EXHIBIT 3.1
BYLAWS
OF
EOG RESOURCES, INC.
A Delaware Corporation
Date of Adoption: August 23, 1989
As Amended: December 12, 1990,
February 8, 1994,
January 19, 1996,
February 13, 1997,
May 5, 1998,
September 7, 1999,
February 14, 2000,
May 8, 2001.
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BYLAWS
Table of Contents
Page
Article I. Offices
Section 1. Registered Office 1
Section 2. Offices 1
Section 3. Books and Records 1
Article II. Stockholders
Section 1. Place of Meetings 1
Section 2. Quorum; Adjournment of Meetings 1
Section 3. Annual Meetings 2
Section 4. Special Meeting 2
Section 5. Record Date 2
Section 6. Notice of Meetings 3
Section 7. Stockholder List 3
Section 8. Proxies 3
Section 9. Voting; Elections; Inspectors 4
Section 10. Conduct of Meetings 4
Section 11. Treasury Stock 5
Section 12. Business to Be Brought Before
the Annual Meeting 5
Section 13. Record Date for Action by Written
Consent 6
Section 14. Inspectors of Written Consent 6
Section 15. Effectiveness of Written Consent 7
Article III. Board of Directors
Section 1. Power; Number; Term of Office 7
Section 2. Quorum; Voting 7
Section 3. Place of Meetings; Order of Business 7
Section 4. First Meeting 8
Section 5. Regular Meetings 8
Section 6. Special Meetings 8
Section 7. Nomination of Directors 8
Section 8. Removal 9
Section 9. Vacancies; Increases in the Number
of Directors 9
Section 10. Compensation 9
Section 11. Action Without a Meeting; Telephone
Conference Meeting 10
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Section 12. Approval or Ratification of Acts or
Contracts by Stockholders 10
Section 13. Retirement 10
Section 14. Independent Directors 10
Article IV. Committees
Section 1. Executive Committee 11
Section 2. Audit Committee 12
Section 3. Other Committees 12
Section 4. Procedure; Meetings; Quorum 12
Section 5. Substitution and Removal of Members;
Vacancies 12
Article V. Officers
Section 1. Number, Titles and Term of Office 13
Section 2. Powers and Duties of the Chairman
of the Board 13
Section 3. Powers and Duties of the President,
President-North American
Operations, and President-
International Operations 13
Section 4. Powers and Duties of the Vice
Chairman of the Board 14
Section 5. Vice Presidents 14
Section 6. General Counsel 14
Section 7. Secretary 15
Section 8. Deputy Corporate Secretary and
Assistant Secretaries 15
Section 9. Treasurer 15
Section 10. Assistant Treasurers 15
Section 11. Action with Respect to Securities
of Other Corporations 15
Section 12. Delegation 16
Article VI. Capital Stock
Section 1. Certificates of Stock 16
Section 2. Transfer of Shares 16
Section 3. Ownership of Shares 17
Section 4. Regulations Regarding Certificates 17
Section 5. Lost or Destroyed Certificates 17
Article VII. Miscellaneous Provisions
Section 1. Fiscal Year 17
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Section 2. Corporate Seal 17
Section 3. Notice and Waiver of Notice 17
Section 4. Facsimile Signatures 18
Section 5. Reliance upon Books, Reports and
Records 18
Section 6. Application of Bylaws 18
Article VIII. Amendments 19
1
BYLAWS
OF
EOG RESOURCES, INC.
Article I
Offices
Section 1. Registered Office. The registered office of the
Corporation required by the General Corporation Law of the State
of Delaware to be maintained in the State of Delaware shall be the
registered office named in the original Certificate of
Incorporation of the Corporation, or such other office as may be
designated from time to time by the Board of Directors in the
manner provided by law.
Section 2. Offices. The Corporation may also have offices
at such other places both within and without the state of
incorporation of the Corporation as the Board of Directors may
from time to time determine or the business of the Corporation may
require.
Section 3. Books and Records. The books and records of the
Corporation may be kept outside the State of Delaware at such
place or places as may from time to time be designated by the
Board of Directors.
Article II
Stockholders
Section 1. Place of Meetings. All meetings of the
stockholders shall be held at the principal office of the
Corporation, or at such other place within or without the state of
incorporation of the Corporation as shall be specified or fixed in
the notices or waivers of notice thereof.
Section 2. Quorum; Adjournment of Meetings. Unless otherwise
required by law or provided in the Certificate of Incorporation or
these Bylaws, (i) the holders of a majority of the stock issued
and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at any meeting of
stockholders for the transaction of business, (ii) the affirmative
vote of the holders of a majority of such stock so present or
represented at any meeting of stockholders at which a quorum is
present shall constitute the act of the stockholders, and (iii)
where a separate vote by a class or classes is required, a
majority of the outstanding shares of such class or classes,
present in person or represented by proxy shall constitute a
quorum entitled to take action with respect to that vote on that
matter and the affirmative vote of the majority of the shares of
such class or classes present in person or represented by proxy at
the meeting shall be the act of such class. The stockholders
present at a duly organized meeting may continue
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to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum,
subject to the provisions of clauses (ii) and (iii) above.
Directors shall be elected by a majority of the votes of the
shares present in person or represented by proxy at the meeting
and entitled to vote on the election of directors.
Notwithstanding the other provisions of the Certificate of
Incorporation or these Bylaws, the chairman of the meeting or the
holders of a majority of the issued and outstanding stock, present
in person or represented by proxy and entitled to vote thereat, at
any meeting of stockholders, whether or not a quorum is present,
shall have the power to adjourn such meeting from time to time,
without any notice other than announcement at the meeting of the
time and place of the holding of the adjourned meeting. If the
adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting,
a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at such meeting. 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 called.
Section 3. Annual Meetings. An annual meeting of the
stockholders, for the election of directors to succeed those whose
terms expire 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 incorporation of the Corporation),
on such date, and at such time as the Board of Directors shall fix
and set forth in the notice of the meeting.
Section 4. Special Meeting. Subject to the rights of the
holders of any series of stock having a preference over the Common
Stock of the Corporation as to dividends or upon liquidation with
respect to such series of preferred stock, special meetings of the
stockholders may be called only by the Chairman of the Board or by
the Board of Directors pursuant to a resolution adopted by a
majority of the total number of directors which the Corporation
would have if there were no vacancies.
Section 5. Record Date. For the purpose of determining
stockholders entitled to notice of or to vote at any meeting of
stockholders, or any adjournment thereof, 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 of the Corporation may
fix a date as the record date for any such determination of
stockholders, which record date shall not precede the date on
which the resolutions fixing the record date are adopted and which
record date shall not be more than sixty (60) days nor less than
ten (10) days before the date of such meeting of stockholders, nor
more than sixty (60) days prior to any other action.
If the Board of Directors does not fix a record date for any
meeting of the stockholders, the record date for determining
stockholders entitled to notice of or to vote at such meeting
shall be at the close of business on the day next preceding the
day on which
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notice is given, or, if in accordance with Article VII, Section
3 of these Bylaws notice is waived, at the close of business on the
day next preceding the day on which the meeting is held. The
record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. 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. Notice of Meetings. Written notice of the place,
date and hour of all meetings, and, in case of a special meeting,
the purpose or purposes for which the meeting is called, shall be
given by or at the direction of the Chairman of the Board, the
President, the Vice Chairman of the Board, the Secretary or the
other person(s) calling the meeting to each stockholder entitled
to vote thereat not less than ten (10) nor more than sixty (60)
days before the date of the meeting. Such notice may be delivered
either personally or by mail. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to
the stockholder at such stockholder's address as it appears on the
records of the Corporation.
Section 7. Stockholder List. A complete list of
stockholders entitled to vote at any meeting of stockholders,
arranged in alphabetical order for each class of stock and showing
the address of each such stockholder and the number of shares
registered in the name of such stockholder, 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 (10) 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 stockholder list
shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 8. Proxies. Each stockholder entitled to vote at a
meeting of stockholders may authorize another person or persons to
act for him by proxy. Proxies for use at any meeting of
stockholders shall be filed with the Secretary, or such other
officer as the Board of Directors may from time to time determine
by resolution, before or at the time of the meeting. All proxies
shall be received and taken charge of and all ballots shall be
received and canvassed by the secretary of the meeting, who shall
decide all questions touching upon the qualification of voters,
the validity of the proxies, and the acceptance or rejection of
votes, unless an inspector or inspectors shall have been appointed
by the chairman of the meeting, in which event such inspector or
inspectors shall decide all such questions.
No proxy shall be valid after three (3) years from its date,
unless the proxy provides for a longer period. Each proxy shall be
revocable unless expressly provided therein to be irrevocable and
coupled with an interest sufficient in law to support an
irrevocable power.
Should a proxy designate two or more persons to act as
proxies, unless such instrument shall provide the contrary, a
majority of such persons present at any meeting at
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which their powers thereunder are to be exercised shall have and
may exercise all the powers of voting or giving consents thereby
conferred, or if only one be present, then such powers may be
exercised by that one; or, if an even number attend and a
majority do not agree on any particular issue, each proxy so
attending shall be entitled to exercise such powers in respect of
such portion of the shares as is equal to the reciprocal of the
fraction equal to the number of proxies representing such shares
divided by the total number of shares represented by such proxies.
Section 9. Voting; Elections; Inspectors. Unless otherwise
required by law or provided in the Certificate of Incorporation,
each stockholder shall on each matter submitted to a vote at a
meeting of stockholders have one vote for each share of stock
entitled to vote which is registered in his name on the record
date for the meeting. For the purposes hereof, each election to
fill a directorship shall constitute a separate matter. Shares
registered in the name of another corporation, domestic or
foreign, may be voted by such officer, agent or proxy as the
bylaws (or comparable instrument) of such corporation may
prescribe, or in the absence of such provision, as the Board of
Directors (or comparable body) of such corporation may determine.
Shares registered in the name of a deceased person may be voted by
the executor or administrator of such person's estate, either in
person or by proxy.
All voting, except as required by the Certificate of
Incorporation or where otherwise required by law, may be by a
voice vote; provided, however, upon request of the chairman of the
meeting or upon demand therefor by stockholders holding a majority
of the issued and outstanding stock present in person or by proxy
at any meeting a stock vote shall be taken. Every stock vote shall
be taken by written ballots, each of which shall state the name of
the stockholder or proxy voting and such other information as may
be required under the procedure established for the meeting. All
elections of directors shall be by written ballots, unless
otherwise provided in the Certificate of Incorporation.
At any meeting at which a vote is taken by written ballots,
the chairman of the meeting may appoint one or more inspectors,
each of whom shall subscribe an oath or affirmation to execute
faithfully the duties of inspector at such meeting with strict
impartiality and according to the best of such inspector's
ability. Such inspector shall receive the written ballots, count
the votes and make and sign a certificate of the result thereof.
The chairman of the meeting may appoint any person to serve as
inspector, except no candidate for the office of director shall be
appointed as an inspector.
Unless otherwise provided in the Certificate of
Incorporation, cumulative voting for the election of directors
shall be prohibited.
Section 10. Conduct of Meetings. The meetings of the
stockholders shall be presided over by the Chairman of the Board,
or if the Chairman of the Board is not present, by the President,
or if the President is not present, by the Vice Chairman of the
Board, or if neither the Chairman of the Board, the President nor
the Vice Chairman of the Board is present, by a chairman elected
at the meeting. The Secretary of the Corporation, if present,
shall act as secretary of such meetings, or if the Secretary is
not present, the
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Deputy Corporate Secretary or an Assistant Secretary shall so
act; if neither the Secretary or the Deputy Corporate Secretary
or an Assistant Secretary is present, then a secretary shall be
appointed by the chairman of the meeting. The chairman of any
meeting of stockholders shall determine the order of business
and the procedure at the meeting, including such regulation of
the manner of voting and the conduct of discussion as seem to the
chairman in order.
Section 11. Treasury Stock. The Corporation shall not vote,
directly or indirectly, shares of its own stock owned by it and
such shares shall not be counted for quorum purposes. Nothing in
this Section 11 shall be construed as limiting the right of the
Corporation to vote stock, including but not limited to its own
stock, held by it in a fiduciary capacity.
Section 12. Business to Be Brought Before the Annual
Meeting. To be properly brought before the annual meeting of
stockholders, business must be either (a) specified in the notice
of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors, (b) otherwise 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
of the Corporation who is a stockholder of record at the time of
giving of notice provided for in this Section 12 of Article II,
who shall be entitled to vote at such meeting and who complies
with the notice procedures set forth in this Section 12 of Article
II. In addition to any other applicable requirements, for
business to be brought before an annual meeting by a stockholder
of the Corporation, 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 120 days prior to the anniversary date of the proxy
statement for the preceding annual meeting of stockholders of the
Corporation. A stockholder's notice to the Secretary shall set
forth 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, (ii) the name and
address, as they appear on the Corporation's books, of the
stockholder proposing such business, (iii) the acquisition date,
the class and the number of shares of voting stock of the
Corporation which are owned beneficially by the stockholder, (iv)
any material interest of the stockholder in such business, and (v)
a representation that the stockholder intends to appear in person
or by proxy at the meeting to bring the proposed business before
the meeting.
Notwithstanding anything 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 Section 12.
The chairman of the annual meeting shall, if the facts
warrant, determine and declare to the meeting that business was
not properly brought before the meeting in accordance with the
provisions of this Section 12 of Article II, and if the chairman
should so determine, the chairman shall so declare to the meeting
and any such business not properly brought before the meeting
shall not be transacted.
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Notwithstanding the foregoing provisions of this Section 12
of Article II, a stockholder shall also comply with all applicable
requirements of the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder with respect to the
matters set forth in this Section 12.
Section 13. Record Date for Action by Written Consent. In
order that the Corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the
Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record
date is adopted by the Board of Directors, and which date shall
not be more than ten (10) days after the date upon which the
resolution fixing the record date is adopted by the Board of
Directors. Any stockholder of record seeking to have the
stockholders authorize or take corporate action by written consent
shall, by written notice to the Secretary, request the Board of
Directors to fix a record date. The Board of Directors shall
promptly, but in all events within ten (10) days after the date on
which such a request is received, adopt a resolution fixing the
record date (unless a record date has previously been fixed by the
Board of Directors pursuant to the first sentence of this Section
13). If no record date has been fixed by the Board of Directors
pursuant to the first sentence of this Section 13 or otherwise
within ten (10) days of the date on which such a request is
received, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting, when no
prior action by the Board of Directors is required by applicable
law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office
in Delaware, its principal place of business, or to any officer or
agent of the Corporation having custody of the books in which
proceedings of meetings of stockholders are recorded. Delivery
shall be by hand or by certified or registered mail, return
receipt requested. If no record date has been fixed by the Board
of Directors and prior action by the Board of Directors is
required by applicable law, the record date for determining
stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the date on
which the Board of Directors adopts the resolution taking such
prior action.
Section 14. Inspectors of Written Consent. In the event of
the delivery, in the manner provided by Section 13, to the
Corporation of the requisite written consent or consents to take
corporate action and/or any related revocation or revocations, the
Corporation shall engage independent inspectors of elections for
the purpose of promptly performing a ministerial review of the
validity of the consents and revocations. For the purpose of
permitting the inspectors to perform such review, no action by
written consent without a meeting shall be effective until such
date as the independent inspectors certify to the Corporation that
the consents delivered to the Corporation in accordance with
Section 13 represent at least the minimum number of votes that
would be necessary to take the corporate action. Nothing contained
in this Section 14 shall in any way be construed to suggest or
imply that the Board of Directors or any stockholder shall not be
entitled to contest the validity of any consent or revocation
thereof, whether before or after such certification by the
independent inspectors, or to take any other action (including,
without
7
limitation, the commencement, prosecution, or defense of any
litigation with respect thereto, and the seeking of injunctive
relief in such litigation).
Section 15. Effectiveness of Written Consent. Every written
consent shall bear the date of signature of each stockholder who
signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within sixty
(60) days of the earliest dated written consent received in
accordance with Section 13, a written consent or consents signed
by a sufficient number of holders to take such action are
delivered to the Corporation in the manner prescribed in Section
13.
Article III
Board of Directors
Section 1. Power; Number; Term of Office. The business and
affairs of the Corporation shall be managed by or under the
direction of the Board of Directors, and subject to the
restrictions imposed by law or the Certificate of Incorporation,
the Board of Directors may exercise all the powers of the
Corporation.
The number of directors which shall constitute the whole
Board of Directors shall be determined from time to time by the
Board of Directors (provided that no decrease in the number of
directors which would have the effect of shortening the term of an
incumbent director may be made by the Board of Directors). If the
Board of Directors makes no such determination, the number of
directors shall be three. Each director shall hold office for the
term for which such director is elected, and until such Director's
successor shall have been elected and qualified or until such
Director's earlier death, resignation or removal.
Unless otherwise provided in the Certificate of
Incorporation, directors need not be stockholders nor residents of
the state of incorporation of the Corporation.
Section 2. Quorum; Voting. Unless otherwise provided in the
Certificate of Incorporation, a majority of the total number of
directors, at least half of whom are Independent Directors as
defined in Section 14 below, shall constitute a quorum for the
transaction of business of the Board of Directors and the vote of
a majority of the directors present at a meeting at which a quorum
is present shall be the act of the Board of Directors.
Section 3. Place of Meetings; Order of Business. The
directors may hold their meetings and may have an office and keep
the books of the Corporation, except as otherwise provided by law,
in such place or places, within or without the state of
incorporation of the Corporation, as the Board of Directors may
from time to time determine. At all meetings of the Board of
Directors business shall be transacted in such order as shall from
time to time be determined by the Chairman of the Board, or in the
Chairman of the Board's absence by the President (should the
President be a director), or in the President's absence by the
Vice Chairman of the Board, or by the Board of Directors.
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Section 4. First Meeting. Each newly elected Board of
Directors may hold its first meeting for the purpose of
organization and the transaction of business, if a quorum is
present, immediately after and at the same place as the annual
meeting of the stockholders. Notice of such meeting shall not be
required. At the first meeting of the Board of Directors in each
year at which a quorum shall be present, held next after the
annual meeting of stockholders, the Board of Directors shall elect
the officers of the Corporation.
Section 5. Regular Meetings. Regular meetings of the Board
of Directors shall be held at such times and places as shall be
designated from time to time by the Chairman of the Board or, in
the absence of the Chairman of the Board, by the President (should
the President be a director), or in the President's absence, by
the Vice Chairman of the Board. Notice of such regular meetings
shall not be required.
Section 6. Special Meetings. Special meetings of the Board
of Directors may be called by the Chairman of the Board, the
President (should the President be a director) or the Vice
Chairman of the Board or, on the written request of any two
directors, by the Secretary, in each case on at least twenty-four
(24) hours personal, written, telegraphic, cable or wireless
notice to each director. Such notice, or any waiver thereof
pursuant to Article VII, Section 3 hereof, need not state the
purpose or purposes of such meeting, except as may otherwise be
required by law or provided for in the Certificate of
Incorporation or these Bylaws. Meetings may be held at any time
without notice if all the directors are present or if those not
present waive notice of the meeting in writing.
Section 7. Nomination of Directors. Only persons who are
nominated in accordance with the following procedures shall be
eligible for election as directors. Nominations of persons for
election to the Board of Directors of the Corporation may be made
at a meeting of stockholders (a) by or at the direction of the
Board of Directors or (b) by any stockholder of the
Corporation who is a stockholder of record at the time of giving
of notice provided for in this Section 7 of Article III, who shall
be entitled to vote for the election of directors at the meeting
and who complies with the notice procedures set forth in this
Section 7 of Article III. Such nominations, other than those made
by or at the direction of the Board of Directors, 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 (i) with respect to an election to be
held at the annual meeting of the stockholders of the Corporation,
not less than 120 days prior to the anniversary date of the proxy
statement for the immediately preceding annual meeting of
stockholders of the Corporation, and (ii) with respect to an
election to be held at a special meeting of stockholders of the
Corporation for the election of directors, not later than the
close of business on the 10th day following the day on which such
notice of the date of the meeting was mailed or public disclosure
of the date of the meeting was made, whichever first occurs. Such
stockholder's notice to the Secretary shall set forth (a) as to
each person whom the stockholder proposes to nominate for election
or re-election as a director, all information relating to the
person that is required to be disclosed in solicitations for
proxies for election of directors, or is otherwise required,
9
pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (including the written consent of such person to
be named in the proxy statement as a nominee and to serve as a
director if elected); and (b) as to the stockholder giving the
notice (i) the name and address, as they appear on the
Corporation's books, of such stockholder, and (ii) the class and
number of shares of capital stock of the Corporation which are
beneficially owned by the stockholder. At the request of the Board
of Directors, any person nominated by the Board of Directors for
election as a director shall furnish to the Secretary of the
Corporation that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee.
In the event that a person is validly designated as nominee
to the Board and shall thereafter become unable or unwilling to
stand for election to the Board of Directors, the Board of
Directors or the stockholder who proposed such nominee, as the
case may be, may designate a substitute nominee.
No person shall be eligible to serve as a director of the
Corporation unless nominated in accordance with the procedures set
forth in this Section 7 of Article III and in compliance with
Section 14 of Article III. The chairman of the meeting of
stockholders shall, if the facts warrant, determine and declare to
the meeting that a nomination was not made in accordance with the
procedures and requirements prescribed by the Bylaws, and if the
chairman should so determine, the chairman shall so declare to the
meeting and the defective nomination shall be disregarded.
Notwithstanding the foregoing provisions of this Section 7 of
Article III, a stockholder shall also comply with all applicable
requirements of the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder with respect to the
matters set forth in this Section 7 of Article III.
Section 8. Removal. Any director or the entire Board of
Directors may be removed, with or without cause, by the holders of
a majority of the shares then entitled to vote at an election of
directors.
Section 9. Vacancies; Increases in the Number of Directors.
Unless otherwise provided in the Certificate of Incorporation,
subject to the requirements set forth in Section 14 of this
Article III, vacancies existing on the Board of Directors for any
reason and newly created directorships resulting from any increase
in the authorized number of directors may be filled by the
affirmative vote of a majority of the directors then in office,
although less than a quorum, or by a sole remaining director; and
any director so chosen shall hold office until the next annual
election and until such Director's successor shall have been
elected and qualified, or until such Director's earlier death,
resignation or removal.
Section 10. Compensation. Directors and members of standing
committees may receive such compensation as the Board of Directors
from time to time shall determine to be appropriate, and shall be
reimbursed for all reasonable expenses incurred in attending and
returning from meetings of the Board of Directors.
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Section 11. Action Without a Meeting; Telephone Conference
Meeting. Unless otherwise restricted by the Certificate of
Incorporation, any action required or permitted to be taken at any
meeting of the Board of Directors, or any committee designated by
the Board of Directors, may be taken without a meeting if all
members of the 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. Such consent shall have the same force and effect as a
unanimous vote at a meeting, and may be stated as such in any
document or instrument filed with the Secretary of State of the
state of incorporation of the Corporation.
Unless otherwise restricted by the Certificate of
Incorporation, subject to the requirement for notice of meetings,
members of the Board of Directors, or members of any committee
designated by the Board of Directors, may participate in a meeting
of such Board of Directors or committee, as the case may be, by
means of a conference telephone connection or similar
communications equipment by means of which all persons
participating in the meeting can hear each other, and
participation in such a meeting shall constitute presence in
person at such meeting, except where a person participates in the
meeting for the express purpose of objecting to the transaction of
any business on the ground that the meeting is not lawfully called
or convened.
Section 12. Approval or Ratification of Acts or Contracts by
Stockholders. The Board of Directors in its discretion may submit
any act or contract for approval or ratification at any annual
meeting of the stockholders, or at any special meeting of the
stockholders called for the purpose of considering any such act or
contract, and any act or contract that shall be approved or be
ratified by the vote of the stockholders holding a majority of the
issued and outstanding shares of stock of the Corporation entitled
to vote and present in person or by proxy at such meeting
(provided that a quorum is present) shall be as valid and as
binding upon the Corporation and upon all the stockholders as if
it has been approved or ratified by every stockholder of the
Corporation.
Section 13. Retirement. No incumbent Director serving the
Corporation as of September 7, 1999, shall be eligible to stand
for re-election as a Director of the Corporation after attaining
the age of 76 years, and no Director first elected subsequent to
September 7, 1999, shall be eligible to stand for re-election as
a Director of the Corporation after having attained the age of 72
years.
Section 14. Independent Directors.
The Board of Directors has determined that the following
requirements in respect of the qualifications of the Corporation's
directors and the composition of the Board of Directors are
desirable for and in the best interests of the Corporation and its
stockholders:
(a) At least three-fifths of the individuals elected to the
Board of Directors at the Corporation's annual meeting of
stockholders shall consist of individuals who, upon election,
would be Independent Directors.
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(b) In the event one or more directors are elected or
appointed other than by action of the stockholders at an annual
meeting of stockholders, at least three-fifths of all directors
holding office immediately thereafter shall be Independent
Directors.
(c) For purposes of this Section 14, the term "Independent
Director" shall mean a director who: (i) is not and has not been
employed by the Corporation as an executive officer of the
Corporation within the three years immediately prior to his
election or appointment to the Board of Directors; (ii) is not the
direct or indirect beneficial owner of more than 5% of the
outstanding shares of stock of the Corporation entitled to vote in
the election of directors ("Voting Stock"), or an affiliate or
representative of, or a party to a contract, arrangement or
understanding with, such beneficial owner or an affiliate thereof,
excluding any direct or indirect beneficial owner which has
beneficially owned more than 5% of the outstanding Voting Stock
continuously during the two years immediately prior to the
relevant election or appointment to the Board of Directors; (iii)
is not (and is not affiliated with a corporation or a firm that
is) a significant advisor or consultant to the Corporation or any
of its subsidiaries; (iv) is not affiliated with a significant
customer or supplier of the Corporation or any of its
subsidiaries; (v) does not have a personal services contract with
the Corporation or any of its subsidiaries; (vi) is not affiliated
with a tax-exempt entity that receives significant contributions
from the Corporation or any of its subsidiaries; and (vii) is not
a spouse, parent, sibling or child of any person described by (i)
through (vi).
(d) The Board of Directors shall have the exclusive right
and power to interpret and apply the provisions of this Section
14, including, without limitation, the adoption of written
definitions of terms used in and guidelines for the application of
this Section 14 (any such definitions and guidelines shall be
filed with the Secretary of the Corporation, and such definitions
and guidelines as may prevail shall be made available to any
stockholder upon written request), and any such definitions or
guidelines and any other interpretation or application of the
provisions of this Section 14 made in good faith shall be binding
and conclusive upon all holders of equity securities of the
Corporation.
(e) Information regarding a nominee for director provided by
a stockholder pursuant to Section 7 of this Article III shall
include such information as may be necessary to enable the Board
of Directors to make an informed determination as to whether such
nominee, if elected, would be an Independent Director as defined
in this Section 14.
Article IV
Committees
Section 1. Executive Committee. The Board of Directors may,
by resolution passed by a majority of the whole Board of
Directors, designate an Executive Committee consisting of one or
more of the directors of the Corporation, one of whom shall be
designated chairman of the Executive Committee. During the
intervals between the meetings of the Board of Directors, the
Executive Committee shall possess and may
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exercise all the powers of the Board of Directors, including the
power to authorize the seal of the Corporation to be affixed to
all papers which may require it; provided, however, that the
Executive Committee shall not have the power or authority of
the Board of Directors in reference to amending the Certificate of
Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets,
recommending to the stockholders a dissolution of the Corporation
or a revocation of a dissolution of the Corporation, amending,
altering or repealing these Bylaws or adopting new bylaws
for the Corporation or otherwise acting where action by the
Board of Directors is specified by the Delaware General
Corporation Law. The Executive Committee shall also have, and may
exercise, all the powers of the Board of Directors, except as
aforesaid, whenever a quorum of the Board of Directors shall fail
to be present at any meeting of the Board.
Section 2. Audit Committee. The Board of Directors may, by
resolution passed by a majority of the whole Board of Directors,
designate an Audit Committee consisting of one or more of the
directors of the Corporation, one of whom shall be designated
chairman of the Audit Committee. The Audit Committee shall have
and may exercise such powers and authority as provided in the
resolution creating it and as determined from time to time by the
Board of Directors.
Section 3. Other Committees. The Board of Directors may, by
resolution passed from time to time by a majority of the whole
Board of Directors, designate such other committees as it shall
see fit consisting of one or more of the directors of the
Corporation, one of whom shall be designated chairman of each such
committee. Any such committee shall have and may exercise such
powers and authority as provided in the resolution creating it and
as determined from time to time by the Board of Directors.
Section 4. Procedure; Meetings; Quorum. Any committee
designated pursuant to this Article IV shall keep regular minutes
of its actions and proceedings in a book provided for that purpose
and report the same to the Board of Directors at its meeting next
succeeding such action, shall fix its own rules or procedures, and
shall meet at such times and at such place or places as may be
provided by such rules, or by such committee or the Board of
Directors. Should a committee fail to fix its own rules, the
provisions of these Bylaws, pertaining to the calling of meetings
and conduct of business by the Board of Directors, shall apply as
nearly as may be. At every meeting of any such committee, the
presence of a majority of all the members thereof shall constitute
a quorum, except as provided in Section 5 of this Article IV, and
the affirmative vote of a majority of the members present shall be
necessary for the adoption by it of any resolution.
Section 5. Substitution and Removal of Members; Vacancies.
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 such committee. In the
absence or disqualification of a member of a committee, the member
or members present at any meeting and not disqualified from
voting, whether or not constituting a quorum, may unanimously
appoint another member of the Board of Directors to act at the
meeting in the place of the absent or disqualified member. The
Board of Directors shall
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have the power at any time to remove any member(s) of a committee
and to appoint other directors in lieu of the person(s) so removed
and shall also have the power to fill vacancies in a committee.
Article V
Officers
Section 1. Number, Titles and Term of Office. The officers
of the Corporation shall be a Chairman of the Board, a President,
a President-North American Operations, one or more Presidents-
International Operations, one or more Vice Presidents (any one or
more of whom may be designated Executive Vice President or Senior
Vice President), a General Counsel, a Treasurer, a Secretary and
such other officers as the Board of Directors may from time to
time elect or appoint (including, but not limited to, a Vice
Chairman of the Board, a Deputy Corporate Secretary, one or more
Assistant Secretaries and one or more Assistant Treasurers). Each
officer shall hold office until such officer's successor shall be
duly elected and shall qualify or until such officer's death or
until such officer shall resign or shall have been removed. Any
number of offices may be held by the same person, unless the
Certificate of Incorporation provides otherwise. Except for the
Chairman of the Board and the Vice Chairman of the Board, no
officer need be a director.
Section 2. Powers and Duties of the Chairman of the Board.
The Chairman of the Board shall be the chief executive officer of
the Corporation. Subject to the control of the Board of Directors
and the Executive Committee (if any), the Chairman of the Board
shall have general executive charge, management and control of the
properties, business and operations of the Corporation with all
such powers as may be reasonably incident to such
responsibilities; may agree upon and execute all leases,
contracts, evidences of indebtedness and other obligations in the
name of the Corporation and may sign all certificates for shares
of capital stock of the Corporation; and shall have such other
powers and duties as designated in accordance with these Bylaws
and as from time to time may be assigned to the Chairman of the
Board by the Board of Directors. The Chairman of the Board shall
preside at all meetings of the stockholders and of the Board of
Directors.
Section 3. Powers and Duties of the President, President-
North American Operations, and President-International Operations.
(a) Unless the Board of Directors otherwise determines, the
President shall have the authority to agree upon and execute all
leases, contracts, evidences of indebtedness and other obligations
in the name of the Corporation; and, unless the Board of Directors
otherwise determines, the President shall, in the absence of the
Chairman of the Board or if there be no Chairman of the Board,
preside at all meetings of the stockholders and (should the
President be a director) of the Board of Directors; and the
President shall have such other powers and duties as designated in
accordance with these Bylaws and as from time to time may be
assigned to the President by the Board of Directors or the
Chairman of the Board.
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(b) Unless the Board of Directors otherwise determines, the
President-North American Operations shall have the authority to
agree upon and execute all leases, contracts, evidences of
indebtedness and other obligations in the name of the Corporation
pertaining to the Corporation's North American operations; and the
President-North American Operations shall have such other powers
and duties as designated in accordance with these Bylaws and as
from time to time may be assigned to the President-North American
Operations by the Board of Directors or the Chairman of the Board.
(c) Unless the Board of Directors otherwise determines, each
President-International Operations shall have the authority to
agree upon and execute all leases, contracts, evidences of
indebtedness and other obligations in the name of the Corporation
pertaining to the Corporation's international operations; and each
President-International Operations shall have such other powers
and duties as designated in accordance with these Bylaws and as
from time to time may be assigned to each President-International
Operations by the Board of Directors or the Chairman of the Board.
Section 4. Powers and Duties of the Vice Chairman of the
Board. The Board of Directors may assign areas of responsibility
to the Vice Chairman of the Board, and, in such event, and subject
to the overall direction of the Chairman of the Board and Board of
Directors, the Vice Chairman of the Board shall be responsible for
supervising the management of the affairs of the Corporation and
its subsidiaries within the area or areas assigned and shall
monitor and review on behalf of the Board of Directors all
functions within the corresponding area or areas of the
Corporation and each such subsidiary of the Corporation. In the
absence of the President, or in the event of the President's
inability or refusal to act, the VIceVice Chairman of the Board
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. Further, the Vice Chairman of the
Board shall have such other powers and duties as designated in
accordance with these Bylaws and as from time to time may be
assigned to the Vice Chairman of the Board by the Board of
Directors or the Chairman of the Board.
Section 5. Vice Presidents. Each Vice President shall at
all times possess power to sign all certificates, contracts and
other instruments of the Corporation, except as otherwise limited
in writing by the Chairman of the Board, the President or the Vice
Chairman of the Board or of the Corporation. Each Vice President
shall have such other powers and duties as from time to time may
be assigned to such Vice President by the Board of Directors, the
Chairman of the Board, the President or the Vice Chairman of the
Board.
Section 6. General Counsel. The General Counsel shall act
as chief legal advisor to the Corporation. The General Counsel may
have one or more staff attorneys and assistants, and may retain
other attorneys to conduct the legal affairs and litigation of the
Corporation under the General Counsel's supervision.
15
Section 7. Secretary. The Secretary shall keep the minutes
of all meetings of the Board of Directors, committees of the Board
of Directors and the stockholders, in books provided for that
purpose; shall attend to the giving and serving of all notices;
may in the name of the Corporation affix the seal of the
Corporation to all contracts of the Corporation and attest the
affixation of the seal of the Corporation thereto; may sign with
the other appointed officers all certificates for shares of
capital stock of the Corporation; shall have charge of the
certificate books, transfer books and stock ledgers, and such
other books and papers as the Board of Directors may direct, all
of which shall at all reasonable times be open to inspection of
any director upon application at the office of the Corporation
during business hours; shall have such other powers and duties as
designated in these Bylaws and as from time to time may be
assigned to the Secretary by the Board of Directors, the Chairman
of the Board, the President or the Vice Chairman of the Board; and
shall in general perform all acts incident to the office of
Secretary, subject to the control of the Board of Directors, the
Chairman of the Board, the President or the Vice Chairman of the
Board.
Section 8. Deputy Corporate Secretary and Assistant
Secretaries. The Deputy Corporate Secretary and each Assistant
Secretary shall have the usual powers and duties pertaining to
such offices, together with such other powers and duties as
designated in these Bylaws and as from time to time may be
assigned to the Deputy Corporate Secretary or an Assistant
Secretary by the Board of Directors, the Chairman of the Board,
the President, the Vice Chairman of the Board, or the Secretary.
The Deputy Corporate Secretary shall exercise the powers of the
Secretary during that officer's absence or inability or refusal to
act.
Section 9. Treasurer. The Treasurer shall have
responsibility for the custody and control of all the funds and
securities of the Corporation, and shall have such other powers
and duties as designated in these Bylaws and as from time to time
may be assigned to the Treasurer by the Board of Directors, the
Chairman of the Board, the President or the Vice Chairman of the
Board. The Treasurer shall perform all acts incident to the
position of Treasurer, subject to the control of the Board of
Directors, the Chairman of the Board, the President and the Vice
Chairman of the Board; and the Treasurer shall, if required by the
Board of Directors, give such bond for the faithful discharge of
the Treasurer's duties in such form as the Board of Directors may
require.
Section 10. Assistant Treasurers. Each Assistant Treasurer
shall have the usual powers and duties pertaining to such office,
together with such other powers and duties as designated in these
Bylaws and as from time to time may be assigned to each Assistant
Treasurer by the Board of Directors, the Chairman of the Board,
the President, the Vice Chairman of the Board, or the Treasurer.
The Assistant Treasurers shall exercise the powers of the
Treasurer during that officer's absence or inability or refusal to
act.
Section 11. Action with Respect to Securities of Other
Corporations. Unless otherwise directed by the Board of
Directors, the Chairman of the Board, the President or the Vice
Chairman of the Board, together with the Secretary, the Deputy
Corporate Secretary or any Assistant Secretary shall have power to
vote and otherwise act on behalf
16
of the Corporation, in person or by proxy, at any meeting of
security holders of or with respect to any action of security
holders of any other corporation in which this Corporation may
hold securities and otherwise to exercise any and all rights and
powers which this Corporation may possess by reason of its
ownership of securities in such other corporation.
Section 12. Delegation. For any reason that the Board of
Directors may deem sufficient, the Board of Directors may, except
where otherwise provided by statute, delegate the powers or duties
of any officer to any other person, and may authorize any officer
to delegate specified duties of such officer to any other person.
Any such delegation or authorization by the Board shall be
effected from time to time by resolution of the Board of
Directors.
Article VI
Capital Stock
Section 1. Certificates of Stock. The certificates for
shares of the capital stock of the Corporation shall be in such
form, not inconsistent with that required by law and the
Certificate of Incorporation, as shall be approved by the Board of
Directors. Every holder of stock represented by certificates shall
be entitled to have a certificate signed by or in the name of the
Corporation by the Chairman of the Board, President, Vice Chairman
of the Board or a Vice President and the Secretary, Deputy
Corporate Secretary or an Assistant Secretary or the Treasurer or
an Assistant Treasurer of the Corporation representing the number
of shares (and, if the stock of the Corporation shall be divided
into classes or series, certifying the class and series of such
shares) owned by such stockholder which are registered in
certified form; provided, however, that any of or all the
signatures on the certificate may be facsimile. The stock record
books and the blank stock certificate books shall be kept by the
Secretary, or at the office of such transfer agent or transfer
agents as the Board of Directors may from time to time determine.
In case any officer, transfer agent or registrar who shall have
signed or whose facsimile signature or signatures shall have been
placed upon any such certificate or certificates shall have ceased
to be such officer, transfer agent or registrar before such
certificate is issued by the Corporation, such certificate may
nevertheless be issued by the Corporation with the same effect as
if such person were such officer, transfer agent or registrar at
the date of issue. The stock certificates shall be consecutively
numbered and shall be entered in the books of the Corporation as
they are issued and shall exhibit the holder's name and number of
shares.
Section 2. Transfer of Shares. The shares of stock of the
Corporation shall be transferable only on the books of the
Corporation by the holders thereof in person or by their duly
authorized attorneys or legal representatives upon surrender and
cancellation of certificates for a like number of shares. Upon
surrender to the Corporation or a transfer agent of the
Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of
17
the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon
its books.
Section 3. Ownership of Shares. The Corporation shall be
entitled to treat the holder of record of any share or shares of
capital stock of the Corporation as the holder in fact thereof
and, accordingly, 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 the laws of the
state of incorporation of the Corporation.
Section 4. Regulations Regarding Certificates. The Board of
Directors shall have the power and authority to make all such
rules and regulations as they may deem expedient concerning the
issue, transfer and registration or the replacement of
certificates for shares of capital stock of the Corporation.
Section 5. Lost or Destroyed Certificates. The Board of
Directors may determine the conditions upon which the Corporation
may issue a new certificate of stock in place of a certificate
theretofore issued by it which is alleged to have been lost,
stolen or destroyed and may require the owner of such certificate
or such owner's legal representative to give bond, with surety
sufficient to indemnify the Corporation and each transfer agent
and registrar against any and all losses or claims which may arise
by reason of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate in the place
of the one so lost, stolen or destroyed.
Article VII
Miscellaneous Provisions
Section 1. Fiscal Year. The fiscal year of the Corporation
shall begin on the first day of January of each year.
Section 2. Corporate Seal. The corporate seal shall be
circular in form and shall have inscribed thereon the name of the
Corporation and the state of its incorporation, which seal shall
be in the charge of the Secretary and shall be affixed to
certificates of stock, debentures, bonds, and other documents, in
accordance with the direction of the Board of Directors or a
committee thereof, and as may be required by law; however, the
Secretary may, if the Secretary deems it expedient, have a
facsimile of the corporate seal inscribed on any such certificates
of stock, debentures, bonds, contracts or other documents.
Duplicates of the seal may be kept for use by the Deputy Corporate
Secretary or any Assistant Secretary.
Section 3. Notice and Waiver of Notice. Whenever any notice
is required to be given by law, the Certificate of Incorporation
or under the provisions of these Bylaws, said notice shall be
deemed to be sufficient if given (i) by telegraphic, cable or
wireless transmission (including by telecopy or facsimile
transmission) or (ii) by deposit of the same in a post office box
or by delivery to an overnight courier service company in a sealed
18
prepaid wrapper addressed to the person entitled thereto at such
person's post office address, as it appears on the records of the
Corporation, and such notice shall be deemed to have been given on
the day of such transmission or mailing or delivery to courier, as
the case may be.
Whenever notice is required to be given by law, the
Certificate of Incorporation or under any of the provisions of
these Bylaws, a written waiver thereof, signed by the person
entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a
person, including without limitation a director, at a meeting
shall constitute a waiver of notice of such meeting, except when
the person attends a meeting for the express purpose of objecting,
at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened.
Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, directors, or
members of a committee of directors need be specified in any
written waiver of notice unless so required by the Certificate of
Incorporation or these Bylaws.
Section 4. Facsimile Signatures. In addition to the
provisions for the use of facsimile signatures elsewhere
specifically authorized in these Bylaws, facsimile signatures of
any officer or officers of the Corporation may be used whenever
and as authorized by the Board of Directors.
Section 5. Reliance upon Books, Reports and Records. A
member of the Board of Directors, or a member of any committee
designated by the Board of Directors, shall, in the performance of
such person's duties, be fully protected in relying in good faith
upon the records of the Corporation and upon such information,
opinion, reports or statements presented to the Corporation by any
of the Corporation's officers or employees, or committees of the
Board of Directors, or by any other person as to matters the
member reasonably believes are within such other person's
professional or expert competence and who has been selected with
reasonable care by or on behalf of the Corporation.
Section 6. Application of Bylaws. In the event that any
provisions of these Bylaws is or may be in conflict with any law
of the United States, of the state of incorporation of the
Corporation or of any other governmental body or power having
jurisdiction over this Corporation, or over the subject matter to
which such provision of these Bylaws applies, or may apply, such
provision of these Bylaws shall be inoperative to the extent only
that the operation thereof unavoidably conflicts with such law,
and shall in all other respects be in full force and effect.
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Article VIII
Amendments
The Board of Directors shall have the power to adopt, amend
and repeal from time to time Bylaws of the Corporation, subject to
the right of the stockholders entitled to vote with respect
thereto to amend or repeal such Bylaws as adopted or amended by
the Board of Directors.