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SECURITIES AND EXCHANGE COMMISSION
Washington D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 12, 1996
PENNZOIL COMPANY
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
1-5591 74-1597290
(Commission File Number) (I.R.S. Employer
Identification No.)
Pennzoil Place, P.O. Box 2967
Houston, Texas 77252-2967
(Address of principal (Zip code)
executive offices)
(Registrant's telephone number, including area code): (713) 546-4000
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Item 5. Other Events.
On December 12, 1996, Section 1 of Article I of the
By-laws of Pennzoil Company (the "Company") was amended to provide
that the annual meeting of the shareholders of the Company will be
held on the fourth Thursday of April in each year. Accordingly,
the next annual meeting of the shareholders of the Company will be
held on April 24, 1997.
The Company's By-laws, as amended through December 12,
1996, are contained in Exhibit 1 hereto and are incorporated
herein by reference.
Item 7. Financial Statements and Exhibits.
(c) Exhibits
Description
1. By-laws of Pennzoil Company, as amended
through December 12, 1996.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
PENNZOIL COMPANY
Date: January 8, 1997 By: DAVID P. ALDERSON, II
David P. Alderson, II
Group Vice President
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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.
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
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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 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
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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 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
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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 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.
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
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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 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.
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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 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
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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 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
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circumstances that occurred, in whole or in part, before such
amendment, alteration or repeal. The provisions of this Article
shall continue as to an Indemnitee whose Corporate Status has
ceased and shall inure to the benefit of his heirs, executors and
administrators.
SECTION 11. If any provision or provisions of this Article
shall be held to be invalid, illegal or unenforceable for any
reason whatsoever, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or
impaired thereby; and, to the fullest extent possible, the
provisions of this Article shall be construed so as to give
effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
SECTION 12. For purposes of this Article:
"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.
"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.
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"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 or 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 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 12, 1996
