Exhibit 99.4
AMENDED AND RESTATED BY-LAWS
OF
[NAME TO BE DETERMINED]
(THE "CORPORATION")
ARTICLE I
Offices
Section 1.
The registered office of the Corporation in the State
of Delaware shall be in the City of Wilmington, County of New
Castle, State of Delaware.
The Corporation shall have offices at such other
places as the Board of Directors may from time to time
determine.
ARTICLE II
Stockholders
Section 1. Annual Meeting.
The annual meeting of the stockholders for the
election of Directors and for the transaction of such other
business as may properly come before the meeting shall be held
at such place, within or without the State of Delaware, and
hour as shall be determined by the Board of Directors. The
day, place and hour of each annual meeting shall be specified
in the notice of annual meeting.
The meeting may be adjourned from time to time and
place to place until its business is completed.
At an annual meeting of the stockholders, only such
business shall be conducted as shall have been properly brought
before the meeting. To be properly brought before an annual
meeting, business must be (a) specified in the notice of
meeting (or any supplement thereto) given by or at the
direction of the Board of
Directors, (b) otherwise properly brought before the meeting by
or at the direction of the Board of Directors, or (c) otherwise
properly brought before the meeting by a stockholder. For
business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice must be delivered to or mailed
and received at the principal executive offices of the
Corporation, not less than sixty days nor more than ninety days
prior to the meeting; provided, however, that in the event that
less than seventy days' notice or prior public disclosure of
the date of the meeting is given or made to stockholders,
notice by the stockholder to be timely must be so received not
later than the close of business on the tenth day following the
date on which such notice of the date of the annual meeting was
mailed or such public disclosure was made. A stockholder's
notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the annual meeting: (a) a
brief description of the business desired to be brought before
the annual meeting, (b) the name and address, as they appear on
the Corporation's books, of the stockholder proposing such
business, (c) the class and number of shares of the Corporation
which are beneficially owned by the stockholder, and (d) any
material interest of the stockholder in such business.
Notwithstanding anything in the By-Laws to the contrary, no
business shall be conducted at an annual meeting except in
accordance with the procedures set forth in this Section 1.
The presiding officer of an annual meeting shall, if the facts
warrant, determine and declare to the meeting that business was
not properly brought before the meeting and in accordance with
the provisions of this Section 1, and if he should so
determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be
transacted.
Section 2. Special Meeting.
Except as otherwise required by law, special meetings
of the stockholders may be called only by the Chairman of the
Board, the President, or the Board of Directors pursuant to a
resolution approved by a majority of the entire Board of
Directors.
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Section 3. Stockholder Action; How Taken.
Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly
called annual or special meeting of such holders and may not be
effected by any consent in writing by such holders.
Section 4. Notice of Meeting.
Notice of every meeting of the stockholders shall be
given in the manner prescribed by law.
Section 5. Quorum.
Except as otherwise required by law, the Certificate
of Incorporation or these By-Laws, the holders of not less than
one-third of the shares entitled to vote at any meeting of the
stockholders, present in person or by proxy, shall constitute a
quorum and the act of the majority of such quorum shall be
deemed the act of the stockholders.
If a quorum shall fail to attend any meeting, the
chairman of the meeting may adjourn the meeting to another
place, date or time.
If a notice of any adjourned special meeting of
stockholders is sent to all stockholders entitled to vote
thereat, stating that it will be held with those present
constituting a quorum, then, except as otherwise required by
law, those present at such adjourned meeting shall constitute a
quorum and all matters shall be determined by a majority of
votes cast at such meeting.
Section 6. Qualification of Voters.
The Board of Directors (hereinafter sometimes
referred to as the "Board") may fix a day and hour not more
than sixty nor less than ten days prior to the day of holding
any meeting of the stockholders as the time which the
stockholders entitled to notice of and to vote at such meeting
shall be determined. Only those persons who were holders of
record of voting stock at such time shall be entitled to notice
of and to vote at such meeting.
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Section 7. Procedure.
The order of business and all other matters of
procedure at every meeting of the stockholders may be
determined by the presiding officer.
The Board shall appoint two or more Inspectors of
Election to serve at every meeting of the stockholders at which
Directors are to be elected.
ARTICLE III
Directors
Section 1. Number, Election and Terms.
The number of Directors shall be fixed from time to
time by the Board of Directors but shall not be less than
three. The Directors shall be classified, with respect to the
time for which they severally hold office, into three classes,
as nearly equal in number as possible, as determined by the
Board of Directors, one class to hold office initially for a
term expiring at the annual meeting of stockholders to be held
in 1986, another class to hold office initially for a term
expiring at the annual meeting of stockholders to be held in
1987, and another class to hold office initially for a term
expiring at the annual meeting of stockholders to be held in
1988, with the members of each class to hold office until their
successors are elected and qualified. At each annual meeting
of stockholders, the successors of the class of Directors whose
term expires at that meeting shall be elected to hold office
for a term expiring at the annual meeting of stockholders held
in the third year following the year of their election.
The term "entire Board" as used in these By-Laws
means the total number of Directors which the Corporation would
have if there were no vacancies.
Nominations for the election of Directors may be made
by the Board of Directors or a committee appointed by the Board
of Directors or by any stockholder entitled to vote in the
election of Directors generally. However, any stockholder
entitled to vote in the election of Directors generally may
nominate one or more persons for election as Directors at a
meeting only if written
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notice of such stockholder's intent to make such nomination or
nominations has been given, either by personal delivery or by
United States mail, postage prepaid, to the Secretary of the
Corporation not later than (i) with respect to an election to
be held at an annual meeting of stockholders, ninety days prior
to the anniversary date of the immediately preceding annual
meeting, and (ii) with respect to an election to be held at a
special meeting of stockholders for the election of Directors,
the close of business on the tenth day following the date on
which notice of such meeting is first given to stockholders.
Each such notice shall set forth: (a) the name and address of
the stockholder who intends to make the nomination and of the
person or persons to be nominated; (b) a representation that
the stockholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice; (c) a description of
all arrangements or understandings between the stockholder and
each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination or nomina-
tions are to be made by the stockholder; (d) such other
information regarding each nominee proposed by such stockholder
as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange
Commission; and (e) the consent of each nominee to serve as a
Director of the Corporation of so elected. The presiding
officer of the meeting may refuse to acknowledge the nomination
of any person not made in compliance with the foregoing
procedure.
Section 2. Newly Created Directorships and Vacancies.
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 solely
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 Directors 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
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the number of Directors constituting the Board of Directors
shall shorten the term of any incumbent Director.
Section 3. Removal.
Any Director may be removed from office, without
cause, only by the affirmative vote of the holders of 80% of
the combined voting power of the then outstanding shares of
stock entitled to vote generally in the election of Directors,
voting together as a single class.
Section 4. Regular Meetings.
Regular meetings of the Board shall be held at such
times and places as the Board may from time to time determine.
Section 5. Special Meetings.
Special meetings of the Board may be called at any
time, at any place and for any purpose by the Chairman of the
Executive Committee, the Chairman of the Board, or the
President, or by any officer of the Corporation upon the
request of a majority of the entire Board.
Section 6. Notice of Meeting.
Notice of regular meetings of the Board need not be
given.
Notice of every special meeting of the Board shall be
given to each Director at his usual place of business, or at
such other address as shall have been furnished by him for the
purpose. Such notice shall be given at least twenty-four hours
before the meeting by telephone or by being personally
delivered, mailed, or telegraphed. Such notice need not
include a statement of the business to be transacted at, or the
purpose of, any such meeting.
Section 7. Quorum.
Except as may be otherwise provided by law or in
these By-Laws, the presence of a majority of the entire Board
shall be necessary and sufficient to constitute a quorum for
the transaction of business at any
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meeting of the Board, and the act of a majority of such quorum
shall be deemed the act of the Board, except as otherwise
provided in the By-Laws and except that, until the third
anniversary of the effective time of the merger (the "Effective
Time") contemplated in the Agreement and Plan of Merger, dated
as of May 27, 1997 (the "Merger Agreement"), between the
Corporation and HFS, a Delaware corporation, the affirmative
vote of 80% of the entire Board shall be required to change the
size of the Board of Directors or for the Board to amend or
modify, or adopt any provision inconsistent with, or repeal
this Section 7.
Less than a quorum may adjourn any meeting of the
Board from time to time without notice.
Section 8. Participation In Meetings By Conference Telephone.
Members of the Board, or of any committee thereof,
may participate in a meeting of such Board or 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 shall
constitute presence in person at such meeting.
Section 9. Powers.
The business, property and affairs of the Corporation
shall be managed by or under the direction of its Board of
Directors, which shall have and may exercise all the powers of
the Corporation to do all such lawful acts and things as are
not by law, or by the Certificate of Incorporation, or by these
By-Laws, directed or required to be exercised or done by the
stockholders.
Section 10. Compensation of Directors.
Directors shall receive such compensation for their
services as shall be determined by a majority of the entire
Board provided that Directors who are serving the Corporation
as officers or employees and who receive compensation for their
services as such officers or employers shall not receive any
salary or other compensation for their services as Directors.
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ARTICLE IV
Officers
Section 1. Number.
(a) General. The officers of the Corporation shall
be appointed or elected (i) in the manner set forth in this
Article IV and (ii) to the extent not so set forth, by the
Board of Directors. The officers shall be a Chairman of the
Board, a President and Chief Executive Officer, one or more
Vice Chairmen of the Board, a Chief Financial Officer, a
General Counsel, such number of vice presidents as the Board
may from time to time determine and a Secretary. The Chairman
of the Board or, in his absence or if such office be vacant,
the President, shall preside at all meetings of the
stockholders and of the Board. In the absence of the Chairman
of the Board and the President, a Vice Chairman of the Board
shall preside at all meetings of the stockholders and of the
Board. Any person may hold two or more offices, other than the
offices of Chairman of the Board and Vice Chairman of the
Board, at the same time. Subject to this Section 1, the
Chairman of the Board and the Vice Chairmen of the Board shall
be chosen from among the Board of Directors, but the other
officers need not be members of the Board.
(b) Chairman of the Board. The Chairman of the
Board shall be a member of the Board of Directors and shall be
an officer of the Corporation. Mr. Forbes will be Chairman of
the Board from and after the Effective Time and until January
1, 2000, at which time Mr. Silverman will be Chairman of the
Board. If, for any reason Mr. Forbes ceases to serve as
Chairman of the Board prior to January 1, 2000 and at such time
Mr. Silverman is President and Chief Executive Officer, Mr.
Silverman shall become Chairman of the Board.
(c) President and Chief Executive Officer. The
President and Chief Executive Officer shall be a member of the
Board of Directors and an officer of the Corporation. The
President and Chief Executive Officer shall be the chief
executive officer of the Corporation and shall supervise,
coordinate and manage the Corporation's business and activities
and supervise, coordinate and manage its operating expenses and
capital allocation, shall have general authority to exercise
all the powers necessary for the President and Chief Execu-
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tive Officer of the Corporation and shall perform such other
duties and have such other powers as may be prescribed by the
Board or these By-laws, all in accordance with basic policies
as established by and subject to the oversight of the Board.
In the absence or disability of the Chairman of the Board, the
duties of the Chairman of the Board shall be performed and the
Chairman of the Board's authority may be exercised by the
President and Chief Executive Officer. Mr. Silverman will be
President and Chief Executive Officer from and after the
Effective Time and until January 1, 2000, at which time Mr.
Forbes will be President and Chief Executive Officer. If, for
any reason Mr. Silverman ceases to serve as President and Chief
Executive Officer prior to January 1, 2000 and at such time Mr.
Forbes is Chairman of the Board, Mr. Forbes shall become
President and Chief Executive Officer.
(d) Chief Financial Officer. The Chief Financial
Officer shall have responsibility for the financial affairs of
the Corporation and shall exercise supervisory responsibility
for the performance of the duties of the Treasurer and the
Controller. The Chief Financial Officer shall perform such
other duties and have such other powers as may be prescribed by
the Board or these By-laws, all in accordance with basic
policies as established by and subject to the oversight of the
Board, the Chairman of the Board and the President and Chief
Executive Officer.
(e) General Counsel. The General Counsel shall have
responsibility for the legal affairs of the Corporation and for
the performance of the duties of the Secretary. The General
Counsel shall perform such other duties and have such other
powers as may be prescribed by the Board or these By-laws, all
in accordance with basic policies as established by and subject
to the oversight of the Board, the Chairman of the Board and
the President and Chief Executive Officer.
(f) Until January 1, 2002, any amendment to or
modification or repeal of, or adoption of any provision
inconsistent with, this Section 1, by the Board shall require
the affirmative vote of 80% of the entire Board.
Section 2. Additional Officers.
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The Board may appoint such other officers, agents and
employees as it shall deem appropriate. All references in
these By-laws to a particular officer shall be deemed to refer
to the person holding such office regardless of whether such
person holds additional offices.
Section 3. Terms of Office.
(a) Subject to Section 1 of this Article IV and this
Section 3, all officers, agents and employees of the
Corporation shall hold their respective offices or positions at
the pleasure of the Board of Directors and may be removed at
any time by the Board of Directors with or without cause.
(b) Until January 1, 2002, the removal of Mr. Forbes
or Mr. Silverman from the positions specifically provided for
in the employment agreements between the Corporation and Mr.
Forbes and HFS and Mr. Silverman, which are expressly
contemplated by Section 5.17(b) of the Merger Agreement
(including by means of a breach of such employment agreements)
shall require the affirmative vote of 80% of the entire Board.
(c) Until January 1, 2002, any amendment to or
modification or repeal of, or the adoption of any provision
inconsistent with, this Section 3 of this Article IV by the
Board or any modification to either of the respective roles,
duties or authority of Messrs. Forbes and Silverman shall
require the affirmative vote of 80% of the entire Board.
Section 4. Duties.
Except as provided in Sections 1 or 3 of this Article
IV, the officers, agents and employees shall perform the duties
and exercise the powers usually incident to the offices or
positions held by them respectively, and/or such other duties
and powers as may be assigned to them from time to time by the
Board of Directors or the Chief Executive Officer.
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ARTICLE V
Committees of the Board of Directors
Section 1. Designation.
The Board of Directors of the Corporation shall have
the following committees:
(a) An Executive Committee (which will also act as
the nominating committee) which will consist of eight
Directors. Until the third anniversary of the Effective Time,
the Executive Committee shall have the full and exclusive power
and authority, subject to Section 3(b) of this Article V, to
evaluate director candidates for election to the Board and
committees of the Board, to nominate directors for election to
the Board at any annual or special meeting of stockholders and
to elect directors to fill vacancies (x) on the Board in be-
tween stockholder meetings or (y) on any committee of the Board
(to the extent an alternate member has not been previously
designated by the Board), in each case pursuant to Section 9(d)
of the Certificate of Incorporation. By establishing the
Executive Committee, the Board shall have delegated exclusively
to the Executive Committee its authority with respect to such
matters until the third anniversary of the Effective Time and
the Board shall have no authority to nominate or elect
Directors unless this Section 1 is amended in accordance with
Section 1(d) of this Article V. Subject to the preceding two
sentences, the Executive Committee shall have and may exercise
all of the powers of the Board of Directors when the Board is
not in session, including the power to authorize the issuance
of stock, except that the Executive Committee shall have no
power to (i) alter, amend or repeal these By-Laws or any
resolution or resolutions of the Board of Directors; (ii)
declare any dividend or make any other distribution to the
stockholders of the Corporation; (iii) appoint any member of the
Executive Committee; or (iv) take any other action which legally
may be taken only by the Board. The Chairman of the Board will
also serve as Chairman of the Executive Committee. Six of the
members of the Executive Committee will, to the extent
practicable, be officers of the Corporation and the remaining
members will be independent Directors. Each resolution of the
Executive Committee will require approval by at least five
members of such Committee, provided, that, until the third
anniversary of the Effective
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Time, any resolution regarding the filling of a Board vacancy
in between stockholder meetings, the filling of a vacancy on
any committee of the Board or the nomination of a director for
election at any annual or special meetings of stockholders in a
manner that (1) is consistent with Section 3(b) of this Article
V will require the approval by only three members of the
Executive Committee (or only two members if there are then two
vacancies on the Executive Committee) or (2) is inconsistent
with Section 3(b) of this Article V will require approval by at
least seven members of the Executive Committee.
(b) A Compensation Committee which will consist of
four Directors. The Compensation Committee will have the
following powers and authority: (i) determining and fixing the
compensation for all senior officers of the Corporation and
those of its subsidiaries that the Compensation Committee shall
from time to time consider appropriate, as well as all
employees of the Corporation and its subsidiaries compensated
at a rate in excess of such amount per annum as may be fixed or
determined from time to time by the Board; (ii) performing the
duties of the committees of the Board provided for in any
present or future stock option, incentive compensation or
employee benefit plan of the Corporation or, if the Compensa-
tion Committee shall so determine, any such plan of any
subsidiary; and (iii) reviewing the operations of and policies
pertaining to any present or future stock option, incentive
compensation or employee benefit plan of the Corporation or any
subsidiary that the Compensation Committee shall from time to
time consider appropriate. Each resolution of the Compensation
Committee will require approval by at least three members of
such committee.
(c) An Audit Committee will consist of four
Directors. The Audit Committee will have the following powers
and authority: (i) employing independent public accountants to
audit the books of account, accounting procedures, and
financial statements of the Corporation and to perform such
other duties from time to time as the Audit Committee may
prescribe; (ii) receiving the reports and comments of the
Corporation's internal auditors and of the independent public
accountants employed by the Audit Committee and to take such
action with respect thereto as may seem appropriate; (iii)
requesting the Corporation's consolidated subsidiaries and
affiliated
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companies to employ independent public accountants to audit
their respective books of account, accounting procedures, and
financial statements; (iv) requesting the independent public
accountants to furnish to the Compensation Committee the
certifications required under any present or future stock
option, incentive compensation or employee benefit plan of the
Corporation; (v) reviewing the adequacy of internal financial
controls; (vi) approving the accounting principles employed in
financial reporting; (vii) approving the appointment or removal
of the Corporation's general auditor; and (viii) reviewing the
accounting principles employed in financial reporting. Each
resolution of the Audit Committee will require approval by at
least three members of such committee.
(d) Until the third anniversary of the Effective
Time, any amendment to or modification or repeal of, and the
adoption of any provision inconsistent with, this Section 1 by
the Board or the designation by the Board of any additional
committees, shall require the affirmative vote of 80% of the
entire Board.
Section 2. Meetings; Notice.
Regular meetings of committees shall be held at such
times and places as the Board or the committee in question may
from time to time determine. Special meetings of any committee
may be called at any time, at any place and for any purpose by
the Chairman of such committee, the Chairman of the Board, or
the President, or by any officer of the Corporation upon the
request of a majority of the members of such committee. Notice
of regular meetings of the committees need not be given. Notice
of every special meeting of any committee shall be given to
each member at his usual place of business, or at such other
address as shall have been furnished by him for the purpose.
Such notice shall be given at least twenty-four hours before
the meeting by telephone or by being personally delivered,
mailed, or telegraphed. Such notice need not include a
statement of the business to be transacted at, or the purpose
of, any such meeting.
Section 3. Committee Members; Board of Director Nominations.
(a) Subject to the terms of Section 3(b) of this
Article V:
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(i) Each member of any committee of the Board shall
hold office until such member's successor is elected and has
qualified, unless such member sooner dies, resigns or is
removed.
(ii) Until the third anniversary of the Effective
Time, the Board may remove a director from a committee or
change the chairmanship of a committee only by resolution
adopted by the affirmative vote of 80% of the entire Board.
(iii) The Board may designate one or more Directors
as alternate members of any committee to fill any vacancy on a
committee and to fill a vacant chairmanship of a committee,
occurring as a result of a member or chairman leaving the
committee, whether through death, resignation, removal or
otherwise. Any such designation may only be made or amended by
the affirmative vote of 80% of the entire Board.
(b) Until the third anniversary of the Effective
Time:
(i) The members of the Executive Committee will
consist of four CUC Directors (as defined below) and four HFS
Directors (as defined below); the members of the Compensation
Committee will consist of two CUC Directors and two HFS
Directors; and the members of the Audit Committee will consist
of two CUC Directors and two HFS Directors.
(ii) If the number of CUC Directors and HFS
Directors serving, or that would be serving following the next
stockholders' meeting at which Directors are to be elected, as
Directors of the Corporation or as members of any committee of
the Board would not be equal, then, the Executive Committee
shall promptly nominate Directors for election to the Board at
the next stockholders' meeting at which Directors are to be
elected to the Board, elect Directors to fill vacancies on the
Board in between stockholders' meetings or elect Directors to
fill vacancies on any committee of the Board (to the extent an
alternate member has not previously been designated by the
Board), as the case may be, by resolution adopted in accordance
with Section 1(a)
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of Article V and as provided in clause (iv) of this Section
3(b).
(iii) The CUC Directors shall designate the Chairman
of the Audit Committee and the HFS Directors shall designate
the Chairman of the Compensation Committee.
(iv) Nominations of Directors for election to the
Board at any annual or special meeting of stockholders, the
election of Directors to fill vacancies on the Board in between
stockholders' meetings or the election of Directors to fill
vacancies on any committee of the Board (to the extent an
alternate member has not been previously designated by the
Board) shall be undertaken by the Executive Committee such that
the number of HFS Directors and CUC Directors on the Board or
any committee of the Board shall be equal. The term "HFS
Director" means (A) any person serving as a Director of HFS on
May 27, 1997 (or any person appointed by the Board of Directors
of HFS after May 27, 1997 to fill a vacancy on the HFS Board
created other than due to an increase in the size of the Board
of Directors of HFS) who continues as a Director of CUC at the
Effective Time and (B) any person who becomes a Director of CUC
and who was designated as such by the remaining HFS Directors
prior to his or her election; and the term "CUC Director" means
(A) any person serving as a Director of CUC on May 27, 1997 (or
any person appointed by the Board of Directors of CUC after May
27, 1997 to fill a vacancy on the CUC Board created other than
due to an increase in the size of the Board of Directors of
CUC) who continues as a Director of CUC at the Effective Time,
(B) any of the four persons designated by the CUC Directors to
become a Director of CUC at the Effective Time and (C) any
person who becomes Director of CUC and who was designated as
such by the remaining CUC Directors prior to his or her
election.
Section 4. Amendments.
Notwithstanding anything contained in these By-Laws
or the Certificate of Incorporation to the contrary and in
addition to any other requirement set forth herein and therein,
until the third anniversary of the Effective
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Time, the affirmative vote of at least 80% of the entire Board
shall be required for the Board to amend, modify or repeal, or
adopt any provision inconsistent with, the provisions of this
Article V.
ARTICLE VI
Indemnification of Directors, Officers and Employees
Section 1. Power to Indemnify in Actions, Suits or Proceedings
other than Those by or in the Right of the Corporation.
Subject to Section 3 of this Article VI, the
Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that such
person is or was a director or officer of the Corporation, or
is or was a director or officer of the Corporation serving at
the request of the Corporation as a director or officer,
employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise,
against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or
proceeding if such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to
believe such person's conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which such
person reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that such
person's conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings
by or in the Right of the Corporation.
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Subject to Section 3 of this Article VI, the
Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation
to procure a judgment in its favor by reason of the fact that
such person is or was a director or officer of the Corporation,
or is or was a director or officer of the Corporation serving
at the request of the Corporation as a director, officer, em-
ployee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise
against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the
defense or settlement of such action or suit if such person
acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless
and only to the extent that the Court of Chancery or the court
in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem
proper.
Section 3. Authorization of Indemnification.
Any indemnification under this Article VI (unless
ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the
circumstances because such person has met the applicable
standard of conduct set forth in Section 1 or Section 2 of this
Article VI, as the case may be. Such determination shall be
made (i) by a majority vote of the Directors who are not
parties to such action, suit or proceeding, even though less
than a quorum, or (ii) if there are no such Directors, or if
such Directors so direct, by independent legal counsel in a
written opinion or (iii) by the stockholders. To the extent,
however, that a director or officer of the Corporation has been
successful on the merits or otherwise in defense of any action,
suit or proceeding described above, or in defense of any claim,
issue or matter there-
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in, such person shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by
such person in connection therewith, without the necessity of
authorization in the specific case.
Section 4. Good Faith Defined.
For purposes of any determination under Section 3 of
this Article VI, a person shall be deemed to have acted in good
faith and in a manner such person reasonably believed to be in
or not opposed to the best interests of the Corporation, or,
with respect to any criminal action or proceeding, to have had
no reasonable cause to believe such person's conduct was
unlawful, if such person's action is based on the records or
books of account of the Corporation or another enterprise, or
on information supplied to such person by the officers of the
Corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the Corporation
or another enterprise or on information or records given or
reports made to the Corporation or another enterprise by an
independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Corporation
or another enterprise. The term "another enterprise" as used
in this Section 4 shall mean any other corporation or any part-
nership, joint venture, trust, employee benefit plan or other
enterprise of which such person is or was serving at the
request of the Corporation as a director, officer, employee or
agent. The provisions of this Section 4 shall not be deemed to
be exclusive or to limit in any way the circumstances in which
a person may be deemed to have met the applicable standard of
conduct set forth in Section 1 or 2 of this Article VI, as the
case may be.
Section 5. Indemnification by a Court.
Notwithstanding any contrary determination in the
specific case under Section 3 of this Article VI, and
notwithstanding the absence of any determination thereunder,
any director or officer may apply to the Court of Chancery in
the State of Delaware for indemnification to the extent
otherwise permissible under Sections 1 and 2 of this Article
VI. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the
director or officer is proper in the circumstances because such
person has met the appli-
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cable standards of conduct set forth in Section 1 or 2 of this
Article VI, as the case may be. Neither a contrary
determination in the specific case under Section 3 of this
Article VI nor the absence of any determination thereunder
shall be a defense to such application or create a presumption
that the director or officer seeking indemnification has not
met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5
shall be given to the Corporation promptly upon the filing of
such application. If successful, in whole or in part, the
director or officer seeking indemnification shall also be
entitled to be paid the expense of prosecuting such
application.
Section 6. Expenses Payable in Advance.
Expenses incurred by a director or officer in
defending any civil, criminal, administrative or investigative
action, suit or proceeding shall be paid by the Corporation in
advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if it shall
ultimately be determined that such person is not entitled to be
indemnified by the Corporation as authorized in this Article
VI.
Section 7. Nonexclusivity of Indemnification and Advancement
of Expenses.
The indemnification and advancement of expenses
provided by or granted pursuant to this Article VI shall not be
deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled
under the Certificate of Incorporation, any By-Law, agreement,
vote of stockholders or disinterested Directors or otherwise,
both as to action in such person's official capacity and as to
action in another capacity while holding such office, it being
the policy of the Corporation that indemnification of the
persons specified in Sections 1 and 2 of this Article VI shall
be made to the fullest extent permitted by law. The provisions
of this Article VI shall not be deemed to preclude the
indemnification of any person who is not specified in Section 1
or 2 of this Article VI but whom the Corporation has the power
or obligation to indemnify under the provisions of the General
Corporation Law of the State of Delaware, or otherwise.
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Section 8. Insurance.
The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director or officer of
the Corporation, or is or was a director or officer of the
Corporation serving at the request of the Corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or
other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or
arising out of such person's status as such, whether or not the
Corporation would have the power or the obligation to indemnify
such person against such liability under the provisions of this
Article VI.
Section 9. Certain Definitions.
For purposes of this Article VI, references to "the
Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would
have had power and authority to indemnify its Directors or
officers, so that any person who is or was a director or
officer of such constituent corporation, or is or was a
director or officer of such constituent corporation serving at
the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enter-
prise, shall stand in the same position under the provisions of
this Article VI with respect to the resulting or surviving
corporation as such person would have with respect to such
constituent corporation if its separate existence had
continued. For purposes of this Article VI, references to
"fines" shall include any excise taxes assessed on a person
with respect to an employee benefit plan; and references to
"serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by,
such director or officer with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted
in good faith and in a manner such person reasonably believed
to be in the interest of the participants and beneficiaries of
an employee benefit plan shall be deemed
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to have acted in a manner "not opposed to the best interests of
the Corporation" as referred to in this Article VI.
Section 10. Survival of Indemnification and Advancement of
Expenses.
The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article VI shall,
unless otherwise provided when authorized or ratified, continue
as to a person who has ceased to be a director or officer and
shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 11. Limitation on Indemnification.
Notwithstanding anything contained in this Article VI
to the contrary, except for proceedings to enforce rights to
indemnification (which shall be governed by Section 5 hereof),
the Corporation shall not be obligated to indemnify any
director or officer in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding (or
part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 12. Indemnification of Employees and Agents.
The Corporation may, to the extent authorized from
time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees
and agents of the Corporation similar to those conferred in
this Article VI to Directors and officers of the Corporation.
ARTICLE VII
Seal
Section 1.
The Corporate seal shall bear the name of the
Corporation and the words "Corporate Seal, Delaware."
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ARTICLE VIII
Amendments
Section 1. Amendments of By-Laws.
Subject to the provisions of the Certificate of
Incorporation, these By-Laws may be altered, amended or
repealed at any regular meeting of the stockholders (or at any
special meeting thereof duly called for that purpose) by the
vote of a majority of the shares outstanding and entitled to
vote at such meeting; provided that in the notice of such
special meeting notice of such purpose shall be given. Subject
to the laws of the State of Delaware, the provisions of
Certificate of Incorporation and the provisions of these By-
Laws (including, without limitation, the greater vote
requirement set forth in Section 7 of Article III, Sections 1
and 3 of Article IV and Sections 1 and 4 of Article V hereof),
the Board of Directors may by majority vote of those present at
any meeting at which a quorum is present amend these By-Laws,
or enact such other bylaws as in their judgment may be
advisable for the regulation of the conduct of the affairs of
the Corporation.
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