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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported) December 9, 1998
CASE CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
1-13098 76-0433811
(Commission File Number) (I.R.S. Employer Identification No.)
700 State Street, Racine, Wisconsin 53404
(Address of Principal Executive Offices) (Zip Code)
(414) 636-6011
(Registrant's Telephone Number, Including Area Code)
(Former Name or Former Address, If Changed Since Last Report)
Page 1 of 22 Pages
(Exhibit Index at Page 5)
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Item 5. Other Events
The By-Laws of registrant, filed as Exhibit 99 hereto, were amended and
restated as of December 9, 1998.
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Item 7. Financial Statements and Exhibits
(c) Exhibits
Exhibit No. Exhibit
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99 By-Laws of the Company, as amended and restated as of
December 9, 1998.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CASE CORPORATION
By: /s/ Kevin J. Hallagan
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Kevin J. Hallagan
Associate General Counsel and
Assistant Secretary
December 16, 1998
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EXHIBIT INDEX
Exhibit No. Description Page
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99 By-Laws of the Company, as amended and restated as of
December 9, 1998. 6
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Exhibit 99
Case Corporation
BY-LAWS
Amended and Restated
As of December 9, 1998
ARTICLE I
OFFICES
The registered office of the Corporation in the State of Delaware shall be
in the City of Wilmington. The Corporation may have such other offices at such
other places, within or without the State of Delaware, as the business of the
Corporation may require from time to time.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meeting: All meetings of the stockholders of the
Corporation shall be held at such place or places, within or without the State
of Delaware, as may from time to time be fixed by the Board of Directors (the
"Board") and stated in the notice of meeting. If no designation is so made, the
place of meeting shall be the principal office of the Corporation.
Section 2. Annual Meetings: The annual meeting of stockholders shall be
held on such date and at such time as may be fixed by the Board and stated in
the notice thereof, for the purpose of electing directors and for the
transaction of only such other business as is properly brought before the
meeting in accordance with these By-Laws.
Section 3. Special Meetings: Special meetings of the stockholders shall be
called only by the Chairman and Chief Executive Officer or by the Board pursuant
to a resolution adopted by a majority of the total number of directors then in
office. The business transacted at a special meeting shall be confined to the
purposes specified in the notice thereof. Special meetings shall be held at such
date and at such time as the Board may designate.
Section 4. Notice of Meeting: Written notice of each meeting of
stockholders, stating the place, date and hour of the meeting, and the purpose
or purposes of each special meeting of stockholders, shall be mailed not less
than ten nor more than 60 days before the date of such meeting to each
stockholder entitled to vote thereat. If mailed, such notice shall be deemed to
be delivered when deposited in the United States mail with postage thereon
prepaid, addressed to the stockholder at the address of the stockholder as it
appears on the stock transfer books of the Corporation. Such
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further notice shall be given as may be required by applicable law, the
Certificate of Incorporation or these By-Laws. Any previously scheduled meeting
of the stockholders may be postponed to another date, and any special meeting of
the stockholders may be cancelled, by resolution of the Board upon public notice
given prior to the date previously scheduled for such meeting of stockholders.
Section 5. Quorum and Adjournment: Unless otherwise provided by
applicable law, the Certificate of Incorporation or these By-Laws, at each
meeting of stockholders the presence in person or by proxy of the holders of
record of a majority in voting power of the outstanding shares of stock entitled
to vote at the meeting shall constitute a quorum at such meeting, except that
when specified business is to be voted on by a class or series of stock voting
as a class, the holders of a majority in voting power of the outstanding shares
of such class or series entitled to vote shall constitute a quorum of such class
or series for the transaction of such business.
The Chairman of the meeting or a majority of the shares so represented may
adjourn the meeting from time to time, whether or not there is such a quorum. No
notice of the time and place of adjourned meetings need be given except as may
be required by applicable law. The stockholders present at a duly called meeting
at which a quorum is present may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
Section 6. Notice of Business and Nominations:
(a) Annual Meetings of Stockholders. Nominations of persons for
election to the Board and the proposal of business to be considered by the
stockholders may be made at an annual meeting of stockholders only (i) pursuant
to the Corporation's notice of meeting (or any supplement thereto), (ii) by or
at the direction of the Board or (iii) by any stockholder of record who is
entitled to vote at the meeting and complies with the notice procedures set
forth in this Section 6.
For nominations or other business to be properly brought before an annual
meeting by a stockholder pursuant to this Section 6, the stockholder must have
given timely notice thereof in writing to the Secretary of the Corporation and
such other business must otherwise be a proper matter for stockholder action.
To be timely, a stockholder's notice must be delivered to the Secretary at the
principal executive offices of the Corporation (i) not less than 90 days nor
more than 120 days prior to the first anniversary of the preceding year's annual
meeting, or (ii) not less than 45 days nor more than 75 days prior to the first
anniversary of the date on which the Corporation first mailed its proxy
materials for the preceding year's annual meeting, whichever period described in
clause (i) or (ii) of this sentence first occurs; provided, however, that if the
date of the annual meeting is more than 30 days before or more than 60 days
after such anniversary date, notice by the stockholder to be timely must be so
delivered not earlier than 120 days prior to such annual meeting and not later
than the later of the 90th day prior to such annual meeting or the 10th day
following the day on which public announcement of the date of such meeting is
first made by the Corporation. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the giving of a
stockholder's notice as described above.
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Such stockholder's notice shall set forth: (i) all information relating to
each person, if any, whom the stockholder proposes to nominate for election or
reelection as a director, required to be disclosed in solicitations of proxies
for election of directors in an election contest or is otherwise required
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and Rule 14a-11 thereunder (including such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected and a written statement executed by such person
acknowledging that, in such capacity, such person will owe a fiduciary duty,
under the General Corporation Law of the State of Delaware, exclusively to the
Corporation and its stockholders); (ii) a brief description of any other
business desired to be brought before the meeting, the reasons for conducting
such business at the 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, if such business includes a proposal to amend the By-Laws of the
Corporation, the language of the proposed amendment; and (iii) as to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made, (a) the name and record address of such
stockholder as it appears on the Corporation's books, and of such beneficial
owner, (b) the class and number of shares of the Corporation that are owned
beneficially and of record by such stockholder and such beneficial owner, and
(c) a representation that the stockholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and as to whether such stockholder
intends to appear in person or by proxy at the meeting to propose such business
or nomination.
If the stockholder has provided the Corporation with a notice as described
above, the stockholder must deliver a proxy statement and form of proxy to
holders of a sufficient number of shares, in the case of a nomination, to elect
such nominee, and in the case of the proposal of other business, to carry such
proposal. If the stockholder has not provided the Corporation with a notice as
described in this Section 6, the stockholder shall not be entitled to deliver a
proxy statement and a form of proxy to holders of shares.
Notwithstanding anything in this Section 6 to the contrary, if the number
of directors to be elected to the Board is increased and there is no public
announcement by the Corporation naming all of the nominees for director or
specifying the size of the increased Board at least 80 days prior to the first
anniversary of the preceding year's annual meeting, a stockholder's notice
required by this Section 6 shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall
be delivered to the Secretary at the principal executive offices of the
Corporation not less than 10 days following the day on which such public
announcement is first made by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting. Nominations of
persons for election to the Board 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 or (ii) provided that
the Board has determined that directors shall be elected at such meeting, by any
stockholder of the Corporation (a) who is a stockholder of record at the time
the notice provided for in this Section 6 is delivered to the Secretary of the
Corporation, (b) who shall be entitled to vote at the meeting and (c) who
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complies with the notice procedures set forth in this Section 6. If the
Corporation calls a special meeting of stockholders for the purpose of electing
one or more directors to the Board, any such stockholder may nominate a person
or persons for election to such position(s) as specified in the Corporation's
notice of meeting, if the stockholder's notice required by Section 6(a) shall be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than 120 days prior to such special meeting and not later than the
later of the 90th day prior to such special meeting or the 10th day following
the day on which public announcement is first made of the date of the special
meeting and of the nominees proposed by the Board to be elected at such meeting.
In no event shall the public announcement of an adjournment of a special meeting
commence a new time period for the giving of a stockholder's notice as described
above.
(c) General. Only such persons who are nominated in accordance with
the procedures set forth in this Section 6 shall be eligible to be elected at an
annual or special meeting of stockholders of the Corporation to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 6. Except as otherwise provided by applicable law,
the Certificate of Incorporation or these By-Laws, the Chairman of the meeting
shall have the power and duty to (i) determine whether a nomination or any
business proposed to be brought before the meeting was properly made or proposed
in accordance with the procedures set forth in this Section 6 and (ii) if any
proposed nomination or business is not in compliance with this Section 6, to
declare that such defective nomination shall be disregarded or that such
proposed business shall not be transacted, and in either case such determination
shall be final and binding on the Corporation.
For purposes of this Section 6, "public announcement" shall mean disclosure
in a press release reported by a 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.
Notwithstanding the foregoing provisions of this Section 6, a stockholder
must also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth in this
Section 6. Nothing in this Section 6 shall be deemed to affect any rights of
(i) stockholders to require inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (ii) the holders of
any series of preferred stock to elect directors under specified circumstances.
Section 7. Voting: Each stockholder shall, at every meeting of
stockholders, be entitled to such vote in person or by proxy for each share of
stock held by such stockholder as is provided in the Certificate of
Incorporation (or, in the absence of such provision, as provided by applicable
law). No proxy shall be voted or acted upon after three years from its date,
unless the proxy provides for a longer period. Every proxy shall be in writing
(which shall include telegraphing or cabling or other electronic transmission)
and shall be dated, but need not be sealed, witnessed or acknowledged. Voting at
meetings of stockholders need not be by written ballot; provided, however, that
a vote by ballot for the election of directors may be required if a resolution
duly adopted by the stockholders of the Corporation so provides.
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If a quorum is present at any meeting of stockholders, any director to be
elected at such meeting shall be elected by a plurality vote, and the vote of a
majority of the votes entitled to be voted at such meeting by the holders of
shares of stock present or represented by proxy thereat shall be sufficient for
the transaction of any other business brought before the meeting, unless a
different vote is required by applicable law, the Certificate of Incorporation
or these By-Laws.
Section 8. Stockholders List: The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order and showing the address of each such
stockholder and the number of shares registered in the name of each such
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice of
the meeting or, if not so specified, at the place where the meeting is to be
held. The list shall be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 9. Special Voting Provisions: Whenever the provisions of
applicable law or the Certificate of Incorporation provide that the holders of
shares of stock of the Corporation of any class or series are entitled to vote
as a separate class or series on any matter, then, notwithstanding any other
provision of these By-Laws to the contrary, such holders shall be entitled to so
vote and, to the extent the Certificate of Incorporation contains any provision
with respect to the calling or holding of, or the quorum for, any meeting for
the purpose of such vote, such provisions of the Certificate of Incorporation
shall govern.
Section 10. Inspectors: The Board 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 his or her duties,
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
Inspectors shall have the duties prescribed by law.
At each meeting of the stockholders the proxies and ballots shall be
received and be taken in charge, and all questions touching the qualification of
voters and the validity of proxies and the acceptance or rejection of votes
shall be decided, by the Inspectors.
Section 11. Chairman: 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. Every meeting of
stockholders shall be chaired by the Chairman and Chief Executive Officer or, in
his or her absence, such person as the Chairman and Chief Executive Officer
shall appoint, or, in his or her absence or if the Chairman and Chief Executive
Officer shall fail to make such an appointment, such person as shall be
appointed by vote of any
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Nominating Committee of the Board or, in its absence or if the Nominating
Committee fails to make such an appointment, any executive officer of the
Corporation elected by the Board.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Powers, Number, Method of Election, Terms of Office and
Qualification: The business and affairs of the Corporation shall be managed by
or under the direction of the Board. In addition to the powers and authorities
expressly conferred upon them by these By-Laws , the Board may exercise all such
powers of the Corporation and do all such lawful acts and things as are not by
applicable law, the Certificate of Incorporation or these By-Laws required to be
exercised or done by the stockholders. The number of directors that shall
constitute the whole Board shall be not less than three nor more than 16
(exclusive of directors, if any, elected by the holders of the Corporation's
preferred stock) and the exact number thereof within such limits shall be
determined from time to time by resolution adopted by a majority of the total
number of directors then in office.
Nominations of persons for election to the Board may be made at a meeting
of stockholders by or at the direction of the Board, by any Nominating
Committee, by any other person appointed by the Board or by any stockholder of
the Corporation entitled to vote for the election of directors at the meeting
who complies with the notice procedures set forth in Section 6 of Article II of
these By-Laws. The provisions of this paragraph shall not apply with respect to
nominations of directors to be elected by the holders of any series of preferred
stock, voting separately as a series or together with another series thereof,
pursuant to the terms of any such series.
Except as otherwise provided in the Certificate of Incorporation, a
director shall hold office until the annual meeting of stockholders for the year
in which his or her term expires and until a successor shall be elected and
shall qualify, subject, however, to prior death, resignation, retirement,
disqualification or removal from office. Any vacancy on the Board may be filled
as provided in Section 9 of this Article III. Except as otherwise provided in
the Certificate of Incorporation, any director elected to fill a vacancy not
resulting from an increase in the total number of directors shall have the same
remaining term as that of his or her predecessor.
Any director may resign his or her office at any time by delivering a
resignation in writing to the Corporation, and the acceptance of such
resignation unless required by the terms thereof shall not be necessary to make
such resignation effective.
No director who shall have attained the age of 70 shall be eligible for
reelection as a director of the Corporation.
Section 2. Meetings: The Board may hold its meetings in such place or
places within or without the State of Delaware as the Board by resolution from
time to time may determine.
Section 1.
The Board may in its discretion provide for regular meetings of the Board.
Notice of regular or stated meetings need not be given. No notice of any
adjourned meeting need be given. Special
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meetings of the Board shall be held whenever called by direction of the Chairman
and Chief Executive Officer or, in his or her absence, the President, if any, or
by a majority of the total number of directors then in office. The person or
persons authorized to call special meetings of the Board may fix the place and
time of the meetings. The Secretary or any Assistant Secretary shall give notice
of any special meeting to each director at his business or residence in writing
by hand delivery, first-class or overnight mail or courier service, telegram or
facsimile transmission, or orally by telephone. If by hand delivery or
telephone, the notice shall be given at least 12 hours prior to the time set for
the meeting. If mailed by first-class mail, such notice shall be deemed
adequately delivered when deposited in the United States mails so addressed,
with postage thereon prepaid, at least three days before such meeting. If by
telegram, overnight mail or courier service, such notice shall be deemed
adequately delivered when the telegram is delivered to the telegraph company or
the notice is delivered to the overnight mail or courier service company at
least 24 hours before such meeting. If by facsimile transmission, such notice
shall be deemed adequately delivered when the notice is transmitted at least 12
hours before such meeting. Neither the business to be transacted at, nor the
purpose of, any regular, stated or special meeting of the Board need be
specified in the notice of such meeting, except for amendments to these By-Laws.
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. Such notice may be
waived by any director. Unless otherwise indicated in the notice thereof, any
and all business may be transacted at a special meeting.
Members of the Board, or any committee thereof, may participate in a
meeting of the Board or such committee by means of 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
constitute presence in person at such meeting.
Section 3. Election of Officers and Committees: At the first meeting of
the Board following an annual meeting of stockholders, the Board shall proceed
to the election of the officers of the Corporation and of the members of any
committee of the Board to be elected.
Section 4. Organization: The Chairman and Chief Executive Officer or, in
his or her absence, the President, if any, or in their absence, a director
chosen by a majority of the directors present, shall preside at and act as
Chairman of each meeting of the Board. The Secretary or, in his or her absence,
an Assistant Secretary designated by the Chairman of the meeting or, in case of
the absence of the Secretary and all Assistant Secretaries, any person
designated by the Chairman of the meeting, shall act as Secretary of each
meeting of the Board.
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Section 5. Quorum: Except as otherwise required by applicable law, the
Certificate of Incorporation or these By-Laws, a majority of the total number of
directors then in office shall constitute a quorum for the transaction of
business, and the vote of the majority of the directors present at any meeting
at which a quorum is present, shall be the act of the Board. If at any meeting
of the Board a quorum is not present, a majority of the directors present may
adjourn the meeting from time to time, without notice other than adjournment at
the meeting, until a quorum shall be present. The directors present at a duly
organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of such number of directors to leave less than a
quorum.
Section 6. Action by Unanimous Consent: Any action required or permitted
to be taken at any meeting of the Board or any committee thereof may be taken
without a meeting, if all members of the Board or of such committee, as the case
may be, at the time in office, consent thereto in writing, and the writing or
writings are filed with the minutes of the proceeding of the Board or such
committee.
Section 7. Compensation of Directors: Each director, as such, shall be
entitled to receive reimbursement for reasonable expenses incurred in attending
meetings of the Board or any committee thereof or otherwise in connection with
his or her attention to the affairs of the Corporation. In addition, each
director, who is not at the time a regularly compensated officer or employee of
the Corporation or any of its direct or indirect subsidiaries, shall be entitled
to such fee for services as a director (and, if a member of any committee of the
Board, such fee for services as such member) as may be fixed from time to time
by the Board. Such fees may be fixed both for meetings attended and on an
annual basis, or either thereof, and may be payable currently or deferred.
Section 8. Committees: The Board may elect such committees, each to
consist of one or more directors, as it may from time to time determine, which
committees shall serve for such term and shall have and may exercise such
duties, functions and powers as the Board may from time to time prescribe. All
completed actions taken by any such committee shall be reported to the Board at
the next succeeding Board meeting.
Meetings of the committees may be called at any time by the Chairman and
Chief Executive Officer, the President, if any, or the Chairman of the
respective committee. A majority of the members of the committee shall
constitute a quorum for the transaction of business and, except as expressly
limited by these By-Laws or the resolution designating the committee, the act of
a majority of the members present at any meeting at which there is a quorum
shall be the act of such committee. Except as expressly provided in these By-
Laws or the resolution designating the committee, a majority of the members of
any such committee may select its Chairman, fix its rules of procedure, fix the
time and place of its meetings and specify what notice of meetings, if any,
shall be given.
In the absence or disqualification of a member of any committee, the
members of such committee present at any meeting, and not disqualified from
voting, whether or not they constitute a quorum, may unanimously appoint another
member of the Board to act at the meeting in the place of any such absent or
disqualified member.
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Section 9. Vacancies: Subject to applicable law and the rights of the
holders of any series of preferred stock with respect to such series of
preferred stock, and unless the Board otherwise determines, vacancies resulting
from death, resignation, retirement, disqualification, removal from office or
other cause, and newly created directorships resulting from any increase in the
authorized number of directors, may be filled only by the affirmative vote of a
majority of the total number of remaining directors then in office, though less
than a quorum of the Board, or by a sole remaining director, and directors so
chosen shall hold office for a term expiring at the next following annual
meeting of stockholders and until such director's successor shall have been duly
elected and qualified. No decrease in the number of authorized directors
constituting the entire Board shall shorten the term of any incumbent director.
ARTICLE IV
OFFICERS
Section 1. Election and Term: The officers of the Corporation shall be a
Chairman and Chief Executive Officer, a Secretary and such other officers as the
Board may from time to time elect or authorize. Insofar as permitted by
statute, the same person may hold two or more offices. Each such officer shall
hold office until the first meeting of the Board after the annual meeting of
stockholders next following his or her election and until his or her successor
is qualified, subject to death, resignation or to earlier removal as hereinafter
provided.
The Board shall elect any officer who, at the time of election, is subject
to Section 16(a) and Section 16(b) of the Exchange Act. Unless determined
otherwise by the Board, the Chairman and Chief Executive Officer shall be
empowered to authorize and elect all such other officers as he or she deems
appropriate, and is hereby designated a committee of the Board for this purpose.
Any officer may be removed, with or without cause, at any time by the
Board. Subject to the foregoing, any officer who is not elected by the Board
shall hold office at the discretion of the Chairman and Chief Executive Officer.
The Chairman and Chief Executive Officer may at any time in his or her
discretion suspend, subject to approval of the Board at its next meeting, the
authority of any officers elected by the Board.
A vacancy in any office may be filled for the unexpired portion of the term
in the same manner as provided in these By-Laws for election to such office.
Section 2. Authority and Duties of the Chairman and Chief Executive
Officer: The Chairman and Chief Executive Officer shall have general charge and
management of the affairs, property and business of the Corporation, subject to
the Board and the provisions of these By-Laws. The Chairman and Chief Executive
Officer shall perform all duties assigned to him or her in these By-Laws and
such other duties as may from time to time be assigned to him or her by the
Board.
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The Chairman and Chief Executive Officer or, in his or her absence, such
director as the Board may select, shall preside at all meetings of stockholders
and the Board.
Section 3. Authority and Duties of Other Officers: The Secretary or any
Assistant Secretary shall attend and record the proceedings of all meetings of
stockholders and the Board, and unless otherwise directed by any such committee,
of all committees of the Board, in books kept for that purpose; shall see that
all notices are given and records and reports properly kept and filed by the
Corporation as required by applicable law, the Certificate of Incorporation or
these By-Laws; shall have charge of and control over the records of the
Corporation and the certificate books, transfer books and stock ledgers and such
other books and papers as the Board may direct; shall be the custodian of the
corporate seal and shall see that it is affixed to all documents to be executed
on behalf of the Corporation under its seal; and shall perform such other duties
as may be required by the Board or the Chairman and Chief Executive Officer.
Each other officer of the Corporation shall have such powers and perform
such duties as are incident to their respective offices or as may be designated
by the Board or the Chairman and Chief Executive Officer, subject to the
supervision and direction of the Board.
Section 4. Compensation: Unless otherwise determined by the Board, the
annual base salary, any executive perquisite, and any bonus or incentive award
(exclusive of any stock option grant, stock award or other equity-based award)
of any officer subject to Section 16(a) and Section 16(b) of the Exchange Act
shall be fixed, or made, as the case may be, by the Compensation Committee. The
annual base salary, any executive perquisite, and any bonus or incentive award
for other officers and employees shall be fixed by the Chairman and Chief
Executive Officer, unless otherwise required by resolution of the Board or
provision of any relevant plan. Any stock option grant, stock award or other
equity-based award intended to comply with the requirements of Rule 16b-3 under
the Exchange Act to an officer who, at the time the grant or award is made or
any other action is taken with respect thereto, is subject to Section 16(a) and
Section 16(b) of the Exchange Act shall be granted or awarded or acted upon
solely by the Compensation Committee or a subcommittee thereof. Stock option
grants, stock awards or other equity-based awards to other officers and
employees or any other action taken with respect thereto shall be made or taken
by the Chairman and Chief Executive Officer unless otherwise required by
resolution of the Board or provision of any relevant plan, and the Chairman and
Chief Executive Officer is hereby designated as a committee of the Board for
this purpose.
A report shall be made annually to the Compensation Committee by the
Chairman and Chief Executive Officer detailing the compensation paid (including
any stock option grant, stock award or other equity-based award, and any
executive perquisite) to any officer or employee of the Corporation the sum of
whose bonus or incentive awards for any calendar year and annual base salary for
such year is $250,000 or more. The report shall contain such other data as the
Compensation Committee from time to time shall deem appropriate.
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ARTICLE V
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Right to Indemnification: The Corporation shall indemnify and
hold harmless, to the fullest extent permitted by applicable law as it presently
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 such law permitted the Corporation to provide prior
to such amendment), any person who was or is made or is threatened to be made a
party or is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "proceeding"), by reason of the
fact that he or she, or a person for whom he or she is the legal representative,
is or was a director or officer of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust, enterprise or nonprofit
entity, including service with respect to employee benefit plans maintained or
sponsored by the Corporation, whether the basis of such proceeding is alleged
action in an official capacity as a director, officer, employee or agent or in
any other capacity while serving as a director, officer, employee or agent (an
"indemnitee"), against all expense, liability and loss (including attorneys'
fees), judgments, fines, ERISA excise taxes or penalties and amounts paid or to
be paid in settlement) reasonably incurred or suffered by such indemnitee in
connection therewith, and such indemnification shall continue as to a person who
has ceased to be a director, officer, employee or agent and shall inure to the
benefit of his or her heirs, executors and administrators. Subject to Section 3
of this Article V, the Corporation shall be required to indemnify an indemnitee
in connection with a proceeding (or part thereof) initiated by such indemnitee
only if the initiation of such proceeding (or part thereof) by the indemnitee
was authorized by the Board.
Section 2. Prepayment of Expenses: The right to indemnification conferred
hereunder and all related rights shall be contract rights 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 promptly 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 so requires, the payment of such expenses incurred by a director or
officer in his or her 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 repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified
hereunder or otherwise.
Section 3. Claims: To obtain indemnification under this Article V, 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 necessary to determine whether and to what extent the
claimant is entitled to indemnification. Upon written request by a claimant for
indemnification pursuant to the first sentence of this paragraph, a
determination, if required by applicable law, with respect to the claimant's
entitlement thereto shall be made as follows: (i) if requested by the claimant,
by Independent Counsel (as defined below), or (ii) if no request is made by the
claimant for a determination by Independent Counsel, (a) by the Board by a
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majority vote of a quorum consisting of Disinterested Directors (as defined
below), or (b) if a quorum of the Board consisting of Disinterested Directors is
not obtainable or, even if obtainable, such quorum of Disinterested Directors so
directs, by Independent Counsel in a written opinion to the Board, a copy of
which shall be delivered to the claimant, or (c) if a quorum of Disinterested
Directors so directs, by the stockholders of the Corporation. If the
determination of entitlement to indemnification is to be made by Independent
Counsel at the request of the claimant, the Independent Counsel shall be
selected by the Board unless there shall have occurred within two years prior to
the date of the commencement of the action, suit or proceeding for which
indemnification is claimed a "Change-in-Control" as defined in the Severance
Agreements (as defined on page 11 of the definitive proxy statement of the
Corporation dated April 17, 1998), in which case the Independent Counsel shall
be selected by the claimant unless the claimant shall request that such
selection be made by the Board. If it is so determined that the claimant is
entitled to indemnification, payment to the claimant shall be made promptly
after such determination.
If a claim hereunder is not paid in full by the Corporation promptly after
a written claim pursuant hereto 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 also be paid 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 proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) 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, Independent Counsel
or stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she 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, Independent Counsel or stockholders) that
the 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 these By-Laws that the
claimant is entitled to indemnification, the Corporation shall be bound by such
determination in any judicial proceeding commenced pursuant to the preceding
paragraph. The Corporation shall be precluded from asserting in any judicial
proceeding commenced pursuant hereto that the indemnification procedures and
presumptions of this Article V are not valid, binding and enforceable and shall
stipulate in such proceeding that the Corporation is bound by all the provisions
thereof.
Section 4. Nonexclusivity of Rights: The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred herein shall not be exclusive of any other right which any
person may have or hereafter acquire under applicable law, the Certificate of
Incorporation, these By-Laws, agreement, vote of stockholders or Disinterested
Directors or otherwise. No repeal or modification of this Article V shall in
any way diminish or adversely affect the rights of any director, officer,
employee or agent of the Corporation hereunder in respect of any occurrence or
matter arising prior to any such repeal or modification.
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Section 5. Other Indemnification: The Corporation's obligation, if any,
to indemnify or advance expenses to any person who was or is serving at its
request as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, enterprise or nonprofit entity shall be
reduced by any amount such person has collected as indemnification from such
other corporation, partnership, joint venture, trust, enterprise or nonprofit
entity.
Section 6. Amendment or Repeal: Any repeal or modification of the
provisions of this Article V shall not adversely affect any right or protection
hereunder of any person in respect of any act or omission occurring prior to the
time of such repeal or modification.
Section 7. Insurance: The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the General Corporation Law of the State of Delaware.
To the extent that the Corporation 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 as provided in Section 8 of
this Article V, 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.
Section 8. Employees and Agents: Unless otherwise determined by the
Board, the Chairman and Chief Executive Officer or the General Counsel may from
time to time grant rights to indemnification, 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 Article V with respect to the indemnification
and advancement of expenses of directors and officers of the Corporation.
Section 9. Enforceability: If any provision or provisions of this Article
V shall be held to be invalid, illegal or unenforceable for any reason
whatsoever, (i) the validity, legality and enforceability of the remaining
provisions thereof (including, without limitation, each portion of any section
thereof containing any such provision held to be invalid, illegal or
unenforceable, that is not itself held to be invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby, and (ii) to the fullest
extent possible, the provisions thereof (including, without limitation, each
such portion of any section thereof 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.
Section 10. Continuation: The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article V 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.
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Section 11. Definitions: For purposes of this Article V:
(a) "Disinterested Director" means a director of the Corporation who
is not and was not a party to the matter in respect of which
indemnification is sought by the claimant.
(b) "Independent Counsel" means a law firm, a member of a law firm or
an independent practitioner, that is experienced in matters of corporation
law and shall include any person who, under the applicable standards of
professional conduct then prevailing, would not have a conflict of interest
in representing either the Corporation or the claimant in an action to
determine the claimant's rights under this Article V.
Section 12. Notices: Any notice, request or other communication required
or permitted to be given to the Corporation hereunder 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.
ARTICLE VI
CERTIFICATE FOR SHARES OF STOCK, ETC.
Section 1. Stock Certificates: Every holder of stock in the Corporation
shall be entitled to have a certificate signed by, or in the name of the
Corporation by, the Chairman and Chief Executive Officer, the President, if any,
or any Vice Chairman and by the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by such holder of stock in
the Corporation. The designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights shall be set forth in full or summarized on the face or back of the
certificate that the Corporation shall issue to represent such class or series
of stock; provided, however, that, except as otherwise provided in the General
Corporation Law of the State of Delaware, in lieu of the foregoing requirements,
there may be set forth on the face or back of such certificate a statement that
the Corporation will furnish without charge to each stockholder who so requests,
the designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
If a certificate is countersigned by (i) a transfer agent other than the
Corporation or its employee or (ii) a registrar other than the Corporation or
its employee, the signatures thereon of the officers of the Corporation may be
facsimiles. If any officer who has signed, or whose facsimile has been placed
upon a certificate, shall have ceased to be such officer before such certificate
is issued, it may be issued by the Corporation with the same effect as if he or
she were such officer at the date of issue.
Section 2. Recognition of Persons as Stockholders: The Corporation shall
be entitled to recognize the exclusive right of a person registered on its books
as the owner of a share or shares to receive dividends and to vote as such
owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
applicable law.
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Section 3. Regulations, Transfer Agents and Registrars: The Board shall
have power and authority to make all such rules and regulations, subject to any
applicable requirement of law, as it may deem expedient concerning the issue,
transfer and registration of certificates for shares of stock. The Board may
appoint one or more transfer agents and registrars of transfer and may require
all stock certificates to bear the signature of a transfer agent and/or a
registrar of transfer so appointed.
Section 4. Lost, Destroyed or Stolen Certificates: The Board may
prescribe reasonable requirements (including a sufficient indemnity bond) for
the issue of a new certificate of stock to replace a certificate theretofore
issued by the Corporation and claimed to have been lost, destroyed or wrongfully
taken.
Section 5. Fixing Date for Determination of Stockholders of Record: In
order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, the Board
may fix a record date, which record date shall not precede the date upon which
resolution fixing the record date is adopted by the Board and which record date
shall not be more than 60 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 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 of stock, or for the purpose of any other lawful action,
the Board 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 60 days prior to such action.
The record date for determining stockholders entitled to express consent to
corporate action in writing without a meeting shall be fixed in accordance with
Section 2 of Article VII of these By-Laws.
ARTICLE VII
CONSENTS TO CORPORATE ACTION
Section 1. Consents in Lieu of Voting: Whenever the vote of stockholders
or any class or classes of stockholders at a meeting thereof is to be taken for
or in connection with any corporate action, the meeting and vote of the
stockholders of such class or classes of stockholders may be dispensed with upon
the written consent to such corporate action of stockholders having not less
than the minimum percentage of the total number of votes which would be required
to authorize and approve such corporate action at a meeting at which all of the
outstanding shares of such class or classes are voted. Prompt notice of the
taking of such corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing
at their respective addresses appearing on the records of the Corporation.
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Section 2. Record Date: The record date for determining stockholders
entitled to express consent to corporate action in writing without a meeting
shall be as fixed by the Board or as otherwise established under this Section.
Any person seeking to have the stockholders authorize or take corporate action
by written consent without a meeting shall by written notice addressed to the
Secretary and delivered to the Corporation, request that a record date be fixed
for such purpose. The Board may fix a record date for such purpose which shall
be no more than ten days after the date upon which the resolution fixing the
record date is adopted by the Board and shall not precede the date such
resolution is adopted. If the Board fails within ten days after the Corporation
receives such notice to fix a record date for such purpose, the record date
shall be the day on which the first written consent is delivered to the
Corporation in the manner described in Section 3 of this Article VII, unless
prior action by the Board is required under the General Corporation Law of the
State of Delaware, in which event the record date shall be at the close of
business on the day on which the Board adopts the resolution taking such prior
action.
Section 3. Procedures: Every written consent purporting to authorize or
to take corporate action and/or related revocations (each such written consent
and related revocation is referred to in this Article VII as a "Consent") shall
bear the date of signature of each stockholder who signs the Consent, and no
Consent shall be effective to take the corporate action referred to therein
unless, within 60 days of the earliest dated Consent delivered in the manner
required by this Section 3, Consents signed by a sufficient number of
stockholders to take such action are delivered to the Corporation in the manner
described below.
A Consent shall be delivered to the Corporation by delivery to its
registered office in the State of Delaware, to its principal place of business
or to an officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery to the
Corporation's registered office shall be made by hand or by certified or
registered mail, return receipt requested.
In the event of the delivery to the Corporation of a Consent, the Secretary
of the Corporation shall provide for the safekeeping of such Consent and shall
promptly conduct such ministerial review of the sufficiency of the Consents and
of the validity of the action to be taken by stockholder consent as he or she
deems necessary or appropriate, including, without limitation, whether the
holders of a number of shares having the requisite voting power to authorize or
take the action specified in the Consent have given consent; provided, however,
that if the corporate action to which the Consent relates is the removal or
replacement of one or more members of the Board, the Secretary of the
Corporation shall promptly designate two persons, who shall not be members of
the Board, to serve as Inspectors with respect to such Consent and such
Inspectors shall discharge the functions of the Secretary of the Corporation
under this Section 3. For the purpose of permitting the Inspectors to perform
such review, no action by written consent without a meeting shall be effective
until such date as the Inspectors certify to the Corporation that the consents
delivered to the Corporation in accordance with this Section 3 represent at
least the minimum number of votes that would be necessary to take the corporate
action. If after such investigation the Secretary or the Inspectors (as the
case may be) shall determine that the Consent is valid and that the action
therein specified has been validly authorized, that fact shall forthwith be
certified on the records of the Corporation kept for the purpose of recording
the proceedings of meetings of stockholders, and the Consent shall be filed in
such records, at which time the Consent shall become effective as stockholder
action. In conducting the investigation required by this Section 3, the
Secretary or the Inspectors (as the case may be) may, at the expense of the
Corporation, retain special legal counsel and any other necessary or appropriate
professional advisors, and such other personnel as they may deem necessary
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or appropriate, to assist them, and shall be fully protected in relying in good
faith upon the opinion of such counsel or advisors. Nothing contained in this
Section 3 shall in any way be construed to suggest or imply that the Board or
any stockholder shall not be entitled to contest the validity of any consent or
revocation thereof, whether before or after such certification by the Secretary
or the Inspectors, or to take any other action (including, without limitation,
the commencement, prosecution or defense of any litigation with respect thereto,
and the seeking of injunctive relief in such litigation).
ARTICLE VIII
MISCELLANEOUS
Section 1. Corporate Seal: The corporate seal shall have inscribed the
name of the Corporation, the word "Delaware" and such other words or designs as
the Board may designate. The seal may be used by causing it or a facsimile
thereof to be impressed, affixed, reproduced or otherwise inscribed.
Section 2. Waiver: Whenever any notice whatsoever is required to be given
by applicable law, the Certificate of Incorporation or these By-Laws, a waiver
thereof in writing signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be deemed equivalent
thereto. Neither the business to be transacted at, nor the purpose of, any
annual or special meeting of the stockholders or the Board or committee thereof
need be specified in any waiver of notice of such meeting.
Section 3. Amendments: These By-Laws may be altered, amended or repealed,
and new By-Laws may be adopted, by a majority vote of the total number of
directors then in office or by a vote of stockholders owning a majority of the
outstanding stock of the Corporation entitled to vote.
Section 4. Interpretation: In these By-Laws, unless a clear contrary
intention appears, the singular number includes the plural number and vice
versa, and reference to either gender includes the other gender.
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