View:
As filed with the Securities and Exchange Commission on June 6, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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THE PROMUS COMPANIES INCORPORATED
(Exact name of registrant as specified in its charter)
DELAWARE 62-1411755
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1023 Cherry Road
Memphis, Tennessee 38117
(Address of principal executive offices) (Zip Code)
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THE PROMUS COMPANIES INCORPORATED
SAVINGS AND RETIREMENT PLAN
(Full Title of the Plan)
----------------------------------
E. O. Robinson, Jr.
Senior Vice President, General Counsel and Secretary
The Promus Companies Incorporated
1023 Cherry Road
Memphis, Tennessee 38117
(901) 762-8600
(Name, address, including zip code, and telephone
number,including area code, of agent for service)
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Calculation of Registration Fee
EXHIBIT 4.4
AMENDMENT TO
THE PROMUS COMPANIES INCORPORATED
AMENDED AND RESTATED
SAVINGS AND RETIREMENT PLAN
Pursuant to Section 11 of The Promus Companies Incorporated
Savings and Retirement Plan (the "Plan"), The Promus Companies
Incorporated, a Delaware corporation, hereby adopts this First Amendment to
the Plan, effective upon the consummation of the spin-off of the hotel
business of this corporation into a new corporation.
1. Section 2.32 of the Plan shall be amended to read in its
entirety as follows:
2.32 Plan means The Harrah's Entertainment Savings and
----
Retirement Plan, as set forth herein.
2. Section 2.38 of the Plan shall be amended to read in its
entirety as follows:
2.38 Stock means the common stock of the Company or of an
-----
Affiliate, as the Administrator shall determine.
3. Section 6.4(a) of the Plan shall be amended to read in its
entirety as follows:
(a) Valuation.
---------
(i) Subject to the special valuation rules set forth in
subsections (ii) and (iii), Stock in Investment Fund III
and Investment Fund V shall be initially valued at the
purchase price paid by the Trust and thereafter shall be
valued at its most recent closing price on the New York
Stock Exchange as of the Valuation Date.
(ii) If Stock ceases to be publicly traded or if it is
being valued in connection with a transaction between the
Plan and a "party in interest" (as defined in ERISA
section 3(14)) or a "disqualified person" (as defined in
Section 4975(e)(2) of the Code) or in connection with an
extraordinary transaction or event, its value shall be
determined by the Trustee in good faith based on all
relevant factors.
(iii) In the case of Stock acquired with an Exempt Loan
the following special valuation rules shall apply:
a. For purposes of valuing such Stock in any
-
transaction between the Plan and any
"disqualified person" as that term is defined
in Code Section 4975(e)(2), fair market value
shall be determined in good faith by the
Administrator in accordance with Section 3(18)
of ERISA.
b. For purposes of a Participant's exercise of his
-
put option rights (if applicable) under Section 9.7,
such Stock shall be valued as of the end of the most
recent Plan Year.
(iv) Notwithstanding the foregoing provisions, in all
cases the valuation provisions of this Section, including
the selection of a Valuation Date for any purpose under
this Plan, shall be interpreted and applied in a manner
9
consistent with the applicable requirements under Code
Sections 409 and 4975(e)(7), the Treasury Regulations
issued thereunder, Treasury Regulation Section
54.4975-11(d)(5) and the fiduciary requirements of ERISA,
and any related or successor statutes or regulations, that
must be satisfied in order to qualify for the prohibited
transaction exemption under Code Section 4975(d)(3) or any
other relevant prohibited transaction exemption. In this
connection, all valuations of Stock contributed to or
acquired by the Plan which at the time of such valuation
is not readily tradable on an established securities
market within the meaning of Code Section 401(a)(28) shall
be made by an independent appraiser (within the meaning of Code
Section 170(a)(1)), whose name shall be reported to the
Internal Revenue Service.
6. The first paragraph of Section 15.2 of the Plan shall be
amended to read in its entirety as follows:
15.2 Withdrawal from the Plan. An Employer or Division
-------------------------
may withdraw from, or otherwise cease to participate in, the Plan by giving
the Trustees 30 days written notice of its intention to do so, in which
event the Trustees shall, as promptly as is practicable, provide for the
withdrawal or segregation of the share of the assets in the Fund
attributable to the Participants of that Employer or Division and, if such
Employer or Division so requests, the former Participants of such Employer
or Division; provided, however, that the Trustees, in their sole and
absolute discretion, may waive the 30-day notice requirement. The amount
of such pro rata share shall be the net value of the Fund attributable to
the Participants and, if applicable, the former Participants of that
Employer or Division, determined as of the latest Valuation Date. The
Trustees shall select the assets of the Fund to be withdrawn or segregated
in such amount.
* * * *
I hereby certify that the foregoing amendment to the Plan was
duly adopted by the Board of Directors of The Promus Companies Incorporated
as of April 5, 1995.
Executed as of this 26th day of May, 1995.
/s/ NEIL F. BARNHART
----------------------------------------
Neil F. Barnhart
Vice President
10
EXHIBIT 4.5
AMENDMENT TO
THE PROMUS COMPANIES INCORPORATED
AMENDED AND RESTATED
SAVINGS AND RETIREMENT PLAN
Pursuant to Section 11 of The Promus Companies Incorporated
Savings and Retirement Plan (the "Plan"), The Promus Companies
Incorporated, a Delaware corporation, hereby adopts this Second Amendment
to the Plan, effective upon the consummation of the spin-off of the hotel
business of this corporation into a new corporation.
1. Section 15.2 of the Plan shall be amended to add the
following proviso at the end of Section 15.2(b):
Provided further that any Participant who will be an
employee of the withdrawing Employer or Division after
such withdrawal and concurrently will also be an
Employee of an Employer or Division which continues to
participate in the Plan will have the right to
designate in writing to the Plan Administrator, not
later than twenty days after the withdrawal of the
Employer or Division, the percentage of the
Participant's vested Account that will be withdrawn or
segregated in accordance with this Section 15.2, which
designated percentage shall apply to all subaccounts,
investment funds and other financial amounts allocated
to such Participant, and such Participant's Account
will be valued for such purposes as of the Valuation
Date coincident with or immediately preceding the
effective date of the Employer's or Division's
withdrawal from the Plan; if such written designation
is not timely received, then such Participant's Account
will not be withdrawn or segregated under this Section
15.2.
* * * *
I hereby certify that the foregoing amendment to the Plan was
duly adopted by the Board of Directors of The Promus Companies Incorporated
as of May 26, 1995.
Executed as of this 26th day of May, 1995.
/s/ NEIL F. BARNHART
----------------------------------------
Neil F. Barnhart
Vice President
11
EXHIBIT 4.10
BYLAWS
OF
THE PROMUS COMPANIES INCORPORATED
(Amended April 5, 1995)
ARTICLE I
OFFICES
SECTION 1. Registered Office. The registered office of The Promus
Companies Incorporated (the "Corporation") shall be at The Corporation
Trust Center, 1209 Orange Street, in the City of Wilmington, County of New
Castle, State of Delaware.
SECTION 2. Other Offices. The Corporation may also have offices at
such other places both within and without the State of Delaware as the
Board of Directors of the Corporation (the "Board of Directors") may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. Place of Meetings. Meetings of the stockholders for the
election of directors or for any other purpose shall be held at such time
and place, either within or without the State of Delaware as shall be
designated from time to time by the Board of Directors and stated in the
notice of the meeting or in a duly executed waiver of notice thereof.
SECTION 2. Annual Meetings. The annual meeting of stockholders
shall be held on the first Friday in May in each year or on such other date
and at such time as may be fixed by the Board of Directors and stated in
the notice of the meeting, for the purpose of electing directors and for
the transaction of only such other business as is properly brought before
the meeting in accordance with these Bylaws.
Written notice of an annual meeting stating the place, date and hour
of the meeting, shall be given to each stockholder entitled to vote at such
meeting not less than ten nor more than sixty days before the date of the
meeting.
To be properly brought before the annual meeting, business must be
either (i) specified in the notice of annual meeting (or any supplement or
amendment thereto) given by or at the direction of the Board of Directors,
(ii) otherwise brought before the annual meeting by or at the direction of
the Board of Directors, or (iii) otherwise properly brought before the
annual meeting by a stockholder. In addition to any other applicable
requirements, 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 (60) days nor more
than ninety (90) days prior to the meeting, provided, however, that in the
event that less than seventy (70) days notice or prior public disclosure of
the date of the annual meeting is given or made to stockholders, notice by
a stockholder, to be timely, must be received no 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 was mailed or such public disclosure was
made, whichever first occurs. A stockholder's notice to the Secretary
shall set forth (a) as to each matter the stockholder proposes to bring
before the annual meeting (i) 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, and (ii) any material interest of the
stockholder in such business, and (b) as to the stockholder giving the
notice (i) the name and record address of the stockholder and (ii) the
class, series and number of shares of capital stock of the Corporation
which are beneficially owned by the stockholder. Notwithstanding anything
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in these Bylaws to the contrary, no business shall be conducted at the
annual meeting except in accordance with the procedures set forth in this
Article II, Section 2. The officer of the Corporation presiding at an
annual meeting shall, if the facts warrant, determine and declare to the
annual meeting that business was not properly brought before the annual
meeting in accordance with the provisions of this Article II, Section 2,
and if such officer should so determine, such officer shall so declare to
the annual meeting and any such business not properly brought before the
meeting shall not be transacted.
SECTION 3. Special Meetings. Unless otherwise prescribed by law or
by the Certificate of Incorporation, special meetings of stockholders, for
any purpose or purposes, may only be called by a majority of the entire
Board of Directors or by the Chairman or the President.
Written notice of a special meeting stating the place, date and hour
of the meeting, shall be given to each stockholder entitled to vote at such
meeting not less than ten nor more than sixty days before the date of the
meeting.
SECTION 4. Quorum. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the capital
stock issued and outstanding and entitled to vote thereat, present in
person or represented by proxy, shall constitute a quorum at all meetings
of the stockholders for the transaction of business. If, however, such
quorum shall not be present or represented at any meeting of the
stockholders, the holders of a majority of the votes entitled to be cast by
the stockholders entitled to vote thereat, present in person or represented
by proxy may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present or
represented by proxy. At such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have
been transacted at the meeting as originally noticed. If the adjournment
is for more than thirty days, or if after the adjournment a new record date
is fixed for the adjourned meeting, a notice of the adjourned meeting shall
be given to each stockholder entitled to vote at the meeting.
SECTION 5. Voting. Unless otherwise required by law, the
Certificate of Incorporation or these Bylaws, any question brought before
any meeting of stockholders shall be decided by the vote of the holders of
a majority of the stock represented and entitled to vote thereat. Each
stockholder represented at a meeting of stockholders shall be entitled to
cast one vote for each share of the capital stock entitled to vote thereat
held by such stockholder, unless otherwise provided by the Certificate of
Incorporation. Such votes may be cast in person or by proxy but no proxy
shall be voted after three years from its date, unless such proxy provides
for a longer period. The Board of Directors, in its discretion, or the
officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast
by written ballot.
SECTION 6. List of Stockholders Entitled to Vote. The officer of
the Corporation who has charge of the stock ledger of the Corporation shall
prepare and make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged
in alphabetical order, and showing the address of each stockholder and the
number of shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at
least ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present.
SECTION 7. Stock Ledger. The stock ledger of the Corporation shall
be the only evidence as to who are the stockholders entitled to examine the
stock ledger, the list required by Section 6 of this Article II or the
books of the Corporation, or to vote in person or by proxy at any meeting
of stockholders.
13
ARTICLE III
DIRECTORS
SECTION 1. Nomination of Directors. Nominations of persons for
election to the Board of Directors of the Corporation at the annual meeting
may be made at such meeting by or at the direction of the Board of
Directors, by any committee or persons appointed by the Board of Directors
or by any stockholder of the Corporation entitled to vote for the election
of directors at the meeting who complies with the notice procedures set
forth in this Article III, Section 1. Such nominations by any stockholder
shall be made pursuant to timely notice in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice shall be 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
meeting; provided, however, that in the event that less than seventy (70)
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
received no later than the close of business on the tenth (10th) day
following the day on which such notice of the date of the meeting was
mailed or such public disclosure was made, whichever first occurs. Such
stockholder's notice to the Secretary shall set forth (i) as to each person
whom the stockholder proposes to nominate for election or reelection as a
director, (a) the name, age, business address and residence address of the
person, (b) the principal occupation or employment of the person, (c) the
class and number of shares of capital stock of the Corporation which are
beneficially owned by the person, and (d) any other information relating to
the person that is required to be disclosed in solicitations for proxies
for election of directors pursuant to the Rules and Regulations of the
Securities and Exchange Commission under Section 14 of the Securities
Exchange Act of 1934, as amended; and (ii) as to the stockholder giving the
notice (a) the name and record address of the stockholder and (b) the class
and number of shares of capital stock of the Corporation which are
beneficially owned by the stockholder. The Corporation may require any
proposed nominee to furnish such other information as may reasonably be
required by the Corporation to determine the eligibility of such proposed
nominee to serve as a director of the Corporation. No person shall be
eligible for election as a director of the Corporation unless nominated in
accordance with the procedures set forth herein. The officer of the
Corporation presiding at an annual meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so determine, he
shall so declare to the meeting and the defective nomination shall be
disregarded. The directors shall be elected at the annual meeting of the
stockholders, except as provided in the Certificate of Incorporation, and
each director elected shall hold office until his successor is elected and
qualified; provided, however, that unless otherwise restricted by the
Certificate of Incorporation or by law, any director or the entire Board of
Directors may be removed, either with or without cause, from the Board of
Directors at any meeting of stockholders by a majority of the stock
represented and entitled to vote thereat.
SECTION 2. Meetings. The Board of Directors of the Corporation may
hold meetings, both regular and special, either within or without the
State of Delaware. Regular meetings of the Board
of Directors may be held without notice at such time and at such place as
may from time to time be determined by the Board of Directors. Special
meetings of the Board of Directors may be called by the Chairman of the
Board or the President or a majority of the entire Board of Directors.
Notice thereof stating the place, date and hour of the meeting shall be
given to each director either by mail not less than forty-eight (48) hours
before the date of the meeting, by telephone or telegram on twenty-four
(24) hours' notice, or on such shorter notice as the person or persons
calling such meeting may deem necessary or appropriate in the
circumstances.
SECTION 3. Quorum. Except as may be otherwise specifically provided
by law, the Certificate of Incorporation or these Bylaws, at all meetings
of the Board of Directors, a majority of the entire Board of Directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors. If a quorum shall not be
present at any meeting of the Board of Directors, a majority of the
directors present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall
be present.
SECTION 4. Actions of Board of Directors. Unless otherwise provided
by the Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all the members of the
14
Board of Directors or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
SECTION 5. Meetings by Means of Conference Telephone. Unless
otherwise provided by the Certificate of Incorporation or these Bylaws,
members of the Board of Directors of the Corporation, or any committee
designated by the Board of Directors, may participate in a meeting of the
Board of Directors or such committee by means of a conference telephone or
similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 5 of Article III shall constitute presence
in person at such meeting.
SECTION 6. Committees. The Board of Directors may, by resolution
passed by a majority of the entire Board of Directors, designate one or
more committees, each committee to consist of one or more of the directors
of the Corporation. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of any such committee. In the
absence or disqualification of a member of a committee, and in the absence
of a designation by the Board of Directors of an alternate member to
replace the absent or disqualified member, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he
or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any absent or
disqualified member. Any committee, to the extent allowed by law and
provided in the resolution establishing such committee, 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. Each committee
shall keep regular minutes and report to the Board of Directors when
required.
SECTION 7. Compensation. The directors may be paid their expenses,
if any, of attendance at each meeting of the Board of Directors and may
be paid a fixed sum for attendance at each meeting of the Board of
Directors or a stated salary as director. No such payment shall preclude
any director from serving the Corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees
may be allowed like compensation for attending committee meetings.
SECTION 8. Interested Directors. No contract or transaction between
the Corporation and one or more of its directors or officers, or between
the Corporation and any other corporation, partnership, association, or
other organization in which one or more of its directors or officers are
directors or officers, or have a financial interest, shall be void or
voidable solely for this reason, or solely because the director or officer
is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely
because his or their votes are counted for such purpose if (i) the material
facts as to his or their relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee in good faith authorizes
the contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less
than a quorum; or (ii) the material facts as to his or their relationship
or interest and as to the contract or transaction are disclosed or are
known to the shareholder entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
shareholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the
Board of Directors, a committee thereof or the shareholders. Common or
interested directors may be counted in determining the presence of a quorum
at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
15
ARTICLE IV
OFFICERS
SECTION 1. General. The officers of the Corporation shall be chosen
by the Board of Directors and shall be a President, a Secretary and a
Treasurer. The Board of Directors, in its discretion, may also choose a
Chairman of the Board of Directors (who must be a director) and one or more
Vice Presidents, Assistant Secretaries, Assistant Treasurers and other
officers. Any number of offices may be held by the same person, unless
otherwise prohibited by law, the Certificate of Incorporation or these
Bylaws. The officers of the Corporation need not be stockholders of the
Corporation nor, except in the case of the Chairman of the Board of
Directors, need such officers be directors of the Corporation.
SECTION 2. Election. The Board of Directors at its first meeting
held after each annual meeting of stockholders shall elect the officers of
the Corporation who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from
time to time by the Board of Directors; and all officers of the Corporation
shall hold office until their successors are chosen and qualified, or until
their earlier resignation or removal. Any officer elected by the Board of
Directors may be removed at any time by the affirmative vote of a majority
of the Board of Directors. Any vacancy occurring in any office of the
Corporation shall be filled by the Board of Directors. The salaries of all
officers who are directors of the Corporation shall be fixed by the Board
of Directors.
SECTION 3. Voting Securities Owned by the Corporation. Powers of
attorney, proxies, waivers of notice of meeting, consents and other
instruments relating to securities owned by the Corporation may be
executed in the name of and on behalf of the Corporation by the President
or any Vice President and any such officer may, in the name and on behalf
of the Corporation, take all such action as any such officer may deem
advisable to vote in person or by proxy at any meeting of security holders
of any corporation in which the Corporation may own securities and at any
such meeting shall possess and may exercise any and all rights and power
incident to the ownership of such securities and which, as the owner
thereof, the Corporation might have exercised and possessed if present.
The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
SECTION 4. Chairman of the Board of Directors. The Chairman of the
Board of Directors, if there be one, shall preside at all meetings of the
stockholders and of the Board of Directors. Except where by law the
signature of the President is required, the Chairman of the Board of
Directors shall possess the same power as the President to sign all
contracts, certificates and other instruments of the Corporation which may
be authorized by the Board of Directors. During the absence or disability
of the President, the Chairman of the Board of Directors shall exercise all
the powers and discharge all the duties of the President. The Chairman of
the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by
these Bylaws or by the Board of Directors.
SECTION 5. President. The President shall, subject to the control
of the Board of Directors and, if there be one, the Chairman of the Board
of Directors, have general supervision of the business of the Corporation
and shall see that all orders and resolutions of the Board of Directors are
carried into effect. He shall execute all bonds, mortgages, contracts and
other instruments of the Corporation requiring a seal, under the seal of
the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation
may sign and execute documents when so authorized by these Bylaws, the
Board of Directors or the President. In the absence or disability of the
Chairman of the Board of Directors, or if there be none, the President
shall preside at all meetings of the stockholders and the Board of
Directors. The President shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by
these Bylaws or by the Board of Directors.
SECTION 6. Vice Presidents. At the request of the President or in
his absence or in the event of his inability or refusal to act (and if
there be no Chairman of the Board of Directors), the Vice President or the
Vice Presidents if there is more than one (in the order designated by the
Board of Directors) shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions
upon the President. Each Vice President shall perform such other duties
and have such other powers as the Board of Directors from time to time may
prescribe. If there be no Chairman of the Board of Directors and no Vice
President, the Board of Directors shall designate the officer of the
Corporation who, in the absence of the President or in the event of the
16
inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President.
SECTION 7. Secretary. The Secretary shall attend all meetings of
the Board of Directors and all meetings of stockholders and record all the
proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties for the standing committees when
required. The Secretary shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by
the Board of Directors or President, under whose supervision he shall be.
If the Secretary shall be unable or shall refuse to cause to be given
notice of all meetings of the stockholders and special meetings of the
Board of Directors, and if there be no Assistant Secretary, then either the
Board of Directors or the President may choose another officer to cause
such notice to be given. The Secretary shall have custody of the seal of
the Corporation and the Secretary or any Assistant Secretary, if there be
one, shall have authority to affix the same to any instrument requiring it
and when so affixed, it may be attested by the signature of the Secretary
or by the signature of any such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature. The
Secretary shall see that all books, reports, statements, certificates and
other documents and records required by law to be kept or filed are
properly kept or filed, as the case may be.
SECTION 8. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit
of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as
may be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of
Directors, at its regular meetings, or when the Board of Directors so
requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of
Directors, the Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for
the restoration to the Corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money
and other property of whatever kind in his possession or under his control
belonging to the Corporation.
SECTION 9. Assistant Secretaries. Except as may be otherwise
provided in these Bylaws, Assistant Secretaries, if there be any, shall
perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the President, any Vice
President, if there be one, or the Secretary, and in the absence of the
Secretary or in the event of his disability or refusal to act, shall
perform the duties of the Secretary, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the Secretary.
SECTION 10. Assistant Treasurers. Assistant Treasurers, if there be
any, shall perform such duties and have such powers as from time to time
may be assigned to them by the Board of Directors, the President, any Vice
President, if there be one, or the Treasurer, and in the absence of the
Treasurer or in the event of his disability or refusal to act, shall
perform the duties of the Treasurer, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the
Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his office and for the restoration to the Corporation, in case
of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
SECTION 11. Controller. The Controller shall establish and maintain
the accounting records of the Corporation in accordance with generally
accepted accounting principles applied on a consistent basis, maintain
proper internal control of the assets of the Corporation and shall perform
such other duties as the Board of Directors, the President or any Vice
President of the Corporation may prescribe.
SECTION 12. Other Officers. Such other officers as the Board of
Directors may choose shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors. The Board
of Directors may delegate to any other officer of the Corporation the power
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to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
SECTION 1. Form of Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate signed, in the name of
the Corporation (i) by the Chairman of the Board of Directors, the
President or a Vice President and (ii) by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares owned by him in the Corporation.
SECTION 2. Signatures. Any or all of the signatures on the
certificate may be a facsimile, including, but not limited to, signatures
of officers of the Corporation and countersignatures of a transfer agent or
registrar. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same
effect as if he were such officer, transfer agent or registrar at the date
of issue.
SECTION 3. Lost Certificates. The Board of Directors may direct a
new certificate to be issued in place of any certificate theretofore issued
by the Corporation alleged to have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming the certificate
of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate, or his legal representative, to
advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against the Corporation with
respect to the certificate alleged to have been lost, stolen or destroyed.
SECTION 4. Transfers. Stock of the Corporation shall be
transferable in the manner prescribed by law and in these Bylaws.
Transfers of stock shall be made on the books of the Corporation only by
the person named in the certificate or by his attorney lawfully constituted
in writing and upon the surrender of the certificate therefor, which shall
be cancelled before a new certificate shall be issued.
SECTION 5. Record Date. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to express consent to
corporate action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any rights,
or entitled to exercise any rights in respect of any change, conversion or
exchange of stock, or for the purpose of any other lawful action, the Board
of Directors may fix, in advance, a record date, which shall not be more
than sixty days nor less than ten days before the date of such meeting, nor
more than sixty days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the
adjourned meeting.
SECTION 6. Beneficial Owners. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and to
hold liable for calls and assessments a person registered on its books as
the owner of shares, and shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof,
except as otherwise provided by law.
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ARTICLE VI
NOTICES
SECTION 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, to be given to any director,
member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his
address as it appears on the records of the Corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at the time
when the same shall be deposited in the United States mail. Written notice
may also be given personally or by telegram, telex or cable.
SECTION 2. Waivers of Notice. Whenever any notice is required by
law, the Certificate of Incorporation or these Bylaws, to be given to any
director, member of a committee or stockholder, a waiver thereof in
writing, signed, by the person or persons entitled to said notice, whether
before or after the time stated therein, shall be deemed equivalent
thereto.
ARTICLE VII
GENERAL PROVISIONS
SECTION 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation,
if any, may be declared by the Board of Directors at any regular or special
meeting, and may be paid in cash, in property, or in shares of the capital
stock. Before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends such sum or sums as the
Board of Directors from time to time, in its absolute discretion, deems
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation,
or for any proper purpose, and the Board of Directors may modify or abolish
any such reserve.
SECTION 2. Disbursements. All checks or demands for money and notes
of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
SECTION 3. Fiscal Year. The fiscal year of the Corporation shall
end on the Friday nearest December 31 and the following fiscal year shall
commence on the Saturday following the aforesaid Friday, unless the fiscal
year is otherwise fixed by affirmative resolution of the entire Board of
Directors.*
SECTION 4. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
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* On October 25, 1991, the Board of Directors of the Company adopted a
resolution changing the Company's fiscal year end to a calendar year
commencing with the year 1992.
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EXHIBIT 5
May 31, 1995
The Promus Companies Incorporated
1023 Cherry Road
Memphis, TN 38117
Re: Common Stock, Par Value $0.10 Per Share of The
Promus Companies Incorporated (the "Company")
---------------------------------------------
Ladies and Gentlemen:
I am General Counsel of the Company. At your request, I have
examined the Form S-8 Registration Statement (the "Registration Statement")
which you intend to file with the Securities and Exchange Commission in
connection with the registration under the Securities Act of 1933, as
amended, of 6,000,000 shares of Common Stock, par value $0.10 per share
(the "Shares"), issuable pursuant to the Company's Savings and Retirement
Plan, as amended as of April 5, 1995 (the "Plan").
The Shares will be issued under the Plan in accordance with the
terms of said Plan. I am familiar with the proceedings undertaken in
connection with the authorization and issuance of the Shares under the
Plan. Additionally, I have examined such questions of law and fact as I
have considered necessary or appropriate for purposes of this opinion.
Based upon the foregoing, I am of the opinion that the Shares
have been duly authorized, and upon the issuance of Shares under the terms
of the Plan and delivery and payment therefor of consideration set forth in
the Delaware General Corporation Law at least equal to the aggregate par
value of the Shares issued, such Shares will be validly issued, fully paid
and nonassessable.
I consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to my name in the Registration
Statement under the heading "Interests of Named Experts and Counsel."
Very truly yours,
/s/ E. O. ROBINSON, JR.
E. O. Robinson, Jr.
Senior Vice President, General Counsel
and Secretary
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report
dated March 20, 1995 included in The Promus Companies Incorporated Form 10-
K, as amended, for the year ended December 31, 1994 and to all references
to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Memphis, Tennessee
May 30, 1995
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