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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): March 12, 1998
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 77252-2967
P. O. Box 2967 (Zip Code)
Houston, Texas
(Address of principal
executive offices)
(Registrant's telephone number, including area code:): (713) 546-4000
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Item 5. Other Events.
The Company's By-laws, as amended through March 12, 1998, 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 March 12, 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 thereunto duly authorized.
PENNZOIL COMPANY
Date: March 12, 1998 By: /s/ Linda F. Condit
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Linda F. Condit
Vice President & Corporate Secretary
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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 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 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 directors divided into three classes as provided in
the Certificate of Incorporation of the Corporation. The number of directors
shall be eleven, provided that upon and following the effectiveness of the
retirement of W. J. Bovaird from the Board of Directors immediately prior to
the 1998 annual meeting of shareholders, the number of directors shall be
ten. 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
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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 meetings of the Board of Directors, shall be given to each
director personally or by mail or by telegraph, telecopier or similar
communication at least one day before the day of the meeting; provided,
however, that notice of any meeting need not be given to any director if
waived by him in writing, or if he shall be present at such meeting.
SECTION 7. A majority of the directors in office shall constitute a
quorum of the Board of Directors for the transaction of business; but a
lesser number may adjourn from day to day until a quorum is present. Except
as otherwise provided by law or in these By-laws, all questions shall be
decided by the vote of a majority of the directors present.
SECTION 8. Any action which may be taken at a meeting of the directors
or members of the Executive Committee may be taken without a meeting if
consent in writing setting forth the action so taken shall be signed by all
of the directors or members of the Executive Committee as the case may be and
shall be filed with the Secretary of the Corporation.
SECTION 9. The Board of Directors may designate one or more of its
number to be Vice Chairman of the Board, Chairman of the Executive Committee,
and Chairman of any other committees of the Board and to hold such other
positions on the Board as the Board of Directors may designate.
ARTICLE III.
EXECUTIVE COMMITTEE
The Board of Directors may, by resolution adopted by a majority of the
whole Board, designate two or more of its number to constitute an Executive
Committee which committee, during intervals between meetings of the Board,
shall have and exercise the authority of the Board of Directors in the
management of the business of the Corporation to the extent permitted by law.
ARTICLE IV.
OFFICERS
SECTION 1. The officers of the Corporation shall consist of a Chairman of
the Board, President, Secretary, Treasurer and such Executive, Group, Senior or
other Vice Presidents, and other officers as may be elected or appointed by the
Board of Directors. Any number of offices may be held by the same person. All
officers shall hold office until their successors are elected 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
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stockholders. The President shall be the chief executive officer of the
Corporation and shall have general supervision over the business, affairs,
and property of the Corporation.
ARTICLE V.
SEAL
The seal of the Corporation shall be in such form as the Board of Directors
shall prescribe.
ARTICLE VI.
CERTIFICATES OF STOCK
The shares of stock of the Corporation shall be represented by
certificates of stock, signed by the President or such Vice President or
other officer designated by the Board of Directors, countersigned by the
Treasurer or the Secretary; and such signature of the President, Vice
President, or other officer, such countersignature of the Treasurer or
Secretary, and such seal, or any of them, may be executed in facsimile,
engraved or printed. In case any officer who has signed or whose facsimile
signature has been placed upon any share certificate shall have ceased to be
such officer because of death, resignation or otherwise before the
certificate is issued, it may be issued by the Corporation with the same
effect as if the officer had not ceased to be such at the date of its issue.
Said certificates of stock shall be in such form as the Board of Directors
may from time to time prescribe.
ARTICLE VII.
INDEMNIFICATION
SECTION 1. The Corporation shall indemnify, and advance Expenses (as
this and all other capitalized words are defined in Section 12) to,
Indemnitee to the fullest extent permitted by applicable law in effect on
July 24, 1986, and to such greater extent as applicable law may thereafter
permit. The rights of Indemnitee provided under the preceding sentence shall
include, but not be limited to, the right to be indemnified to the fullest
extent permitted by Section 145(b) of the D.G.C.L. in Proceedings by or in
the right of the Corporation and to the fullest extent permitted by Section
145(a) of the D.G.C.L. in all other Proceedings.
SECTION 2. If Indemnitee is, by reason of his Corporate Status, a
witness in or a party to and is successful, on the merits or otherwise, in
any Proceeding, he shall be indemnified against all Expenses actually and
reasonably incurred by him or on his behalf in connection therewith. If
Indemnitee is not wholly successful in such Proceeding but is successful, on
the merits or otherwise, as to any Matter in such Proceeding, the Corporation
shall indemnify Indemnitee against all Expenses actually and reasonably
incurred by him or on his behalf relating to each Matter. The termination of
any Matter in such a Proceeding by dismissal, with or without prejudice,
shall be deemed to be a successful result as to such Matter.
SECTION 3. Indemnitee shall be advanced Expenses within 10 days after
requesting them to the fullest extent permitted by Section 145(e) of the
D.G.C.L.
SECTION 4. To obtain indemnification Indemnitee shall submit to the
Corporation a written request with such information as is reasonably
available to Indemnitee. The Secretary of the Corporation shall promptly
advise the Board of Directors of such request.
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
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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.
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
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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.
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"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
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 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.
March 12, 1998
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