matter.
SECTION 3. Indemnitee shall be advanced Expenses within 10 days after
requesting them to the fullest extent permitted by Section 145(e) of the
D.G.C.L.
SECTION 4. To obtain indemnification, Indemnitee shall submit to the
Corporation a written request with such information as is reasonably available
to Indemnitee. The Secretary of the Corporation shall promptly advise the
Board of Directors of such request.
SECTION 5. If there has been no Change of Control at the time the
request for indemnification is sent, Indemnitee's entitlement to
indemnification shall be determined in accordance with Section 145(d) of the
D.G.C.L. If entitlement to indemnification is to be determined by Independent
Counsel, the Corporation shall furnish notice to Indemnitee within 10 days
after receipt of the request for indemnification, specifying the identity and
address of Independent Counsel. The Indemnitee may, within 14 days after
receipt of such written notice of selection, deliver to the Corporation a
written objection to such selection. Such objection may be asserted only on
the ground that the Independent Counsel so selected does not meet the
requirements of Independent Counsel and the objection shall set forth with
particularity the factual basis of such assertion. If there is an objection to
the selection of Independent Counsel, either the Corporation or Indemnitee may
petition the Court of Chancery of the State of Delaware or any other court of
competent jurisdiction for a determination that the objection is without a
reasonable basis and/or for the appointment of Independent Counsel selected by
the Court.
SECTION 6. If there has been a Change of Control at the time the
request for indemnification is sent, Indemnitee's entitlement to
indemnification shall be determined in a written opinion by Independent Counsel
selected by Indemnitee. Indemnitee shall give the Corporation written notice
advising of the identity and address of the Independent Counsel so selected.
The Corporation may, within 7 days after receipt of such written notice of
selection, deliver to the Indemnitee a written objection to such selection.
Indemnitee may, within 5 days after the receipt of such objection from the
Corporation, submit the name of another Independent
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Counsel and the Corporation may, within 7 days after receipt of such written
notice of selection, deliver to the Indemnitee a written objection to such
selection. Any objection is subject to the limitations in Section 5.
Indemnitee may petition the Court of Chancery of the State of Delaware or any
other Court of competent jurisdiction for a determination that the
Corporation's objection to the first and/or second selection of Independent
Counsel is without a reasonable basis and/or for the appointment as Independent
Counsel of a person selected by the Court.
SECTION 7. If a Change of Control shall have occurred before the
request for indemnification is sent by Indemnitee, Indemnitee shall be presumed
(except as otherwise expressly provided in this Article) to be entitled to
indemnification upon submission of a request for indemnification in accordance
with Section 4 of this Article, and thereafter the Corporation shall have the
burden of proof to overcome the presumption in reaching a determination
contrary to the presumption. The presumption shall be used by Independent
Counsel as a basis for a determination of entitlement to indemnification unless
the Corporation provides information sufficient to overcome such presumption by
clear and convincing evidence or the investigation, review and analysis of
Independent Counsel convinces him by clear and convincing evidence that the
presumption should not apply.
Except in the event that the determination of entitlement to
indemnification is to be made by Independent Counsel, if the person or persons
empowered under Section 5 or 6 of this Article to determine entitlement to
indemnification shall not have made and furnished to Indemnitee in writing a
determination within 60 days after receipt by the Corporation of the request
therefor, the requisite determination of entitlement to indemnification shall
be deemed to have been made and Indemnitee shall be entitled to such
indemnification unless Indemnitee knowingly misrepresented a material fact in
connection with the request for indemnification or such indemnification is
prohibited by law. The termination of any Proceeding or of any Matter therein,
by judgment, order, settlement or conviction, or upon a plea of nolo contendere
or its equivalent, shall not (except as otherwise expressly provided in this
Article) of itself adversely affect the right of Indemnitee to indemnification
or create a presumption that Indemnitee did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, or with respect to any criminal Proceeding, that
Indemnitee had reasonable cause to believe that his conduct was unlawful.
SECTION 8. The Corporation shall pay any and all reasonable fees and
expenses of Independent Counsel incurred acting pursuant to this Article and in
any proceeding to which it is a party or witness in respect of its
investigation and written report and shall pay all reasonable fees and expenses
incident to the procedures in which such Independent Counsel was selected or
appointed. No Independent Counsel may serve if a timely objection has been
made to his selection until a Court has determined that such objection is
without a reasonable basis.
SECTION 9. In the event that (i) a determination is made pursuant to
Section 5 or 6 that Indemnitee is not entitled to indemnification under this
Article, (ii) advancement of Expenses is not timely made pursuant to Section 3
of this Article, (iii) Independent Counsel has
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not made and delivered a written opinion determining the request for
indemnification (a) within 90 days after being appointed by the Court, or (b)
within 90 days after objections to his selection have been overruled by the
Court, or (c) within 90 days after the time for the Corporation or Indemnitee
to object to his selection, or (iv) payment of indemnification is not made
within 5 days after a determination of entitlement to indemnification has been
made or deemed to have been made pursuant to Section 5, 6 or 7 of this Article,
Indemnitee shall be entitled to an adjudication in an appropriate court of the
State of Delaware, or in any other court of competent jurisdiction, of his
entitlement to such indemnification or advancement of Expenses. In the event
that a determination shall have been made that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant to
this Section shall be conducted in all respects as a de novo trial on the
merits and Indemnitee shall not be prejudiced by reason of that adverse
determination. If a Change of Control shall have occurred, in any judicial
proceeding commenced pursuant to this Section, the Corporation shall have the
burden of proving that Indemnitee is not entitled to indemnification or
advancement of Expenses, as the case may be. If a determination shall have
been made or deemed to have been made that Indemnitee is entitled to
indemnification, the Corporation shall be bound by such determination in any
judicial proceeding commenced pursuant to this Section 9, or otherwise, unless
Indemnitee knowingly misrepresented a material fact in connection with the
request for indemnification, or such indemnification is prohibited by law.
The Corporation shall be precluded from asserting in any judicial
proceeding commenced pursuant to this Section 9 that the procedures and
presumptions of this Article are not valid, binding and enforceable and shall
stipulate in any such court that the Corporation is bound by all provisions of
this Article. In the event that Indemnitee, pursuant to this Section 9, seeks
a judicial adjudication to enforce his rights under, or to recover damages for
breach of, this Article, Indemnitee shall be entitled to recover from the
Corporation, and shall be indemnified by the Corporation against, any and all
Expenses actually and reasonably incurred by him in such judicial adjudication,
but only if he prevails therein. If it shall be determined in such judicial
adjudication that Indemnitee is entitled to receive part but not all of the
indemnification or advancement of Expenses sought, the Expenses incurred by
Indemnitee in connection with such judicial adjudication or arbitration shall
be appropriately prorated.
SECTION 10. The rights of indemnification and to receive advancement
of Expenses as provided by this Article shall not be deemed exclusive of any
other rights to which Indemnitee may at any time be entitled under applicable
law, the Certificate of Incorporation, the By-laws, any agreement, a vote of
stockholders or a resolution of directors, or otherwise. No amendment,
alteration or repeal of this Article or any provision thereof shall be
effective as to any Indemnitee for acts, events and circumstances that
occurred, in whole or in part, before such amendment, alteration or repeal. The
provisions of this Article shall continue as to an Indemnitee whose Corporate
Status has ceased and shall inure to the benefit of his heirs, executors and
administrators.
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SECTION 11. If any provision or provisions of this Article shall be
held to be invalid, illegal or unenforceable for any reason whatsoever, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby; and, to the fullest extent possible,
the provisions of this Article shall be construed so as to give effect to the
intent manifested by the provision held invalid, illegal or unenforceable.
SECTION 12. For purposes of this Article:
"Change of Control" means a change in control of the Corporation after
July 24, 1986 in any one of the following circumstances (1) there shall have
occurred an event required to be reported in response to Item 6(e) of Schedule
14A of Regulation 14A (or in response to any similar item on any similar
schedule or form) promulgated under the Securities Exchange Act of 1934 (the
"Act"), whether or not the Corporation is then subject to such reporting
requirement; (2) any "person" (as such term is used in Section 13(d) and 14(d)
of the Act) shall have become the "beneficial owner" (as defined in Rule 13d-3
under the Act), directly or indirectly, of securities of the Corporation
representing 40% or more of the combined voting power of the Corporation's then
outstanding voting securities without prior approval of at least two-thirds of
the members of the Board of Directors in office immediately prior to such
person attaining such percentage interest; (3) the Corporation is a party to a
merger, consolidation, sale of assets or other reorganization, or a proxy
contest, as a consequence of which members of the Board of Directors in office
immediately prior to such transaction or event constitute less than a majority
of the Board of Directors thereafter; (4) during any period of two consecutive
years, individuals who at the beginning of such period constituted the Board of
Directors (including for this purpose any new director whose election or
nomination for election by the Corporation's stockholders was approved by a
vote of at least two-thirds of the directors then still in office who were
directors at the beginning of such period) cease for any reason to constitute
at least a majority of the Board of Directors.
"Corporate Status" describes the status of a person who (a) is or was a
director, officer or employee of the Corporation, or is or was serving at the
request of the Corporation as a director, officer or employee of another
corporation, partnership, joint venture, trust or other enterprise, in each
case which is controlled by the Corporation, or (b) is or was serving, at the
written request of the Corporation or pursuant to an agreement in writing with
the Corporation which request or agreement provides for indemnification under
these By-laws, as a director, officer or employee of another corporation,
partnership, joint venture, trust or other enterprise not controlled by the
Corporation, provided that if such written request or agreement referred to in
this clause (b) provides for a lesser degree of indemnification by the
Corporation than that provided pursuant to this Article VII, the provisions
contained in or made pursuant to such written request or agreement shall
govern. References above to "other enterprises" shall include employee benefit
plans and references to "serving at the request of the Corporation" shall
include any service as a director, officer or employee which imposes duties on,
or involves services by, such director, officer or employee with respect to an
employee benefit plan or its participants or beneficiaries.
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"D.G.C.L." means the Delaware General Corporation Law.
"Disinterested Director" means a director of the Corporation who is not
and was not a party to the Proceeding in respect of which indemnification is
sought by indemnitee.
"Expenses" shall include all reasonable attorneys' fees, retainers,
court costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, or being or preparing to be a witness in a
Proceeding.
"Indemnitee" includes any person who is, or is threatened to be made, a
witness in or a party to any Proceeding as described in Section 1 or 2 of this
Article by reason of his Corporate Status.
"Independent Counsel" means a law firm, or member of a law firm, that
is experienced in matters of corporation law and neither presently is, nor in
the five years previous to his selection or appointment has been, retained to
represent: (i) the Corporation or Indemnitee in any matter material to either
such party, or (ii) any other party to the Proceeding giving rise to a claim
for indemnification hereunder.
"Matter" is a claim, a material issue, or a substantial request for
relief.
"Proceeding" includes any action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing or any other
proceeding whether civil, criminal, administrative or investigative, except one
initiated by an Indemnitee pursuant to Section 9 of this Article to enforce his
rights under this Article.
SECTION 13. Any communication required or permitted to the Corporation
shall be addressed to the Secretary of the Corporation and any such
communication to Indemnitee shall be addressed to his home address unless he
specifies otherwise and shall be personally delivered or delivered by overnight
mail delivery.
ARTICLE VIII.
AMENDMENTS
These By-laws may be altered, amended, added to or repealed by the
shareholders at any annual or special meeting, by the vote of shareholders
entitled to cast at least a majority of the votes which all shareholders are
entitled to cast (i.e., by the vote of a majority of the outstanding shares
entitled to vote), and, except as may be otherwise required by law, the power
to alter, amend, add to or repeal these By-laws is also vested in the Board of
Directors (subject always to the power of the shareholders to change such
action); provided, however, that notice
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of the general nature of any such action proposed to be taken shall be included
in the notice of the meeting of shareholders or of the Board of Directors at
which such action is taken.
December 8, 1994
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