SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 or 15(d) of the
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
January 9, 1998
HSN, INC.
(Exact name of registrant as specified in charter)
Delaware
(State or other jurisdiction
of incorporation)
0-20570 59-2712887
(Commission File No.) (IRS employer identification no.)
152 West 57th Street, New York, NY 10019
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(212) 247-5810<PAGE>
ITEM 5. OTHER EVENTS.
On January 9, 1997, the Board of Directors of HSN, Inc.
(the "Company") adopted Amended and Restated By-Laws of the
Company attached hereto as Exhibit 3.1.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION
AND EXHIBITS
(c) Exhibits.
3.1 Amended and Restated By-Laws of HSN, Inc.<PAGE>
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned thereunto duly
authorized.
HSN, INC.
By: /s/ James G. Gallagher
Name: James G. Gallagher
Title: Vice President,
General Counsel and
Corporate Secretary
Date: January 16, 1998<PAGE>
EXHIBIT INDEX
Exhibit
No. Description
3.1 Amended and Restated By-Laws of HSN, Inc.
EXHIBIT 3.1
AMENDED AND RESTATED BY-LAWS *
OF
HSN, INC.
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICE. The registered office of
the Corporation shall be located in the City of Wilmington,
County of New Castle, State of Delaware.
SECTION 2. OTHER OFFICES. The Corporation may also
have offices at such other places, both within and without the
State of Delaware, as the Board of Directors may from time to
time determine or the business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
SECTION 1. PLACE OF MEETING. Meetings of stockholders
may be held at such place, either within or without the State
of Delaware, as may be designated by the Board of Directors.
If no designation is made, the place of the meeting shall be
the principal office of the Corporation.
SECTION 2. ANNUAL MEETING. The annual meeting of the
stockholders shall be held at such date and time as may be
fixed by resolution of the Board of Directors.
_____________________
* Effective as of January 9, 1998<PAGE>
SECTION 3. SPECIAL MEETINGS. Special meetings of the
stockholders may be called by the Chairman of the Board or a
majority of the Board of Directors.
SECTION 4. NOTICE. Written notice stating the date,
time and place of the meeting, and in case of a special meet-
ing, the purpose or purposes thereof, shall be given to each
stockholder entitled to vote thereat not less than ten (10) nor
more than sixty (60) days prior thereto, either personally or
by mail, facsimile or telegraph, addressed to each stockholder
at his address as it appears on the records of the Corporation.
If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail so addressed, with postage
thereon prepaid. If notice be by facsimile, such notice shall
be deemed to be delivered when confirmation of receipt is
received by the sender. If notice be by telegram, such notice
shall be deemed to be delivered when the telegram is delivered
to the telegraph company. Such further notice shall be given
as may be required by law. Meetings may be held without notice
if all stockholders entitled to vote are present, or if notice
is waived by those not present. Any previously scheduled
meeting of the stockholders may be postponed, and (unless the
Certificate of Incorporation otherwise provides) any special
meeting of the stockholders may be canceled, by resolution of
the Board of Directors upon public notice given prior to the
date previously scheduled for such meeting of stockholders.
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SECTION 5. ADJOURNED MEETINGS. The Chairman of the
meeting or a majority of the voting power of the shares so
represented may adjourn the meeting from time to time, whether
or not there is a quorum. When a meeting is adjourned to
another time or place, except as required by law, notice of the
adjourned meeting need not be given if the time and place
thereof are announced at the meeting at which the adjournment
is taken, if the adjournment is for not more than thirty (30)
days, and if no new record date is fixed for the adjourned
meeting. At the adjourned meeting the Corporation may transact
any business that might have been transacted at the original
meeting.
SECTION 6. QUORUM. The holders of a majority of each
class of the shares of stock issued and outstanding and
entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stock-
holders for the transaction of business. If, however, such
quorum shall not be present or represented at any meeting of
the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have the power
to adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be
present or represented. If at such adjourned meeting, a quorum
shall be present or represented, any business may be transacted
that might have been transacted at the meeting as originally
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notified. When a quorum is present at any meeting, the vote of
the holders of a majority of each class of the shares of stock
having voting power present in person or represented by proxy
shall decide any question brought before such meeting, unless
the question is one upon which by express provision of the
Delaware General Corporation Law or of the Certificate of
Incorporation, a different vote is required, in which case such
express provision shall govern and control the decision of such
question.
SECTION 7. VOTING. Each stockholder shall at every
meeting of the stockholders be entitled to vote in person or by
proxy each share of the class of capital stock having voting
power held by such stockholder.
SECTION 8. PROCEDURE FOR ELECTION OF DIRECTORS;
REQUIRED VOTE. Election of directors at all meetings of the
stockholders at which directors are to be elected shall be by
ballot, and, subject to the rights of the holders of shares of
Common Stock to elect directors under specified circumstances,
a plurality of the votes cast thereat shall elect directors.
Except as otherwise provided by law, the Certificate of Incor-
poration, or these By-Laws, in all matters other than the
election of directors, the affirmative vote of a majority of
the voting power of the shares present in person or represented
by proxy at the meeting and entitled to vote on the matter
shall be the act of the stockholders.
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SECTION 9. INSPECTORS OF ELECTIONS; OPENING AND
CLOSING THE POLLS. The Board of Directors by resolution shall
appoint one or more inspectors, which inspector or inspectors
may include individuals who serve the Corporation in other
capacities, including, without limitation, as officers,
employees, agents or representatives, to act at the meetings of
stockholders and make a written report thereof. One or more
persons may be designated as alternate inspectors to replace
any inspector who fails to act. If no inspector or alternate
has been appointed to act or is able to act at a meeting of
stockholders, the Chairman of the meeting shall appoint one or
more inspectors to act at the meeting. Each inspector, before
discharging 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 the inspector's
ability. The inspectors shall have the duties prescribed by
law.
The Chairman of the meeting shall fix and announce at
the meeting the date and time of the opening and the closing of
the polls for each matter upon which the stockholders will vote
at a meeting.
SECTION 10. ACTION WITHOUT MEETING. Any action
required or permitted to be taken at any annual or special
meeting of stockholders may be taken without a meeting, without
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prior notice and without a vote, if a consent in writing, set-
ting forth the action so taken, is 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 of the shares entitled to vote
thereon were present and voted, provided that prompt notice of
such action shall be given to those stockholders who have not
so consented in writing to such action without a meeting.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER AND TENURE. The business and
affairs of the Corporation shall be managed by the Board of
Directors, the number thereof to be determined from time to
time by resolution of the Board of Directors. Each director
shall serve for a term of one year from the date of his elec-
tion and until his successor is elected. Directors need not be
stockholders.
SECTION 2. RESIGNATION OR REMOVAL. Any director may
at any time resign by delivering to the Board of Directors his
resignation in writing, to take effect no later than ten days
thereafter. Any director or the entire Board of Directors may
at any time be removed effective immediately, with or without
cause, by the vote, either in person or represented by proxy,
of a majority of the voting power of shares of stock issued and
outstanding of the class or classes that elected such director
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and entitled to vote at a special meeting held for such purpose
or by the written consent of a majority of the voting power of
shares of stock issued and outstanding of the class or classes
that elected such director.
SECTION 3. VACANCIES. Vacancies and newly created
directorships resulting from any increase in the authorized
number of directors may be filled by the vote of a majority of
the remaining directors, though less than a quorum, or a
majority of the voting power of shares of stock issued and out-
standing and entitled to vote at a special meeting held for
such purpose or by the written consent of a majority of the
voting power of shares of stock issued and outstanding. The
directors so chosen shall hold office until the next annual
election and until their respective successors are duly
elected.
SECTION 4. REGULAR MEETINGS. Regular meetings of the
Board of Directors shall be held at such dates, times and
places as may be designated by the Chairman of the Board, and
shall be held at least once each year.
SECTION 5. SPECIAL MEETINGS. Special meetings of the
Board of Directors may be called by or at the request of the
Chairman of the Board or a majority of the directors. The
person or persons calling a special meeting of the Board of
Directors may fix a place and time within or without the State
of Delaware for holding such meeting.
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SECTION 6. NOTICE. Notice of any regular meeting or a
special meeting shall be given to each director, either orally,
by facsimile or by hand delivery, addressed to each director at
his address as it appears on the records of the Corporation.
If notice be by facsimile, such notice shall be deemed to be
adequately delivered when the notice is transmitted at least
twenty-four (24) hours before such meeting. If by telephone or
by hand delivery, the notice shall be given at least twenty-
four (24) hours prior to the time set for the meeting. Neither
the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be
specified in the notice of such meeting. A meeting may be held
at any time without notice if all the directors are present or
if those not present waive notice of the meeting in accordance
with Article IX of these By-Laws.
SECTION 7. QUORUM. At all meetings of the Board of
Directors, a majority of the total number of directors shall
constitute a quorum for the transaction of business and, unless
otherwise provided in the Certificate of Incorporation or these
By-Laws, the act of a majority of the directors present at any
meeting at which there is a quorum shall be an act of the Board
of Directors. If a quorum is not present at any meeting of the
Board of Directors, the directors present may adjourn the meet-
ing from time to time, without notice, until a quorum shall be
present. The directors present at a duly organized meeting may
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continue to transact business until adjournment, notwithstand-
ing the withdrawal of enough directors to leave less than a
quorum. A director present at a meeting shall be counted in
determining the presence of a quorum, regardless of whether a
contract or transaction between the Corporation and any other
Corporation, partnership, association, or other reorganization
in which such director is a director or officer or has a finan-
cial interest, is authorized or considered at such meeting.
SECTION 8. ACTION WITHOUT MEETING. Any action
required or permitted to be taken at any meeting of the Board
of Directors or of any committee thereof may be taken without a
meeting if all members of the Board of Directors or such
committee, as the case may be, consent thereto in writing and
such written consent is filed with the minutes of proceedings
of the Board of Directors or committee.
SECTION 9. ACTION BY CONFERENCE TELEPHONE. Members of
the Board of Directors or any committee thereof may participate
in a meeting of such Board of Directors or committee by means
of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can
hear each other, and such participation in a meeting shall con-
stitute presence in person at such meeting.
SECTION 10. COMMITTEES. The Board of Directors, by
resolution adopted by a majority of the whole Board of Direc-
tors, may designate one (1) or more committees, each committee
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to consist of two (2) or more directors. The Board of
Directors may designate one (1) or more directors as alternate
members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the
absence or disqualification of any member of a committee, the
member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute
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. Any such committee, to the
extent provided in such resolution, shall have and may exercise
all of the powers of the Board of Directors in the management
of the business and affairs of the Corporation and may
authorize the seal of the Corporation to be affixed to all
papers that may require it, except that no committee shall have
the power or authority to amend the Certificate of
Incorporation, to adopt an agreement of merger or
consolidation, to recommend to the stockholders the sale, lease
or exchange of all or substantially all of the Corporation's
property and assets, to recommend to the stockholders a
dissolution, to amend the By-Laws of the Corporation, to
declare a dividend, or to authorize the issuance of stock.
SECTION 11. COMPENSATION OF DIRECTORS. The directors
may be paid their expenses, if any, of attendance at each meet-
ing of the Board of Directors and may be paid a fixed sum for
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attendance at each meeting of the Board of Directors or a
stated salary as director. No such payment shall preclude any
director from serving the Corporation in any other capacity and
receiving compensation therefor. Members of committees may be
allowed like compensation for attending committee meetings.
ARTICLE IV
OFFICERS
SECTION 1. NUMBER AND SALARIES. The officers of the
Corporation shall consist of a Chief Executive Officer (the
"CEO") who shall also be the Chairman of the Board (the "Chair-
man"), a Secretary, a Treasurer, and such other officers and
assistant officers and agents as may be deemed necessary by the
Board of Directors. Any two (2) or more offices may be held by
the same person.
SECTION 2. ELECTION AND TERM OF OFFICE. The officers
of the Corporation shall be elected by the Board of Directors
at the first meeting of the Board of Directors following the
stockholders' annual meeting, and shall serve for a term of one
(1) year and until a successor is elected by the Board of
Directors. Unless otherwise provided in the Certificate of
Incorporation or these By-Laws, any officer appointed by the
Board of Directors may be removed, with or without cause, at
any time by the CEO or by the Board of Directors. Each officer
shall hold his office until his successor is appointed or until
his earlier resignation, removal from office, or death. All
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officers elected by the Board of Directors shall each have such
powers and duties as generally pertain to their respective
offices, subject to the specific provisions of this Article IV.
Such officers shall also have such powers and duties as from
time to time may be conferred by the Board of Directors or by
any committee thereof. The Board or any committee thereof may
from time to time elect, or the CEO may appoint, such other
officers (including a President, one or more Vice Presidents,
Assistant Secretaries, Assistant Treasurers, and Assistant
Controllers) and such agents, as may be necessary or desirable
for the conduct of the business of the Corporation. Such other
officers and agents shall have such duties and shall hold their
offices for such terms as shall be provided in these By-Laws or
as may be prescribed by the Board or such committee or by the
CEO, as the case may be.
SECTION 3. THE CHIEF EXECUTIVE OFFICER. The CEO shall
be elected by the Board of Directors from their own number and
shall be the Chairman of the Board and shall preside at all
meetings of the stockholders and of the Board of Directors.
The CEO shall be responsible for the general management of the
affairs of the Corporation and shall perform all duties inci-
dental to his office. The CEO shall be empowered to sign all
certificates, contracts and other instruments of the Corpora-
tion, and to do all acts that are authorized by the Board of
Directors, and shall, in general, have such other duties and
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responsibilities as are assigned consistent with the authority
of a Chief Executive Officer and Chairman of the Board of a
corporation.
SECTION 4. THE PRESIDENT. The Board of Directors or
the CEO may elect a President to have such duties and responsi-
bilities as from time to time may be assigned to him by the CEO
or the Board of Directors. The President shall be empowered to
sign all certificates, contracts and other instruments of the
corporation, and to do all acts which are authorized by the CEO
or the Board of Directors, and shall, in general, have such
other duties and responsibilities as are assigned consistent
with the authority of a President of a corporation.
SECTION 5. VICE PRESIDENTS. The Board of Directors or
the CEO may from time to time name one or more Vice Presidents
that may include the designation of Executive Vice Presidents
and Senior Vice Presidents all of whom shall perform such
duties as from time to time may be assigned to him by the CEO
or the Board of Directors.
SECTION 6. THE SECRETARY. The Secretary shall keep
the minutes of the proceedings of the stockholders and the
Board of Directors; the Secretary shall give, or cause to be
given, all notices in accordance with the provisions of these
By-Laws or as required by law, shall be custodian of the
corporate records and of the seal of the Corporation, and, in
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general, shall perform such other duties as may from time to
time be assigned by the CEO or the Board of Directors.
SECTION 7. TREASURER. The Treasurer or, if one is
designated by the Board of Directors, the Chief Financial
Officer of the Corporation, shall act as the chief financial
officer of the Corporation, shall have the custody of the cor-
porate funds and securities, shall keep, or cause to be kept,
correct and complete books and records of account, including
full and accurate accounts of receipts and disbursements in
books belonging to the Corporation, shall deposit all monies
and other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the
Board of Directors, and in general shall perform all duties
incident to the office of Treasurer and such other duties as
from time to time may be assigned to him by the CEO or the
Board of Directors.
SECTION 8. ASSISTANT SECRETARIES. The Assistant
Secretaries, if any, in general shall perform such duties as
from time to time may be assigned to them by the Secretary or
by the Board of Directors, and shall in the absence or incapac-
ity of the Secretary, perform his functions.
SECTION 9. ASSISTANT TREASURERS. The Assistant
Treasurers, if any, in general shall perform such duties as
from time to time may be assigned to them by the Treasurer or
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by the Board of Directors, and shall in the absence or
incapacity of the Treasurer perform his functions.
ARTICLE V
CERTIFICATES OF STOCK
SECTION 1. SIGNATURE BY OFFICERS. Every holder of
stock in the Corporation shall be entitled to have a certifi-
cate signed by or in the name of the Corporation by the CEO,
the Chairman or President, if any (or any Vice President), and
the Secretary (or an Assistant Secretary) of the Corporation,
certifying the number of shares owned by the stockholder in the
Corporation.
SECTION 2. FACSIMILE SIGNATURES. The signature of the
CEO, Chairman, President, Vice President, Treasurer or
Assistant Treasurer, Secretary or Assistant Secretary may be a
facsimile. In case any officer or officers who have signed, or
whose facsimile signature or signatures have been used on any
such certificate or certificates shall cease to be such officer
or officers of the Corporation, whether because of death,
resignation or otherwise, before such certificate or
certificates have been delivered by the Corporation, such
certificate or certificates may nevertheless be adopted by the
Corporation and be issued and delivered as though the person or
persons who signed such certificate or certificates or whose
facsimile signature or signatures have been used thereon had
not ceased to be such officer or officers of the Corporation.
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SECTION 3. LOST CERTIFICATES. The Board of Directors
may direct a new certificate(s) to be issued by the Corporation
to replace any certificate(s) alleged to have been lost or
destroyed, upon its receipt of an affidavit of that fact by the
person claiming the certificate(s) of stock to be lost or
destroyed. When authorizing such issue of a new certifi-
cate(s), the Board of Directors may, in its discretion and as a
condition precedent to the issuance thereof, require the owner
of such lost or destroyed certificate(s), or such owner's legal
representative, to advertise the same in such manner as it
shall require and/or to give the Corporation a bond in such sum
as it may direct as indemnity against any claim that may be
made against the Corporation with respect to the certificate(s)
alleged to have been lost or destroyed.
SECTION 4. TRANSFER OF STOCK. Upon surrender to the
Corporation or its transfer agent of a certificate for shares
duly endorsed or accompanied by proper 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.
SECTION 5. CLOSING OF TRANSFER BOOKS OR FIXING OF
RECORD DATE. The Board of Directors may close the stock
transfer books of the Corporation for a period of not more than
sixty (60) nor less than ten (10) days preceding the date of
any meeting of stockholders, or the date for payment of any
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dividend, or the date for the allotment of rights, or the date
when any change or conversion or exchange of capital stock
shall go into effect or for a period of not more than sixty
(60) nor less than ten (10) days in connection with obtaining
the consent of stockholders for any purpose. In lieu of
closing the stock transfer books, the Board of Directors may
fix in advance a date of not more than sixty (60) nor less than
ten (10) days preceding the date of any dividend, or the date
for the allotment of rights, or the date when any change or
conversion or exchange of capital stock shall go into effect,
or a date in connection with obtaining such consent, as a
record date for the determination of the stockholders entitled
to notice of, and to vote at, any such meeting, and any
adjournment thereof, or entitled to receive payment of any such
dividend, or to any such allotment of rights, or to exercise
the rights in respect of any change, conversion or exchange of
capital stock, or to give such consent. In such case and not-
withstanding any transfer of any stock on the books of the
Corporation after any such record date, such stockholders as
shall be stockholders of record on the date so fixed shall be
entitled to such notice of, and to vote at, such meeting and
any adjournment thereof, or to receive payment of such divi-
dend, or to receive such allotment of rights, or to exercise
such rights, or to give such consent, as the case may be.
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SECTION 6. REGISTERED STOCKHOLDERS. The Corporation
shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive divi-
dends and to vote as such owner. Except as otherwise provided
by law, the Corporation shall not be bound to recognize any
equitable or other claim to or interest in such shares on the
part of any other person whether or not it shall have express
or other notice thereof.
ARTICLE VI
CONTRACT, LOANS, CHECKS, AND DEPOSITS
SECTION 1. CONTRACTS. When the execution of any
contract or other instrument has been authorized by the Board
of Directors without specification of the executing officers,
the CEO, the President, any Vice President, the Treasurer or
Assistant Treasurer and the Secretary, or any Assistant Secre-
tary, may execute the same in the name of and on behalf of the
Corporation and may affix the corporate seal thereto.
SECTION 2. LOANS. No loans shall be contracted on
behalf of the Corporation and no evidence of indebtedness shall
be issued in its name unless authorized by a resolution of the
Board of Directors.
SECTION 3. CHECKS. All checks or demands for money
and notes of the Corporation shall be signed by such officer or
officers or such other person or persons as the Board of Direc-
tors may from time to time designate.
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SECTION 4. ACCOUNTS. Bank accounts of the Corporation
shall be opened, and deposits made thereto, by such officers or
other persons as the Board of Directors may from time to time
designate.
ARTICLE VII
DIVIDENDS
SECTION 1. DECLARATION OF DIVIDENDS. Subject to the
provisions, if any, of the Certificate of Incorporation, divi-
dends upon the capital stock of the Corporation may be declared
by the Board of Directors at any regular or special meeting,
pursuant to law. Dividends may be paid in cash, in property or
contractual rights, or in shares of the Corporation's capital
stock.
SECTION 2. RESERVES. Before payment of any dividend,
there may be set aside out of any funds of the Corporation
available for dividends such sum or sums as the Board of Direc-
tors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies or for
equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for such other purpose as the
Board of Directors shall think conducive to the interests of
the Corporation, and the Board of Directors may modify or
abolish any such reserve in the manner in which it was created.
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ARTICLE VIII
FISCAL YEAR
The fiscal year of the Corporation shall be established by
the Board of Directors.
ARTICLE IX
WAIVER OF NOTICE
Whenever any notice whatever is required to be given by
law, the Certificate of Incorporation or these By-Laws, a writ-
ten waiver thereof, signed by the person or persons entitled to
such notice, whether before or after the time stated therein,
shall be deemed equivalent to the giving of such notice.
Attendance of a person at a meeting shall constitute a waiver
of notice of such meeting.
ARTICLE X
SEAL
The corporate seal shall have inscribed thereon the name
of the Corporation, the year of its organization, and the words
"Corporate Seal, Delaware". The seal may be used by causing it
or a facsimile thereof to be impressed or affixed or otherwise
reproduced.
ARTICLE XI
AMENDMENTS
Except as expressly provided otherwise by the Delaware
General Corporation Law, the Certificate of Incorporation, or
other provisions of these By-Laws, these By-Laws may be
altered, amended or repealed and new By-Laws adopted at any
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regular or special meeting of the Board of Directors by an
affirmative vote of a majority of all directors.
ARTICLE XII
INDEMNIFICATION AND INSURANCE
SECTION 1. INDEMNIFICATION. The Corporation shall, to
the fullest extent authorized by the General Corporation Law of
the State of Delaware as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the Cor-
poration to provide prior to such amendment), indemnify and
hold harmless any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed
action, suit, investigation or proceeding, whether civil,
criminal or administrative (other than an action by or in the
right of the Corporation) by reason of the fact that he or a
person of whom he is the legal representative is or was a
director or officer of the Corporation, or is or was a director
or officer of the Corporation serving at the request of the
Corporation as a director, officer or employee of another
Corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise (whether the basis of such
proceeding is alleged action in an official capacity as a
director or officer or in any other capacity while serving as a
director or officer) against all expenses, liability and loss
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(including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by him in
connection therewith; provided, however, that except as
provided in this By-Law, the Corporation shall indemnify any
such person seeking indemnification in connection with a pro-
ceeding (or part thereof) initiated by such person only if such
proceeding (or part thereof) was authorized by the Board of
Directors. The right to indemnification conferred in this By-
Law shall be a contract right and shall include the right to be
paid by the Corporation the expenses incurred in defending any
such proceeding in advance of its final disposition, such
advances to be paid by the Corporation within 20 days after the
receipt by the Corporation of a statement or statements from
the claimant requesting such advance or advances from time to
time; provided, however, that if the General Corporation Law of
the State of Delaware requires, the payment of such expenses
incurred by a director or officer in his capacity as a director
or officer (and not in any other capacity in which service was
or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit
plan) in advance of the final disposition of a proceeding,
shall be made only upon delivery to the Corporation of an
undertaking by or on behalf of such director or officer, to
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repay all amounts so advanced if it shall ultimately be de-
termined that such director or officer is not entitled to be
indemnified under this By-Law or otherwise.
To obtain indemnification under this By-Law, a claimant
shall submit to the Corporation a written request, including
therein or therewith such documentation and information as is
reasonably available to the claimant and is reasonably neces-
sary to determine whether and to what extent the claimant is
entitled to indemnification. Any indemnification (unless
ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of
conduct. Upon written request by a claimant for
indemnification pursuant to the preceding sentence, a determi-
nation, if required by applicable law, with respect to a
claimant's entitlement thereto shall be made as follows: (i) by
the Board of Directors by a majority vote of a quorum consist-
ing of directors who were not parties to such action, suit,
investigation or proceeding, or (ii) if such a quorum is not
obtainable, or, even if obtainable, a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders of the company. If it is
so determined that the claimant is entitled to indemnification,
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payment to the claimant shall be made within 10 days after such
determination.
If a claim under this By-Law is not paid in full by the
Corporation within 20 days after a written claim pursuant to
this By-Law has been received by the Corporation, the claimant
may at any time thereafter bring suit against the Corporation
to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid
also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any pro-
ceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Cor-
poration) that the claimant has not met the standard of conduct
which makes it permissible under the General Corporation Law of
the State of Delaware for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of
the Corporation (including its Board of Directors or stockhold-
ers) to have made a determination prior to the commencement of
such action that indemnification of the claimant is proper in
the circumstances because he has met the applicable standard of
conduct set forth in the General Corporation Law of the State
of Delaware, nor an actual determination by the Corporation
(including its Board of Directors or stockholders) that the
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claimant has not met such applicable standard of conduct, shall
be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
If a determination shall have been made pursuant to this
By-Law that the claimant is entitled to indemnification, the
Corporation shall be bound by such determination in any
judicial proceeding commenced pursuant to this By-Law.
Furthermore, the Corporation shall be precluded from asserting
in any judicial proceeding commenced pursuant to this By-Law
that the procedures and presumptions of this By-Law are not
valid, binding and enforceable and shall stipulate in such
proceeding that the Corporation is bound by all the provisions
of this By-Law.
The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final
disposition conferred in this By-Law shall not be exclusive of
any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any By-Law,
agreement, contract, vote of stockholders or disinterested
directors or pursuant to the direction (howsoever embodied) of
any court of competent jurisdiction or otherwise, both as to
action in his official capacity and as to action in another
capacity while holding such office, it being the policy of the
Corporation that indemnification shall be made to the fullest
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extent permitted by law. No repeal or modification of this By-
Law shall in any way diminish or adversely affect the rights of
any director or officer of the Corporation (or employee or
agent of the Corporation to which rights to indemnification
have been granted) hereunder in respect of any occurrence or
matter arising prior to any such repeal or modification.
The indemnification and advancement of expenses shall,
unless otherwise provided when authorized or ratified, continue
as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
The Corporation may, to the extent authorized from time to
time by the Board of Directors, grant rights to indemnifica-
tion, and rights to be paid by the Corporation the expenses
incurred in defending any proceeding in advance of its final
disposition, to any employee or agent of the Corporation to the
fullest extent of the provisions of this By-Law with respect to
the indemnification and advancement of expenses of directors
and officers of the Corporation.
If any provision or provisions of this By-Law shall be
held to be invalid, illegal or unenforceable for any reason
whatsoever: (1) the validity, legality and enforceability of
the remaining provisions of this By-Law (including, without
limitation, each portion of any paragraph of this By-Law
containing any such provision held to be invalid, illegal or
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unenforceable, that is not itself held to be invalid, illegal
or unenforceable) shall not in any way be affected or impaired
thereby; and (2) to the fullest extent possible, the provisions
of this By-Law (including, without limitation, each such
portion of any paragraph of this By-Law containing any such
provision held to be invalid, illegal or unenforceable) shall
be construed so as to give effect to the intent manifested by
the provision held invalid, illegal or unenforceable.
Any notice, request or other communication required or
permitted to be given to the Corporation under this By-Law
shall be in writing and either delivered in person or sent by
telecopy, telex, telegram, overnight mail or courier service,
or certified or registered mail, postage prepaid, return
receipt requested, to the Secretary of the Corporation and
shall be effective only upon receipt by the Secretary.
SECTION 2. INSURANCE. The Corporation may purchase
and maintain insurance on behalf of any person who is or will
be a director, officer, employee or agent of the Corporation,
or is or will be a director or officer of the Corporation
serving at the request of the Corporation as a director,
officer, employee or agent of another Corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise
against any expense, liability or loss, whether or not the Cor-
poration would have the power to indemnify such person against
such expense, liability or loss under the General Corporation
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Law of the State of Delaware. To the extent that the Corpora-
tion maintains any policy or policies providing such insurance,
each such director or officer, and each such agent or employee
to which rights to indemnification have been granted, shall be
covered by such policy or policies in accordance with its or
their terms to the maximum extent of the coverage thereunder
for any such director, officer, employee or agent.
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