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EXHIBIT 3.4
FORM OF AMENDED AND RESTATED BY-LAWS
PENNZOIL-QUAKER STATE COMPANY
ARTICLE 1
STOCKHOLDERS' MEETINGS
Section 1. ANNUAL MEETING. The annual meeting of the stockholders
shall be held at 10:00 a.m., Houston time on the fourth Thursday in April in
each year at the principal office of the Corporation or at such other date,
time or place as may be designated by resolution of the Board of Directors.
Section 2. SPECIAL MEETINGS. Subject to the provisions of the
Certificate of Incorporation (the "Certificate"), special meetings of the
stockholders may be called only by the Chairman of the Board of Directors, the
President, or by the Board of Directors pursuant to a resolution adopted by a
majority of the then-authorized number of directors.
Section 3. NOTICE. Notice of all meetings of the stockholders
shall be given by mailing to each stockholder, at least ten days, or such
greater number of days as shall be required by law, before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. QUORUM. The presence in person or by proxy of the
holders of a majority of the voting power of the then-outstanding shares of
Voting Stock (as defined in the Certificate) on the record date, as herein
determined, shall constitute a quorum at all meetings of stockholders for the
transaction of any business, but, in the absence of a quorum, the holders of a
smaller number of shares of Voting Stock may adjourn a meeting from time to
time, without further notice (unless otherwise required herein or by law),
until a quorum is secured. Unless otherwise provided in the Certificate, at
each annual or special meeting of stockholders, each stockholder shall be
entitled to one vote, either in person or by proxy, for each share of Common
Stock registered in the stockholder's name on the books of the Corporation on
the record date for any such meeting as determined herein.
Section 5. ADJOURNMENT. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and, unless otherwise required by law and subject to the provisions
hereof, notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Corporation may transact any business that
might have been transacted at the original meeting. 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 stockholder of record entitled to vote at the meeting.
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Section 6. PROCEDURES. Meetings of stockholders shall be presided
over by the Chairman of the Board or in his absence by the President, or in his
absence by a Vice President, or in the absence of the foregoing persons by a
chairman designated by the Board of Directors, or in the absence of such
designation by a chairman chosen at the meeting. The Secretary of the
Corporation shall act as secretary of the meeting, but in his absence the
chairman of the meeting may appoint any person to act as secretary of 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 shall be
announced at the meeting by the person presiding over the meeting. The Board
of Directors of the Corporation may adopt by resolution such rules and
regulations for the conduct of the meeting of stockholders as it shall deem
appropriate. Except to the extent inconsistent with such rules and regulations
as adopted by the Board of Directors, the chairman of any meeting of
stockholders shall have the right and authority to prescribe such rules,
regulations and procedures and to do all such acts as, in the judgment of such
chairman, are appropriate for the proper conduct of the meeting. Such rules,
regulations or procedures, whether adopted by the Board of Directors or
prescribed by the chairman of the meeting, may include, without limitation,
the following: (i) the establishment of an agenda or order of business for the
meeting; (ii) rules and procedures for maintaining order at the meeting and the
safety of those present; (iii) limitations on attendance at or participation in
the meeting to stockholders of record of the Corporation, their duly authorized
and constituted proxies or such other persons as the chairman of the meeting
shall determine; (iv) restrictions on entry to the meeting after the time fixed
for the commencement thereof; and (v) limitations on the time allotted to
questions or comments by participants. Unless and to the extent determined by
the Board of Directors or the chairman of the meeting, meetings of
stockholders shall not be required to be held in accordance with the rules of
parliamentary procedure.
Section 7. PROXIES; REQUIRED VOTE. Each stockholder entitled to
vote at a meeting of stockholders may authorize another person or persons to
act for him by proxy, but no such proxy shall be voted or acted upon after
three years from its date, unless the proxy provides for a longer period. A
duly executed proxy shall be irrevocable if it states that it is irrevocable
and if, and only as long as, it is coupled with an interest sufficient in law
to support an irrevocable power. A stockholder may revoke any proxy which is
not irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or another duly executed proxy bearing
a later date with the Secretary of the corporation. At all meetings of
stockholders for the election of directors, a plurality of the voting power of
the Voting Stock present at the meeting shall be sufficient to elect. In the
case of a matter submitted for action by the stockholders at the direction of
the Board of Directors as to which a stockholder approval requirement is
applicable under a rule or policy of a national stock exchange or any provision
of the Internal Revenue Code, in each case for which no higher voting
requirement is specified by law, the Certificate or these By-laws, the vote
required for approval shall be the requisite vote specified in such rule or
policy or Internal Revenue Code provision, as the case may be (or the highest
such requirement if more than one is applicable). For approval of the
appointment of independent public accountants (if submitted for a vote at the
direction of the Board of Directors), the vote required for approval shall be a
majority of the votes
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cast on the matter. All other elections and questions shall, unless otherwise
provided by law, the Certificate or these By-laws, be decided by the vote of
the holders of shares of stock having a majority of the voting power of the
then-outstanding shares of Voting Stock.
Section 8. NOMINATIONS. Except for directors elected by the
holders of any series of Preferred Stock as provided for or fixed pursuant to
the provisions of Article V of the Certificate, or for directors otherwise
elected pursuant to the provisions of Section C of Section VI of the
Certificate, only individuals nominated for election to the Board of Directors
pursuant to and in accordance with the provision of this Section 8 may be
elected to and may serve upon the Board of Directors of the Corporation.
Subject to the rights of holders of any series of Preferred Stock of the
Corporation to elect directors under specified circumstances, nominations for
the election of directors may be made only (i) by or at the direction of the
Board of Directors (or any duly authorized committee thereof) or (ii) by any
stockholder of record entitled to vote in the election of directors generally
who complies with the procedures set forth in this Section 8. Subject to the
foregoing, only a stockholder of record entitled to vote in the election of
directors generally may nominate persons for election as a director at a
meeting of stockholders and only if written notice of such stockholder's intent
to make a nomination or nominations has been given, either by personal delivery
or by United States mail, postage prepaid, to the Secretary of the Corporation
and has been received by the Secretary at the principal executive offices of
the Corporation, (i) with respect to an election to be held at an annual
meeting of stockholders not less than 90 days nor more than 120 days prior to
the anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the annual meeting is
called for a date that is not within 30 days before or after such anniversary
date, notice by the stockholder, in order to be timely, must be so received not
later than the close of business on the tenth business day following the day on
which such notice of such meeting is first mailed by the Corporation to
stockholders or public disclosure of the date of the annual meeting was made,
whichever first occurs; 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 business day following the date on which notice of such
meeting is first mailed by the Corporation to stockholders or public disclosure
of the date and purpose of such special meeting was made, whichever first
occurs. In no event shall the public disclosure of an adjournment or
postponement of a meeting commence a new time period for the giving of a
stockholder's notice as described above.
To be in proper written form, a stockholder's notice to the
Secretary must set forth (a) as to each person whom the stockholder proposes to
nominate for 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 class or series and number of shares of capital stock
of the Corporation which are owned beneficially or of record, if any, by such
person and (iv) any other information relating to such person that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations promulgated thereunder; and (b)
as to the stockholder giving the notice (i) the name and record address of such
stockholder, (ii) the number of shares of each class or series of capital
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stock of the Corporation that are owned beneficially or of record by such
stockholder, (iii) a description of all arrangements or understandings between
such stockholder and each proposed nominee and any other person or persons
(including their names) pursuant to which the nomination(s) are to be made by
such stockholder, (iv) a representation that such stockholder intends to appear
in person or by proxy at the meeting to nominate the persons named in its
notice and (v) any other information relating to such stockholder that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of the directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. To be effective, such notice must be accompanied by a
written consent of each proposed nominee to be named as a nominee and to serve
as a director if elected.
The chairman of the meeting shall, if the facts warrant, determine
that a nomination was not properly brought before the meeting in accordance with
the provisions hereof and, if he should so determine, he shall declare to the
meeting that such nomination was not properly brought before the meeting and
shall not be considered.
Notwithstanding anything in the first paragraph of this Section 8 to
the contrary, in the event that the number of directors to be elected to the
Board of Directors of the Corporation is increased and there is no public
disclosure by the Corporation naming all of the nominees for director or
specifying the size of the increased Board of Directors at least 100 days prior
to the first anniversary of the preceding year's annual meeting, a
stockholder's notice required by this Section 8 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 later than the close of business on the tenth
business day following the day on which such public disclosure is first made by
the Corporation.
Nothing in this Section 8 shall be interpreted or construed to
require the inclusion of information about any such nominee in any proxy
statement distributed by, at the direction of, or on behalf of the Board or the
Corporation.
For purposes of this Section 8 and Section 9 of these by-laws,
"public disclosure" shall mean disclosure in a press release reported by the
Dow Jones News Service, Associated Press, PR Newswire, Bloomberg or comparable
national news service or in a document publicly filed by the Corporation with
the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of
the Exchange Act.
Section 9. PROPER BUSINESS. At a meeting of the stockholders, only
such business shall be conducted as shall be a proper subject for the meeting
and shall have been properly brought before the meeting. To be properly
brought before a meeting, business must (a) be specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board
of Directors (or any duly authorized committee thereof), (b) otherwise be
properly brought before the meeting by or at the direction of the Board of
Directors (or any duly authorized committee thereof), or (c) otherwise (i) be
properly requested to be brought before the meeting by a stockholder of record
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entitled to vote in the election of directors generally, in compliance with the
provisions of this Section 9; and (ii) constitute a proper subject to be
brought before such meeting. For business to be properly brought before a
meeting of stockholders, any stockholder who intends to bring any matter (other
than the election of directors) before a meeting of stockholders and is
entitled to vote on such matter must deliver written notice of such
stockholder's intent to bring such matter before the meeting of stockholders,
either by personal delivery or by United States mail, postage prepaid, to the
Secretary of the Corporation. Such notice must be received by the Secretary,
with respect to an annual meeting of stockholders, not less than 90 days nor
more than 120 days prior to the anniversary date of the immediately preceding
annual meeting of shareholders; provided, however, that in the event that the
annual meeting is called for a date that is not within 30 days before or after
such anniversary date, notice by the stockholder, in order to be timely, must
be so received not later than the close of business on the tenth business day
following the day on which such notice of such meeting is first mailed by the
Corporation to stockholders or public disclosure (as defined in Section 8) of
the date of the annual meeting was made, whichever first occurs. In no event
shall the public disclosure of an adjournment of a meeting commence a new time
period for the giving of a stockholder's notice as described above.
To be in proper written form, a stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the meeting of stockholders (a) a brief description of the business
desired to be brought before the meeting and the reasons for conducting such
business at the meeting (which, in case the proposal is for any alteration,
amendment, rescission or repeal of these By-laws, shall include the text of the
resolution which will be proposed to implement the same), (b) the name and
record address of the stockholder proposing such business, (c) the number of
shares of each class or series of capital stock of the Corporation that are
owned beneficially or of record by such stockholder, (d) a description of all
arrangements or understandings between such stockholder and any other person or
persons (including their names) in connection with the proposal of such
business by such stockholder and any material interest of such stockholder in
such business and (e) a representation that such stockholder intends to appear
in person or by proxy at the annual meeting to bring such business before the
meeting. No business shall be conducted at a meeting of stockholders except in
accordance with the procedures set forth in this Section 9.
The chairman of a meeting shall, if the facts warrant, determine that
(i) the business proposed to be brought before a meeting is not a proper subject
therefor and/or (ii) such business was not properly brought before the meeting
in accordance with the provisions hereof and, if he should so determine, he
shall declare to the meeting that (i) the business proposed to be brought
before a meeting is not a proper subject therefor and/or (ii) such business was
not properly brought before the meeting and shall not be transacted.
Nothing in this Section 9 shall be interpreted or construed to
require the inclusion of information about any such proposal in any proxy
statement distributed by, at the direction of, or on behalf of the Board or
the Corporation.
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Section 10. STOCKHOLDER LIST. The Secretary shall cause to be
prepared and made, 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 stockholder and the number
of shares registered in the name of each 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 also
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 11. PROPER BUSINESS - SPECIAL MEETING. At any special
meeting of stockholders, only such business shall be conducted as shall have
been stated in the notice of such meeting.
Section 12. INSPECTORS OF ELECTION. The Corporation shall, in
advance of any meeting of stockholders, appoint one or more inspectors of
election, who may be employees of the Corporation, to act at the meeting or
any adjournment thereof and to make a written report thereof. The Corporation
may designate one or more persons as alternate inspectors to replace any
inspector who fails to act. In the event that no inspector so appointed or
designated is able to act at a meeting of stockholders, the person presiding at
the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of his or her duties, shall take
and sign an oath to execute faithfully the duties of inspector with strict
impartiality and according to the best of his or her ability.
The inspector or inspectors so appointed or designated shall (i)
ascertain the number of shares of capital stock of the Corporation outstanding
and the voting power of each such share, (ii) determine the shares of capital
stock of the Corporation represented at the meeting and the validity of
proxies and ballots, (iii) count all votes and ballots, (iv) determine and
retain for a reasonable period a record of the disposition of any challenges
made to any determination by the inspectors, and (v) certify their
determination of the number of shares of capital stock of the Corporation
represented at the meeting and such inspectors' count of all votes and ballots.
Such certification and report shall specify such other information as may be
required by law. In determining the validity and counting of proxies and
ballots cast at any meeting of stockholders of the Corporation, the inspectors
may consider such information as is permitted by applicable law. No person who
is a candidate for an office at an election may serve as an inspector at such
election.
ARTICLE 2
DIRECTORS
Section 1. MANAGEMENT. The affairs and business of the Corporation
shall be managed by or under the direction of the Board of Directors.
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Section 2. NUMBER. The authorized number of directors that shall
constitute the Board of Directors shall be fixed from time to time by or
pursuant to a resolution passed by a majority of the Board within the
parameters set by the Certificate.
Section 3. QUALIFICATION. Except as provided in these By-laws or
as otherwise required by law, there shall be no qualifications for directors of
the Corporation.
Section 4. MEETINGS. The Board of Directors shall meet at the
principal office of the Corporation or elsewhere in its discretion at such
times to be determined by a majority of its members, or at the call of the
Chairman of the Board or the President.
Section 5. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called at any time by the Chairman of the Board or by the
President, and shall be called upon the written request of a majority of the
then-authorized number of directors.
Section 6. QUORUM. Unless otherwise provided by law, a majority of
the directors elected and qualified shall be necessary to constitute a quorum
for the transaction of business at any meeting of the Board of Directors.
Section 7. NOTICE. Written notice of any special meeting of the
Board of Directors, and of any change in the time or place of any regular
meeting of the Board of Directors, shall be given to each director addressed or
directed to him at his residence or usual place of business, by telegram,
cablegram, facsimile transmission or other means of electronic transmission,
or shall be given to him personally or by telephone, not later than the day
before the day on which the meeting is to be held. Such notice shall state the
time and place of such meeting, but need not state the purpose or purposes for
which the meeting is called, unless otherwise required by statute.
Section 8. VACANCIES. Subject to the provisions of the
Certificate, newly created directorships resulting from any increase in the
number of directors and any vacancies on the Board resulting from death,
resignation, disqualification, removal or other cause shall be filled only by
the affirmative vote of a majority of the remaining directors then in office,
even though less than a quorum. Any director elected pursuant hereto shall
hold office for the remainder of the full term of the class of directors in
which the new directorship was created or in which the vacancy occurred, and
until such director's successor shall have been elected and qualified.
Section 9. REMOVAL. The Board of Directors may at any time remove,
with or without cause, any member of any Committee appointed by it or any
officer elected by it and may appoint or elect his successor.
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ARTICLE 3
COMMITTEES OF THE BOARD OF DIRECTORS
Section 1. EXECUTIVE COMMITTEE.
(A) COMPOSITION. The Executive Committee shall be composed of at
least two members who shall be selected by the Board of Directors from its own
members and who shall hold office at the pleasure of the Board.
(B) POWERS. The Executive Committee shall have and may exercise,
to the fullest extent permitted by law, all the powers of the Board of
Directors when it is not in session in the management of the business and
affairs of the Corporation to transact all business for and on behalf of the
Corporation that may be brought before it.
(C) MEETINGS. The Executive Committee shall meet at the principal
office of the Corporation or elsewhere in its discretion at such times to be
determined by a majority of its members. A majority of its members shall be
necessary to constitute a quorum for the transaction of business. Special
meetings of the Executive Committee may be held at any time when a quorum is
present.
(D) MINUTES. Minutes of each meeting of the Executive Committee
shall be kept and submitted to the Board of Directors at its next meeting.
Section 2. OTHER COMMITTEES.
The Board of Directors may, by resolutions adopted by a majority of
the entire Board, designate one or more of its members to constitute any other
committee or committees with such powers, duties, responsibilities and term of
existence as the Board of Directors shall determine.
Section 3. ABSENCE OR DISQUALIFICATION OF ANY MEMBER OF A
COMMITTEE. In the absence or disqualification of any member of any Committee
created under Article 3 of the By-laws of this Corporation, the member or
members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absent or disqualified member.
ARTICLE 4
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
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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.
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 be the chief executive officer of the Corporation and shall have general
supervision over the business, affairs, and property of the Corporation and
over its several officers, and shall preside at meetings of the Board and at
meetings of the stockholders. The President shall be the chief operating
officer of the Corporation and shall have such duties as may be assigned to him
by the Board of Directors.
ARTICLE 5
STOCK AND STOCK CERTIFICATES
Section 1. TRANSFER. Shares of stock shall be transferable on the
books of the Corporation, and a transfer book shall be kept in which all
transfers of stock shall be recorded.
Section 2. CERTIFICATES. Every holder of stock shall be entitled
to have a certificate signed by or in the name of the Corporation by the
Chairman of the Board, the President or a Vice President, and by the Treasurer
or an Assistant Treasurer or the Secretary or an Assistant Secretary, of the
Corporation. The corporate seal affixed thereto, and any of or all the
signatures on the certificate, may be a facsimile. In case any officer,
transfer agent, or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer
agent, or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer, transfer agent, or
registrar at the date of issue.
Section 3. RECORD DATE. The Board of Directors is authorized to
fix in advance a record date for the determination of the stockholders entitled
to notice of and to vote at any meeting of stockholders and any adjournment,
or entitled to receive payment of any dividend, or to any allotment of, or to
exercise any rights in respect of any change, conversion or exchange of capital
stock, which record date shall not, unless otherwise required by law, be more
than 60 nor less than 10 days preceding the date of any meeting of stockholders
nor more than 60 days preceding the date for the payment of any dividend, or
the date for the allotment of rights, or the date when any change or conversion
or exchange of capital stock shall go into effect.
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ARTICLE 6
SEAL
The corporate seal of the Corporation shall be in such form as the
Board of Directors shall prescribe.
ARTICLE 7
FISCAL YEAR
The fiscal year of the Corporation shall be the calendar year.
ARTICLE 8
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Directors of the Corporation, other than salaried officers of the
Corporation, shall be paid such reasonable fees for their services and for
attending meetings of the Board of Directors or committees thereof as the Board
of Directors may from time to time determine. Directors may be employed by the
Corporation for such special services as the Board of Directors may from time
to time determine and shall be paid for such special services so performed
reasonable compensation as may be determined by the Board of Directors.
Article 9
INDEMNIFICATION
SECTION 1. The Corporation shall indemnify, and advance Expenses
to, each Indemnitee to the fullest extent permitted by applicable law in effect
on March 23, 1998, and to such greater extent as applicable law may thereafter
permit. The rights of an 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 Delaware General Corporation
Law ("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 an 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 an
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 such Indemnitee against all Expenses actually and reasonably
incurred by him or on his behalf relating
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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. An 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 an Indemnitee shall submit to
the Corporation a written request with such relevant 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, an 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 the 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 the definition 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
the 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, an Indemnitee's entitlement to
indemnification shall be determined in a written opinion by Independent Counsel
selected by the Indemnitee. The Indemnitee shall give the Corporation written
notice advising of the identity and address of the Independent Counsel so
selected. The Corporation may, within seven days after receipt of such written
notice of selection, deliver to the Indemnitee a written objection to such
selection. The 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 seven 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. The 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 the Indemnitee, the 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
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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 the 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 the Indemnitee shall be entitled to such
indemnification unless the 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 an Indemnitee to
indemnification or create a presumption that the 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 the 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 an 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 the Indemnitee to object to his selection, or
(iv) payment of indemnification is not made within five 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, the 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 the 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 the Indemnitee shall not be prejudiced by reason of that adverse
determination.
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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 the 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 the 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 the 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 an Indemnitee, pursuant to this Section 9,
seeks a judicial adjudication to enforce his rights under, or to recover
damages for breach of, this Article, the 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 the Indemnitee is entitled to
receive part but not all of the indemnification or advancement of Expenses
sought, the Expenses incurred by the 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 an Indemnitee may at any time be
entitled under applicable law, the Certificate, these 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:
A "Change of Control", shall be deemed to have occurred if, after
the Public Status Date, (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 Exchange 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 Exchange Act) shall have become the "beneficial owner" (as
defined in Rule 13d-3 under the
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Exchange 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; or (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 or officer 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 9, 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.
"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.
"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
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his selection or appointment has been, retained to represent: (i) the
Corporation or the relevant 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 (a) pursuant to Section 9 of this Article
to enforce his rights under this Article or (b) otherwise than pursuant to
clause (a) of this sentence and not authorized by the Board of Directors.
"Public Status Date" shall mean the first date on which the
Corporation has outstanding a class of equity securities registered under
Section 12 of the Exchange Act.
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 10
AMENDMENTS TO BY-LAWS
Subject to the provisions of the Certificate, and in addition to any
affirmative vote required by law, any alteration, amendment, repeal or
rescission (any "Change") of these By-laws occurring after the Public Status
Date (as defined in Section 12 of Article 9) must be approved either (i) by the
Board of Directors by the affirmative vote of at least a majority of the
then-authorized number of directors or (ii) by the stockholders by the
affirmative vote of the holders of at least 66 2/3% of the combined voting
power of the then-outstanding shares of Voting Stock, voting together as a
single class.
Subject to the foregoing, the Board of Directors of the Corporation
is expressly authorized to make, alter, amend, repeal or rescind the By-laws of
the Corporation.
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