UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
_________________
FORM
8-K
_________________
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date
of
Report (Date of Earliest Event Reported): March 27, 2009
(March 26, 2009)
_________________
Avis
Budget Group, Inc.
(Exact
Name of Registrant as Specified in its Charter)
_________________
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Delaware
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1-10308
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06-0918165
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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6
Sylvan Way
Parsippany,
NJ
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07054
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(Address
of Principal Executive Offices)
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(Zip
Code)
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(973)
496-4700
(Registrant's
telephone number, including area code)
N/A
(Former
name or former address if changed since last report)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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[ ]
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Written
communications pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
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[ ]
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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[ ]
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR
240.14d-2(b))
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[ ]
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR
240.13e-4(c))
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Item
5.03
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Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
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On
March 26, 2009, the Board of
Directors (the "Board") of Avis Budget Group, Inc. (the "Company") approved
the
amendment and restatement in their entirety of the Company’s Amended and
Restated By-Laws (as so amended and restated, the "Amended
By-Laws"). The Amended By-Laws provide for a change to Section
5 of Article II to modify the required vote for stockholder approval of
proposals from the standard set forth in the previous Amended and Restated
By-Laws to the default standard set forth in the General Corporation Law of
the
State of Delaware.
The
foregoing description of the
Amended By-Laws is qualified in its entirety by reference to the Amended
By-Laws, a copy of which is attached as Exhibit 3.2 and incorporated
herein by reference.
(d)
Exhibits.
The
following exhibits are filed as part of this report:
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Exhibit No.
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Description
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3.2
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Amended
and Restated Bylaws of Avis Budget Group, Inc. (as of March 26,
2009)
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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AVIS
BUDGET GROUP, INC.
/s/
Jean M. Sera
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By:
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Jean
M. Sera
Senior
Vice President and Secretary
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Date: March
27,
2009
EXHIBIT
INDEX
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Exhibit No.
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Description
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3.2
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Amended
and Restated Bylaws of Avis Budget Group, Inc. (as of March 26,
2009)
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EXHIBIT
3.2
AMENDED
AND RESTATED BY-LAWS
(As
of March 26, 2009)
OF
AVIS
BUDGET GROUP, INC.
(the
“Corporation”)
ARTICLE
I.
Offices
SECTION
1. Offices.
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 (or duly authorized committee thereof), (b) otherwise properly brought
before the meeting by or at the direction of the Board of Directors (or any
duly
authorized committee thereof), or (c) otherwise properly brought before the
meeting by a stockholder of the Corporation (i) who is a stockholder of record
on the date of the giving of the notice provided for in this Section 1 and
on
the record date for the determination of stockholders entitled to notice of
and
to vote at such annual meeting and (ii) who complies with the notice procedures
set forth in this Section 1. 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 to the Secretary must be
1
delivered
to or mailed and received at the principal executive offices of the Corporation
not less than sixty (60) days nor more than ninety (90) days prior to the
anniversary date of the immediately preceding annual meeting of stockholders;
provided, however, that in the event that the annual meeting of stockholders
is
called for a date that is not within twenty-five (25) 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 (10th) day following
the day on which such notice of the date of the annual meeting of stockholders
was mailed or such public disclosure of the date of the annual meeting of
stockholders was made, whichever first occurs. 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 and the reasons
for conducting such business at the annual meeting, (b) the name and address,
as
they appear on the Corporation’s books, of the stockholder proposing such
business, (c) the class and number of shares of the Corporation which are owned
beneficially or of record by the stockholder, (d) a description of all
arrangements or understandings between such stockholder and any other person
or
persons, (e) any material interest of the stockholder in such business, and
(f)
a representation that such stockholder intends to appear in person or by proxy
at the annual meeting to bring such business before the meeting. 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; provided, however, that, once business has been properly brought
before the annual meeting in accordance with such procedures, nothing in this
Section 1 shall be deemed to preclude discussion by any stockholder of any
such
business.
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. At a special meeting of stockholders, only such business shall be
conducted as shall be specified in the notice of meeting (or any supplement
thereto).
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.
2
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.
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.
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.
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. From and after the annual meeting of
stockholders to be held in 2004, the Directors shall hold office for a term
expiring at the annual meeting of stockholders to be held in the year following
their election with each members to hold office until their successors are
elected and qualified; provided that the term of any Director appointed prior
to
the annual meeting of stockholders to be held in 2004 shall be unaffected.
At
each annual meeting of stockholders, the successors of the Directors
whose
3
term
expires at that meeting shall be elected to hold office for a term expiring
at
the annual meeting of stockholders held in the 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.
Only
persons who are nominated in accordance with the following procedures shall
be
eligible for election as directors of the Corporation, except as may be
otherwise provided in the Certificate of Incorporation with respect to the
right
of holders of preferred stock of the Corporation to nominate and elect a
specified number of directors in certain circumstances. Nominations of persons
for election to the Board of Directors may be made at any annual meeting of
stockholders, or at any special meeting of stockholders called for the purpose
of electing directors, (a) by or at the direction of the Board of Directors
(or
any duly authorized committee thereof) or (b) by any stockholder of the
Corporation (i) who is a stockholder of record on the date of the giving of
the
notice provided for in this Section 1 and on the record date for the
determination of stockholders entitled to notice of and to vote at such meeting
and (ii) who complies with the notice procedures set forth in this Section
1.
In
addition to any other applicable requirements, for a nomination to be made
by a
stockholder, such stockholder must have given timely notice thereof in proper
written form to the Secretary of the Corporation. To be timely, a written notice
of such stockholder’s intent to make such nomination or nominations must be
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, not less than ninety (90)
days
prior to the anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the annual meeting
of
stockholders is called for a date that is not within twenty-five (25) 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 (10th) day following the day on which such notice of such meeting was
mailed or such public disclosure of the date of such meeting was made, whichever
first occurs; and (b) with respect to an election to be held at a special
meeting of stockholders for the election of Directors, not later than the close
of business on the tenth (10th) day following the day on which notice of such
meeting was mailed or public disclosure of the date of such meeting was made,
whichever first occurs.
To
be in
proper written form, each such notice 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 the person, (ii) the principal
occupation or employment of the person, (iii) the class or series and number
of
shares of capital stock of the Corporation which are owned beneficially or
of
record by the person and (iv) any other information relating to the 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 class or series and number of shares of capital stock
of
the Corporation which are owned beneficially or of record by such stockholder,
(iii) a description of all
4
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 directors pursuant to Section 14 of the Exchange Act and the
rules and regulations promulgated thereunder. Such notice must be accompanied
by
a written consent of each proposed nominee to being named as a nominee and
to
serve as a director if elected. No person shall be eligible for election as
a director of the Corporation unless nominated in accordance with the procedures
set forth in this Section 1. If the presiding officer of the meeting determines
that a nomination was not made in accordance with the foregoing procedures,
the
presiding officer shall declare to the meeting that the nomination was defective
and such defective nomination shall be disregarded.
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 the death, resignation,
disqualification, or removal of a director 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
(a)
to fill any vacancy resulting from the death, resignation, disqualification
or
removal of a Director shall hold office for the remainder of the full term
of
the Director whose death, resignation, disqualification or removal created
such
vacancy and (b) to fill any vacancy resulting from a newly created directorship
shall hold office until the next annual meeting of stockholders. And, in each
case, until such Director’s successor shall have been elected and qualified. No
decrease in the number of Directors constituting the Board of Directors shall
shorten the term of any incumbent Director.
SECTION
3. Removal.
Any
Director may be removed from office, with or without cause, only by the
affirmative vote of the holders of a majority 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 by any officer of the Corporation upon the request of a majority of the
entire Board.
5
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 Board shall be necessary and sufficient to constitute a quorum for the
transaction of business at any meeting of the Board, and the act of a majority
of such quorum shall be deemed the act of the Board.
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 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.
6
ARTICLE
IV.
Officers
SECTION
1. Number.
a) General.
The officers of the Corporation shall be appointed or elected by the Board
of
Directors. The officers shall be a Chairman of the Board, a Chief Executive
Officer, a President, 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 Chief Executive Officer, shall preside
at all meetings of the stockholders and of the Board. In the absence of the
Chairman of the Board and the Chief Executive Officer, a Vice Chairman of the
Board or the President 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 members of the Board, 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.
c) Chief
Executive Officer. The Chief Executive Officer shall be a member of the Board
of
Directors and an officer of the Corporation. The 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 Chief Executive
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 Chief Executive Officer, or, in the absence
or
disability of the Chief Executive Officer, the President, or, in the absence
or
disability of the President, a Vice Chairman, provided, in each case, that
such
person is a member of the Board.
d) President.
The President shall be a member of the Board of Directors and an officer of
the
Corporation. The President shall have general day-to-day supervision, direction
and control over the administrative functions of the Corporation and the
officers, employees and agents relating to such functions (other than the legal
and compliance functions). The President shall perform such other duties and
have such other powers as may be prescribed by the Board, the Chief Executive
Officer or these By-Laws, all in accordance with the basic policies as
established by and subject to the oversight of the Board, the Chairman of the
Board and the Chief Executive Officer.
e) 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, the
Controller and the Chief Accounting Officer. 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, the Chief
Executive Officer or the President.
7
f) General
Counsel. The General Counsel shall have responsibility for the legal affairs
of
the Corporation. 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 Chief Executive
Officer.
g) Secretary.
The Secretary shall act as Secretary of all meetings of the stockholders and
of
the Board at which the Secretary is present, shall record all the proceedings
of
all such meetings in a book to be kept for that purpose, shall have supervision
over the giving and service of notices of the Corporation, and shall have
supervision over the care and custody of the corporate records and the corporate
seal of the Corporation. The Secretary shall be empowered to affix the corporate
seal to documents, the execution of which on behalf of the Corporation under
its
seal, is duly authorized, and when so affixed, may attest the same. The
Secretary shall have all powers and duties usually incident to the office of
Secretary, except as specifically limited by a resolution of the Board, and
may
delegate such powers and duties to duly appointed or elected Assistant
Secretaries. The Secretary shall exercise such other powers and perform such
other duties as may be assigned to the Secretary from time to time by the Board,
the Chairman of the Board or the General Counsel.
SECTION
2. Additional Officers.
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.
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.
SECTION
4. Duties.
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.
ARTICLE
V.
Committees
of the Board of Directors
SECTION
1. Designation.
The
Board
of Directors of the Corporation shall have the following
committees:
8
a) An
Executive Committee consisting of not less than three Directors may be elected
by a majority vote of the Board to serve until the Board shall otherwise
determine. 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. Each resolution of the Executive Committee
will require approval by a majority of the members of such
Committee.
b) A
Compensation Committee consisting of not less than three Directors may be
elected by a majority vote of the Board to serve until the Board shall otherwise
determine. 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 Compensation 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 a majority of the members of
such committee. Notwithstanding anything to the contrary contained herein or
in
any option plan adopted from time to time by the Corporation, neither the Board
of Directors nor the Compensation Committee shall have the authority, without
prior shareholder approval, to alter the price at which options, once granted,
may be exercised, except to the extent any such alteration may be contemplated
in such option plan or the applicable stock option agreement in connection
with
a change of capitalization of the Corporation.
c) An
Audit Committee consisting of not less than three Directors may be elected
by a
majority vote of the Board to serve until the Board shall otherwise determine.
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 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;
9
(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 a majority of the
members of such committee. Notwithstanding the foregoing, there will be no
changes in the composition of the Audit Committee prior to the date of the
adoption of a resolution of the Audit Committee approving its final report
concerning accounting issues.
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 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) 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.
b) The
Board may remove a director from a committee or change the chairmanship of
a
committee by resolution adopted by a majority of the Board.
c) 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 be made or amended by the affirmative vote of a majority of the
Board.
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
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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.
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, employee 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
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defense
of any action, suit or proceeding described above, or in defense of any claim,
issue or matter therein, 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 partnership, 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 applicable 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 current or former director or officer in defending any civil,
criminal, administrative or investigative action, suit or proceeding shall
be
paid by the
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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.
Any disagreement concerning the foregoing expense advancement provisions shall
be resolved in a summary proceeding as expeditiously as possible.
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.
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 enterprise,
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”
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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 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 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.”
ARTICLE
VIII.
Amendments
SECTION
1. Amendments of By-Laws.
Subject
to the provisions of the Certificate of Incorporation and the provisions of
these By-Laws, 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
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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, 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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