EXHIBIT 3(a)
PENNZOIL COMPANY
BY-LAWS
(As Amended)
ARTICLE I.
MEETINGS OF SHAREHOLDERS
SECTION 1. The annual meeting of the shareholders of this
Corporation shall be held on the third Thursday of May in each year,
at ten o'clock A.M., and on any subsequent day or days to which such
meeting may be adjourned, for the purposes of electing directors and
of transacting such other business as may properly come before the
meeting. The Board of Directors shall designate the place for the
holding of such meeting, and at least ten days' notice shall be given
to the shareholders of the place so fixed. If the day designated
herein is a legal holiday, the annual meeting shall be held on the
first succeeding day which is not a legal holiday. If for any reason
the annual meeting shall not be held on the day designated herein, the
Board of Directors shall cause the annual meeting to be held as soon
thereafter as may be convenient.
SECTION 2. Special meetings of the shareholders may be called
at any time by the Board of Directors, the Chairman of the Board, the
Executive Committee, the Chairman of the Executive Committee or the
President. Upon written request of any person or persons who have
duly called a special meeting, it shall be the duty of the Secretary
of the Corporation to fix the date of the meeting to be held not less
than ten nor more than sixty days after the receipt of the request and
to give due notice thereof. If the Secretary shall neglect or refuse
to fix the date of the meeting and give notice thereof, the person or
persons calling the meeting may do so.
SECTION 3. Every special meeting of the shareholders shall be
held at such place within or without the State of Delaware as the
Board of Directors may designate, or, in the absence of such
designation, at the registered office of the Corporation in the State
of Delaware.
SECTION 4. Written notice of every meeting of the
shareholders shall be given by the Secretary of the Corporation to
each shareholder of record entitled to vote at the meeting, by placing
such notice in the mail at least ten days, but not more than sixty
days, prior to the day named for the meeting addressed to each
shareholder at his address appearing on the books of the Corporation
or supplied by him to the Corporation for the purpose of notice.
SECTION 5. The Board of Directors may fix a date, not less
than ten nor more than sixty days preceding the date of any meeting of
shareholders, as a record date for the determination of shareholders
entitled to notice of, or to vote at, any such meeting. The Board of
Directors shall not close the books of the Corporation against
transfers of shares during the whole or any part of such period.
SECTION 6. The notice of every meeting of the shareholders
may be accompanied by a form of proxy approved by the Board of
Directors in favor of such person or persons as the Board of Directors
may select.
SECTION 7. A majority of the outstanding shares of stock of
the Corporation entitled to vote, present in person or represented by
proxy, shall constitute a quorum at any meeting of the shareholders,
and the shareholders present at any duly convened meeting may continue
to do business until adjournment notwithstanding any withdrawal from
the meeting of holders of shares counted in determining the existence
of a quorum. Directors shall be elected by a plurality of the votes
cast in the election. For all matters as to which no other voting
requirement is specified by the General Corporation Law of the State
of Delaware (the "General Corporation Law"), the Restated Certificate
of Incorporation of the Corporation, as amended (the "Certificate of
Incorporation") or these By-laws, the affirmative vote required for
shareholder action shall be that of a majority of the shares present
in person or represented by proxy at the meeting (as counted for
purposes of determining the existence of a quorum at the meeting). In
the case of a matter submitted for a vote of the shareholders as to
which a shareholder approval requirement is applicable under the
shareholder approval policy of the New York Stock Exchange, the
requirements of Rule 16b-3 under the Securities Exchange Act of 1934
or any provision of the Internal Revenue Code, in each case for which
no higher voting requirement is specified by the General Corporation
Law, the Certificate of Incorporation or these By-laws, the vote
required for approval shall be the requisite vote specified in such
shareholder approval policy, Rule 16b-3 or Internal Revenue Code
provision, as the case may be (or the highest such requirement if more
than one is applicable). For the approval of the appointment of
independent public accountants (if submitted for a vote of the
shareholders), the vote required for approval shall be a majority of
the votes cast on the matter.
SECTION 8. Any meeting of the shareholders may be adjourned
from time to time, without notice other than by announcement at the
meeting at which such adjournment is taken, and at any such adjourned
meeting at which a quorum shall be present any action may be taken
that could have been taken at the meeting originally called; provided
that if the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each shareholder of
record entitled to vote at the adjourned meeting.
SECTION 9. Subject to such rights of the holders of Preferred
Stock or Preference Common Stock or any series thereof as shall be
prescribed in the Certificate of Incorporation or in the resolutions
of the Board of Directors providing for the issuance of any such
series, only persons who are nominated in accordance with the
procedures set forth in this Section 9 shall be eligible for election
as, and to serve as, directors. Nominations of persons for election
to the Board of Directors may be made at a meeting of the shareholders
at which Directors are to be elected (a) by or at the direction of the
Board of Directors or (b) by any shareholder of the Corporation
entitled to vote at such meeting in the election of directors who
complies with the requirements of this Section 9. Such nominations,
other than those made by or at the direction of the Board of
Directors, shall be preceded by timely advance notice in writing to
the Secretary of the Corporation. To be timely, a shareholder's
notice shall be delivered to, or mailed and received at, the principal
executive offices of the Corporation not less than 60 days prior to
the scheduled meeting date, regardless of any postponements, deferrals
or adjournments of the meeting to a later date; provided, however,
that if the scheduled meeting date differs from the annual meeting
date prescribed by the By-laws as in effect on the date of the next
preceding annual meeting of shareholders and if less than 70 days'
notice or prior public disclosure of the scheduled meeting date is
given or made, notice by the shareholder, to be timely, must be so
delivered or received not later than the close of business on the
tenth day following the earlier of the day on which the notice of such
meeting was mailed to shareholders or the day on which such public
disclosure was made. A shareholder's notice to the Secretary shall
set forth (x) as to each person whom the shareholder proposes to
nominate for election or re-election as a director, (i) the name, age,
business address and residence address of such person, (ii) the
principal occupation or employment of such person, (iii) the number of
shares of each class of capital stock of the Corporation beneficially
owned by such person and (iv) the written consent of such person to
having such person's name placed in nomination at the meeting and to
serve as a director if elected, and (y) as to the shareholder giving
the notice, (i) the name and address, as they appear on the
Corporation's books, of such shareholder and (ii) the number of shares
of each class of voting stock of the Corporation which are then
beneficially owned by such shareholder. The presiding officer of the
meeting of shareholders shall determine whether the requirements of
this Section 9 have been met with respect to any nomination or
intended nomination. If the presiding officer determines that any
nomination was not made in accordance with the requirements of this
Section 9, he shall so declare at the meeting and the defective
nomination shall be disregarded.
SECTION 10. At an annual meeting of shareholders, only such
business shall be conducted, and only such proposals shall be acted
upon, as shall have been brought before the annual meeting (a) by or
at the direction of the Board of Directors or (b) by any shareholder
of the Corporation who complies with the requirements of this Section
10 and as shall otherwise be proper subjects for shareholder action
and shall be properly introduced at the meeting. For a proposal to be
properly brought before an annual meeting by a shareholder, the
shareholder must have given timely advance notice thereof in writing
to the Secretary of the Corporation. To be timely, a shareholder's
notice must be delivered to, or mailed and received at, the principal
executive offices of the Corporation not less than 60 days prior to
the scheduled meeting date, regardless of any postponements, deferrals
or adjournments of that meeting to a later date; provided, however,
that if the scheduled meeting date differs from the meeting date
prescribed by the By-laws as in effect on the date of the next
preceding annual meeting of shareholders and if less than 70 days'
notice or prior public disclosure of the scheduled meeting date is
given or made, notice by the shareholder, to be timely, must be so
delivered or received not later than the close of business on the
tenth day following the earlier of the day on which the notice of such
meeting was mailed to shareholders or the day on which such public
disclosure was made. A shareholder's notice to the Secretary shall
set forth as to each matter the shareholder proposes to bring before
the annual meeting (a) a description of the proposal desired to be
brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (b) the name and address, as they
appear on the Corporation's books, of the shareholder proposing such
business and any other shareholders known by such shareholder to be
supporting such proposal, (c) the class and number of shares of the
Corporation's stock which are beneficially owned by the shareholder on
the date of such notice and (d) any financial interest of the
shareholder in such proposal.
The presiding officer of the annual meeting shall determine
whether the requirements of this Section 10 have been met with respect
to any shareholder proposal. If the presiding officer determines that
a shareholder proposal was not made in accordance with the terms of
this Section 10, he shall so declare at the meeting and any such
proposal shall not be acted upon at the meeting.
At a special meeting of shareholders, only such business
shall be acted upon as shall have been set forth in the notice
relating to the meeting or as shall constitute matters incident to the
conduct of the meeting as the presiding officer of the meeting shall
determine to be appropriate.
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ARTICLE II.
BOARD OF DIRECTORS
SECTION 1. The business, affairs and property of the
Corporation shall be managed by a board of ten directors divided
into three classes as provided in the Certificate of Incorporation of
the Corporation. Each director shall hold office for the full term to
which he shall have been elected and until his successor is duly
elected and shall qualify, or until his earlier death, resignation or
removal. A director need not be a resident of the State of Delaware
or a shareholder of the Corporation.
SECTION 2. Except as provided in the Certificate of
Incorporation of the Corporation, newly created directorships
resulting from any increase in the number of directors and any
vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled by the
affirmative vote of a majority of the remaining directors then in
office, even though less than a quorum of the Board of Directors. Any
director elected in accordance with the preceding sentence shall hold
office for the remainder of the full term of the class of directors in
which the new directorship was created or the vacancy occurred and
until such director's successor shall have been elected and qualified.
No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
SECTION 3. No director of the Corporation shall be removed
from his office as a director by vote or other action of shareholders
or otherwise except for cause.
SECTION 4. Regular meetings of the Board of Directors shall
be held at such place or places within or without the State of
Delaware, at such hour and on such day as may be fixed by resolution
of the Board of Directors, without further notice of such meetings.
The time or place of holding regular meetings of the Board of
Directors may be changed by the Chairman of the Board or the President
by giving written notice thereof as provided in Section 6 of this
Article II.
SECTION 5. Special meetings of the Board of Directors shall
be held, whenever called by the Chairman of the Board, the Chairman of
the Executive Committee, the President, by four directors or by
resolution adopted by the Board of Directors, at such place or places
within or without the State of Delaware as may be stated in the notice
of the meeting.
SECTION 6. Written notice of the time and place of, and
general nature of the business to be transacted at, all special
meetings of the Board of Directors, and written notice of any change
in the time or place of holding the regular meetings of the Board of
Directors, shall be given to each director personally or by mail or by
telegraph, telecopier or similar communication at least one day before
the day of the meeting; provided, however, that notice of any meeting
need not be given to any director if waived by him in writing, or if
he shall be present at such meeting.
SECTION 7. A majority of the directors in office shall
constitute a quorum of the Board of Directors for the transaction of
business; but a lesser number may adjourn from day to day until a
quorum is present. Except as otherwise provided by law or in these
By-laws, all questions shall be decided by the vote of a majority of
the directors present.
SECTION 8. Any action which may be taken at a meeting of the
directors or members of the Executive Committee may be taken without a
meeting if consent in writing setting forth the action so taken shall
be signed by all of the directors or members of the Executive
Committee as the case may be and shall be
filed with the Secretary of the Corporation.
SECTION 9. The Board of Directors may designate one or more
of its number to be Vice Chairman of the Board, Chairman of the
Executive Committee, and Chairman of any other committees of the Board
and to hold such other positions on the Board as the Board of
Directors may designate.
ARTICLE III.
EXECUTIVE COMMITTEE
The Board of Directors may, by resolution adopted by a majority
of the whole Board, designate two or more of its number to constitute
an Executive Committee which committee, during intervals between
meetings of the Board, shall have and exercise the authority of the
Board of Directors in the management of the business of the
Corporation to the extent permitted by law.
ARTICLE IV.
OFFICERS
SECTION 1. The officers of the Corporation shall consist of a
Chairman of the Board, President, Secretary, Treasurer and such
Executive, Group, Senior or other Vice Presidents, and other officers
as may be elected or appointed by the Board of Directors. Any number
of offices may be held by the same person. All officers shall hold
office until their successors are elected or appointed, except that
the Board of Directors may remove any officer at any time at its
discretion.
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SECTION 2. The officers of the Corporation shall have such
powers and duties as generally pertain to their offices, except as
modified herein or by the Board of Directors, as well as such powers
and duties as from time to time may be conferred by the Board of
Directors. The Chairman of the Board shall have such duties as may be
assigned to him by the Board of Directors and shall preside at
meetings of the Board and at meetings of the stockholders. The
President shall be the chief executive officer of the Corporation and
shall have general supervision over the business, affairs, and
property of the Corporation.
ARTICLE V.
SEAL
The seal of the Corporation shall be in such form as the Board of
Directors shall prescribe.
ARTICLE VI.
CERTIFICATES OF STOCK
The shares of stock of the Corporation shall be represented by
certificates of stock, signed by the President or such Vice President
or other officer designated by the Board of Directors, countersigned
by the Treasurer or the Secretary; and such signature of the
President, Vice President, or other officer, such countersignature of
the Treasurer or Secretary, and such seal, or any of them, may be
executed in facsimile, engraved or printed. In case any officer who
has signed or whose facsimile signature has been placed upon any share
certificate shall have ceased to be such officer because of death,
resignation or otherwise before the certificate is issued, it may be
issued by the Corporation with the same effect as if the officer had
not ceased to be such at the date of its issue. Said certificates of
stock shall be in such form as the Board of Directors may from time to
time prescribe.
ARTICLE VII.
INDEMNIFICATION
SECTION 1. The Corporation shall indemnify, and advance
Expenses (as this and all other capitalized words are defined in
Section 12) to, Indemnitee to the fullest extent permitted by
applicable law in effect on July 24, 1986, and to such greater extent
as applicable law may thereafter permit. The rights of Indemnitee
provided under the preceding sentence shall include, but not be
limited to, the right to be indemnified to the fullest extent
permitted by Section 145(b) of the D.G.C.L. in Proceedings by or in the
right of the Corporation and to the fullest extent permitted by
Section 145(a) of the D.G.C.L. in all other Proceedings.
SECTION 2. If Indemnitee is, by reason of his Corporate
Status, a witness in or a party to and is successful, on the merits or
otherwise, in any Proceeding, he shall be indemnified against all
Expenses actually and reasonably incurred by him or on his behalf in
connection therewith. If Indemnitee is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, as to any
Matter in such Proceeding, the Corporation shall indemnify Indemnitee
against all Expenses actually and reasonably incurred by him or on his
behalf relating to each Matter. The termination of any Matter in such
a Proceeding by dismissal, with or without prejudice, shall be deemed
to be a successful result as to such Matter.
SECTION 3. Indemnitee shall be advanced Expenses within 10
days after requesting them to the fullest extent permitted by Section 145(e)
of the D.G.C.L.
SECTION 4. To obtain indemnification Indemnitee shall submit
to the Corporation a written request with such information as is
reasonably available to Indemnitee. The Secretary of the Corporation
shall promptly advise the Board of Directors of such request.
SECTION 5. If there has been no Change of Control at the time
the request for indemnification is sent, Indemnitee's entitlement to
indemnification shall be determined in accordance with Section 145(d) of the
D.G.C.L. If entitlement to indemnification is to be determined by
Independent Counsel, the Corporation shall furnish notice to
Indemnitee within 10 days after receipt of the request for
indemnification, specifying the identity and address of Independent
Counsel. The Indemnitee may, within 14 days after receipt of such
written notice of selection, deliver to the Corporation a written
objection to such selection. Such objection may be asserted only on
the ground that the Independent Counsel so selected does not meet the
requirements of Independent Counsel and the objection shall set forth
with particularity the factual basis of such assertion. If there is
an objection to the selection of Independent Counsel, either the
Corporation or Indemnitee may petition the Court of Chancery of the
State of Delaware or any other court of competent jurisdiction for a
determination that the objection is without a reasonable basis and/or
for the appointment of Independent Counsel selected by the Court.
SECTION 6. If there has been a Change of Control at the time
the request for indemnification is sent, Indemnitee's entitlement to
indemnification shall be determined in a written opinion by
Independent Counsel selected by Indemnitee. Indemnitee shall give the
Corporation written notice advising of the identity and address of the
Independent Counsel so selected. The Corporation may,
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within 7 days after receipt of such written notice of selection, deliver
to the Indemnitee a written objection to such selection. Indemnitee may,
within 5 days after the receipt of such objection from the
Corporation, submit the name of another Independent Counsel and the
Corporation may, within 7 days after receipt of such written notice of
selection, deliver to the Indemnitee a written objection to such
selection. Any objection is subject to the limitations in Section 5.
Indemnitee may petition the Court of Chancery of the State of Delaware
or any other Court of competent jurisdiction for a determination that
the Corporation's objection to the first and/or second selection of
Independent Counsel is without a reasonable basis and/or for the
appointment as Independent Counsel of a person selected by the Court.
SECTION 7. If a Change of Control shall have occurred before
the request for indemnification is sent by Indemnitee, Indemnitee
shall be presumed (except as otherwise expressly provided in this
Article) to be entitled to indemnification upon submission of a
request for indemnification in accordance with Section 4 of this
Article, and thereafter the Corporation shall have the burden of proof
to overcome the presumption in reaching a determination contrary to
the presumption. The presumption shall be used by Independent Counsel
as a basis for a determination of entitlement to indemnification
unless the Corporation provides information sufficient to overcome
such presumption by clear and convincing evidence or the
investigation, review and analysis of Independent Counsel convinces
him by clear and convincing evidence that the presumption should not
apply.
Except in the event that the determination of entitlement to
indemnification is to be made by Independent Counsel, if the person or
persons empowered under Section 5 or 6 of this Article to determine
entitlement to indemnification shall not have made and furnished to
Indemnitee in writing a determination within 60 days after receipt by
the Corporation of the request therefor, the requisite determination
of entitlement to indemnification shall be deemed to have been made
and Indemnitee shall be entitled to such indemnification unless
Indemnitee knowingly misrepresented a material fact in connection with
the request for indemnification or such indemnification is prohibited
by law. The termination of any Proceeding or of any Matter therein,
by judgment, order, settlement or conviction, or upon a plea of nolo
contendere or its equivalent, shall not (except as otherwise expressly
provided in this Article) of itself adversely affect the right of
Indemnitee to indemnification or create a presumption that Indemnitee
did not act in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the Corporation, or
with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his conduct was unlawful.
SECTION 8. The Corporation shall pay any and all reasonable
fees and expenses of Independent Counsel incurred acting pursuant to
this Article and in any proceeding to which it is a party or witness
in respect of its investigation and written report and shall pay all
reasonable fees and expenses incident to the procedures in which such
Independent Counsel was selected or appointed. No Independent Counsel
may serve if a timely objection has been made to his selection until a
Court has determined that such objection is without a reasonable
basis.
SECTION 9. In the event that (i) a determination is made
pursuant to Section 5 or 6 that Indemnitee is not entitled to
indemnification under this Article, (ii) advancement of Expenses is
not timely made pursuant to Section 3 of this Article, (iii)
Independent Counsel has not made and delivered a written opinion
determining the request for indemnification (a) within 90 days after
being appointed by the Court, or (b) within 90 days after objections
to his selection have been overruled by the Court, or (c) within 90
days after the time for the Corporation or Indemnitee to object to his
selection, or (iv) payment of indemnification is not made within 5
days after a determination of entitlement to indemnification has been
made or deemed to have been made pursuant to Section 5, 6 or 7 of this
Article, Indemnitee shall be entitled to an adjudication in an
appropriate court of the State of Delaware, or in any other court of
competent jurisdiction, of his entitlement to such indemnification or
advancement of Expenses. In the event that a determination shall
have been made that Indemnitee is not entitled to indemnification, any
judicial proceeding or arbitration commenced pursuant to this Section
shall be conducted in all respects as a de novo trial on the merits
and Indemnitee shall not be prejudiced by reason of that adverse
determination. If a Change of Control shall have occurred, in any
judicial proceeding commenced pursuant to this Section, the
Corporation shall have the burden of proving that Indemnitee is not
entitled to indemnification or advancement of Expenses, as the case
may be. If a determination shall have been made or deemed to have
been made that Indemnitee is entitled to indemnification, the
Corporation shall be bound by such determination in any judicial
proceeding commenced pursuant to this Section 9, or otherwise, unless
Indemnitee knowingly misrepresented a material fact in connection with
the request for indemnification, or such indemnification is prohibited
by law.
The Corporation shall be precluded from asserting in any
judicial proceeding commenced pursuant to this Section 9 that the
procedures and presumptions of this Article are not valid, binding and
enforceable and shall stipulate in any such court that the Corporation
is bound by all provisions of this Article. In the event that
Indemnitee, pursuant to this Section 9, seeks a judicial adjudication
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to enforce his rights under, or to recover damages for breach of, this
Article, Indemnitee shall be entitled to recover from the Corporation,
and shall be indemnified by the Corporation against, any and all
Expenses actually and reasonably incurred by him in such judicial
adjudication, but only if he prevails therein. If it shall be
determined in such judicial adjudication that Indemnitee is entitled
to receive part but not all of the indemnification or advancement of
Expenses sought, the Expenses incurred by Indemnitee in connection
with such judicial adjudication or arbitration shall be appropriately
prorated.
SECTION 10. The rights of indemnification and to receive
advancement of Expenses as provided by this Article shall not be
deemed exclusive of any other rights to which Indemnitee may at any
time be entitled under applicable law, the Certificate of
Incorporation, the By-laws, any agreement, a vote of stockholders or a
resolution of directors, or otherwise. No amendment, alteration or
repeal of this Article or any provision thereof shall be effective as
to any Indemnitee for acts, events and circumstances that occurred, in
whole or in part, before such amendment, alteration or repeal. The
provisions of this Article shall continue as to an Indemnitee whose
Corporate Status has ceased and shall inure to the benefit of his
heirs, executors and administrators.
SECTION 11. If any provision or provisions of this Article
shall be held to be invalid, illegal or unenforceable for any reason
whatsoever, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby; and,
to the fullest extent possible, the provisions of this Article shall
be construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.
SECTION 12. For purposes of this Article:
"Change of Control" means a change in control of the
Corporation after July 24, 1986 in any one of the following
circumstances (1) there shall have occurred an event required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A
(or in response to any similar item on any similar schedule or form)
promulgated under the Securities Exchange Act of 1934 (the "Act"),
whether or not the Corporation is then subject to such reporting
requirement; (2) any "person" (as such term is used in Section 13(d)
and 14(d) of the Act) shall have become the "beneficial owner" (as
defined in Rule 13d-3 under the Act), directly or indirectly, of
securities of the Corporation representing 40% or more of the combined
voting power of the Corporation's then outstanding voting securities
without prior approval of at least two-thirds of the members of the
Board of Directors in office immediately prior to such person
attaining such percentage interest; (3) the Corporation is a party to
a merger, consolidation, sale of assets or other reorganization, or a
proxy contest, as a consequence of which members of the Board of
Directors in office immediately prior to such transaction or event
constitute less than a majority of the Board of Directors thereafter;
(4) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors (including
for this purpose any new director whose election or nomination for
election by the Corporation's stockholders was approved by a vote of
at least two-thirds of the directors then still in office who were
directors at the beginning of such period) cease for any reason to
constitute at least a majority of the Board of Directors.
"Corporate Status" describes the status of a person who (a)
is or was a director, officer or employee of the Corporation, or is or
was serving at the request of the Corporation as a director, officer
or employee of another corporation, partnership, joint venture, trust
or other enterprise, in each case which is controlled by the
Corporation, or (b) is or was serving, at the written
request of the Corporation or pursuant to an agreement in writing with
the Corporation which request or agreement provides for
indemnification under these By-laws, as a director, officer or
employee of another corporation, partnership, joint venture, trust or
other enterprise not controlled by the Corporation, provided that if
such written request or agreement referred to in this clause (b)
provides for a lesser degree of indemnification by the Corporation
than that provided pursuant to this Article VII, the provisions
contained in or made pursuant to such written request or agreement
shall govern. References above to "other enterprises" shall include
employee benefit plans and references to "serving at the request of
the Corporation" shall include any service as a director, officer or
employee which imposes duties on, or involves services by, such
director, officer or employee with respect to an employee benefit plan
or its participants or beneficiaries.
"D.G.C.L." means the Delaware General Corporation Law.
"Disinterested Director" means a director of the Corporation
who is not and was not a party to the Proceeding in respect of which
indemnification is sought by indemnitee.
"Expenses" shall include all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts, witness
fees, travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees, and all other
disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or
defend, investigating, or being or preparing to be a witness in a
Proceeding.
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"Indemnitee" includes any person who is, or is
threatened to be made, a witness in or a party to any Proceeding as
described in Section 1 or 2 of this Article by reason of his Corporate
Status.
"Independent Counsel" means a law firm, or member of a law
firm, that is experienced in matters of corporation law and neither
presently is, nor in the five years previous to his selection or
appointment has been, retained to represent: (i) the Corporation or
Indemnitee in any matter material to either such party, or (ii) any other
party to the Proceeding giving rise to a claim for indemnification
hereunder.
"Matter" is a claim, a material issue, or a substantial
request for relief.
"Proceeding" includes any action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing or any other
proceeding whether civil, criminal, administrative or investigative,
except one initiated by an Indemnitee pursuant to Section 9 of this
Article to enforce his rights under this Article.
SECTION 13. Any communication required or permitted to the Corporation
shall be addressed to the Secretary of the Corporation and any such
communication to Indemnitee shall be addressed to his home address unless
he specifies otherwise and shall be personally delivered or delivered by
overnight mail delivery.
ARTICLE VIII.
AMENDMENTS
These By-laws may be altered, amended, added to or repealed by the
shareholders at any annual or special meeting, by the vote of shareholders
entitled to cast at least a majority of the votes which all shareholders
are entitled to cast (i.e., by the vote of a majority of the outstanding
shares entitled to vote), and, except as may be otherwise required by
law, the power to alter, amend, add to or repeal these By-laws is also
vested in the Board of Directors (subject always to the power of the
shareholders to change such action); provided, however, that notice of
the general nature of any such action proposed to be taken shall be
included in the notice of the meeting of shareholders or of the Board of
Directors at which such action is taken.
May 19, 1994
7