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UNITED STATES
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 30, 1998
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PENNZENERGY COMPANY
(Exact name of issuer as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 1-5591 74-1597290
(State or other jurisdiction of (Commission File Number) (I.R.S. Employer
incorporation) Identification Number)
</TABLE>
PENNZOIL PLACE, P.O. BOX 2967 77252-2967
HOUSTON, TEXAS (Zip Code)
(Address of principal executive offices)
Registrant's telephone number, including area code: (713) 546-4000
PENNZOIL COMPANY
(Former name, if changed since last report)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On December 30, 1998, PennzEnergy Company (formerly named Pennzoil
Company), a Delaware corporation ("PennzEnergy"), distributed to its
stockholders 47,846,502 shares of common stock, together with the attached
preferred stock purchase rights, of its wholly owned subsidiary Pennzoil-Quaker
State Company (formerly named Pennzoil Products Company), a Delaware
corporation, representing all of the shares of Pennzoil-Quaker State Company
owned by PennzEnergy. As a result of the distribution, PennzEnergy and
Pennzoil-Quaker State Company are no longer affiliated entities.
ITEM 5. OTHER EVENTS.
On December 30, 1998, PennzEnergy changed its name from "Pennzoil
Company" to "PennzEnergy Company."
Effective December 30, 1998, the directors of PennzEnergy will be as
follows:
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<CAPTION>
Name Class Term Expires
---- ----- ------------
<S> <C> <C>
Terry L. Savage II 1999
Robert B. Weaver II 1999
Robert Mosbacher, Jr. II 1999
Henry R. Hamman III 2000
James L. Pate III 2000
Stephen D. Chesebro' I 2001
Brent Scowcroft I 2001
</TABLE>
Effective December 30, 1998, the executive officers of PennzEnergy will
be as follows:
<TABLE>
<CAPTION>
Name Title
---- -----
<S> <C>
Stephen D. Chesebro' President and Chief Executive Officer
Donald A. Frederick Executive Vice President
John B. Chapman Senior Vice President - Legal
Bruce K. Misamore Senior Vice President - Finance and Treasurer
Linda L. Meagher Corporate Secretary
Malcolm R. Rae Controller
Winston M. Talbert Assistant Treasurer
Robert B. Hughes Assistant Secretary
</TABLE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(b) Pro Forma Financial Information
The pro forma financial information required by Item 7 of Form
8-K and Article 11 of Regulation S-X has previously been filed by PennzEnergy
under the Securities Exchange Act of
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1934, as amended. The following pro forma financial statements are hereby
incorporated in this Report by reference as indicated:
(1) Pro Forma Condensed Consolidated Balance Sheet (Unaudited) as of September
30, 1998 and the notes thereto (incorporated by reference to the Current
Report of PennzEnergy on Form 8-K dated November 12, 1998)
(2) Pro Forma Condensed Consolidated Statement of Earnings (Unaudited) for the
Nine Month Period Ended September 30, 1998 and the notes thereto
(incorporated by reference to the Current Report of PennzEnergy on Form 8-K
dated November 12, 1998)
(3) Pro Forma Condensed Consolidated Statement of Earnings (Unaudited) for the
Year Ended December 31, 1997 and the notes thereto (incorporated by
reference to the Current Report of PennzEnergy on Form 8-K dated May 19,
1998)
(4) Pro Forma Condensed Consolidated Statement of Earnings (Unaudited) for the
Year Ended December 31, 1996 and the notes thereto (incorporated by
reference to the Current Report of PennzEnergy on Form 8-K dated May 19,
1998)
(5) Pro Forma Condensed Consolidated Statement of Earnings (Unaudited) for the
Year Ended December 31, 1995 and the notes thereto (incorporated by
reference to the Current Report of PennzEnergy on Form 8-K dated May 19,
1998)
(c) Exhibits
4.1 Certificate of Ownership and Merger merging
PennzEnergy Company into Pennzoil Company
4.2 By-laws of PennzEnergy, as amended through
December 30, 1998
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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.
PENNZENERGY COMPANY
By: /s/ Bruce K. Misamore
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Bruce K. Misamore
Senior Vice President - Finance and Treasurer
Date: December 30, 1998
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EXHIBIT 4.1
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
PENNZENERGY COMPANY
INTO
PENNZOIL COMPANY
Pursuant to Section 253 of the
General Corporation Law of the State of Delaware
PENNZOIL COMPANY, a corporation organized and existing under
the laws of Delaware (the "Company"), DOES HEREBY CERTIFY:
FIRST: That the Company was incorporated on April 1, 1968,
pursuant to the General Corporation Law of the State of Delaware;
SECOND: That the Company is the legal and beneficial owner of
all of the outstanding shares of Common Stock, par value $.01 per share, of
PennzEnergy Company, a Delaware corporation, and that said Common Stock is the
only issued and outstanding class of stock of PennzEnergy Company;
THIRD: That the Company desires to merge into itself
PennzEnergy Company and thereby to change the Company's corporate name to
"PennzEnergy Company" pursuant to the provisions of Section 253 of the Delaware
General Corporation Law (the "DGCL");
FOURTH: That the Company, by the following resolutions of its
Board of Directors, duly adopted on December 2, 1998, determined to merge into
itself PennzEnergy Company, and thereby assume all of the liabilities and
obligations of PennzEnergy Company, and to change the Company's corporate name
to "PennzEnergy Company":
Merger of Merger Sub into Company
WHEREAS, the Company is the legal and beneficial owner of all
of the outstanding shares of Common Stock, par value $.01 per share ("Merger Sub
Common Stock"), of PennzEnergy Company, a Delaware corporation ("Merger Sub");
WHEREAS, said Merger Sub Common Stock is the only issued and
outstanding class of stock of Merger Sub;
WHEREAS, the Company desires to merge into itself Merger Sub
pursuant to the provisions of Section 253 of the DGCL;
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NOW, THEREFORE, LET IT BE
RESOLVED, that, pursuant to the provisions of Section 253 of
the DGCL, the Company merge (the "Merger") into itself Merger Sub, and assume
all of the liabilities and obligations of Merger Sub; and further
RESOLVED, that, pursuant to the provisions of Section 253(b)
of the DGCL, at the effective time of the Merger, the name of the Company be
changed to "PennzEnergy Company"; and further
RESOLVED, that the Merger shall become effective upon the
filing of the Certificate of Ownership and Merger with the Secretary of State of
the State of Delaware (the "Certificate of Ownership and Merger"), or at such
later time as may be set forth in the Certificate of Ownership and Merger; and
further
RESOLVED, that, at any time prior to the time that the filing
of the Certificate of Ownership and Merger becomes effective, the Board of
Directors of the Company may terminate the Certificate of Ownership and Merger;
and further
RESOLVED, that the Chairman of the Board, the President or any
Vice President of the Company is authorized to make and execute a Certificate of
Ownership and Merger setting forth a copy of these resolutions, and the date of
adoption thereof, and to cause the same to be filed with the Secretary of State
of Delaware; and further
RESOLVED, that the officers of the Company are authorized to
execute, deliver, file and record such documents, deeds, certificates and other
instruments, in the name and on behalf of the Company, and to take all such
further action to carry out and effect the Merger and the changes of ownership
effected thereby as they shall consider necessary, desirable or appropriate.
FIFTH: That the merger of Merger Sub into the Company and the
name change of the Company effected thereby shall be effective upon the filing
of this Certificate of Ownership and Merger with the Secretary of State of the
State of Delaware.
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I, THE UNDERSIGNED, being an authorized officer of the
Company, do make this Certificate, hereby declaring and certifying that this is
my act and deed and the facts herein stated are true, and accordingly have
hereunto set my hand this 28th day of December 1998.
PENNZOIL COMPANY
By: /s/ Linda F. Condit
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Name: Linda F. Condit
Title: Vice President and Corporate
Secretary
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EXHIBIT 4.2
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 first Thursday of May 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 or by shareholders
entitled to cast not less than 25% of the votes which all shareholders are
entitled to cast (i.e., by 25% of the outstanding shares entitled to vote). 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.
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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.
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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 (which shall include the text of the
resolution to be presented for adoption, indicating without limitation the text
of any proposed alteration, amendment, rescission or repeal of these By-laws)
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.
SECTION 11. Meetings of shareholders shall be presided over by the Chairman
of the Board or in his absence by the President, or in his absence by a Vice
President, or in the absence of the foregoing persons by a chairman designated
by the Board of Directors, or in the absence of such designation by a chairman
chosen at the meeting. The Secretary of the Corporation shall act as secretary
of the meeting, but in the absence of the Secretary the chairman of the meeting
may appoint any person to act as secretary of the meeting.
The date and time of the opening and the closing of the
polls for each matter upon which the shareholders will vote at a meeting shall
be determined by the person presiding over the meeting. The Board of Directors
of the Corporation may adopt by resolution such rules and regulations for the
conduct of the meeting of shareholders as it shall deem appropriate. Except to
the extent inconsistent with such rules and regulations as adopted by the Board
of Directors, the chairman of any meeting of shareholders shall have the right
and authority to prescribe such rules, regulations and procedures and to do all
such acts as, in the judgment of such chairman, are
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appropriate for the proper conduct of the meeting. Such rules, regulations or
procedures, whether adopted by the Board of Directors or prescribed by the
chairman of the meeting, may include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting; (ii) rules and
procedures for maintaining order at the meeting and the safety of those present;
(iii) limitations on attendance at or participation in the meeting to
shareholders of record of the Corporation, their duly authorized and constituted
proxies or such other persons as the chairman of the meeting shall determine;
(iv) restrictions on entry to the meeting after the time fixed for the
commencement thereof; and (v) limitations on the time allotted to questions or
comments by participants. Unless and to the extent determined by the Board of
Directors or the chairman of the meeting, meetings of shareholders shall not be
required to be held in accordance with the rules of parliamentary procedure.
ARTICLE II.
BOARD OF DIRECTORS
SECTION 1. The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors. The Board of Directors shall
be divided into three classes as provided in the Certificate of Incorporation.
The number of directors shall be seven. Each director shall hold office for the
full term to which he shall have been elected and until his successor shall have
been duly elected and qualified, or until his earlier death, resignation or
removal.
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 President, or a majority of
the directors then in office, 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.
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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 by the Board of Directors from time to time and
shall preside at meetings of the Board and of the Executive Committee and at
meetings of the stockholders. The President shall be the chief executive officer
of the Corporation. The President shall confer with the Chairman of the Board
respecting (i) developments affecting the business, properties and prospects of
the Company, (ii) the preparation of and any modifications to the Company's
annual profit plan, annual capital expenditure budget and long-term strategic
business plan, and (iii) the establishment of and any modification to the
Company's policies and employment practices (including compensation and benefit
matters). In addition, the President shall confer with the Chairman of the Board
respecting any matters which are proposed for submission for action to the Board
of Directors, the Executive Committee or any other committees of the Board.
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 in
connection with a Proceeding 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
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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 incurred in connection
with a Proceeding 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 ss. 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 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.
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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. The Corporation may,
by action of the Board of Directors, provide indemnification to employees,
agents or other persons not having Corporate Status with the same or different
scope and effect as the indemnification authorized by this Article VII.
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
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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 or officer of the Corporation, or is or was serving at the
request of the Corporation as a director or officer 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 or officer 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 without the express prior approval thereof
by the Board of Directors.
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
SECTION 1. Except as may be otherwise provided in Section 2 of this Article
VIII, 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.
SECTION 2. There shall be required for any alteration, amendment or repeal
of, or addition to, these By-laws the effect of which would be to require a
greater percentage vote for action by the Board of Directors or by the
shareholders than is otherwise provided by these By-laws or by applicable law
the vote of (a) shareholders entitled to cast that same greater percentage of
the votes which all shareholders are entitled to cast (if the action is to be by
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the shareholders) or (b) that same greater percentage of the directors then in
office (if the action is to be by the Board of Directors), provided that in
neither case shall a percentage vote in excess of 66-2/3% thereof be required
pursuant to this sentence. This Section 2 may not be altered, amended or
repealed unless such alteration, amendment or repeal is adopted by the vote of
66-2/3% of the directors then in office or the vote of shareholders entitled to
cast 66-2/3% of the votes which all shareholders are entitled to cast.
December 30, 1998
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