<PAGE> 1
As filed with the Securities and Exchange Commission on May 22, 1998.
Registration No. 333-_____
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------
QUAKER STATE CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 25-0742820
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
225 EAST JOHN CARPENTER FREEWAY
IRVING, TEXAS 75062
(Address of Principal Executive Offices) (Zip Code)
NON-EMPLOYEE DIRECTORS RESTRICTED STOCK
(Full title of the plan)
--------------
PAUL E. KONNEY, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
QUAKER STATE CORPORATION
225 EAST JOHN CARPENTER FREEWAY
IRVING, TEXAS 75062
(972) 868-0400
(Name, address and telephone number of agent for service)
--------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================================
Title of Proposed Proposed
securities Amount maximum maximum Amount of
to be to be offering price aggregate registration
registered registered per share offering price fee
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Capital Stock, par value
$1.00 per share................... 65,383 shs. $17.7813(1) $1,162,595 $342.97
------ ------- --------- ------
Rights to purchase Capital
Stock............................. (2) (2) (2) (2)
=========================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(h) and 457(c) on the basis of the average of the high
and low sale prices for the Capital Stock as reported in the New York Stock
Exchange Composite Transactions Listing for May 19, 1998, as quoted in The Wall
Street Journal.
(2) Such number of Rights as are associated with the shares of Capital Stock
registered hereby from time to time pursuant to the terms of the Registrant's
Stockholder Rights Plan. Initially the Rights are attached to and trade with the
shares of Capital Stock. Pursuant to Rule 457, no additional registration fee is
required for the Rights.
===============================================================================
<PAGE> 2
PROSPECTUS
QUAKER STATE CORPORATION
65,383 SHARES OF CAPITAL STOCK
This Prospectus relates to the offering by the selling stockholders
identified herein (the "Selling Stockholders") of up to an aggregate of 65,383
shares of capital stock, par value $1.00 per share (the "Capital Stock"), of
Quaker State Corporation, a Delaware corporation (the "Company"). The shares of
Capital Stock offered hereby (the "Offered Securities") were awarded on May 15,
1998, by the Company's Board of Directors. See "Selling Stockholders" and "Plan
of Distribution" for information relating to the Selling Stockholders and this
offering.
The Offered Securities may be sold from time to time pursuant to this
Prospectus by the Selling Stockholders. The Offered Securities may be sold by
the Selling Stockholders in ordinary brokerage transactions, in transactions in
which brokers solicit purchases, in negotiated transactions, or in a combination
of such methods of sale, at market prices prevailing at the time of sale, at
prices relating to such prevailing market prices or at negotiated prices. See
"Plan of Distribution." The distribution of the Offered Securities is not
subject to any underwriting agreement. The Company will receive no part of the
proceeds of sales from the offering by the Selling Stockholders. All expenses of
registration incurred in connection with this offering are being borne by the
Company. None of the Offered Securities have been registered prior to the filing
of the Registration Statement of which this Prospectus is a part.
The Capital Stock is traded on the NYSE under the symbol "KSF." On May 20,
1998, the last reported sale price of the Capital Stock on the NYSE was $17 9/16
per share.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
---------------------
The date of this Prospectus is May 22, 1998
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Exchange Act
and in accordance therewith files reports, proxy statements and other
information with the SEC, which can be inspected and copied at the public
reference facilities maintained by the SEC at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the regional offices of the SEC at 7 World Trade
Center, Suite 1300, New York, New York 10048, and 500 West Madison Street, Suite
1400, Chicago, Illinois 60611. Copies of these materials can be obtained at
prescribed rates from the Public Reference Section of the SEC at 450 Fifth
Street, N.W., Washington, D.C. 20549. These reports, proxy statements and other
information may also be obtained without charge from the web site that the SEC
maintains at http://www.sec.gov. These reports, proxy statements and other
information also may be inspected at the offices of the Nasdaq National Market
System, Report Section, 1735 K Street, N.W., Washington, D.C. 20006.
This Prospectus constitutes a part of a Registration Statement on Form S-8
(together with all amendments, the "Registration Statement") that the Company
has filed with the SEC under the Securities Act. This Prospectus does not
contain all the information set forth in the Registration Statement, certain
parts of which are omitted in accordance with the rules and regulations of the
SEC. For further information with respect to the Company and the Capital Stock,
reference is made to the Registration Statement and to the exhibits thereto.
Statements contained herein concerning the provisions of certain documents are
not necessarily complete, and in each instance, reference is made to the copy of
the document filed as an exhibit to the Registration Statement or otherwise
filed with the SEC. Each such statement is qualified in its entirety by that
reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed by the Company with the SEC and are
incorporated by reference into this Prospectus, and shall be deemed to be a part
hereof:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
(2) The Company's Current Report on Form 8-K/A-2 dated October 10, 1996;
(3) The Company's Current Report on Form 8-K dated November 3, 1997;
(4) The Company's Current Report on Form 8-K dated April 14, 1998;
(5) The Company's Registration Statement on Form 8-A/A filed with the
Commission on April 21, 1998; and
(6) The description of the Company's Capital Stock contained in the section
entitled "Description of Capital Stock" contained in the Company's
Current Report on Form 8-K filed with the Commission on November 12,
1996, including any amendment or report filed for the purpose of
updating such description.
All documents filed by the Company pursuant to Section 13(a), 14 or 15(d)
of the Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering made hereby shall be deemed to be incorporated by
reference into this Prospectus and to be a part hereof from the date of the
filing of such documents. Any statement contained herein or in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any subsequently filed document that also is or
is deemed to be incorporated by reference herein or in any Prospectus Supplement
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed to constitute a part of this Prospectus, except as so
modified or superseded.
The Company will provide without charge to each person to whom a copy of
this Prospectus has been delivered, on the written or oral request of any
person, a copy of any or all of the documents referred to above that have been
or may be incorporated by reference into this Prospectus, other than exhibits to
the documents
2
<PAGE> 4
(unless the exhibits are specifically incorporated by reference into the
documents). Written or telephone request for the copies should be directed to
General Counsel, Quaker State Corporation, 225 E. John Carpenter Freeway,
Irving, Texas 75062, and its telephone number at those offices is (972)
868-0400.
THE COMPANY
Quaker State Corporation is a leading marketer of branded and private label
lubricants, lubricant services and consumer branded automotive aftermarket
products. The Company, a Delaware corporation formed in 1931, has its principal
executive offices at 225 E. John Carpenter Freeway, Irving, Texas 75062. Its
telephone number is (972) 868-0400.
FORWARD LOOKING STATEMENTS
From time to time, the Company may make statements which constitute or
contain "forward-looking" information as that term is defined in the Private
Securities Litigation Reform Act of 1995 or by the Securities and Exchange
Commission in its rules, regulations and releases. The Company cautions
investors that any such forward-looking statements made by the Company are not
guarantees of future performance and that actual results may differ materially
from those in the forward-looking statements. The following are some of the
factors that could cause actual results to differ materially from estimates
contained in the Company's forward-looking statements:
- The pattern of the Company's sales, including variations in sales volume
within periods and sales to significant customers, which makes
forward-looking statements about sales and earnings difficult and may
result in the variance of actual results from those contained in
statements made at any time prior to any given period's close;
- The Company's ability to develop, produce and market new and innovative
products and services on which future operating results depend. There are
a number of risks inherent in these activities, including technological
changes, manufacturing facility capacity, availability of raw materials
and critical manufacturing equipment, changing customer needs and
competitive reactions;
- Vigorous competition within the Company's product markets, including
pricing and promotional, advertising or other activities in order to
preserve or gain market share in any segment, the timing and intensity of
which cannot be foreseen;
- Global or regional economic factors and potential changes in laws and
regulations affecting the Company's various businesses in over 75
countries around the world, including changes in product mix, currency
exchange rate fluctuations, changes in monetary policy and tariffs, and
federal, state and international laws regulating the environment, which
could impact the Company's financial condition and results of operations;
- The market price of the Capital Stock or other securities of the Company,
which could be subject to fluctuation in response to quarterly variations
in operating results, changes in analysts' earnings estimates, market
conditions, press releases issued by the Company, and general economic
conditions and other factors external to the Company, thereby affecting
the availability of capital to the Company;
- The impact of special charges resulting from ongoing evaluation of
business strategies, asset valuations and organizational and corporate
structures, and the implementation of restructuring plans, including new
computer and logistics systems;
- The costs, effects and liabilities associated with legal, regulatory or
administrative proceedings and any required remedial action, anticipated
or unanticipated;
- Real estate costs and the Company's ability to negotiate effectively
based on competitive factors, which could cause the number of new Q Lube
facilities to differ from the number projected and could affect expenses
in other segments; and
3
<PAGE> 5
- Significant competitive pricing pressures and intense competition for
qualified, skilled employees, which could affect profitability,
productivity and/or expenses.
SELLING STOCKHOLDERS
The following table sets forth the name of the Selling Stockholders and (i)
the number of shares of Capital Stock owned by the Selling Stockholders as of
the effective date of the Registration Statement of which this Prospectus forms
a part, (ii) the maximum number of shares of Capital Stock which may be offered
for the account of the Selling Stockholders under this Prospectus, and (iii) the
amount and percentage of Capital Stock to be owned by the Selling Stockholders
after the completion of this offering assuming the sale of all the Capital Stock
which may be offered hereunder.
<TABLE>
<CAPTION>
AMOUNT AND PERCENTAGE
OF CAPITAL STOCK OWNED
AFTER THE OFFERING
PRIOR TO WHICH MAY BE ------------------------
SELLING STOCKHOLDERS OFFERING(1) SOLD HEREUNDER AMOUNT(1) PERCENTAGE
-------------------- ----------- -------------- --------- ----------
<S> <C> <C> <C> <C>
Leonard M. Carroll......................... 8,937(2) 7,360 8,937(2) *
Laurel Cutler.............................. 5,000(3) 8,623 5,000(3) *
C. Frederick Fetterolf..................... 7,000(4) 9,800 7,000(4) *
Thomas A. Gardner.......................... 9,327(5) 9,846 9,327(5) *
F. William Grube........................... 23,000(6) 7,294 23,000(6) *
Forrest R. Haselton........................ 7,923(7) 6,004 7,923(7) *
Raymond A. Ross, Jr........................ 8,100(8) 7,713 8,100(8) *
Lorne R. Waxlax............................ 26,087(9) 8,745 26,087(9) *
</TABLE>
- ---------------
* Less than 1%
(1) The directors and executive officers have sole voting power and sole
investment power with respect to all shares set forth in the table except as
indicated in the footnotes that follow.
(2) Includes 4,000 shares which may be acquired by Mr. Carroll upon the exercise
of stock options which are presently exercisable or become exercisable
within 60 days after March 17, 1998.
(3) Includes 4,000 shares which may be acquired by Ms. Cutler upon the exercise
of stock options which are presently exercisable or become exercisable
within 60 days after March 17, 1998.
(4) Includes 4,000 shares which may be acquired by Mr. Fetterolf upon the
exercise of stock options which are presently exercisable or become
exercisable within 60 days after March 17, 1998. Does not include 3,933
shares of deferred Capital Stock held for Mr. Fetterolf under the Directors'
Plan, as of March 17, 1998.
(5) Includes 4,000 shares which may be acquired by Mr. Gardner upon the exercise
of stock options which are presently exercisable or become exercisable
within 60 days after March 17, 1998.
(6) Includes 3,000 shares which may be acquired by Mr. Grube upon the exercise
of stock options which are presently exercisable or become exercisable
within 60 days after March 17, 1998. Includes 20,000 shares held jointly by
Mr. Grube with his spouse.
(7) Includes 3,000 shares which may be acquired by Mr. Haselton upon the
exercise of stock options which are presently exercisable or become
exercisable within 60 days after March 17, 1998.
(8) Includes 4,000 shares which may be acquired by Mr. Ross upon the exercise of
stock options which are presently exercisable or become exercisable within
60 days after March 17, 1998.
(9) Includes 3,000 shares which may be acquired by Mr. Waxlax upon the exercise
of stock options which are presently exercisable or become exercisable
within 60 days after March 17, 1998.
4
<PAGE> 6
PLAN OF DISTRIBUTION
The Offered Securities may be sold from time to time directly by the
Selling Stockholders. The Offered Securities may also be sold by the Selling
Stockholders in (a) ordinary brokerage transactions and in transactions in which
brokers solicit purchasers, (b) sales to a broker or dealer as principal and
resales by such broker or dealer for its own account pursuant to this Prospectus
or (c) in a combination of such methods of sale, at market prices and other
terms prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices. The Offered Securities may be sold on any
national securities exchange or automated interdealer quotation system on which
shares of Capital Stock are then listed, through negotiated transactions or
otherwise. Brokers, dealers and agents who participate in the sale of the
Offered Securities may receive compensation in the form of underwriting
discounts, concessions or commissions from the Selling Stockholders and/or
purchasers of the Offered Securities for whom they may act as agent. The Selling
Stockholders and any brokers, dealers or agents that participate in the
distribution of the Offered Securities might be deemed to be "underwriters"
within the meaning of the Securities Act, and any profit on the sale of such
Offered Securities and any discounts, commissions or concessions received by any
such brokers, dealers or agents might be deemed to be underwriting discounts and
commissions under the Securities Act. At the time a particular offer of any of
the Offered Securities is made by the Selling Stockholders, to the extent
required pursuant to the Securities Act, a supplement to this Prospectus will be
distributed which describes the method of sale in greater detail. In addition,
any Offered Securities which qualify for sale pursuant to Rule 144 under the
Securities Act may be sold under Rule 144 rather than pursuant to this
Prospectus.
The Selling Stockholders will pay their costs and expenses of selling the
shares of Capital Stock offered hereunder, including commissions and discounts
of underwriters, brokers, dealers or agents, and the Company will pay the costs
and expenses incident to its registration and qualification of the Capital Stock
offered hereby, including registration and filing fees.
The Selling Stockholders may indemnify any broker-dealer that participates
in transactions involving the sale of shares of Capital Stock against certain
liabilities, including liabilities under the Securities Act.
There can be no assurance that the Selling Stockholders will sell any or
all of the shares of Capital Stock offered by them hereunder.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
Offered Securities by the Selling Stockholders.
LEGAL MATTERS
The validity of the Capital Stock offered hereby has been passed upon for
the Company by Vinson & Elkins L.L.P., Dallas, Texas.
EXPERTS
The consolidated financial statements and related schedule of the Company
included in the Company's annual report on Form 10-K for the year ended December
31, 1997, incorporated by reference herein and in the Registration Statement
have been audited by Coopers & Lybrand L.L.P., independent accountants, to the
extent and for the periods indicated in their reports, and have been
incorporated by reference herein and in the Registration Statement in reliance
upon the authority of that firm as experts in accounting and auditing.
5
<PAGE> 7
======================================================
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR ANY OF THE UNDERWRITERS. THIS PROSPECTUS DOES NOT CONSTITUTE
AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY THE SHARES BY ANYONE IN
ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED, OR IN
WHICH THE PERSON MAKING THE OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO, OR
TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL CREATE ANY
IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO ITS DATE.
---------------------
TABLE OF CONTENTS
<TABLE>
<S> <C>
Available Information.................... 2
Incorporation of Certain Information by
Reference.............................. 2
The Company.............................. 3
Forward Looking Statements............... 3
Selling Stockholders..................... 4
Plan of Distribution..................... 5
Use of Proceeds.......................... 5
Legal Matters............................ 5
Experts.................................. 5
</TABLE>
======================================================
======================================================
65,383 SHARES
QUAKER STATE CORPORATION
CAPITAL STOCK
--------------------
PROSPECTUS
--------------------
MAY 22, 1998
======================================================
<PAGE> 8
PART II.
INFORMATION REQUIRED IN
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are incorporated herein by reference the following documents
filed by the registrant with the Securities and Exchange Commission (File No.
1-2677):
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997;
(b) The Company's Current Report on Form 8-K/A-2 dated
October 10, 1996;
(c) The Company's Current Report on Form 8-K dated November
3, 1997;
(d) The Company's Current Report on Form 8-K dated April 14,
1998;
(e) The Company's Registration Statement on Form 8-A/A filed
with the Commission on April 21, 1998; and
(f) The description of the Company's Capital Stock contained
in the section entitled "Description of Capital Stock" contained in the
Company's Current Report on Form 8-K filed with the Commission on
November 12, 1996, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the 1934 Act subsequent to the filing of the annual
report on Form 10-K referred to in (a) above and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference in this registration statement and to be
a part hereof from the date of filing of such documents, except that the
information included in any document in response to paragraphs (i), (k) or (l)
of Item 402 of Regulation S-K is not incorporated by reference in this
registration statement.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this registration statement shall be deemed to be
modified or superseded for purposes of this registration statement to the extent
that a statement contained in this registration statement or in any subsequently
filed document which also is or is deemed to be incorporated by reference in
this registration statement modifies or supersedes such statement. Any statement
so modified or
II-1
<PAGE> 9
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
II-2
<PAGE> 10
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Certificate of Incorporation of the Company provides that, to the
fullest extent that the law of the State of Delaware, as the same exists or may
hereafter be amended, permits elimination of the personal liability of
directors, no director of the Company shall be personally liable to the Company
or to its stockholders for monetary damages for breach of fiduciary duty as a
director. The DGCL permits a corporation's certificate of incorporation to
provide that no director of the corporation shall be personally liable to the
corporation or its stockholders for monetary damages for any breach of his or
her fiduciary duty as a director; provided that such provision shall not
eliminate or limit the liability of a director (i) for any breach of a
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions that are not in good faith or involve intentional misconduct or a
knowing violation of the law, (iii) under Section 174 of the DGCL or (iv) for
any transaction from which the director derived an improper personal benefit.
The Certificate of Incorporation of the Company also provides, in
general, that the Company shall indemnify its officers and directors against
reasonable expenses and any liability paid or incurred by such person in
connection with any actual or threatened claim, action, suit or proceeding,
civil, criminal, administrative, investigative or other, whether brought by or
in the right of the Company or otherwise, in which he or she may be involved, as
a party or otherwise, by reason of such person being or having been a director
or officer of the Company or by reason of the fact that such person is or was
serving at the request of the Company as a director, officer, employee,
fiduciary or other representative of another corporation, partnership, joint
venture, trust, employee benefit plan or other entity, except as prohibited by
law. Section 145 of the DGCL provides, in general, that each director and
officer of a corporation may be indemnified against expenses (including
attorneys' fees, judgments, fines and amounts paid in settlement) actually and
reasonably incurred in connection with the defense or settlement of any
threatened, pending or completed legal proceedings in which he or she is
involved by reason of the fact the he or she is or was a director or officer if
he or she acted in good faith and in a manner that he or she reasonably believed
to be in or not opposed to the best interests of the corporation and, with
respect to any criminal action or proceeding, if he or she had no reasonable
cause to believe that his or her conduct was unlawful. If the legal proceeding,
however, is by or in the right of the corporation, the director or officer may
not be indemnified in respect of any claim, issue or matter as to which he or
she shall have been adjudged to be liable for negligence or misconduct in the
performance of his or her duty to the corporation unless a court determines
otherwise.
In addition, the Certificate of Incorporation of the Company provides
that the Company may purchase and maintain insurance to protect itself and any
director or officer entitled to indemnification pursuant to the Certificate of
Incorporation. Accordingly, the Company carries directors and officers liability
coverage which is subject to certain limitations and exclusions.
II-3
<PAGE> 11
The Company has entered into an Indemnification and Insurance Agreement
with each of its directors (the "Indemnification and Insurance Agreements").
These agreements provide that the Company must, within 30 days of a request,
indemnify an officer or director for liabilities incurred to the fullest extent
permitted by the DGCL. The Company must, within two days of a request, indemnify
an officer or director for expenses incurred in the defense of a claim or other
proceeding. The obligation of the Company to provide the indemnification does
not apply if, before the date on which the Company must provide the
indemnification, the Company's board of directors, or a representative chosen by
the board of directors, concludes that indemnification would be improper under
the DGCL. It is the position of the Commission that indemnification of directors
and officers for liability under the Securities Act is against public policy and
unenforceable pursuant to Section 14 of the Securities Act.
The preceding discussion of the registrant's Certificate of
Incorporation, Section 145 of the DGCL, and the Indemnification and Insurance
Agreements is not intended to be exhaustive and is qualified in its entirety by
the Certificate of Incorporation, Section 145 of the DGCL and the
Indemnification and Insurance Agreements.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
II-4
<PAGE> 12
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this registration
statement:
<TABLE>
<CAPTION>
EXHIBIT
NO. DOCUMENT
- ------- --------
<S> <C>
4.1 Composite Certificate of Incorporation of the registrant
containing amendments through May 16, 1997, filed as Exhibit 3
to the registrant's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997 and incorporated herein by
reference.
4.2 Bylaws of the registrant, as amended and restated effective May
15, 1998, filed herewith.
4.3 Rights Agreement, dated as of September 28, 1995, between the
registrant and Mellon Securities Trust Company, as Rights
Agent, filed as Exhibit 1 to the registrant's Current Report on
Form 8-K dated October 20, 1995 and incorporated herein by
reference.
4.3(i) Amendment No. 1 to Rights Agreement, filed as Exhibit 2 to Form
8-A/A-1, filed on April 21, 1998 and incorporated herein by
reference.
5.1 Opinion of Vinson & Elkins L.L.P. as to the legality of the
shares of Capital Stock being registered, filed herewith.
10.1 Form of Non-Employee Director Restricted Stock Agreement, filed
herewith.
23.1 Consent of Vinson & Elkins L.L.P., included in Exhibit 5.1,
filed herewith.
23.2 Consent of Coopers & Lybrand L.L.P., filed herewith.
24.1 Power of Attorney (set forth on page II-8 of the registration
statement).
</TABLE>
II-5
<PAGE> 13
ITEM 9. UNDERTAKINGS.
(a) Rule 415 offering.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933 (the
"1933 Act");
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Securities and
Exchange Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 (the "1934
Act") that are incorporated by reference in the registration
statement;
(2) That, for the purpose of determining any liability
under the 1933 Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof; and
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) Filings incorporating subsequent Exchange Act documents by
reference.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the registrant's
annual report pursuant to section 13(a) or section 15(d) of the 1934 Act that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-6
<PAGE> 14
(h) Commission opinion regarding indemnification.
Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 6 above, or
otherwise, the registrant has been advised that, in the opinion of the
Securities and Exchange Commission, such indemnification is against public
policy as expressed in the 1933 Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the 1933 Act
and will be governed by the final adjudication of such issue.
II-7
<PAGE> 15
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Irving, State of Texas, on May 19, 1998.
QUAKER STATE CORPORATION
By: /s/ Herbert M. Baum
------------------------------
(Herbert M. Baum)
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Quaker State Corporation,
hereby severally constitute Conrad A. Conrad and Paul E. Konney, and each of
them singly, our true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign any and all amendments
(including post effective amendments) to this Registration Statement, and to
file same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as the undersigned might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or either of them, or their or his substitutes, may lawfully do or cause
to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement and Power of Attorney have been signed by the following
persons in the capacities and on the date indicated.
<TABLE>
<CAPTION>
Name Title Date
<S> <C> <C>
/s/ Herbert M. Baum Chairman of the Board, Chief 5/19/98
- -------------------------------------- Executive Officer and Director
(Herbert M. Baum) (Principal Executive Officer)
/s/ Conrad A. Conrad Vice Chairman, Chief Financial 5/19/98
- -------------------------------------- Officer and Director (Principal
(Conrad A. Conrad) Financial Officer)
/s/ Keith S. Krzeminski Vice President and Controller 5/19/98
- -------------------------------------- (Principal Accounting Officer)
(Keith S. Krzeminski)
</TABLE>
II-8
<PAGE> 16
<TABLE>
<CAPTION>
Name Title Date
<S> <C> <C>
/s/ John D. Barr Director 5/19/98
- --------------------------------------
(John D. Barr)
/s/ Leonard M. Carroll Director 5/19/98
- --------------------------------------
(Leonard M. Carroll)
/s/ J. Taylor Crandall Director 5/19/98
- --------------------------------------
(J. Taylor Crandall)
/s/ Laurel Cutler Director 5/19/98
- --------------------------------------
(Laurel Cutler)
/s/ C. Frederick Fetterolf Director 5/19/98
- --------------------------------------
(C. Frederick Fetterolf)
/s/ F. William Grube Director 5/19/98
- --------------------------------------
(F. William Grube)
/s/ Forrest R. Haselton Director 5/19/98
- --------------------------------------
(Forrest R. Haselton)
/s/ Kenneth Lee Director 5/19/98
- --------------------------------------
(Kenneth Lee)
/s/ L. David Myatt Director 5/19/98
- --------------------------------------
(L. David Myatt)
/s/ Raymond A. Ross, Jr. Director 5/19/98
- --------------------------------------
(Raymond A. Ross, Jr.)
/s/ Lorne R. Waxlax Director 5/19/98
- --------------------------------------
(Lorne R. Waxlax)
</TABLE>
II-9
<PAGE> 17
QUAKER STATE CORPORATION
NON-EMPLOYEE DIRECTORS RESTRICTED STOCK
--------------
REGISTRATION STATEMENT
ON FORM S-8
--------------
EXHIBIT INDEX
(PURSUANT TO ITEM 601 OF REGULATION S-K)
<TABLE>
<CAPTION>
EXHIBIT
NO. DOCUMENT
- -------- --------
<S> <C>
4.1 Composite Certificate of Incorporation of the registrant
containing amendments through May 16, 1997, filed as Exhibit 3
to the registrant's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997 and incorporated herein by
reference.
4.2 Bylaws of the registrant, as amended and restated effective May
15, 1998, filed herewith.
4.3 Rights Agreement, dated as of September 28, 1995, between the
registrant and Mellon Securities Trust Company, as Rights
Agent, filed as Exhibit 1 to the registrant's Current Report on
Form 8-K dated October 20, 1995 and incorporated herein by
reference.
4.3(i) Amendment No. 1 to Rights Agreement, filed as Exhibit 2 to Form
8-A/A-1, filed on April 21, 1998 and incorporated herein by
reference.
5.1 Opinion of Vinson & Elkins L.L.P. as to the legality of the
shares of Capital Stock being registered, filed herewith.
10.1 Form of Non-Employee Director Restricted Stock Agreement, filed
herewith.
23.1 Consent of Vinson & Elkins L.L.P., included in Exhibit 5.1,
filed herewith.
23.2 Consent of Coopers & Lybrand L.L.P., filed herewith.
24.1 Power of Attorney (set forth on page II-8 of the registration
statement).
</TABLE>
<PAGE> 1
Exhibit 4.2
QUAKER STATE CORPORATION
BYLAWS
As amended and restated effective on May 15, 1998
ARTICLE I
STOCKHOLDERS
Section 1.1. Time and Place of Meetings. All meetings of the
stockholders for the election of directors or for any other purpose shall be
held at such time and place, within or without the State of Delaware, as may be
designated by the Board of Directors, or in the absence of a designation by the
Board of Directors, by the Chairman of the Board, the Chief Executive Officer,
the President or the Secretary, and as may be stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
Section 1.2. Annual Meetings. The annual meeting of the stockholders of
the Corporation for the election of directors and for the transaction of such
other business as properly may come before such meeting shall be held at such
place, either within or without the State of Delaware, and at 1:00 p.m. local
time on the last Thursday of May (or, if such day is a legal holiday, then on
the next succeeding business day), or at such other date and time as may be
fixed from time to time by resolution of the Board of Directors and set forth in
the notice of meeting or a duly executed waiver of notice thereof. At the annual
meeting, the stockholders shall elect by a plurality vote the directors to
succeed those whose terms expire at that meeting and shall transact such other
business as may properly be brought before the meeting.
Section 1.3. Special Meetings. Special meetings of the stockholders,
for any purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may only be called by the Chairman of the Board,
by the Board of Directors pursuant to a resolution adopted by a majority of the
total number of authorized directors, by the President or by the Secretary.
Section 1.4. Notice of Meetings; Waiver. The Secretary or any Assistant
Secretary shall cause written notice of the place, date and hour of each meeting
of the stockholders, and, in the case of a special meeting, the purpose or
purposes for which such meeting is called, to be given personally or by mail,
not less than ten nor more than sixty days prior to the meeting, to each
stockholder of record entitled to vote at such meeting.
Section 1.5. Quorum. Except as otherwise required by law or by the
Certificate of Incorporation, the presence in person or by proxy of the holders
of record of a majority of
<PAGE> 2
the shares entitled to vote at a meeting of stockholders shall constitute a
quorum for the transaction of business at such meeting.
Section 1.6. Voting. Every holder of record of shares entitled to vote
at a meeting of stockholders shall be entitled to one vote for each share
outstanding in the name of such stock- holder on the books of the Corporation at
the close of business on the record date for the meeting. Except as otherwise
required by law or by the Certificate of Incorporation, the vote of a majority
of the shares represented in person or by proxy at any meeting at which a quorum
is present shall be sufficient for the transaction of any business at such
meeting. No vote of the stockholders need be taken by written ballot unless
otherwise required by law.
Section 1.7. Adjournment. If a quorum is not present at any meeting of
the stockholders, the stockholders present in person or by proxy shall have the
power to adjourn any such meeting from time to time until a quorum is present.
Notice of any adjourned meeting of the stockholders of the Corporation need not
be given if the place, date and hour thereof are announced at the meeting at
which the adjournment is taken, provided, however, that if the adjournment is
for more than thirty days, or if after the adjournment a new record date for the
adjourned meeting is fixed, a notice of the adjourned meeting, conforming to the
requirements of Section 1.4 hereof, shall be given to each stockholder of record
entitled to vote at such meeting. At any adjourned meeting at which a quorum is
present, any business may be transacted that might have been transacted on the
original date of the meeting.
Section 1.8. Proxies. Any stockholder entitled to vote at any meeting
of the stockholders or to express consent to or dissent from corporate action
without a meeting may authorize another person or persons to vote at any such
meeting and express such consent or dissent for him by proxy. No such proxy
shall be voted or acted upon after the expiration of three years from the date
of such proxy, unless it provides for a longer period. Every proxy shall be
revocable at the pleasure of the stockholder executing it, except in those cases
where applicable law provides that a proxy shall be irrevocable. A stockholder
may revoke any proxy that is not irrevocable by attending the meeting and voting
in person, by filing an instrument in writing revoking the proxy or by filing
another duly executed proxy bearing a later date with the Secretary.
Section 1.9. Nomination of Directors. Only persons who are nominated in
accordance with the procedures set forth in this Section 1.9 shall be eligible
for election as directors of the Corporation.
(a) Nominations of persons for election to the Board of Directors of
the Corporation may be made at any annual meeting of stockholders by or at the
direction of the Board of Directors or by any stockholder of the Corporation
entitled to vote for the election of directors at the meeting who was a
stockholder of record at the time of giving of notice provided for in this
Section 1.9(a) and who complies with the notice procedures set forth in this
Section 1.9(a). Any such nomination by a stockholder shall be made pursuant to
timely notice in writing to the Secretary of the Corporation. To be timely
notice for an annual meeting, a stockholder's notice shall be delivered to the
Secretary of the Corporation at the principal executive offices of the
Corporation not less than 60 days nor more than 90 days prior to the first
anniversary of the preceding year's annual meeting; provided, however, that in
the event that the date of the annual meeting is advanced by more than 30 days
or delayed by more than 60 days from such anniversary date, notice by the stock-
holder to be timely must be so delivered not earlier than the 90th day prior to
<PAGE> 3
such annual meeting and not later than the close of business on the later of the
60th day prior to such annual meeting or the 10th day following the day on which
public announcement (as defined in Article I, Section 1.10) of the date of such
meeting is first made. Notwithstanding anything in the foregoing sentence 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 announcement
naming all of the nominees for director or specifying the size of the increased
Board of Directors made by the Corporation at least 70 days prior to the first
anniversary of the preceding year's annual meeting, a stockholder's notice
required by this Section 1.9(a) 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 of the Corporation 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 announcement is first made by the
Corporation. Such stockholder's notice shall set forth in writing (i) as to each
person whom the stockholder proposes to nominate for election or re-election as
a director (A) the name, age, business address and residence of such person, (B)
the principal occupation or employment of such person, (C) the number of shares
of stock of the Corporation that are beneficially owned by such person, and (D)
any other information relating to such person that is required to be disclosed
in connection with the solicitation of proxies for the election of directors, or
as otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (including,
without limitation, such person's written consent to being named in a proxy
statement as a nominee and to serving as a director if elected); and (ii) as to
the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination is made (A) the name and address of such stockholder, as
they appear on the Corporation's books, and of such beneficial owner and (B) the
class and number of shares of the Corporation which are owned beneficially and
of record by such stockholder and such beneficial owner.
(b) Nominations of persons for election to the Board of Directors of
the Corporation may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the Corporation's notice of meeting (i)
by or at the direction of the Board of Directors or (ii) provided that the Board
of Directors has determined that one or more directors shall be elected at such
special meeting, by any stockholder of the Corporation who is a stockholder of
record at the time of giving of notice provided for in this Section 1.9(b), who
shall be entitled to vote at the meeting and who complies with the notice
procedures set forth in this Section 1.9(b). To be timely notice for a special
meeting, a stockholder's notice must be delivered to the Secretary of the
Corporation at the principal executive offices of the Corporation not earlier
than the 90th day prior to such special meeting and not later than the close of
business on the later of the 60th day prior to such special meeting or the 10th
day following the day on which public announcement (as defined in Article I,
Section 1.10) is first made of the date of the special meeting and of the
nominee(s) proposed by the Board of Directors to be elected at such meeting.
(c) At the request of the Board of Directors, any person nominated by
the Board of Directors for election as a director shall furnish to the Secretary
of the Corporation that information pertaining to the nominee which is required
to be set forth in a stockholder's notice of nomination. The Chairman of the
Board, or in his or her absence the Chief Executive Officer, the President, any
Vice President or the Secretary, shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
procedures prescribed by these Bylaws, and in that event the defective
nomination shall be disregarded.
<PAGE> 4
Section 1.10. Transaction of Business. To be properly brought before an
annual meeting of stockholders, business must be (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors, (b) otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (c) otherwise properly brought before
the meeting by a stockholder of the Corporation who was a stockholder of record
at the time of giving of notice provided for in this Section 1.10, who is
entitled to vote at the meeting and who complied with the notice procedures set
forth in this Section 1.10. For business to be properly brought before an annual
meeting by a stockholder, if such business is related to any matter other than
the election of directors of the Corporation, the stockholder must have given
timely notice thereof in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice shall be delivered in accordance with the
procedures in Section 1.9(a) applicable to a stockholder's nomination of
directors at an annual meeting. Such stockholder's notice shall set forth in
writing as to each matter the stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired to be brought before the
annual meeting, the reasons for conducting such business at the annual meeting,
and any material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made; and (ii) as to
the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the proposal is made (A) the name and address of such stockholder, as
they appear on the Corporation's books, and of such beneficial owner and (B) the
class and number of shares of the Corporation which are owned beneficially and
of record by such stockholder and such beneficial owner. Notwithstanding
anything in these Bylaws to the contrary, no business shall be conducted at any
annual meeting except in accordance with the procedures set forth in this
Section 1.10. The Chairman of the Board, or in his or her absence the Chief
Executive Officer, the President, any Vice President or the Secretary, shall, if
the facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting in accordance with the provisions of this
Section 1.10, and in that event the business shall not be transacted. For
purposes of this Section 1.10 and Article I, Section 1.9, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press 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. In addition to the provisions of
this Section 1.10, a stockholder also shall comply with all applicable
requirements of the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth herein. Nothing in these Bylaws shall be deemed
to affect any rights of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Section 1.11. Inspectors of Elections. Prior to any meeting of the
stockholders, the Board of Directors shall appoint one or more persons to act as
inspectors of elections, and may designate one or more alternate inspectors. In
the event no inspector or alternate is able to act, the person presiding at the
meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of the duties of an inspector,
shall take and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his or her ability. The
inspector shall:
(a) ascertain the number of shares outstanding and the voting power
of each;
(b) determine the shares represented at a meeting and the validity of
proxies and ballots;
(c) count all votes and ballots;
<PAGE> 5
(d) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors; and
(e) certify his or her determination of the number of shares
represented at the meeting, and his or her count of all votes and ballots.
The inspector may appoint or retain other persons or entities to assist in the
performance of the duties of inspector.
When determining the shares represented and the validity of proxies and
ballots, the inspector shall be limited to an examination of the proxies, any
envelopes submitted with those proxies, any information provided in accordance
with Section 1.8 of these Bylaws, ballots and the regular books and records of
the Corporation. The inspector may consider other reliable information for the
limited purpose of reconciling proxies and ballots submitted by or on behalf of
banks, brokers or their nominees or a similar person which represent more votes
than the holder of a proxy is authorized by the record owner to cast or more
votes than the stockholder holds of record. If the inspector considers other
reliable information as outlined in this section, the inspector, at the time of
his or her certification pursuant to paragraph (e) of this section shall specify
the precise information considered, the person or persons from whom the
information was obtained, when this information was obtained, the means by which
the information was obtained, and the basis for the inspector's belief that such
information is accurate and reliable.
Section 1.12. Opening and Closing of Polls. The date and time for the
opening and the closing of the polls for each matter to be voted upon at a
meeting of stockholders shall be announced at the meeting. The inspector of the
election shall be prohibited from accepting any ballots, proxies or votes or any
revocations thereof or changes thereto after the closing of the polls, unless
the Court of Chancery upon application by a stockholder shall determine
otherwise.
Section 1.13. Consent of Stockholders in Lieu of Meeting. (a) Unless
otherwise provided in the Certificate of Incorporation, any action required or
permitted to be taken at any annual or special meeting of the stockholders of
the Corporation may, subject to the provisions of this Section 1.13, be taken
without a meeting, without prior notice and without a vote, if a consent or
consents in writing, setting forth the actions so taken, shall be signed by the
holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted and shall be
delivered to the Corporation. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing.
(b) Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within 60 days of the
earliest dated consent delivered to the Corporation, written consents signed by
a sufficient number of holders to take such action are delivered to the
Corporation.
(c) The record date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be fixed by the Board of
Directors. Any stockholder seeking to have the stockholders authorize or take
corporate action by written
<PAGE> 6
consent without a meeting shall, by written notice to the Secretary of the
Corporation, request the Board of Directors to fix a record date. Upon receipt
of such a request, the Secretary of the Corporation shall, as promptly as
practicable, direct the Chairman of the Board, the Chief Executive Officer or
the President to call a special meeting of the Board of Directors to be held as
promptly as practicable, but in any event not more than 10 days following the
date of receipt of such a request. At such a meeting, the Board of Directors
shall fix a record date, which shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which shall not be more than 10 days after the date on which the resolution
fixing the record date is adopted by the Board of Directors. Notice of the
record date shall be published in accordance with the rules and policies of any
stock exchange on which securities of the Corporation are then listed or, if the
securities of the Corporation are not listed on a stock exchange, then in
accordance with the rules and policies of the National Association of Securities
Dealers Automatic Quotation National Market System. If no record date has been
so fixed by the Board of Directors, the record date for determining the
stockholders entitled to consent to corporate action in writing without a
meeting, where no prior action by the Board of Directors is required by the
Delaware General Corporation Law, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation. If no date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by the Delaware
General Corporation Law, the record date for determining stockholders entitled
to consent to corporate action in writing without a meeting shall be at the
close of business on the day on which the Board of Directors adopts the
resolution taking such prior action.
(d) In the event of the delivery to the Corporation of a written
consent or consents purporting to represent the requisite voting power to
authorize or take corporate action and/or related revocations, the Secretary of
the Corporation shall provide for the safekeeping of such consents and
revocations and shall, as promptly as practicable, engage inspectors for the
purpose of promptly performing a ministerial review of the validity of the
consents and revocations. No action by written consent without a meeting shall
be effective until such inspectors have completed their review, determined that
the requisite number of valid and unrevoked consents has been obtained to
authorize or take actions specified in the consents and certified such
determination for entry in the records of the Corporation for the purpose of
recording the proceedings of meetings of the stockholders.
(e) For purposes of this Section 1.13, delivery to the Corporation
shall be effected by delivery to its registered office in the State of Delaware,
its principal place of business, or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1. General Powers. Except as may otherwise be provided by
law, by the Certificate of Incorporation or by these Bylaws, the property,
affairs and business of the Corporation shall be managed by or under the
direction of the Board of Directors, and the Board of Directors may exercise all
the powers of the Corporation.
<PAGE> 7
Section 2.2. Number and Term of Office. The number of Directors
constituting the entire Board of Directors shall be thirteen, which number may
be modified from time to time by resolution of the Board of Directors, provided
that the number of Directors shall in no event be less than one. Each Director
(whenever elected) shall hold office until his or her successor has been duly
elected and qualified, or until his or her earlier death, resignation,
retirement or removal.
Section 2.3. Election of Directors. Except as otherwise provided in
Section 2.12 of these Bylaws, the Directors shall be elected at each annual
meeting of the stockholders. If the annual meeting for the election of Directors
is not held on the date designated therefor, the Directors shall cause the
meeting to be held as soon thereafter as convenient. At each meeting of the
stockholders for the election of Directors, provided a quorum is present, the
Directors shall be elected by a plurality of the votes validly cast in such
election.
Section 2.4. Annual and Regular Meetings. The annual meeting of the
Board of Directors for the purpose of electing officers and for the transaction
of such other business as may come before the meeting shall be held as soon as
practical following adjournment of the annual meeting of the stockholders at the
place of such annual meeting of the stockholders. Notice of such annual meeting
of the Board of Directors need not be given. The Board of Directors from time to
time may by resolution provide for the holding of regular meetings and fix the
place (which may be within or without the State of Delaware) and the date and
hour of such meetings. Notice of regular meetings need not be given.
Section 2.5. Special Meetings; Notice. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board, the Chief
Executive Officer or the President or, in the event of their absence or
disability, by any Vice President or the Secretary, or by the Secretary upon the
request of four Directors, at such place (within or without the State of
Delaware), date and hour as may be specified in the respective notices or
waivers of notice of such meetings. Special meetings of the Board of Directors
may be called on 24 hours' notice, if notice is given to each Director
personally, by telephone or by electronic means, or on five days' notice, if
notice is mailed to each Director, addressed to the Director at his or her usual
place of business.
Section 2.6. Quorum; Voting. At all meetings of the Board of Directors,
the presence of a majority of the total authorized number of Directors shall
constitute a quorum for the transaction of business. Except as otherwise
required by law, the Certificate of Incorporation or these Bylaws, the vote of a
majority of the Directors present at any meeting at which a quorum is present
shall be the act of the Board of Directors.
Section 2.7. Adjournment. A majority of the Directors present, whether
or not a quorum is present, may adjourn any meeting of the Board of Directors to
another time or place. No notice need be given of any adjourned meeting unless
the time and place of the adjourned meeting are not announced at the time of
adjournment, in which case notice conforming to the requirements of Section 2.5
shall be given to each Director.
Section 2.8. Action Without a Meeting. Any action required or permitted
to be taken at any meeting of the Board of Directors may be taken without a
meeting if all members of the Board of Directors consent thereto in writing, and
such writing or writings are filed with the minutes of proceedings of the Board
of Directors.
Section 2.9. Regulations; Manner of Acting. To the extent consistent
with applicable law, the Certificate of Incorporation and these Bylaws, the
Board of Directors
<PAGE> 8
may adopt such rules and regulations for the conduct of meetings of the Board of
Directors and for the management of the property, affairs and business of the
Corporation as the Board of Directors may deem appropriate. The Directors shall
act only as a Board, and the individual Directors shall have no power as such.
Section 2.10. Meeting by Telephonic Communications. Members of the
Board of Directors may participate in a meeting of the Board of Directors by
means of conference telephone or similar communications equipment through which
all persons participating in the meeting can hear each other. Participation in a
meeting pursuant to this provision shall constitute presence in person at such
meeting.
Section 2.11. Resignations; Retirement. Any Director may resign at any
time by delivering a written notice of resignation, signed by such Director, to
the Chairman of the Board, the Chief Executive Officer, the President or the
Secretary. Unless otherwise specified therein, such resignation shall take
effect upon delivery. A Director who is not and never has been an officer of the
Corporation, and any Director who has served as Chief Executive Officer of the
Corporation, and in each instance, who has served as a Director for at least ten
years as of his or her 70th birthday, shall retire from the Board of Directors
not later than the date of the annual meeting of stockholders next following his
or her 70th birthday. A Director who is not and never has been an officer of the
Corporation, and any Director who has served as Chief Executive Officer of the
Corporation, and in each instance, who has not served as a Director at least ten
years as of his or her 70th birthday, shall retire from the Board of Directors
not later than the date of the annual meeting of stockholders next following his
or her 72nd birthday. A Director who is or has been an officer of the
Corporation other than the Chief Executive Officer shall retire from the Board
of Directors not later than the earlier of the date of the annual meeting of
stockholders next following his or her 65th birthday or the date of his or her
retirement as an employee of the Corporation.
Section 2.12. Vacancies and Newly Created Directorships. If any vacancy
shall occur in the Board of Directors, by reason of death, resignation,
retirement, removal or otherwise, or if the authorized number of Directors shall
be increased, the Directors then in office shall continue to act, and any such
vacancy or newly created directorship may be filled by a majority of the
Directors then in office, although less than a quorum. A Director elected to
fill a vacancy or a newly created directorship shall hold office until his
successor has been elected and qualified or until his or her earlier death,
resignation, retirement or removal. Any such vacancy or newly created
directorship may also be filled at any time by vote of the stockholders.
Section 2.13. Compensation and Stock Ownership. The Board of Directors
shall fix from time to time by resolution the compensation, if any, which each
Director shall be entitled to receive for service as such. Beginning no later
than three years following election to the Board of Directors, a Director shall
own at least 5,000 shares of the Corporation's capital stock at all times while
serving as a Director.
ARTICLE III
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 3.1. How Constituted. The Board of Directors may, by resolution
adopted by a majority of the whole Board, designate one or more Committees,
including an
<PAGE> 9
Executive Committee, each such Committee to consist of such number of Directors
as from time to time may be fixed by the Board of Directors. The Board of
Directors may designate one Director as Chairman of any such Committee.
Thereafter, members and Chairmen of each such Committee may be designated at the
annual meeting of the Board of Directors. Any such Committee may be abolished or
re-designated from time to time by the Board of Directors. Each member of any
such Committee (whether designated at an annual meeting of the Board of
Directors or to fill a vacancy or otherwise) shall hold office until his or her
successor shall have been designated or until he or she shall cease to be a
Director, or until his or her earlier death, resignation, retirement or removal.
Section 3.2. Powers. During the intervals between the meetings of the
Board of Directors, the Executive Committee, except as otherwise provided in
this section, shall have and may exercise all the powers and authority of the
Board of Directors in the management of the property, affairs and business of
the Corporation, including the power to declare dividends and to authorize the
issuance of stock. Each such other Committee, except as otherwise provided in
this section, shall have and may exercise such powers of the Board of Directors
as may be provided by resolution or resolutions of the Board of Directors. The
power and authority of the Executive Committee and any such other Committee
shall be subject to the provisions of Section 141(c) of the Delaware General
Corporation Law and any successor provisions. The Executive Committee shall
have, and any such other Committee may be granted by the Board of Directors,
power to authorize the seal of the Corporation to be affixed to any or all
papers which may require it.
Section 3.3. Proceedings and Minutes. Each such Committee may fix its
own rules of procedure and may meet at such place (within or without the State
of Delaware), at such time and upon such notice, if any, as it shall determine
from time to time. Each such Committee shall keep minutes of its proceedings and
shall report such proceedings to the Board of Directors at the meeting of the
Board of Directors next following any such proceedings.
Section 3.4. Quorum and Manner of Acting. Except as may be otherwise
provided in the resolution creating such Committee, at all meetings of any
Committee the presence of members constituting a majority of the total
authorized membership of such Committee shall constitute a quorum for the
transaction of business. The act of the majority of the members present at any
meeting at which a quorum is present shall be the act of such Committee. Any
action required or permitted to be taken at any meeting of any such Committee
may be taken without a meeting, if all members of such Committee shall consent
to such action in writing and such writing or writings are filed with the
minutes of the proceedings of the Committee. The members of any such Committee
shall act only as a Committee, and the individual members of such Committee
shall have no power as such.
Section 3.5. Meeting by Telephonic Communications. Members of any
Committee designated by the Board of Directors may participate in a meeting of
such Committee by means of conference telephone or similar communications
equipment through which all persons participating in the meeting can hear each
other. Participation in a meeting pursuant to this provision shall constitute
presence in person at such meeting.
Section 3.6. Absent or Disqualified Members. In the event of the
absence or disqualification of a member of any Committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
constituting a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member.
<PAGE> 10
Section 3.7. Resignations. Any member (and any alternate member) of any
Committee may resign at any time by delivering a written notice of resignation,
signed by such member, to the Chairman of the Board, the Chief Executive
Officer, the President or the Secretary. Unless otherwise specified therein,
such resignation shall take effect upon delivery.
Section 3.8. Removal. Any member (and any alternate member) of any
Committee may be removed at any time, either for or without cause, by resolution
adopted by a majority of the whole Board of Directors.
Section 3.9. Vacancies. If any vacancy shall occur in any Committee, by
reason of disqualification, death, resignation, retirement, removal or
otherwise, the remaining members (and any alternate members) shall continue to
act, and any such vacancy may be filled by the Board of Directors.
Section 3.10. Compensation. The Board of Directors shall fix from time
to time by resolution the compensation, if any, which each Director shall be
entitled to receive for service as a member or as Chairman of any Committee.
ARTICLE IV
OFFICERS
Section 4.1. Number. The officers of the Corporation shall be chosen by
the Board of Directors and shall be a President, one or more Vice Presidents, a
Secretary and a Treasurer. The Board of Directors also may elect a Chairman of
the Board, a Chief Executive Officer and one or more Vice Chairmen, Assistant
Secretaries and Assistant Treasurers. Any number of offices may be held by the
same person. The President and the Chief Executive Officer, if any, shall be
chosen from the members of the Board of Directors, but no other officer need be
a Director of the Corporation.
Section 4.2. Election. Unless otherwise determined by the Board of
Directors, the officers of the Corporation shall be elected by the Board of
Directors at the annual meeting of the Board of Directors, and shall be elected
to hold office until the next succeeding annual meeting of the Board of
Directors. In the event of the failure to elect officers at such annual meeting,
officers may be elected at any regular or special meeting of the Board of
Directors. Each officer shall hold office until his or her successor has been
elected and qualified, or until his or her earlier death, resignation,
retirement or removal.
Section 4.3. Removal and Resignation; Vacancies. Any officer may be
removed for or without cause at any time by the Board of Directors. Any officer
may resign at any time by delivering a written notice of resignation, signed by
such officer, to the Board of Directors, the Chairman of the Board, the Chief
Executive Officer, the President or the Secretary. Unless otherwise specified
therein, such resignation shall take effect upon delivery. Any vacancy occurring
in any office of the Corporation by death, resignation, retirement, removal or
otherwise, may be filled by the Board of Directors, by the Chief Executive
Officer or if there be none, by the President, subject to ratification by the
Board of Directors at its next regular meeting.
<PAGE> 11
Section 4.4. Authority and Duties of Officers. The officers of the
Corporation shall have such authority and shall exercise such powers and perform
such duties as may be specified in these Bylaws, as may be specified from time
to time by the Board of Directors in a resolution that is not inconsistent with
these Bylaws, or as are customarily incident to the respective officers'
offices, except that in any event, each officer shall exercise such powers and
perform such duties as may be required by law.
Section 4.5. Chairman of the Board. The Chairman of the Board shall
preside at all meetings of the stockholders and of the Board of Directors and
shall have such other duties and responsibilities as may be assigned by the
Board of Directors. The Chairman of the Board may delegate to any qualified
person authority to chair any meeting of the stockholders, either on a temporary
or a permanent basis.
Section 4.6. Chief Executive Officer. The Chief Executive Officer shall
be responsible for the active management and direction of the business and
affairs of the Corporation. In case of the inability or failure of the Chairman
of the Board to perform the duties of that office, the Chief Executive Officer
shall perform the duties of the Chairman of the Board, unless otherwise
determined by the Board of Directors.
Section 4.7. President. In the event that no Chief Executive Officer
has been elected by the Board of Directors, the President shall perform the
duties of the Chief Executive Officer, unless otherwise determined by the Board
of Directors.
Section 4.8. Vice Chairman. Any Vice Chairman shall perform such duties
and exercise such powers as may be assigned from time to time by the Chairman of
the Board or the Chief Executive Officer, or if there be no Chief Executive
Officer, by the President.
Section 4.9. Vice President. Each Vice President shall perform such
duties and exercise such powers as may be assigned from time to time by the
Chief Executive Officer, or if there be none, by the President.
Section 4.10. Secretary and Assistant Secretaries. The Secretary shall
have the following powers and duties:
(a) The Secretary shall attend all meetings of the stockholders and of
the Board of Directors, shall keep or cause to be kept a record of all
proceedings of such meetings and shall perform like duties for any Committee of
the Board of Directors upon the request of the Chairman of the Board, the Chief
Executive Officer or the President.
(b) The Secretary shall give, or cause to be given, notice of all
meetings of the stockholders and the Board of Directors in accordance with the
provisions of these Bylaws and as required by law.
(c) The Secretary shall be the custodian of the records and of the seal
of the Corporation and cause such seal (or a facsimile thereof) to be affixed to
all certificates representing shares of the Corporation prior to the issuance
thereof and to all instruments the execution of which on behalf of the
Corporation under its seal shall have been duly authorized in accordance with
these Bylaws, and when so affixed, the Secretary or any Assistant Secretary may
attest the same.
(d) The Secretary shall properly maintain all books, reports,
statements, certificates and all other documents and records of the Corporation
required by law, the
<PAGE> 12
Certificate of Incorporation or these Bylaws, except those for which some other
officer or agent of the Corporation has been made responsible or is otherwise
accountable.
(e) The Secretary shall have charge of the stock books and records
of the Corporation and shall maintain or cause to be maintained the stock
transfer books for shares of stock of the Corporation of each class issued and
outstanding.
(f) The Secretary shall sign certificates representing shares of the
Corporation the issuance of which shall have been authorized by the Board of
Directors.
(g) Any Assistant Secretary shall assist the Secretary in performing
the duties and exercising the authority of the Secretary. In case of the
inability or failure of the Secretary to perform the duties of that office, an
Assistant Secretary shall perform the duties of the Secretary, unless otherwise
determined by the Board of Directors.
Section 4.11. Treasurer and Assistant Treasurers. The Treasurer shall
have the following powers and duties:
(a) The Treasurer shall have charge and supervision over and be
responsible for the moneys, securities, receipts and disbursements of the
Corporation, and shall keep or cause to be kept full and accurate records of all
receipts of the Corporation.
(b) The Treasurer shall cause the moneys and other valuable effects of
the Corporation to be deposited in the name and to the credit of the Corporation
in such banks or trust companies or with such bankers or other depositories as
shall be selected in accordance with Section 7.4 of these Bylaws.
(c) The Treasurer shall cause the moneys of the Corporation to be
disbursed by checks or drafts (signed as provided in Section 7.2 of these
Bylaws) upon the authorized depositaries of the Corporation and cause to be
taken and preserved proper vouchers for all moneys disbursed.
(d) Any Assistant Treasurer shall assist the Treasurer in performing
the duties and exercising the authority of the Treasurer. In case of the
inability or failure of the Treasurer to perform the duties of that office, an
Assistant Treasurer shall perform the duties of the Treasurer, unless otherwise
determined by the Board of Directors.
Section 4.12. Additional Officers. The Board of Directors may appoint
such other officers as it may deem appropriate, and the Chief Executive Officer
or if there be none, the President, may appoint such other officers as he or she
may deem appropriate, subject to ratification by the Board of Directors at its
next regular meeting. Such other officers shall hold their offices for such
terms and shall exercise such powers and perform such duties as may be
determined from time to time by the Board of Directors, the Chief Executive
Officer, or if there be none, the President. The Board of Directors from time to
time may delegate to any officer the power to appoint subordinate officers and
to prescribe their respective rights, terms of office, authorities and duties.
Any such officer may remove any such subordinate officer appointed by him or
her, for or without cause.
Section 4.13. Security. The Board of Directors may require any officer,
agent or employee of the Corporation to provide security for the faithful
performance of his or her duties, in such amount and of such character as may be
determined from time to time by the Board of Directors.
<PAGE> 13
ARTICLE V
CAPITAL STOCK
Section 5.1. Certificates of Stock; Uncertificated Shares. The shares
of the Corporation shall be represented by certificates, provided that the Board
of Directors may provide by resolution or resolutions that some or all of any or
all classes or series of the stock of the Corporation shall be uncertificated
shares. Any such resolution shall not apply to shares represented by a
certificate until such certificate is surrendered to the Corporation.
Notwithstanding the adoption of such a resolution by the Board of Directors,
every holder of stock in the Corporation represented by certificates and upon
request every holder of uncertificated shares shall be entitled to have a
certificate signed by, or in the name of the Corporation, by the Chief Executive
Officer or the President, and by the Secretary or an Assistant Secretary,
representing the number of shares registered in certificate form. Such
certificate shall be in such form as the Board of Directors may determine, to
the extent consistent with applicable law, the Certificate of Incorporation and
these Bylaws.
Section 5.2. Lost, Stolen or Destroyed Certificates. The Secretary may
direct that a new certificate be issued in place of any certificate theretofore
issued by the Corporation alleged to have been lost, stolen or destroyed, upon
delivery to the Secretary of an affidavit of the owner or owners of such
certificate, setting forth such allegation. The Secretary may require the owner
of such lost, stolen or destroyed certificate, or his or her legal
representative, to give the Corporation a bond sufficient to indemnify it
against any claim that may be made against it on account of the alleged loss,
theft or destruction of any such certificate or the issuance of any such new
certificate.
Section 5.3. Transfer of Stock. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for shares, duly endorsed
or accompanied by appropriate evidence of succession, assignment or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Within a reasonable time after the transfer of uncertificated stock, the
Corporation shall send to the registered owner thereof a written notice
containing the information required to be set forth or stated on certificates
pursuant to the General Corporation Law of the State of Delaware. Subject to the
provisions of the Certificate of Incorporation and these Bylaws, the Board of
Directors may prescribe such additional rules and regulations as it may deem
appropriate relating to the issue, transfer and registration of shares of the
Corporation.
Section 5.4. Record Date. In order to determine the stock- holders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix, in advance, a record date,
which record date shall not precede the date on which the resolution fixing the
record date is adopted by the Board of Directors, and which shall not be more
than sixty nor less than ten days before the date of such meeting. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting, provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
In order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights, or the stockholders entitled to exercise any rights in respect of any
change, conversion or exchange or stock,
<PAGE> 14
or for the purpose of any other lawful action, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted, and which record date shall be not
more than sixty days prior to such action. If no record date is fixed, the
record date for determining stockholders for any such purpose shall be at the
close of business on the day on which the Board of Directors adopts the
resolution relating thereto.
Section 5.5. Transfer Agent and Registrar. The Board of Directors, the
Chief Executive Officer, the President or the Secretary may appoint one or more
transfer agents and one or more registrars, and may require all certificates
representing shares to bear the signature of any such transfer agents or
registrars.
ARTICLE VI
OFFICES
Section 6.1. Registered Office. The registered office of the
Corporation in the State of Delaware shall be located at Corporation Trust
Center, 1209 Orange Street in the City of Wilmington, County of New Castle.
Section 6.2. Other Offices. The Corporation may maintain offices or
places of business at such other locations within or without the State of
Delaware as the Board of Directors may from time to time determine or as the
business of the Corporation may require.
ARTICLE VII
GENERAL PROVISIONS
Section 7.1. Dividends. Subject to any applicable provisions of law and
the Certificate of Incorporation, dividends upon the outstanding shares of
capital stock of the Corporation may be declared by the Board of Directors at
any regular or special meeting of the Board of Directors, and any such dividend
may be paid in cash, property, or shares of the Corporation's capital stock.
Section 7.2. Execution of Instruments. The Chief Executive Officer, the
President, any Vice Chairman, any Vice President, the Secretary or the Treasurer
may enter into any contract or execute and deliver any instrument in the name
and on behalf of the Corporation. The Board of Directors, the Chief Executive
Officer or the President may authorize any other officer to enter into any
contract or execute and deliver any instrument in the name and on behalf of the
Corporation. Any such authorization may be general or limited to specific
contracts or instruments.
Section 7.3. Corporate Indebtedness. No loan shall be contracted on
behalf of the Corporation, and no evidence of indebtedness shall be issued in
its name, unless authorized by the Board of Directors, the Chief Executive
Officer, the President or any Vice Chairman. Such authorization may be general
or confined to specific instances. Loans so authorized may be effected at any
time for the Corporation from any bank, trust company or other institution, or
from any firm, corporation or individual. All bonds, debentures, notes and other
obligations or evidences of indebtedness of the Corporation issued for such
<PAGE> 15
loans shall be made, executed and delivered as the Board of Directors, the Chief
Executive Officer, the President or any Vice Chairman shall authorize. When so
authorized by the Board of Directors, the Chief Executive Officer, the President
or any Vice Chairman, any part of or all the properties, including contract
rights, assets, business or goodwill of the Corporation, whether then owned or
thereafter acquired, may be mortgaged, pledged, hypothecated or conveyed or
assigned in trust as security for the payment of such bonds, debentures, notes
and other obligations or evidences of indebtedness of the Corporation, and of
the interest thereon, by instruments executed and delivered in the name of the
Corporation.
Section 7.4. Deposits. Any funds of the Corporation may be deposited
from time to time in such banks, trust companies or other depositaries as may be
determined by the Board of Directors, the Chief Executive Officer, the President
or any Vice Chairman, or by such officers as may be authorized by the Board of
Directors, the Chief Executive Officer or the President to make such
determination.
Section 7.5. Sale, Transfer, etc. of Securities. To the extent
authorized by the Board of Directors, by the Chief Executive Officer or by the
President, any Vice President, the Secretary, the Treasurer or any other
officers designated by the Board of Directors, the Chief Executive Officer or
the President may sell, transfer, endorse, and assign any shares of stock, bonds
or other securities owned by or held in the name of the Corporation, and may
make, execute and deliver in the name of the Corporation, under its corporate
seal, any instruments that may be appropriate to effect any such sale, transfer,
endorsement or assignment.
Section 7.6. Voting as Stockholder. Unless otherwise determined by
resolution of the Board of Directors, the Chief Executive Officer, the
President, any Vice President or the Secretary shall have full power and
authority on behalf of the Corporation to attend any meeting of stockholders of
any corporation in which the Corporation may hold stock, and to act, vote (or
execute proxies to vote) and exercise in person or by proxy all other rights,
powers and privileges incident to the ownership of such stock. Such officers
acting on behalf of the Corporation shall have full power and authority to
execute any instrument expressing consent to or dissent from any action of any
such corporation without a meeting. The Board of Directors may by resolution
from time to time confer such power and authority upon any other person or
persons.
Section 7.7. Fiscal Year. The fiscal year of the Corporation shall
commence on January 1 of each year and shall terminate on December 31.
Section 7.8. Seal. The seal of the Corporation shall be circular in
form and shall contain the name of the Corporation, the year of its
incorporation and the words "Corporate Seal" and "Delaware." The form of such
seal shall be subject to alteration by the Board of Directors. The seal may be
used by causing it or a facsimile thereof to be impressed, affixed or
reproduced, or may be used in any other lawful manner.
ARTICLE VIII
AMENDMENT OF BYLAWS
Section 8.1. Amendment. These Bylaws may be amended, altered or
repealed:
<PAGE> 16
(a) by resolution adopted by a majority of the Board of Directors at
any special or regular meeting of the Board if, in the case of such special
meeting only, notice of such amendment, alteration or repeal is contained in the
notice or waiver of notice of such meeting; or
(b) at any regular or special meeting of the stockholders if, in the
case of such special meeting only, notice of such amendment, alteration or
repeal is contained in the notice or waiver of notice of such meeting.
ARTICLE IX
BUSINESS COMBINATIONS
Section 9.1. Business Combinations. Pursuant to authority granted in
subsection (b)(2) of Section 203 of subchapter VI, Chapter 1, Title 8 of the
Delaware Code Relating to the General Corporate Law, the Board of Directors
elects not to be governed by the aforesaid Section 203 entitled "Business
Combinations with Interested Stockholders."
ARTICLE X
CONSTRUCTION
Section 10.1. Construction. In the event of any conflict between the
provisions of these Bylaws as in effect from time to time and the provisions of
the Certificate of Incorporation of the Corporation as in effect from time to
time, the provisions of such Certificate of Incorporation shall be controlling.
<PAGE> 1
Exhibit 5.1
[Vinson & Elkins L.L.P. Letterhead]
May 20, 1998
Quaker State Corporation
225 East John Carpenter Freeway
Irving, Texas 75062
Re: Registration Statement on Form S-8 for the Non-Employee
Directors Restricted Stock
Gentlemen:
We have acted as counsel to Quaker State Corporation, a Delaware
corporation (the "Corporation"), in connection with the above-captioned
registration statement (the "Registration Statement") relating to the 65,383
shares (the "Plan Shares") of Capital Stock, par value $1.00 per share, of the
Corporation that may be issued under its Non-Employee Director Restricted Share
Agreements (the "Plan"). Either authorized but unissued or treasury shares of
Capital Stock may be used under the Plan. In rendering our opinion below, we
have assumed that only authorized but unissued shares will be issued under the
Plan.
In connection with this opinion, we have examined, among other things:
1. resolutions adopted by the Corporation's Board of Directors on
February 4, 1998;
2. the Certificate of Incorporation of the Corporation as in effect
at all times since the last amendment to the Certificate of Incorporation
effective June 13, 1997;
3. the Bylaws of the Corporation, as amended and restated effective
on May 15, 1998;
4. the Plan, as approved by the Corporation's stockholders at the
Corporation's Annual Meeting of Stockholders held on May 15, 1998;
5. a copy of the Report of Inspectors of Election, indicating that
the Plan was approved by the Corporation's stockholders at the Corporation's
Annual Meeting of Stockholders held on May 15, 1998; and
<PAGE> 2
Quaker State Corporation
May 20, 1998
Page 2
6. the form of Non-Employee Director Restricted Share Agreement to
be executed by the non-employee directors and the Company.
As to matters of fact relevant to the opinions expressed herein, and as
to factual matters arising in connection with our examination of corporate
documents, records and other documents and writings, we have relied upon
certificates and other communications of corporate officers of the Corporation,
without further investigation as to the facts set forth therein.
Based on the foregoing and upon an examination of such other documents,
corporate proceedings, statutes, decisions, certificates of public officials,
and questions of law as we considered necessary in order to enable us to
furnish this opinion, we advise you that in our opinion the Plan Shares have
been duly authorized, and upon issuance in accordance with the provisions of
the Plan, will be validly issued, fully paid and nonassessable.
The opinion expressed above is subject to the following assumptions,
exceptions and qualifications:
a. We have assumed that (i) all information in all documents
reviewed by us is true and correct, (ii) all signatures on all documents
reviewed by us are genuine, (iii) all documents submitted to us as originals
are true and complete, (iv) all documents submitted to us as copies are true
and complete copies of the originals thereof, (v) each person signing any
document reviewed by us in any representative capacity had proper authority to
do so, and (vi) each natural person signing any document reviewed by us had the
legal capacity to do so.
b. We are admitted to practice law in the State of Texas. The
foregoing opinion is limited to the General Corporation Law of the State of
Delaware and the federal laws of the United States of America.
We express no opinion as to any matter other than as expressly set forth
above, and no opinion on any other matter may be inferred or implied herefrom.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the use of our name under the caption "Legal
Opinion" in the Section 10(a) prospectus used in connection with the Plan and
the Registration Statement. In giving this consent, however, we do not hereby
admit that we are within the category of persons whose consent is required
under Section 7 of the Securities Act of 1933 and the rules and regulations of
the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ Vinson & Elkins L.L.P.
<PAGE> 1
Exhibit 10.1
FORM OF NON-EMPLOYEE DIRECTOR RESTRICTED SHARE AGREEMENT
QUAKER STATE CORPORATION, a Delaware corporation (the "Corporation")
and _________________ (the "Grantee"), a non-employee director of the
Corporation, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, and intending to be legally bound hereby, agree
as follows:
1. RESTRICTED SHARE AWARD.
The Corporation hereby confirms the award to the Grantee on May 17,
1998 (the "Award Date") of ________________ (_______) shares of the
Corporation's Capital Stock, par value $1.00 per share (the "Restricted
Shares"), under and subject to the terms and conditions of this Agreement. This
Award is specifically made subject to the filing and declaration of
effectiveness of a valid registration statement for such shares with the
Securities Exchange Commission and the approval of a listing application for
such shares on the New York Stock Exchange, Inc. and Pacific Exchange, Inc.
As of the Award Date and until the date of forfeiture, if any, the
Grantee shall have all the rights of a stockholder with respect to the
Restricted Shares, including the right to vote the Restricted Shares and to
receive all dividends and other distributions paid with respect to the
Restricted Shares.
As of the Award Date, certificates representing the Restricted Shares
will be issued in the name of the Grantee and held by the Corporation in escrow
until the earlier of the forfeiture of the Restricted Shares to the Corporation
or the lapse of the restrictions set forth in Section 3(A), below, with respect
to the Restricted Shares. The Grantee shall execute and deliver to the
Corporation a blank stock power in form acceptable to the Corporation with
respect to each certificate representing the Restricted Shares. Upon the lapse
of the restrictions applicable to the Restricted Shares, the Corporation shall
deliver to the Grantee a certificate representing unrestricted shares. Upon the
forfeiture of the Restricted Shares, the certificate representing the Restricted
Shares shall be canceled and such shares shall thereupon be forfeited by the
Grantee.
2. ACCEPTANCE OF RESTRICTED SHARE AWARD.
The Grantee accepts the Restricted Share Award confirmed by this
Agreement, as said agreement may be amended from time to time; provided,
however, that no alteration or amendment of the Restricted Share Award will,
without the written consent of the Grantee, adversely affect the rights of the
Grantee with respect to the Restricted Shares.
Grantee acknowledges, by acceptance of this Award, that any benefits
granted under that certain Retirement Letter Agreement dated ________ (the
"Retirement Letter Agreement") have been relinquished and that the Retirement
Letter Agreement itself has been cancelled and is of no further effect.
3. RESTRICTIONS.
(A) The following restrictions shall apply to the Restricted Shares:
<PAGE> 2
(i) none of the Restricted Shares may be sold, assigned,
transferred, pledged or otherwise encumbered or
disposed of during the Restricted Period (as
hereinafter defined in Section 4); and
(ii) the Restricted Shares shall be forfeited during the
Restricted Period on the date of termination of the
Grantee's service on the Board of Directors of the
Corporation for any reason prior to the date
specified in Section 4(A) below, except as provided
in Section 4(B);
(B) Any attempt to dispose of Restricted Shares in a manner
contrary to the restrictions set forth in this Agreement shall
be null, void, and ineffective. Upon the lapse of the
restrictions set forth in this Section 3, or as provided in
Section 4 of this Agreement, the Restricted Shares shall no
longer be considered Restricted Shares for purposes of this
Agreement.
4. RESTRICTED PERIOD.
(A) The restrictions set forth in Section 3 shall apply
for a period (the "Restricted Period") from the Award
Date through any date on or after _______________ at
which the Grantee ceases to serve as a member of the
Board of Directors of the Corporation.
(B) Notwithstanding the foregoing, the restrictions set
forth in Section 3 shall lapse as to all Restricted
Shares in the event that the Grantee's service as a
member of the Board of Directors of the Corporation
is terminated during the Restricted Period on account
of a Change of Control of the Corporation, as defined
in Section 12.
5. TAXES.
The Grantee may elect to have any tax obligation at the time of the
award of or the lapse of restrictions on the Restricted Shares satisfied by the
Corporation purchasing shares of Capital Stock the Grantee would otherwise
receive or by tendering already-owned shares of Capital Stock to the
Corporation, such shares shall be valued on the date of receipt by the Corporate
Secretary of the Corporation at the average of the high and low prices of the
Corporation's Capital Stock as reported under "New York Stock Exchange Composite
Transactions" on said date by The Wall Street Journal. In the event the date of
receipt is not a trading day on the New York Stock Exchange, then the shares
shall be valued as of the next trading day.
6. INTERPRETATION OF AGREEMENT.
Any dispute or disagreement which arises under or in any way relates to
the interpretation or construction of this Agreement will be resolved by the
Corporation's Organization and Compensation Committee (the "Committee") without
participation by the Grantee if a member of the Committee, and the decision of
the Committee will be final, binding, and conclusive for all purposes.
7. EFFECT OF AGREEMENT ON RIGHTS OF COMPANY AND GRANTEE.
This Agreement does not confer any right on the Grantee to continue as
a member of the Corporation's Board of Directors ("Board").
<PAGE> 3
8. BINDING EFFECT.
This Agreement will be binding upon and inure to the benefit of the
successors and assigns of the Corporation, and the legal representatives, heirs,
beneficiaries and legatees of the Grantee.
9. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the Corporation
and the Grantee with respect to the subject matter herein and supersedes all
prior agreements and understandings, oral or written, between the Corporation
and the Grantee with respect to the subject matter hereof.
<PAGE> 4
10. AMENDMENT.
This Agreement may be amended only by a written instrument signed by
the Corporation and the Grantee.
11. SECTION HEADINGS.
The Section Headings contained in this Agreement are for reference
purposes only and will not affect in any way the meaning or interpretation of
any of the provisions of this Agreement.
12. DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
following meanings:
(1) The term "Person" shall have the meaning set forth in
Sections 13(d) and 14(d) of the 1934 Act as in effect on the effective
date of this Agreement.
(2) "Beneficial Ownership" shall be determined as provided in
Rule 13d-3 under the 1934 Act as in effect on the effective date of
this Agreement.
(3) A specified percentage of "Voting Power" of a company
shall mean such number of the Voting Shares as shall enable the holders
thereof to cast such percentage of all the votes which could be cast in
an annual election of directors (without consideration of the rights of
any class of stock other than the common stock of the company to elect
directors by a separate class vote); and "Voting Shares" shall mean all
securities of a company entitling the holders thereof to vote in an
annual election of directors (without consideration of the rights of
any class of stock other than the common stock of the company to elect
directors by a separate class vote).
(4) "Tender Offer" shall mean a tender offer or exchange offer
to acquire securities of the Corporation (other than such an offer made
by the Corporation or any subsidiary), whether or not such offer is
approved or opposed by the Board.
(5) "Continuing Directors" shall mean a director of the
Corporation who either (a) was a director of the Corporation on the
effective date of this Agreement or (b) is an individual whose
election, or nomination for election, as a director of the Corporation
was approved by a vote of at least two-thirds of the directors then
still in office who were Continuing Directors (other than an individual
whose initial assumption of office is in connection with an actual or
threatened election contest relating to the election of directors of
the Corporation which would be subject to Rule 14a-11 under the 1934
Act, or any successor rule).
(6) "Change of Control" shall mean the date upon which
any of the following events occurs:
(a) The Corporation acquires actual knowledge that
any Person other than the Corporation, a subsidiary or any
employee benefit plan(s) sponsored by the Corporation or a
subsidiary has acquired the Beneficial
<PAGE> 5
Ownership, directly or indirectly, of securities of the
Corporation entitling such Person to 30% or more of the Voting
Power of the Corporation; or
(b) A Tender Offer is made to acquire securities of
the Corporation entitling the holders thereof to 30% or more
of the Voting Power of the Corporation; or
(c) A solicitation subject to Rule 14a-11 under the
1934 Act (or any successor rule) relating to the election or
removal of 50% or more of the members of the Board or any
class of the Board shall be made by any person other than the
Corporation, or less than 51% of the members of the Board
shall be Continuing Directors; or
(d) The stockholders of the Corporation shall approve
a merger, consolidation, share exchange, division or sale or
other disposition of assets of the Corporation as a result of
which the stockholders of the Corporation immediately prior to
such transaction shall not hold, directly or indirectly,
immediately following such transaction a majority of the
Voting Power of (i) in the case of a merger or consolidation,
the surviving or resulting corporation, (ii) in the case of a
share exchange, the acquiring corporation or (iii) in the case
of a division or a sale or other disposition of assets, each
surviving, resulting or acquiring corporation which,
immediately following the transaction, holds more than 10% of
the consolidated assets of the Corporation immediately prior
to the transaction;
provided, however, that if (i) securities beneficially owned by the
Grantee are included in determining the Beneficial Ownership of a
Person referred to in paragraph 6(a) of this Section 12, (ii) the
Grantee is required to be named pursuant to Item 2 of the Schedule
14D-1 (or any similar successor filing requirement) required to be
filed by the bidder making a Tender Offer referred to in paragraph 6(b)
of this Section 12 or (iii) the Grantee is a "144 participant" as
defined in Instruction 3 to Item 4 of Schedule 14A under the 1934 Act
(or any successor rule) in a solicitation (other than a solicitation by
the Corporation) referred to in paragraph 6(c) of this Section 12, then
no Change of Control with respect to the Grantee shall be deemed to
have occurred by reason of such event.
13. GOVERNING LAW.
THIS AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ITS
PRINCIPLES OF CONFLICT OF LAWS.
<PAGE> 6
IN WITNESS WHEREOF, the Corporation and the Grantee have executed this
Agreement this 19th day of May, 1998.
QUAKER STATE CORPORATION
By:
-----------------------------------
Herbert M. Baum
Chairman and Chief Executive Officer
GRANTEE:
------------------------------------
(Grantee Name)
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Quaker State Corporation on Form S-8 for the registration of 65,383 shares of
Capital Stock which may be issued under the Non-employee Director Restricted
Stock Agreement, and in the Section 10(a) prospectus used in connection
therewith, of our report dated January 27, 1998, on our audits of the
consolidated financial statements and the financial statement schedule of Quaker
State Corporation and subsidiaries as of December 31, 1997 and 1996, and for
each of the three years in the period ended December 31, 1997, which report is
included in the Annual Report on Form 10-K. We also consent to the reference of
our firm under the caption "Experts."
Coopers & Lybrand L.L.P.
Dallas, Texas
May 21, 1998
