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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): July 1, 1997
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 July 1, 1997, Sections 9 and 10 of Article I of the
By-laws of Pennzoil Company (the "Company") were amended to provide,
among other things, that written notices of stockholder nominations
of director candidates and other proposals to be presented at an
annual meeting of stockholders must be delivered to, or mailed and
received at, the principal executive offices of the Company not
less that 90 days nor more than 120 days prior to the anniversary
date of the immediately preceding annual meeting of stockholders.
The Company's By-laws, as amended through July 1,
1997, are contained in Exhibit 1 hereto and are incorporated
herein by reference.
Item 7. Financial Statement and Exhibits.
(c) Exhibits
Description
1. By-laws of Pennzoil Company, as amended
through July 1, 1997.
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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 thereunto duly
authorized.
PENNZOIL COMPANY
Date: July 10, 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 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 shareholders at which directors are to be elected
(a) by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or (b) by any shareholder of the
Corporation (i) who is a shareholder of record on the date of the
giving of the notice provided for in this Section 9 and on the
record date for the determination of shareholders entitled to
vote at such annual meeting and (ii) who complies with the
requirements of this Section 9. In addition to any other
applicable requirements, nominations, other than those made by or
at the direction of the Board of Directors (or any duly
authorized committee thereof) shall be preceded by timely notice
thereof in proper written form 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 90 days nor more than 120
days prior to the anniversary date of the immediately preceding
annual meeting of shareholders; provided, however, that in the
event that the annual meeting is called for a date that is not
within 30 days before or after such anniversary date, notice by the
shareholder, in order to be timely, must be so received not later
than the close of business on the tenth day following the day on
which such notice of the date of the annual meeting was mailed or
public disclosure of the date of the annual meeting was made,
whichever first occurs. In no event shall the public disclosure
of an adjournment of an annual meeting commence a new time period
for the giving of a shareholder's notice as described above.
To be in proper written form, a shareholder's
notice to the Secretary must set forth (a) as to each person whom
the shareholder proposes to nominate for 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 class or series and number of shares of capital
stock of the Corporation which are owned beneficially or of
record by such person and (iv) any other information relating to
such person that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to
Section 14 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the rules and regulations promulgated
thereunder; and (b) as to the shareholder giving the notice
(i) the name and record address of such shareholder, (ii) the
class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by such
shareholder, (iii) a description of all arrangements or
understandings between such shareholder and each proposed nominee
and any other person or persons (including their names) pursuant
to which the nomination(s) are to be made by such shareholder,
(iv) a representation that such shareholder intends to appear in
person or by proxy at the meeting to nominate the persons named
in its notice and (v) any other information relating to such
shareholder that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with
solicitations of proxies for election of the directors pursuant
to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a
written consent of each proposed nominee to be named as a nominee
and to serve as a director if elected.
No person shall be eligible for election as a
director of the Corporation unless nominated in accordance with
the procedures set forth in this Section 9. If the Chairman of
the meeting determines that a nomination was not made in accordance
with the foregoing procedures, the Chairman shall declare to the
meeting that the nomination was defective and such defective
nomination shall be disregarded.
Notwithstanding anything in the second paragraph
of this Section 9 to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the
Corporation is increased and there is no public disclosure by the
Corporation naming all of the nominees for director or specifying
the size of the increased Board of Directors at least 100 days
prior to the first anniversary of the preceding year's annual
meeting, a shareholder's notice required by this by-law shall
also be considered timely, but only with respect to nominees for
any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive offices of
the Corporation not later than the close of business on the 10th
day following the day on which such public disclosure is first
made by the Corporation.
For purposes of this Section 9 and Section 10 of
these by-laws, "public disclosure" shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press,
PR Newswire, Bloomberg or comparable national news service or in
a document publicly filed by the Corporation with the Securities
and Exchange Commission pursuant to Section 13, 14 or 15(d) of
the Exchange Act.
SECTION 10. No business may be transacted at an annual meeting
of shareholders, other than business that is either (a) specified
in the notice of meeting (or any supplement thereto) given by or
at the direction of the Board of Directors (or any duly
authorized committee thereof), (b) otherwise properly brought
before the annual meeting by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or
(c) otherwise properly brought before the annual meeting by any
shareholder of the Corporation (i) who is a shareholder of record
on the date of the giving of the notice provided for in this
Section 10 and on the record date for the determination of
shareholders entitled to vote at such annual meeting and (ii) who
complies with the notice procedures set forth in this Section 10.
In addition to any other applicable requirements, for business to
be properly brought before an annual meeting by a shareholder,
such shareholder must have given timely notice thereof in proper
written form 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 90 days nor more than 120
days prior to the anniversary date of the immediately preceding
annual meeting of shareholders; provided, however, that in the event
that the annual meeting is called for a date that is not within
30 days before or after such anniversary date, notice by the
shareholder, in order to be timely, must be so received not later
than the close of business on the tenth day following the day on
which such notice of the date of the annual meeting was mailed or
public disclosure (as defined in Section 9) of the date of the
annual meeting was made, whichever first occurs. In no event
shall the public disclosure of an adjournment of an annual
meeting commence a new time period for the giving of a
shareholder's notice as described above.
To be in proper written form, a shareholder's notice
to the Secretary must set forth as to each matter such
shareholder proposes to bring before the annual meeting (i) a
brief description of the business desired to be brought before
the annual meeting and the reasons for conducting such business
at the annual meeting, (ii) the name and record address of such
shareholder, (iii) the class or series and number of shares of
capital stock of the Corporation which are owned beneficially or
of record by such shareholder, (iv) a description of all
arrangements or understandings between such shareholder and any
other person or persons (including their names) in connection
with the proposal of such business by such shareholder and any
material interest of such shareholder in such business and (v) a
representation that such shareholder intends to appear in person
or by proxy at the annual meeting to bring such business before
the meeting.
No business shall be conducted at the annual meeting
of shareholders except business brought before the annual meeting
in accordance with the procedures set forth in this Section 10;
provided, however, that, once business has been properly brought
before the annual meeting in accordance with such procedures,
nothing in this Section 10 shall be deemed to preclude discussion
by any shareholder of any such business. If the Chairman of an
annual meeting determines that business was not properly brought
before the annual meeting in accordance with the foregoing
procedures, the Chairman shall declare to the meeting that the
business was not properly brought before the meeting and such
business shall not be transacted.
At a special meeting of shareholders, only such
business shall be conducted as shall have been set forth in the
notice relating to the meeting. At any meeting, matters incident
to the conduct of this meeting may be voted upon or otherwise
disposed of 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 eleven 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 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 meeting 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 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.
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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.
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
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
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 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.
"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 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.
July 1, 1997
