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): September
5, 2006 (September 1, 2006)
_________________
Avis
Budget Group, Inc.
(Exact
Name of Registrant as Specified in its Charter)
_________________
|
Delaware
|
1-10308
|
06-0918165
|
|
(State
or Other Jurisdiction
of
Incorporation)
|
(Commission
File
Number)
|
(IRS
Employer
Identification
No.)
|
|
6
Sylvan Way
Parsippany,
NJ
|
07054
|
|
(Address
of Principal Executive Offices)
|
(Zip
Code)
|
(973)
496-4700
(Registrant's
telephone number, including area code)
Cendant
Corporation
9
West 57th
Street
New
York, NY 10019
(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:
[
] Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[
]
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[
] Pre-commencement
communications pursuant to 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
[
] Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
1.01. Entry into a Material Definitive Agreement.
On
September 1, 2006, Avis Budget Group, Inc. (the “Company”) amended and restated
its Rights Agreement, dated as of July 13, 2006, between the Company and Mellon
Investor Services LLC as Rights Agent to reflect the issuance of the Company's
Common Stock in uncertificated form and to reflect the change of the Company's
name from Cendant Corporation (“Cendant”) to Avis Budget Group, Inc. The
complete text of the Amended and Restated Rights Agreement is attached hereto
as
Exhibit 4.1, and is incorporated herein by reference.
Item
3.03. Material Modification to Rights of Security Holders.
The
disclosure in Item 1.01 regarding the Amended and Restated Rights Plan and
in
Item 5.03 regarding the reverse stock split, redesignation of the Company’s
common stock and the decrease in authorized shares are incorporated by reference
into this Item 3.03.
Item
5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On
August
29, 2006, at the Cendant Corporation (currently known as Avis Budget Group,
Inc.) 2006 annual meeting of stockholders, the stockholders approved certain
amendments to the Company’s Certificate of Incorporation (the “Amendments”). The
Amendments were filed with the Secretary of State of the State of Delaware
on
September 1, 2006, at which time the Amendments became effective. The Amendments
are as follows:
Name
change.
The
name of the Company in the Certificate of Incorporation has been changed from
Cendant Corporation to Avis Budget Group, Inc. (the “Name Change”).
Reverse
Stock Split.
The
Company has amended its Certificate of Incorporation to effect a reverse split
on a one for ten (1:10) basis so that ten (10) shares of old common stock shall
be converted into and reconstituted as one (1) share of new common stock. The
name change to Avis Budget Group, Inc. and the one-for-ten reverse stock split
became effective on the New York Stock Exchange at the opening of the market
on
September 5, 2006 and, at that time, its trading symbol was changed to
“CAR.”
Redesignation
of Common Stock.
The
Company has amended its Certificate of Incorporation to redesignate its series
of common stock presently designated as “Cendant Corporation-CD Common Stock” in
its Certificate of Incorporation to “Common Stock” and, to remove all references
to the series of common stock defined as “Move.com Stock”. The rights of the
holders of the redesignated common stock are identical to the rights associated
with Cendant Corporation-CD common stock. The holders of common stock are
entitled to receive an uncertificated share of common stock for each share
of
Cendant Corporation-CD Common Stock that they currently hold, subject to the
impact of the reverse stock split described above. The Company will mail to
the
holders of Common Stock in certificated form a Letter of Transmittal with
instructions that explain how to return certificated shares of Common Stock
to
enable stockholders to receive uncertificated shares of Common Stock to which
they are entitled following the redesignation and reverse stock split of the
Company’s common stock. Unexchanged certificates represent the number of full
shares of reclassified Common Stock to which such holders are entitled, after
giving effect to the one-for-ten reverse stock split and the
redesignation.
Holders of unexchanged certificates are not entitled to receive any dividends
or
other distributions, including cash in lieu of fractional shares, payable by
the
Company since the reverse stock split became effective, until the certificates
have been surrendered together with a duly completed and executed Letter of
Transmittal. Such dividends and distributions, if any, will be accumulated,
and
at the time of surrender of the certificates together with a duly completed
and
executed Letter of Transmittal, all such unpaid dividends or distributions
will
be paid without interest. In addition, if holders of unexchanged certificates
do
not surrender their shares for exchange, within the period provided for under
applicable state law, the state such holder lives in may become the guardian
of
his or her holding as abandoned property.
Decrease
in Shares.
The
Company has amended its Certificate of Incorporation to decrease the number
of
authorized shares of the Company’s common stock from 2,000,000,000 shares to
250,000,000 shares.
The
foregoing descriptions of the Amendments are qualified in their entirety by
reference to the complete text of the Amended and Restated Certificate of
Incorporation of Cendant Corporation, a copy of which is attached hereto as
Exhibit 3.1, and incorporated herein by reference.
On
August
24, 2006, the Company’s Board of Directors approved amendments to the By-Laws of
the Company to, among other things, (i) fix the number of directors constituting
the Audit Committee at three (formerly consisted of not less than four), (ii)
reflect the Name Change and (iii) delete the independence criteria for audit
committee members as the New York Stock Exchange governance standards, the
Company's director independence criteria and applicable SEC rules have
replaced such criteria.
The
Amended and Restated By-Laws became effective on September 1, 2006. The
foregoing description of the amendments to the Company’s By-Laws is qualified in
its entirety by reference to the complete text of the Amended and Restated
By-Laws, a copy of which is attached hereto as Exhibit 3.2, and incorporated
herein by reference.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits.
The
following exhibits are filed as part of this report:
|
Exhibit
No.
|
Description
|
|
|
3.1
|
Amended
and Restated Certificate of Incorporation of Cendant
Corporation
|
|
|
3.2
|
Amended
and Restated By-Laws of Avis Budget Group, Inc.
|
|
|
4.1
|
Amended
and Restated Rights Agreement between Avis Budget Group, Inc. and
Mellon
Investor Services LLC, dated as of September 1, 2006 (Incorporated
by
reference to Exhibit 4.1 to Amendment No. 1 to the Company’s Registration
Statement on Form 8-A dated September 5,
2006).
|
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.
|
AVIS
BUDGET GROUP, INC.
|
||||
|
By:
|
/s/
Jean M. Sera
|
|||
|
Jean
M. Sera
Senior
Vice President and Secretary
|
Date:
September 5, 2006
EXHIBIT
INDEX
|
Exhibit
No.
|
Description
|
|
|
3.1
|
Amended
and Restated Certificate of Incorporation of Cendant
Corporation
|
|
|
3.2
|
Amended
and Restated By-Laws of Avis Budget Group, Inc.
|
|
|
4.1
|
Amended
and Restated Rights Agreement between Avis Budget Group, Inc. and
Mellon
Investor Services LLC, dated as of September 1, 2006 (Incorporated
by
reference to Exhibit 4.1 to Amendment No. 1 to the Company’s Registration
Statement on Form 8-A dated September 5,
2006).
|
Exhibit
3.1
AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
CENDANT
CORPORATION
Cendant
Corporation, a corporation organized and existing under the laws of the State
of
Delaware (the "Corporation"), does hereby certify as follows:
(1) The
name
of the Corporation is Cendant Corporation.
(2) The
name
under which the Corporation was originally incorporated was Comp-U-Card of
America, Inc. and the original Certificate of Incorporation of the Corporation
was filed with the Secretary of State of the State of Delaware on August 1,
1974.
(3) This
Amended and Restated Certificate of Incorporation was duly adopted in accordance
with the provisions of Sections 242 and 245 of the General Corporation Law
of
the State of Delaware.
(4) The
text
of the Amended and Restated Certificate of Incorporation of the Corporation
as
amended hereby is restated to read in its entirety, as follows:
1. The
name
of the Corporation is Avis Budget Group, Inc. (hereinafter, the
"Corporation").
2. The
address of its registered office in the State of Delaware is Corporation Service
Company, 2711 Centerville Road, Suite 400, in the City of Wilmington, County
of
New Castle. The name of its registered agent at such address is Corporation
Service Company.
3. The
nature of the business or purposes to be conducted or promoted is:
To
engage
in any lawful act or activity for which corporations may be organized under
the
General Corporation Law of Delaware.
4. Capital
Stock
The
total
number of shares of all classes of stock which the Corporation shall have
authority to issue is 260,000,000, consisting of (i) 250,000,000 shares of
Common Stock, $0.01 par value per share (“Common Stock”), and (ii) 10,000,000
shares of Preferred Stock, $0.01 par value per share (“Preferred Stock”). No
stockholder shall have any preemptive right to subscribe to or purchase any
additional shares of stock of the Corporation or any securities convertible
into
any such shares or representing a right or option to purchase any such
shares.
A. Common
Stock
The
Corporation shall have the authority to issue shares of Common Stock in one
series. Such series of Common Stock shall be designated as Common Stock. When
the filing of this Amended and Restated Certificate of Incorporation becomes
effective, each share of Common Stock (previously classified as Cendant
Corporation-CD Common Stock) (and outstanding certificates that had theretofore
represented shares of Cendant Corporation-CD Common Stock) outstanding
immediately prior thereto shall automatically be reclassified as one share
of
Common Stock (and outstanding certificates that had theretofore represented
shares of Cendant Corporation-CD Common Stock shall thereupon represent an
equal
number of shares of Common Stock despite the absence of any indication thereon
to that effect).
The
total
number of shares of Common Stock which the Corporation shall have the authority
to issue shall initially be 250,000,000. The Board of Directors shall have
the
authority to increase or decrease from time to time the total number of shares
of Common Stock which the Corporation shall have the authority to issue, but
not
above the number which would exceed the total number of shares of Common Stock
that the Corporation has the authority to issue, and not below the number of
shares of Common Stock then outstanding.
The
powers, preferences and rights, and the qualifications, limitations and
restrictions of the Common Stock are as follows:
(1) Voting.
Each stockholder represented at a meeting of the stockholders shall be entitled
to cast one (1) vote in person or by proxy for each share of the Common Stock
entitled to vote thereat held by such stockholder.
(2) No
Cumulative Voting. The holders of shares of Common Stock shall not have
cumulative voting rights.
(3) Dividends;
Stock Splits. Subject to the rights of the holders of Preferred Stock, and
subject to any other provisions of this Amended and Restated Certificate of
Incorporation, as it may be amended from time to time, holders of shares of
the
Common Stock shall be entitled to receive such dividends and other distributions
in cash, stock or property of the Corporation when, as and if declared thereon
by the Board of Directors from time to time out of assets or funds of the
Corporation legally available therefor.
B. Preferred
Stock
The
Board
of Directors is expressly authorized to adopt, from time to time, a resolution
or resolutions providing for the issuance of Preferred Stock in one or more
series, to fix the number of shares in each such series (subject to the
aggregate limitations thereon in this Article) and to fix the designations
and
the powers, preferences and relative, participating, optional or other special
rights, and the qualifications, limitations and restrictions, of each such
series. The authority of the Board of Directors with respect to each such series
shall include
determination
of the following (which may vary as between the different series of Preferred
Stock):
(a) The
number of shares constituting the shares and the distinctive designation of
the
series;
(b) The
dividend rate on the shares of the series and the extent, if any, to which
dividends thereon shall be cumulative;
(c) Whether
shares of the series shall be redeemable and, if redeemable, the redemption
price payable on redemption thereof, which price may, but need not, vary
according to the time or circumstances of such redemption;
(d) The
amount or amounts payable upon the shares of the series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation prior to any payment or distribution of the assets of the
Corporation to any class or classes of stock of the Corporation ranking junior
to the Preferred Stock;
(e) Whether
the shares of the series shall be entitled to the benefit of a sinking or
retirement fund to be applied to the purchase or redemption of shares of the
series and, if so entitled, the amount of such fund and the manner of its
application, including the price or prices at which the shares may be redeemed
or purchased through the application of such fund;
(f) Whether
the shares of the series shall be convertible into, or exchangeable for, shares
of any other class or classes or of any other series of the same or any other
class or classes of stock of the Corporation, and, if so convertible or
exchangeable, the conversion price or prices, or the rates of exchange, and
the
adjustments thereof, if any, at which such conversion or exchange may be made,
and any other terms and conditions of such conversion or exchange;
(g) The
extent, if any, to which the holders of shares of the series shall be entitled
to vote on any question or in any proceedings or to be represented at or to
receive notice of any meeting of stockholders of the Corporation;
(h) Whether,
and the extent to which, any of the voting powers, designations, preferences,
rights and qualifications, limitations or restrictions of any such series may
be
made dependent upon facts ascertainable outside of the Amended and Restated
Certificate of Incorporation or of any amendment thereto, or outside the
resolution or resolutions providing for the issuance of such series adopted
by
the Board of Directors, provided that the manner in which such facts shall
operate upon the voting powers, designations, preferences, rights and
qualifications, limitations or restrictions of such series is clearly and
expressly set forth in the resolution or resolutions providing for the issuance
of such series adopted by the Board of Directors; and
(i) Any
other
preferences, privileges and powers and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions of such
series, as the Board of Directors may deem advisable, which shall not affect
adversely any other class
or
series
of Preferred Stock at the time outstanding and which shall not be inconsistent
with the provisions of this Amended and Restated Certificate of
Incorporation.
Shares
of
Common Stock and of Preferred Stock may be issued from time to time as the
Board
of Directors shall determine and on such terms and for such consideration,
not
less than par value, as shall be fixed by the Board of Directors. No consent
by
any series of Preferred Stock shall be required for the issuance of any other
series of Preferred Stock unless the Board of Directors in the resolution
providing for the issuance of any series of Preferred Stock expressly provides
that such consent shall be required.
Subject
to the rights, if any, of holders of shares of Preferred Stock from time to
time
outstanding, dividends may be paid upon the Common Stock as and when declared
by
the Board of Directors out of any funds legally available therefor.
Except
as
otherwise provided by law or as otherwise expressly provided in the resolution
or resolutions providing for the issuance of shares of any series of the
Preferred Stock, the holders of shares of the Common Stock shall have the
exclusive right to vote for the election of directors and for all other
purposes. Each holder of shares of Common Stock of the Corporation entitled
at
any time to vote shall have one vote for each share thereof held. Except as
otherwise provided with respect to shares of Preferred Stock authorized from
time to time by the Board of Directors, the exclusive voting power for all
purposes shall be vested in the holders of shares of Common Stock.
C. Reverse
Stock Split
(1) Upon
this
amendment becoming effective (the “Effective Time”), a one-for-ten reverse stock
split of each of the par value $0.01 Common Stock (“Old Common Stock”) shall
become effective, such that (a) every ten (10) shares of $0.01 par value Old
Common Stock of the Corporation either issued and outstanding or held by the
Corporation as treasury stock immediately prior to the Effective Time, will
be
automatically reclassified, combined and converted into one (1) share of $0.01
par value Common Stock of the Corporation.
(2) Notwithstanding
the immediately preceding sentence, no fractional shares of Common Stock shall
be issued to holders of record of Old Common Stock in connection with the
foregoing reclassification of shares of Old Common Stock. In lieu thereof,
the
Corporation shall pay cash equal to such fraction multiplied by the then fair
value per share of Common Stock, as applicable, as determined by the Board
of
Directors of the Corporation.
(3) Each
stock certificate that, immediately prior to the Effective Time, represented
shares of Old Common Stock, as applicable, shall, from and after the Effective
Time, automatically and without the necessity of presenting the same for
exchange, represent that number of whole shares of Common Stock into which
the
shares of Old Common
Stock,
as
applicable, represented by such certificate shall have been reclassified (as
well as the right to receive cash in lieu of any fractional shares of Common
Stock, as set forth above).
5. The
Corporation is to have perpetual existence.
6. In
furtherance and not in limitation of the powers conferred by statute, the Board
of Directors is expressly authorized:
(a) To
make,
alter, or repeal the By-Laws of the Corporation.
(b) To
authorize and cause to be executed mortgages and liens upon the real and
personal property of the Corporation.
(c) To
set
apart out of any of the funds of the Corporation available for dividends a
reserve or reserves for any proper purpose and to abolish any such reserve
in
the manner in which it was created.
(d) Subject
to the provisions of the By-Laws, to designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. Subject
to the provisions of the By-Laws, the Board of Directors may designate one
or
more directors as alternate members of any committee, who shall replace any
absent or disqualified member at any meeting of the committee in the manner
specified in such designation. Any such committee, to the extent provided in
the
resolution of the Board of Directors adopted in accordance with the By-Laws
of
the Corporation, shall have and may exercise all the powers and authority of
the
Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to
all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the Amended and Restated Certificate of
Incorporation, adopting an agreement of merger or consolidation, recommending
to
the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the By-Laws of the Corporation; and, unless the
resolution or By-Laws expressly so provide, no such committee shall have the
power or authority to declare a dividend or to authorize the issuance of stock.
(e) When
and
as authorized by the stockholders in accordance with statute, to sell, lease,
or
exchange all or substantially all of the property and assets of the Corporation,
including its goodwill and its corporate franchises, upon such terms and
conditions and for such consideration, which may consist in whole or in part
of
money or property, including shares of stock in, and/or other securities of,
any
other corporation or corporations, as its Board of Directors shall deem
expedient and for the best interests of the Corporation.
7. Whenever
a compromise or arrangement is proposed between this Corporation and its
creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof, or on the application
of
any receiver or receivers appointed for this
Corporation
under the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or
of
the stockholders or class of stockholders of this Corporation, as the case
may
be, to be summoned in such manner as the said court directs. If a majority
in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement to
any
reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders of this Corporation, as the case may
be,
and also on this Corporation.
8. Meetings
of stockholders may be held within or without the State of Delaware, as the
By-Laws may provide. The books of the Corporation may be kept (subject to any
provision contained in the statues) outside the State of Delaware at such place
or places as may be designated from time to time by the Board of Directors
or in
the By-Laws of the Corporation. Elections of directors need not be by written
ballot unless the By-Laws of the Corporation shall so provide.
9. For
the
management of the business and for the conduct of the affairs of the
Corporation, and in further creation, definition, limitation and regulation
of
the power of the Corporation and of its directors and of its stockholders,
it is
further provided:
(a) Election
of Directors.
Elections of Directors need not be by written ballot unless the By-Laws of
the
Corporation shall so provide.
(b) Number,
Election and Terms of Directors.
The
number of Directors of the Corporation shall be fixed from time to time by
or
pursuant to the By-laws. 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 the year of their
election, with the 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 held in 2004 shall be unaffected. At each annual meeting
of the stockholders of the Corporation, the Directors whose term expires at
that
meeting shall be elected to office for a term expiring at the annual meeting
of
stockholders held in the year following the year of their election.
(c) Stockholder
Nomination of Director Candidates.
Advance
notice of nominations for the election of Directors, other than by the Board
of
Directors or a Committee thereof, shall be given in the manner provided in
the
By-Laws.
(d) 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 the majority of the remaining Directors then in office,
even
though less than a quorum of the Board of Directors. Any Director
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 or (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 successors shall have become elected and qualified.
No decrease in the number of Directors constituting the Board of Directors
shall
shorten the term of any incumbent Director.
(e) Removal
of Directors.
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.
(f) Stockholder
Action.
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. Except as
otherwise required by law, special meetings of stockholders of the Corporation
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.
(g) By-Law
Amendments.
The
Board of Directors shall have power to make, alter, amend and repeal the By-Laws
(except so far as the By-Laws adopted by the stockholders shall otherwise
provide). Any By-Laws made by the Directors under the powers conferred hereby
may be altered, amended or repealed by the Directors or by the stockholders.
Notwithstanding the foregoing and anything contained in this Amended and
Restated Certificate of Incorporation to the contrary, Sections 1, 2 and 3
of
Article II of the By-Laws shall not be altered, amended or repealed and no
provision inconsistent therewith shall be adopted without the affirmative vote
of the holders of at least 80% of the voting power of all the shares of the
Corporation entitled to vote generally in the election of Directors, voting
together as a single class and Sections 1, 2 and 3 of Article III of the By-Laws
shall not be altered, amended or repealed and no provision inconsistent
therewith shall be adopted without the affirmative vote of the holders of at
least a majority of the voting power of all shares of the Corporation entitled
to vote generally in the election of Directors, voting together as a single
class.
(h) Amendment,
Repeal.
Notwithstanding anything contained in this Amended and Restated Certificate
of
Incorporation to the contrary, the affirmative vote of the holders of at least
80% of the voting power of all shares of the Corporation entitled to vote
generally in the election of Directors, voting together as a single class,
shall
be required to alter, amend, or adopt any provision inconsistent with, or
repeal, Article 9 a., c., d., f., g., or h.
10. (a) Vote
Required for Certain Business Combinations.
A. Higher
Vote for Certain Business Combinations.
In
addition to any affirmative vote required by law or this Amended and Restated
Certificate of Incorporation, and except as otherwise expressly provided
herein:
(1) any
merger or consolidation of the Corporation or any Subsidiary (as hereinafter
defined) with (a) any Interested Stockholder (as hereinafter defined) or (b)
any
other corporation (whether or not itself an Interested Stockholder) which is,
or
after such merger or consolidation would be, an Affiliate (as hereinafter
defined) of an Interested Stockholder; or
(2) any
sale,
lease, exchange, mortgage, pledge, transfer or other disposition (in one
transaction or a series of transactions) to or with any Interested Stockholder
or any Affiliate of any Interested Stockholder of any assets of the Corporation
or any Subsidiary having an aggregate Fair Market Value of $10 million or more;
or
(3) the
issuance or transfer by the Corporation or any Subsidiary (in one transaction
or
series of transactions) of any securities of the Corporation or any subsidiary
to any Interested Stockholder or to any Affiliate of any Interested Stockholder
in exchange for cash, securities or other property (or a combination thereof)
having an aggregate Fair Market Value of $10 million or more; or
(4) the
adoption of any plan or proposal for the liquidation or dissolution of the
Corporation proposed by or on behalf of any Interested Stockholder or any
Affiliate of any Interested Stockholder; or
(5) any
reclassification of securities (including any reverse stock split), or
recapitalization of the Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any other transaction (whether
or
not with or into or otherwise involving an Interested Stockholder) which has
the
effect, directly or indirectly, of increasing the proportionate share of the
outstanding shares of any class of Equity Security (as hereinafter defined)
of
the Corporation or any Subsidiary which is directly or indirectly owned by
any
Interested Stockholder or any Affiliate of any Interested Stockholder;
shall
require the affirmative vote of the holders of at least 80% of the voting power
of the then outstanding shares of capital stock of the Corporation entitled
to
vote generally in the election of directors (the "Voting Stock"), voting
together as a single class (it being understood that for the purposes of Article
10, each share of the Voting Stock shall have one vote). Such affirmative vote
shall be required notwithstanding the fact that no vote may be required, or
that
a lesser percentage may be specified, by law or in any agreement with any
national securities exchange or otherwise.
B. Definition
of "Business Combination".
The
term "Business Combination" used in this Article 10 shall mean any transaction
which is referred to in any one or more of clauses (1) through (5) of Paragraph
A hereof.
(b) When
Higher Vote is Not Required.
The
provisions of Article 10(a) shall not be applicable to any particular Business
Combination, and such Business Combination shall require only such affirmative
vote as is required by law and any other provision of this Amended and Restated
Certificate of Incorporation, if all of the conditions specified in either
of
the following Paragraphs A and B are met:
A. Approval
by Disinterested Directors.
The
Business Combination shall have been approved by majority of the Disinterested
Directors (as hereinafter defined).
B. Price
and Procedure Requirements.
All of
the following conditions shall have been met:
(i) The
aggregate amount of the cash and the Fair Market Value (as hereinafter defined)
as of the date of the consummation of the Business Combination of consideration
other than cash to be received per share by holders of Common Stock in such
Business Combination shall be at least equal to the higher of the
following:
(a) (if
applicable) the highest per share price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid by the Interested Stockholder
for any shares of Common Stock acquired by it (1) within the two-year period
immediately prior to the first public announcement of the terms of the proposed
Business Combination (the "Announcement Date") or (2) in the transaction in
which it became an Interested Stockholder, whichever is higher; and
(b)
the
Fair
Market Value per share of Common Stock on the Announcement Date or on the date
on which the Interested Stockholder became an Interested Stockholder (such
latter date is referred to in this Paragraph 10 as the "Determination Date"),
whichever is higher.
(ii)
The
aggregate amount of the cash and the Fair Market Value as of the date of the
consummation of the Business Combination of consideration other than cash to
be
received per share by holders of shares of any other class of outstanding Voting
Stock shall be at least equal to the higher of the following:
(a)
(if
applicable) the highest per share price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid by the Interested Stockholder
for any shares of Common Stock acquired by it (1) within the two-year period
immediately prior to the Announcement Date or (2) in the transaction in which
it
became an Interested Stockholder, whichever is higher; and
(b)
the
Fair
Market Value per share of such class of Voting Stock on the Announcement Date
or
on the Determination Date, whichever is higher.
(iii)
The
consideration to be received by holders of Voting Stock shall be in cash or
in
the same form as the Interested Stockholder has previously paid for shares
of
such class of Voting Stock. If the Interested Stockholder has paid for any
Voting Stock with varying forms of consideration, the form of consideration
for
such Voting Stock shall be either cash or the form used to acquire the largest
number of shares of such Voting Stock previously acquired by it. The price
determined in accordance with paragraphs B(i) and B(ii) of this Article 10(b)
shall be subject to appropriate adjustment in the event of any stock dividend,
stock split, combination of shares or similar event.
(iv)
After
such Interested Stockholder has become an Interested Stockholder and prior
to
the consummation of such Business Combinations: (a) there shall have been (1)
no
reduction in the annual rate of dividends paid on the Common Stock (except
as
necessary to reflect any subdivision of the Common Stock), except as approved
by
a majority of the Disinterested Directors, and (2) an increase in such annual
rate of dividends as necessary to reflect any reclassification (including any
reverse stock split), recapitalization, reorganization or any similar
transaction which has the effect of reducing the number of outstanding shares
of
the Common Stock, unless the failure so to increase such annual rate is approved
by a majority of the Disinterested Directors; and (b) such Interested
Stockholder shall have not become the beneficial owner of any additional shares
of Voting Stock except as part of the transaction which results in such
Interested Stockholder becoming an Interested Stockholder.
(c) Certain
Definitions.
For the
purpose of this Article 10:
A. A
"person" shall mean any individual, firm, corporation or other
entity.
B. "Interested
Stockholder" shall mean any person (other than the Corporation or any
Subsidiary) who or which:
(i) is
the
beneficial owner, directly or indirectly, of 5% or more of the voting power
of
the outstanding Voting Stock; or
(ii) is
an
Affiliate of the Corporation and at any time within the two-year period
immediately prior to the date in question was the beneficial owner, directly
or
indirectly, of 5% or more of the voting power of the then outstanding Voting
Stock; or
(iii) is
an
assignee of or has otherwise succeeded to any shares of Voting Stock which
were
at any time within the two-year period immediately prior to the date in question
beneficially owned by any Interested Stockholder, if such assignment or
succession shall have occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning of the
Securities Act of 1933.
C. A
person
shall be a "beneficial owner" of any Voting Stock:
(i) which
such person or any of its Affiliates or Associates (as hereinafter defined)
beneficially owns directly or indirectly; or
(ii) which
such person or any of its Affiliates or Associates has (a) the right to acquire
(whether such right is exercisable immediately or only after the passage of
time), pursuant to any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants or options, or
otherwise, or (b) the right to vote pursuant to any agreement, arrangement
or
understanding; or
(iii) which
are
beneficially owned, directly or indirectly, by any other person with which
such
person or any of its Affiliates or Associates has any agreement, arrangement
or
understanding for the purpose of acquiring, holding, voting or disposing of
any
shares of Voting Stock.
D. For
the
purpose of determining whether a person is an interested Stockholder pursuant
to
paragraph B of this Article 10(c), the number of shares of Voting Stock deemed
to be outstanding shall include shares deemed owned through application of
paragraph C of the Article 10(c) but shall not include any other shares of
Voting Stock which may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or options,
or
otherwise.
E. "Affiliate"
or "Associate" shall have the respective meanings ascribed to such terms in
Rule
12b-2 of the General Rules and Regulations under the Securities Exchange Act
of
1934, as in effect on January 1, 1985.
F. "Subsidiary"
means any corporation of which a majority of any class of Equity Security is
owned, directly or indirectly, by the Corporation, provided, however, that
for
the purposes of the definition of Interested Stockholder set forth in paragraph
B of this Article 10(c), the term "Subsidiary" shall mean only a corporation
of
which a majority of each class of Equity Security is owned, directly or
indirectly, by the Corporation.
G. "Disinterested
Director" means any member of the Board of Directors who is unaffiliated with
the Interested Stockholder and was a member of the Board of Directors prior
to
the time that the Interested Stockholder became an Interested Stockholder,
and
any successor of a Disinterested Director who is unaffiliated with the
Interested Stockholder and is recommended to succeed a Disinterested Director
by
a majority of Disinterested Directors then on the Board of
Directors.
H. "Fair
Market Value" means: (i) in the case of stock, the highest closing bid quotation
with respect to a share of such stock during the 30-day period preceding the
date in question on the National Association of Securities Dealers, Inc.
Automated Quotation System or any system then in use, or, if such stock is
then
listed on an exchange, the highest closing sale price during the 30-day period
immediately preceding the date in question of a share of such stock on the
Composition Tape for New York Stock Exchange--Listed Stocks, or, if such stock
is not quoted on the Composite Tape, on
the
New
York Stock Exchange, or, if such stock is not listed on such Exchange, on the
principal United States securities exchange registered under the Securities
Exchange Act of 1934 on which such stock is listed, or, if such stock is not
listed on any such exchange or quoted as aforesaid, the fair market value on
the
date in question of a share of such stock as determined by the Board of
Directors in good faith; and (ii) in the case of property other than cash or
stock, the fair market value of such property on the date in question as
determined by the Board of Directors, in good faith.
I. In
the
event of any Business Combination in which the Corporation survives, the phrase
"consideration other than cash to be received" as used in paragraphs B(i) and
(ii) of Article 10(b) shall include the shares of Common Stock retained by
the
holders of such shares.
J. "Equity
Security" shall have the meaning ascribed to such term in Section 3(a)(11)
of
the Securities Exchange Act of 1934, as in effect on January 1,
1985.
(d) Powers
of the Board of Directors.
A
majority of the Directors shall have the power and duty to determine for the
purposes of this Article 10 on the basis of information known to them after
reasonable inquiry, (A) whether a person is an Interested Stockholder, (B)
the
number of shares of Common Stock beneficially owned by any person, (C) whether
a
person is an Affiliate or Associate of another (D) whether the assets which
are
the subject of any Business Combination have, or the consideration to be
received for an issuance of transfer of securities by the Corporation or any
Subsidiary in any Business Combination has, or an issuance or transfer of
securities by the Corporation or any Subsidiary in any Business Combination
has,
an aggregate Fair Market Value of $10 million or more. A majority of the
Directors shall have the further power to interpret all of the terms and
provisions of this Article 10.
(e) No
Effect on Fiduciary Obligations of Interested Shareholders.
Nothing
contained in this Article 10 shall be construed to relieve any Interested
Stockholder from any fiduciary obligation imposed by law.
(f) Amendment,
Repeal, etc.
Notwithstanding any other provisions of this Amended and Restated Certificate
of
Incorporation or the By-Laws (and notwithstanding the fact that a lesser
percentage may be specified by law, this Amended and Restated Certificate of
Incorporation or the By-Laws) the affirmative vote of the holders of 80% or
more
of the outstanding Voting Stock, voting together as a single class, shall be
required to amend or repeal, or adopt any provisions inconsistent with this
Article 10.
11. No
director of the Corporation shall be personally liable to the Corporation or
its
stockholders for monetary damages for breach of fiduciary duty by such director
as a director; provided, however, that this Article 11 shall not eliminate
or
limit the liability of a director to the extent provided by applicable law
(i)
for any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under section 174
of
the General Corporation Law of the State of Delaware, or (iv) for any
transaction from which the director derived an improper personal benefit. No
amendment to or repeal of this Article 11 shall apply to or have any effect
on
the liability or alleged liability of any director of the Corporation for or
with respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
12.
This Amended and Restated Certificate of Incorporation shall be effective
as of
5:00 p.m. Eastern Standard Time on September 1, 2006.
IN
WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation to be executed this 1st day of September, 2006.
|
CENDANT
CORPORATION
|
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|
By:
|
/s/
Karen C. Sclafani
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|
KAREN
C. SCLAFANI
Executive Vice
President and General Counsel
|
Exhibit
3.2
FORM
OF
AMENDED
AND RESTATED BY-LAWS
(As
of September 1, 2006)
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, (b) otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (c) otherwise properly brought before
the meeting by a stockholder. For business to be properly brought before an
annual meeting by a stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be timely, a
stockholder’s notice must be delivered to or mailed and received at the
principal executive offices of the Corporation, not less than sixty days nor
more than ninety days prior to the meeting; provided, however, that in the
event
that less than seventy days’ notice or prior public disclosure of the date of
the meeting is given or made to stockholders, notice by the
stockholder
to be timely must be so received not later than the close of business on the
tenth day following the date on which such notice of the date of the annual
meeting was mailed or such public disclosure was made. A stockholder’s notice to
the Secretary shall set forth as to each matter the stockholder proposes to
bring before the annual meeting: (a) a brief description of the business desired
to be brought before the annual meeting, (b) the name and address, as they
appear on the Corporation’s books, of the stockholder proposing such business,
(c) the class and number of shares of the Corporation which are beneficially
owned by the stockholder, and (d) any material interest of the stockholder
in
such business. Notwithstanding anything in the By-Laws to the contrary, no
business shall be conducted at an annual meeting except in accordance with
the
procedures set forth in this Section 1.
The
presiding officer of an annual meeting shall, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the
meeting and in accordance with the provisions of this Section 1, and if he
should so determine, he shall so declare to the meeting and any such business
not properly brought before the meeting shall not be transacted.
SECTION
2. Special
Meeting.
Except
as
otherwise required by law, special meetings of the stockholders may be called
only by the Chairman of the Board, the President, or the Board of Directors
pursuant to a resolution approved by a majority of the entire Board of
Directors.
SECTION
3. Stockholder
Action; How Taken.
Any
action required or permitted to be taken by the stockholders of the Corporation
must be effected at a duly called annual or special meeting of such holders
and
may not be effected by any consent in writing by such holders.
SECTION
4. Notice
of
Meeting.
Notice
of
every meeting of the stockholders shall be given in the manner prescribed by
law.
SECTION
5. Quorum.
Except
as
otherwise required by law, the Certificate of Incorporation or these By-Laws,
the holders of not less than one-third of the shares entitled to vote at any
meeting of the stockholders, present in person or by proxy, shall constitute
a
quorum and the act of the majority of such quorum shall be deemed the act of
the
stockholders.
If
a
quorum shall fail to attend any meeting, the chairman of the meeting may adjourn
the meeting to another place, date or time.
If
a
notice of any adjourned special meeting of stockholders is sent to all
stockholders entitled to vote thereat, stating that it will be held with those
present constituting a quorum, then, except as otherwise required by law, those
present at such
adjourned
meeting shall constitute a quorum and all matters shall be determined by a
majority of votes cast at such meeting.
SECTION
6. Qualification
of Voters.
The
Board
of Directors (hereinafter sometimes referred to as the “Board”) may fix a day
and hour not more than sixty nor less than ten days prior to the day of holding
any meeting of the stockholders as the time which the stockholders entitled
to
notice of and to vote at such meeting shall be determined. Only those persons
who were holders of record of voting stock at such time shall be entitled to
notice of and to vote at such meeting.
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
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.
Nominations
for the election of Directors may be made by the Board of Directors or a
committee appointed by the Board of Directors or by any stockholder entitled
to
vote in the election of Directors generally. However, any stockholder entitled
to vote in the election of Directors generally may nominate one or more persons
for election as Directors at a meeting only if written notice of such
stockholder’s intent to make such nomination or nominations has been given,
either by personal delivery or by United States mail, postage prepaid, to the
Secretary of the Corporation not later than (i) with respect to an election
to
be held at an annual meeting of stockholders, ninety days prior to the
anniversary date of the immediately preceding annual meeting, and (ii) with
respect to an election to be held at a special meeting of stockholders for
the
election of Directors, the close of business on the
tenth
day
following the date on which notice of such meeting is first given to
stockholders. Each such notice shall set forth: (a) the name and address of
the
stockholder who intends to make the nomination and of the person or persons
to
be nominated; (b) a representation that the stockholder is a holder of record
of
stock of the Corporation entitled to vote at such meeting and intends to appear
in person or by proxy at the meeting to nominate the person or persons specified
in the notice; (c) a description of all arrangements or understandings between
the stockholder and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination or nominations are to be
made by the stockholder; (d) such other information regarding each nominee
proposed by such stockholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission; and (e) the consent of each nominee to serve as a Director of the
Corporation of so elected. The presiding officer of the meeting may refuse
to
acknowledge the nomination of any person not made in compliance with the
foregoing procedure.
SECTION
2. Newly
Created Directorships and Vacancies.
Newly
created directorships resulting from any increase in the number of Directors
and
any vacancies on the Board of Directors resulting from 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.
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.
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.
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:
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; (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 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 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 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” 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 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.