Exhibit 3.2
AMENDED AND RESTATED
BY-LAWS
OF
CABOT OIL & GAS CORPORATION
Adopted August 5, 1994
Amended February 20, 1997
Amended May 3, 2001
Amended September 6, 2001
INDEX OF AMENDED AND RESTATED BY-LAWS
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CABOT OIL & GAS CORPORATION
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Article Page
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I. Certificate of Incorporation................................ 1
II. Annual Meeting of Stockholders.............................. 2
III. Special Meetings of Stockholders............................ 3
IV. Place of Stockholders' Meetings............................. 3
V. Notice of Stockholders' Meetings............................ 3
VI. Quorum and Action of Stockholders........................... 8
VII. Proxies and Voting.......................................... 9
VIII. Action by Written Consent................................... 10
IX. Board of Directors.......................................... 12
X. Powers of the Board of Directors............................ 14
XI. Executive Committee......................................... 14
XII. Committees.................................................. 16
XIII. Meetings of the Board of Directors.......................... 16
XIV. Quorum and Action of Directors.............................. 17
XV. Restrictions on Stock Transfer.............................. 18
XVI. Compensation of Directors................................... 18
XVII. Officers and Agents......................................... 19
XVIII. Chairman of the Board of Directors.......................... 19
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Article Page
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XIX. President.................................................... 20
XX. Executive Vice Presidents, Senior Vice Presidents............ 21
XXI. Chief Financial Officer...................................... 21
XXII. Secretary and Assistant Secretaries.......................... 22
XXIII. Treasurer and Assistant Treasurers........................... 23
XXIV. General Counsel and Assistant General Counsels............... 24
XXV. Controller................................................... 25
XXVI. Resignations and Removals.................................... 26
XXVII. Vacancies.................................................... 27
XXVIII. Waiver of Notice............................................. 28
XXIX. Certificates of Stock........................................ 28
XXX. Transfer of Shares of Stock.................................. 29
XXXI. Transfer Books: Record Date.................................. 30
XXXII. Loss of Certificates......................................... 31
XXXIII. Seal......................................................... 31
XXXIV. Execution of Papers.......................................... 31
XXXV. Fiscal Year.................................................. 32
XXXVI. Dividends.................................................... 32
XXXVII. Respecting Certain Contracts................................. 32
XXXVIII. Indemnification of Directors, Officers and Employees......... 33
XXXIX. Amendments................................................... 35
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AMENDED AND RESTATED
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BY-LAWS
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OF
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CABOT OIL & GAS CORPORATION
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(THE "CORPORATION")
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ARTICLE I
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Certificate of Incorporation
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The name, location of the principal office or place of business in
Delaware, and the objects or purposes of the Corporation shall be as set forth
in its Certificate of Incorporation. These By-laws, the powers of the
Corporation and of its directors and stockholders, and all matters concerning
the management of the business and conduct of the affairs of the Corporation
shall be subject to such provisions in regard thereto, if any, as are set forth
in the Certificate of Incorporation; and the Certificate of Incorporation is
hereby made a part of these By-laws. In these By-laws, references to the
Certificate of Incorporation mean the provisions of the Certificate of
Incorporation (as that term is defined in the General Corporation Law of the
State of Delaware) of the Corporation as from time to time in effect, and
references to these By-laws or to any requirement or provision of law mean these
By-laws or such requirement or provision of law as from time to time in effect.
ARTICLE II
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Annual Meeting of Stockholders
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The annual meeting of stockholders shall be held at such date and time as
the Board of Directors may designate. Purposes for which the annual meeting is
to be held, in addition to those prescribed by law, by the Certificate of
Incorporation and by these By-laws, may be specified by the chairman of the
board of directors, the president or by the board of directors.
If the election of directors shall not be held on the day provided for by
these By-laws, the directors shall cause the election to be held as soon
thereafter as convenient, and to that end, if the election of directors shall
not be held at the annual meeting, a special meeting of the stockholders may be
held in place of such omitted meeting or election, and any business transacted
or election held at such special meeting shall have the same effect as if
transacted or held at the annual meeting, and in such cases all references in
these By-laws, except in this Article II and in Article IV to the annual meeting
of the stockholders, or to the annual election of directors, shall be deemed to
refer to or include such special meeting. Any such special meeting shall be
called, and the purposes thereof shall be specified in the call, as provided in
Article III.
The Chairman of a meeting of stockholders may adjourn the meeting from time
to time. No notice of the time and place of adjourned meetings need be given
except as required by law. The stockholders present at a duly called meeting at
which a quorum is present may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum. Any previously scheduled meeting of the stockholders may be postponed,
by resolution of the Board of
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Directors upon public notice given prior to the date previously scheduled for
such meeting of stockholders.
ARTICLE III
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Special Meetings of Stockholders
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A special meeting of the stockholders may be called at any time by the
chairman of the board of directors, the president or by the board of directors.
Such call shall state the time, place and purposes of the meeting.
ARTICLE IV
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Place of Stockholders' Meetings
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The annual election of directors, whether at the original or any adjourned
session of the annual meeting of the stockholders or of a special meeting held
in place thereof, shall be held at such place as the board of directors shall
fix for each such meeting. Sessions of such meetings for any other purposes,
and the original or any adjourned session of any other special meeting of the
stockholders, shall be held at such place within or without the State of
Delaware as shall be stated in the call or in the vote of adjournment, as the
case may be.
ARTICLE V
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Notice of Stockholders' Meetings, Business and Nominations
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A. Notice of Meetings.
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Except as may be otherwise required by law, by the Certificate of
Incorporation or by other provisions of these By-laws, a written notice of each
meeting of stockholders, stating the place, day and hour thereof and the
purposes for which the meeting is called, shall be given, at least ten days but
no more than sixty days before the
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date of the meeting, to each stockholder entitled to vote thereat by leaving
such notice with him or her or at his or her residence or usual place of
business, or by mailing it, postage prepaid, addressed to such stockholder at
his or her address as it appears upon the books of the Corporation. Such notice
shall be given by the secretary or an assistant secretary or in case of their
death, absence, incapacity or refusal, by some other officer or by a person
designated by the board of directors.
B. Annual Meetings of Stockholders.
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(1) Nominations of persons for election to the Board of Directors of
the Company and the proposal of business to be considered by the stockholders
may be made at an annual meeting of stockholders (a) pursuant to the Company's
notice of meeting, (b) by or at the direction of the Board of Directors or (c)
by any stockholder of the Company who was a stockholder of record at the time of
giving of notice provided for in this By-law, who is entitled to vote at the
meeting and who complies with the notice procedures set forth in this By-law.
(2) For nominations or other business to be properly brought before
an annual meeting by a stockholder pursuant to clause (c) of paragraph (B)(1) of
this By-law, the stockholder must have given timely notice thereof in writing to
the Secretary of the Company and such other business must otherwise be a proper
matter for stockholder action. To be timely, a stockholder's notice shall be
delivered to the Secretary at the principal executive offices of the Company not
later than the close of business on the 60th day nor earlier than the close of
business on the 90th day prior to the first anniversary of the preceding year's
annual meeting; provided, however, that in the event that the date of the annual
meeting is more than 30 days before or more than 60 days after
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such anniversary date, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the 90th day prior to such
annual meeting and not later than the close of business on the later of the 60th
day prior to such annual meeting or the 10th day following the day on which
public announcement of the date of such meeting is first made by the Company. In
no event shall the public announcement of an adjournment of an annual meeting
commence a new time period for the giving of a stockholder's notice as described
above. Such stockholder's notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or reelection as a director all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or is
otherwise required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and Rule 14a-11 thereunder
(including such person's written consent to be named in the proxy statement as a
nominee and to serving as a director if elected); (b) as to any other business
that the stockholder proposes to bring before the meeting, a brief description
of the business desired to be brought before the meeting, the reasons for
conducting such business at the meeting and any material interest in such
business of such stockholder and the beneficial owner, if any, on whose behalf
the proposal is made; and (c) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or proposal is made (i)
the name and address of such stockholder, as they appear on the Company's books,
and of such beneficial owner and (ii) the class and number of shares of the
Company which are owned beneficially and of record by such stockholder and such
beneficial owner.
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(3) Notwithstanding anything in the second sentence of paragraph
(B)(2) of this By-law to the contrary, in the event that the number of directors
to be elected to the Board of Directors of the Company is increased and there is
no public announcement by the Company naming all of the nominees for director or
specifying the size of the increased Board of Directors at least 70 days prior
to the first anniversary of the preceding year's annual meeting, a stockholder's
notice required by this By-law shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall
be delivered to the Secretary at the principal executive offices of the Company
not later than the close of business on the 10th day following the day on which
such public announcement is first made by the Company.
C. Special Meetings of Stockholders. Only such business shall be
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conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Company's notice of meeting. Nominations of persons
for election to the Board of Directors may be made at a special meeting of
stockholders at which directors are to be elected pursuant to the Company's
notice of meeting (a) by or at the direction of the Board of Directors or (b)
provided that the Board of Directors has determined that directors shall be
elected at such meeting, by any stockholder of the Company who is a stockholder
of record at the time of giving of notice provided for in this By-law, who shall
be entitled to vote at the meeting and who complies with the notice procedures
set forth in this By-law. In the event the Company calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board of
Directors, any such stockholder may nominate a person or persons (as the case
may be), for election to such position(s) as specified in the Company's notice
of meeting, if the stockholder's notice
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required by paragraph (B)(2) of this By-law shall be delivered to the Secretary
at the principal executive offices of the Company not earlier than the close of
business on the 90th day prior to such special meeting and not later than the
close of business on the later of the 60th day prior to such special meeting or
the 10th day following the day on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. In no event shall the public
announcement of an adjournment of a special meeting commence a new time period
for the giving of a stockholder's notice as described above.
D. General. (1) Only such persons who are nominated in accordance with
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the procedures set forth in this By-law shall be eligible to serve as directors
and only such business shall be conducted at a meeting of stockholders as shall
have been brought before the meeting in accordance with the procedures set forth
in this By-law. Except as otherwise provided by Law, the Certificate of
Incorporation or these By-laws, the Chairman of the meeting shall have the power
and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this By-law and, if any proposed
nomination or business is not in compliance with this By-law, to declare that
such defective proposal or nomination shall be disregarded.
(2) For purposes of this By-law, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Company with the Securities and Exchange Commission pursuant to Section 13, 14
or 15(d) of the Exchange Act.
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(3) Notwithstanding the foregoing provisions of this By-law, a stockholder
shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth in this
By-law. Nothing in this By-law shall be deemed to affect any rights of
stockholders to request inclusion of proposals in the Company's proxy statement
pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE VI
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Quorum and Action of Stockholders
---------------------------------
At any meeting of the stockholders, a quorum for the election of any
director or for the consideration of any question shall consist of a majority in
interest of all stock issued and outstanding and entitled to vote for the
election of such director or upon such question, respectively, except in any
case where a larger quorum is required by law, by the Certificate of
Incorporation or by these By-laws. Stock owned by the Corporation, if any,
shall not be deemed outstanding for this purpose. In any case, any meeting may
be adjourned from time to time by a majority of the votes properly cast upon the
question, whether or not a quorum is present, and the meeting may be held as
adjourned without further notice.
When a quorum for an election is present at any meeting, the affirmative
vote of the holders of a plurality of the voting power of the stock of the
Company which is present at the meeting shall elect to such office. When a
quorum for the consideration of a question is present at any meeting, the
affirmative vote of the holders of a majority of the voting power of the stock
of the Company which is present at the meeting shall decide
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the quorum, except in any case where a larger vote is required by law, by the
Certificate of Incorporation or by these By-laws.
ARTICLE VII
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Proxies and Voting
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Except as otherwise may be provided in the Certificate of Incorporation and
subject to the provisions of Article XXXI of these By-laws, each stockholder at
every meeting of the stockholders shall be entitled to one vote in person or by
proxy for each share of the capital stock held by such stockholder, but no proxy
shall be voted after six months from its date, unless the proxy provides for a
longer period; and except where the transfer books of the Corporation shall have
been closed or a date shall have been fixed as a record date for the
determination of the stockholders entitled to vote, as provided in Article XXXI,
no share of stock shall be voted at any election for directors which has been
transferred on the books of the Corporation within the twenty days preceding
such election of directors. Shares of the capital stock of the Corporation
belonging to the Corporation shall not be voted upon directly or indirectly.
Persons holding stock in a fiduciary capacity shall be entitled to vote the
shares so held, or to give any consent permitted by law, and persons whose stock
is pledged shall be entitled to vote, or to give any consent permitted by law,
unless in the transfer by the pledgor on the books of the Corporation he or she
shall have expressly empowered the pledgee to vote thereon, in which case only
the pledgee or his or her proxy may represent said stock and vote thereon or
give any such consent.
The secretary shall prepare or cause to be prepared, at least ten days
before every election of directors, a complete list of the stockholders entitled
to vote at said election,
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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 during ordinary business hours, at
the place where such election meeting is to be held, or such other place as may
be specified in the notice of the meeting, within the city, town or village
where the election meeting is to be held, for said ten days, and shall be
produced and kept at the time and place of the election meeting for the duration
of the election meeting, and be subject to the inspection of any stockholder who
may be present. The original or duplicate stock ledger shall conclusively list
and identify the stockholders entitled to examine such list or to vote in person
or by proxy at such election.
ARTICLE VIII
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Action by Written Consent
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A. 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 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 10 days after the date on
which such a request is received, adopt a resolution fixing the record date. If
no record date has been fixed by the Board of Directors within 10 days of the
date on which such a request is received, the
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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 principal place of business or to any officer
or agent of the corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery made to the corporation's
registered office 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.
B. 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 60 days of the
record date established in accordance with paragraph (A) of this Article VIII, 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
paragraph (A) of this Article.
C. In the event of the delivery, in the manner provided by this Article,
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 nationally recognized 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 a
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prompt ministerial review by the independent inspectors, no action by written
consent without a meeting shall be effective until the earlier of (i) five
business days following delivery to the corporation of consents signed by the
holders of the requisite minimum number of votes that would be necessary to take
such action, which delivery shall be accompanied by a certification by the
stockholder of record (or his or her designee) who delivered, in accordance with
paragraph (A) above, the written notice to the Secretary requesting the Board of
Directors to fix a record date or (ii) such date as the independent inspectors
certify to the corporation that the consents delivered to the corporation in
accordance with this Article represent at least the minimum number of votes that
would be necessary to take the corporate action. Nothing contained in this
paragraph 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 during or after such five business
day period, or to take any other action (including, without limitation, the
commencement, prosecution or defense of any litigation with respect thereto).
ARTICLE IX
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Board of Directors
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The number of directors which constitute the whole board of directors shall
be not less than three nor more than twenty. Within the limits above specified,
the number of directors shall be determined by resolution of the board of
directors. The directors shall be elected at the annual meeting of the
stockholders, except as provided elsewhere in these By-laws, and each director
elected shall hold office until a successor is elected and qualified, or until
he or she sooner dies, resigns or is removed or replaced. Directors need
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not be stockholders. Newly-created directorships resulting from any increase in
the authorized number of directors voted by the board of directors between
annual meetings may be filled, at the discretion of the board, by an election at
a meeting of stockholders held for that purpose, or by an election at a meeting
of the board of directors, by vote of a majority of the directors then in office
though less than a quorum, and each director so chosen shall hold office until
the next annual election of the class of directors to which such director is
assigned and until his or her successor is duly elected and shall qualify,
unless he or she sooner dies, resigns, or is removed or replaced.
The board of directors shall be divided into three classes as designated by
the initial members of the board of directors. Each class shall be as nearly
equal in number as possible to the other classes so designated. The term of
office of the first class shall expire at the first annual meeting of
stockholders; of the second class one year thereafter; and of the third class
two years thereafter. Each subsequent class of directors shall be elected for a
full term of office of three years. At all subsequent annual meetings
thereafter, the number of directors equal to the number constituting the class
whose term expires at the time of such meeting shall be elected to hold office
for the full term of office of three years. Upon the creation of any new
directorships resulting from any increase in the authorized number of directors
voted by the board of directors between annual meetings, such new directors
shall be assigned to one of the aforementioned three classes by the vote of a
majority of the directors then in office, provided that after such appointment
to a class, each class shall be as nearly equal in number as possible to the
other classes of the board of directors.
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The provisions of the foregoing paragraph of this Article IX may not be
altered, amended or repealed except by the vote of the holders of a majority of
the voting power of the issued and outstanding stock of the Corporation at any
annual, regular or special stockholders' meeting called for that purpose, the
notice of which shall specify the subject matter of the proposed alteration,
amendment or repeal of this Article IX.
ARTICLE X
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Powers of the Board of Directors
--------------------------------
The board of directors shall have and may exercise all the powers of the
Corporation, except such as are conferred exclusively upon the stockholders by
law, by the Certificate of Incorporation or by these By-laws.
ARTICLE XI
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Executive Committee
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The board of directors, by a resolution adopted by a majority of the whole
board, may from its own number elect an executive committee of the board of
directors, to consist of not less than two members, and may from time to time
designate or alter, within the limits permitted by this article, the duties and
powers of such committee, or change its membership. The chairman of the board
of directors shall be an ex officio member of the executive committee.
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Such executive committee shall be vested with power to take any action
which the board itself could take, except as hereinafter provided, with respect
to the conduct and management of the business of the Corporation, including
declaring dividends, designating and altering the duties, powers and
compensation of the officers and agents of the Corporation, electing or
appointing the officers and agents other than the chairman of
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the board of directors, president, treasurer and secretary, filling vacancies
other than those vacancies occurring within the board of directors and executive
committee, and authorizing or ratifying all purchases, sales, contracts, offers,
conveyances, transfers, negotiable instruments, powers of attorney, bonds, and
other transactions and instruments of every kind, as well as authorizing the
seal of the Corporation to be affixed to all papers which may require it.
If an executive committee is elected, each member of such executive
committee shall hold office until the first meeting of the board of directors
following the next annual meeting of the stockholders and until his or her
successor is elected and qualified, or until he or she sooner dies, resigns, is
removed, is replaced by change of membership or becomes disqualified by ceasing
to be a director.
One-half of the members of the executive committee then in office, but in
no case less than two members, shall constitute a quorum for the transaction of
business, but any meeting may be adjourned from time to time by affirmative vote
of a majority of the votes cast upon the question, whether or not a quorum is
present, and upon such majority consent to adjourn, the meeting may be adjourned
without further notice. All minutes of proceedings of the executive committee
shall be kept by the secretary or an assistant secretary and shall be available
to the board of directors upon its verbal or written request. The executive
committee may make rules not inconsistent herewith for the holding and
conducting of its meetings, but unless otherwise provided in such rules, its
meetings shall be held and conducted in the same manner, as nearly as may be, as
is provided in these By-laws for meetings of the board of directors. The board
of directors shall have power
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and authority to rescind any vote or resolution of the executive committee, but
no such rescission shall have retroactive effect.
ARTICLE XII
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Committees
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The board of directors may at any time and from time to time, by resolution
adopted by a majority of the whole board of directors, appoint, designate,
change the membership of or terminate the existence of one or more committees,
each committee to consist of two or more of the directors of the Corporation.
Each such committee shall have such name as may be determined from time to time
by resolution adopted by the board of directors and shall have and may exercise
such powers of the board of directors in the management of the business and
affairs of the Corporation, including the power to authorize the seal of the
Corporation to be affixed to all papers which may require it, as may be
determined from time to time by resolution adopted by a majority of the whole
board. One-half of the members of each such committee then in office, but in no
case less than two members, shall constitute a quorum for the transaction of
business, but any meeting may be adjourned from time to time by affirmative vote
of a majority of the votes cast upon the question, whether or not a quorum is
present, and upon such majority consent to adjourn, the meeting may be adjourned
without further notice. All minutes of proceedings of committees shall be kept
by the secretary or an assistant secretary and shall be available to the board
of directors upon its verbal or written request.
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ARTICLE XIII
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Meetings of the Board of Directors
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Regular meetings of the board of directors may be held without call or
formal notice at such places either within or without the State of Delaware and
at such times as the board may from time to time determine. A regular meeting
of the board of directors may be held without call or formal notice immediately
after and at the same place as the annual meeting of the stockholders.
Special meetings of the board of directors may be held at any time and at
any place either within or without the State of Delaware when called by the
chairman of the board, the president, the chief financial officer or two or more
directors, reasonable notice thereof being given to each director by the
secretary or an assistant secretary, or in the case of the death, absence,
incapacity or refusal of the secretary or an assistant secretary, by the officer
or directors calling the meeting, or without call or formal notice if each
director then in office is either present at the special meeting or waives
notice before or after such meeting. A waiver of notice in writing, signed by a
director entitled to such notice shall be deemed to satisfy such notice
requirement whether such written waiver of notice were signed before or after
the time of the meeting. In any case it shall be deemed sufficient notice to a
director to send notice addressed to him or her at his or her usual or last
known business or residence address by postage paid mail at least forty-eight
hours before the meeting, or by telegram, telex or facsimile transmission at
least twenty-four hours before the meeting, or to give notice to him or her in
person at least twenty-four hours before the meeting either by telephone, or by
handing him or her a written notice.
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ARTICLE XIV
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Quorum and Action of Directors
------------------------------
At any meeting of the board of directors, except in any case where a larger
quorum or the vote of a larger number of directors is required by law, by the
Certificate of Incorporation or by these By-laws, a quorum for any election or
for the consideration of any question shall consist of one-half of the directors
then in office, but in no case less than two directors, but any meeting may be
adjourned from time to time by a majority of the votes cast upon the question,
whether or not a quorum is present, and upon such majority consent to
adjournment, the meeting may be adjourned without further notice. When a quorum
is present at any meeting, the votes of a majority of the directors present and
voting shall be requisite and sufficient to elect any officer, and a majority of
the directors present and voting shall decide any questions brought before such
meeting, except in any case where a larger vote is required by law, by the
Certificate of Incorporation or by these By-laws.
ARTICLE XV
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Restrictions on Stock Transfer
------------------------------
The board of directors by resolution or resolutions may from time to time,
in connection with any employee stock option or purchase plan, fix limitations
and restrictions on the transfer of any or all of the authorized but unissued
shares or treasury shares of the Corporation made available for such stock
option or purchase plan, such restrictions to take effect upon the issue, sale
or transfer of such shares. No such limitation or restriction shall be valid
unless notice thereof is given on the certificate or certificates representing
such shares.
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ARTICLE XVI
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Compensation of Directors
-------------------------
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 paid like compensation for attending committee meetings.
ARTICLE XVII
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Officers and Agents
-------------------
The officers of the Corporation shall be chosen by the board of directors
and shall consist of a chairman of the board, a president, one or more vice
presidents, a secretary, a treasurer and such other officers as the board shall
deem necessary or appropriate. The board of directors, in its discretion, may
choose a chief financial officer, one or more executive vice presidents, senior
vice presidents, assistant secretaries and assistant treasurers. Two or more
offices may be held by the same person, except that when one person holds the
offices of both president and secretary such person shall not hold any other
office.
The board of directors at its first meeting after each annual meeting of
stockholders shall choose the corporate officers, of whom only the chairman of
the board and the president must be board members. At any time as it shall deem
necessary, the board of directors may choose any other officers and agents, who
shall hold their offices
-19-
for such terms, and shall exercise such powers, and perform such duties, as the
board shall determine from time to time.
Any vacancies occurring in any office of the Corporation shall be filled by
the board of directors.
ARTICLE XVIII
-------------
Chairman of the Board of Directors
----------------------------------
The chairman of the board, who may be the chief executive officer of the
Corporation, shall perform all duties commonly incident to his or her office and
shall perform such other duties as the board of directors shall from time to
time designate. The chairman of the board shall preside at all meetings of the
stockholders and of the board of directors at which he or she is present, except
as otherwise voted by the board of directors.
The chief executive officer, in addition to his or her other duties, shall
have general and active management authority of corporate business and shall
ensure that all orders and resolutions of the board of directors are carried
into effect.
ARTICLE XIX.
------------
President
---------
The president, who may be the chief executive officer or the chief
operating officer of the Corporation, shall have such duties and powers as shall
be designated from time to time by the chairman of the board or the board of
directors. The president shall have all the powers and shall discharge all the
duties, other than those as a director, of the chairman of the board or the
chief executive officer during his or her absence or his or her inability or
incapacity to act. The president shall preside at all meetings of the
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stockholders and the board of directors, except when the chairman of the board
or the chief executive officer is present at such meetings.
The chief operating officer shall have general responsibility for the daily
operations of the Corporation and shall have such duties and powers as shall be
designated from time to time by the chairman of the board, the chief executive
officer or the board of directors.
ARTICLE XX
----------
Executive Vice Presidents, Senior Vice Presidents
-------------------------------------------------
and Vice Presidents
-------------------
Any executive vice president, any senior vice president or, if they are not
available, any available vice president, shall have all the powers and shall
discharge all the duties of the president during his or her absence or his or
her inability or incapacity to act, and each such vice president shall further
have such powers and discharge such duties as are imposed upon them by these By-
laws or may be from time to time conferred or imposed upon them by the chairman
of the board, the chief executive officer, the president, the chief operating
officer or the board of directors. Any executive vice president or senior vice
president may be the chief operating officer of the Corporation.
ARTICLE XXI
-----------
Chief Financial Officer
-----------------------
The chief financial officer, if such officer is appointed, or if not, the
treasurer, shall be responsible for developing, recommending and implementing
financial policies of the Corporation and shall have general responsibility for
protecting the Corporation's financial position. He or she shall keep and
maintain or cause to be kept and maintained,
-21-
adequate and correct books and records of accounts of the properties and
business transactions of the Corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses capital, retained earnings
and shares. He or she shall represent the Corporation in its transactions with
banks and other financial institutions.
ARTICLE XXII
------------
Secretary and Assistant Secretaries
-----------------------------------
The secretary or an assistant secretary shall attend all meetings of the
stockholders and all meetings of the board of directors and its committees, and
shall record all the proceedings of the meetings of the stockholders and of the
board of directors and its committees in a book or books to be kept for that
purpose. He or she shall give, or cause to be given, notice of all meetings of
the stockholders and meetings of the board of directors and shall perform such
other duties as may be prescribed by the chairman of the board, the president or
by the board of directors, under whose supervision the secretary shall work.
The secretary shall keep in safe custody the seal of the Corporation and when
authorized by the chairman of the board, the president, the board of directors,
or these By-laws, affix the same to any instrument requiring it and, when so
affixed, the secretary or an assistant secretary shall attest the seal by
signing his or her name to the sealed document. The secretary shall be
responsible for the stock ledger (which may, however, be kept by any transfer
agent or agents of the Corporation under the direction of the secretary).
The assistant secretary, or if there are more than one, the assistant
secretaries, in the order determined by the secretary, shall in the absence or
disability of the secretary perform the duties and exercise the powers of the
secretary, and shall perform such other
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duties and have such other powers as the chairman of the board, the president,
the board of directors and the secretary may from time to time prescribe.
ARTICLE XXIII
-------------
Treasurer and Assistant Treasurers
----------------------------------
The treasurer shall have custody of the corporate funds and securities and
shall keep, or cause to be kept, full and accurate account of receipts and
disbursements in books belonging to the Corporation, and shall deposit or cause
to be deposited all monies 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 invest surplus funds in such investments as
he or she shall deem appropriate in consultation with the chief financial
officer and pursuant to this authority may buy and sell securities on behalf of
the Corporation from time to time. He or she shall disburse or cause to be
disbursed the funds of the Corporation as may be ordered by the board of
directors, the chairman of the board or such other officer as the chairman of
the board may from time to time designate, taking proper vouchers for such
disbursements. The treasurer shall work under the supervision of the chief
financial officer, if the board of directors has appointed such an officer.
If required by the board of directors, the treasurer shall give the
Corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of his or her office and for the restoration to the
Corporation in case of his or her death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his or her possession or under his or her control
-23-
belonging to the Corporation. The assistant treasurer, if any, shall in the
absence or disability of the treasurer, perform the duties and exercise the
powers of the treasurer and shall perform such other duties and have such other
powers as the chairman of the board, the president, the board of directors and
the treasurer may from time to time prescribe and shall be responsible to and
shall report to the treasurer.
ARTICLE XXIV
------------
General Counsel and Assistant General Counsels
----------------------------------------------
The general counsel, if the board of directors appoints such an officer,
shall be the chief counseling officer of the Corporation in all legal matters,
and, subject to the control by the board of directors, he or she shall have
charge of all matters of legal import to the Corporation. His or her
relationship to the Corporation shall in all respects be that of an attorney to
a client. The general counsel shall have charge of all litigation of the
Corporation and keep himself or herself advised of the progress of all legal
proceedings and claims by and against the Corporation, or in which the
Corporation is interested by reason of its ownership and control of other
Corporations. The general counsel shall maintain records of all lawsuits and
actions of every nature in which the Corporation may be a party, or in which it
is interested, with sufficient data to show the nature of the case and the
proceedings therein, and such records and the papers relating thereto shall be
open at all times to the inspection of the directors and the executive officers
of the Corporation.
The general counsel shall give to the board of directors and to any officer
of the Corporation, whenever requested to do so, his or her opinion upon any
question affecting the interests of the Corporation and when requested by the
chairman of the board, the
-24-
president, a vice president, or by the board of directors or the executive
committee, give his or her opinion upon any subject that may be referred to him
or her.
The general counsel may, in his or her discretion, on behalf of the
Corporation, retain such independent attorneys, or law firms, in any and all
parts of the world, as he or she may deem necessary to assist him or her in the
performance of his or her duties and to protect and further the interests of the
Corporation.
The general counsel shall have power and authority to execute in the name
of the Corporation any and all bonds or stipulations for costs or other purposes
connected with legal proceedings in any of the courts of justice, for the
protection or enforcement of the rights and interests of this Corporation; and,
by instrument in writing, he or she may delegate to any such authority
appropriate power and authority to execute such bonds or stipulations.
The assistant general counsel, or, if there are more than one, the
assistant general counsels, shall, in the order determined by the general
counsel, in the absence or disability of the general counsel, perform his or her
duties and exercise his or her powers and shall perform such other duties and
have such other powers as the chairman of the board, the president, the board of
directors and the general counsel may from time to time prescribe.
ARTICLE XXV
-----------
Controller
----------
The controller, if the board of directors elects such an officer, shall be
the chief accounting officer of the Corporation, shall keep its books of account
and accounting records, and shall be in charge of the Corporation's accounting
policies and procedures.
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The controller shall work under the supervision of the chief financial officer.
The controller shall, with the approval of the board of directors, arrange for
annual audits by independent public accountants.
If required by the board of directors, the controller shall give the
Corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of his or her office and for the restoration to the
Corporation in case of his or her death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his or her possession or under his or her control belonging to the
Corporation.
The assistant controller, if any, shall in the absence or disability of the
controller perform the duties and exercise the powers of the controller, and
shall perform such other duties and have such other powers as the chairman of
the board, the president, the board of directors and the controller may from
time to time prescribe, and shall be responsible to and shall report to the
controller.
ARTICLE XXVI
------------
Resignations and Removals
-------------------------
Any director or officer may resign at any time by delivering his or her
resignation in writing to the chairman of the board, the president or the
secretary, or to a meeting of the board of directors. Such resignation shall
take effect at the time stated in the resignation, or if no time be so stated
therein, immediately upon its delivery, and without the necessity of its being
accepted unless the resignation shall so state.
-26-
The stockholders may remove any director from office, by vote of a majority
in interest of the stock issued and outstanding and entitled to vote for such
removal, at any meeting called for that purpose. The board of directors may at
any time, by vote of a majority of the directors then in office, remove from
office the chairman of the board, the president, any executive vice president,
any vice president, the chief financial officer, the treasurer, the secretary,
the general counsel or the controller at a special meeting called for that
purpose. Any other officer, agent or employee may be removed from office,
agency or employment by (i) vote of the board of directors at any meeting
thereof, or (ii) in the case of any officer, agent or employee not elected to
his or her position by the board of directors, by any committee or officer upon
whom such power may be conferred by the board of directors.
No director or officer resigning, and (except where a right to receive
compensation for a definite future period shall be expressly provided in a
written agreement with the Corporation duly approved by the board of directors)
no director or officer being removed shall have any right to any compensation as
such director or officer for any period following his or her resignation or
removal, or any right to damages on account of such removal, whether his or her
compensation be by the month or by the year or otherwise.
ARTICLE XXVII
-------------
Vacancies
---------
If the office of any director becomes vacant, by reason of death,
resignation or removal, a successor may be elected by the board of directors by
vote of a majority of the remaining directors then in office whether or not the
remaining directors constitute a
-27-
quorum. If the office of any officer becomes vacant, by reason of death,
resignation, removal or disqualification, a successor may be elected or
appointed by the board of directors by vote of a majority of the directors
present and voting. Each such successor shall hold office for the unexpired
terms, and until his or her successor shall be elected or appointed and
qualified, or until he or she sooner dies, resigns, is removed or replaced or
becomes disqualified. The board of directors shall have and may exercise all its
powers notwithstanding the existence of one or more vacancies in its number as
fixed by the stockholders, subject to any requirements of law or of these By-
laws as to the number of directors required for a quorum or for any vote,
resolution or other action.
ARTICLE XXVIII
--------------
Waiver of Notice
----------------
Whenever any notice is required to be given by law or under the provisions
of the Certificate of Incorporation or of these By-laws, a written waiver of
notice, signed by the person or persons entitled to such notice shall be deemed
to satisfy such notice requirement, whether such waiver was signed and delivered
before or after the meeting or other event for which notice is waived.
ARTICLE XXIX
------------
Certificates of Stock
---------------------
Every holder of stock in the Corporation shall be entitled to have a
certificate, signed in the name of the Corporation, by the chairman of the
board, the president or a vice president and by the treasurer or an assistant
treasurer or the secretary or an assistant secretary of the Corporation,
certifying the number of shares owned by him or her in the Corporation;
provided, however, that where any such certificate is countersigned by a
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transfer agent, other than the Corporation or its employee, or by a registrar,
other than the Corporation or its employee, any other signature on such
certificate may be a facsimile, engraved, stamped or printed. In case any
officer or officers who shall have signed, or whose facsimile signature or
signatures shall have been used on any such certificate or certificates shall
cease to be such officer or officers of the Corporation, whether because of
death, resignation or otherwise, before such certificate or certificates shall
have been delivered by the Corporation, such certificate or certificates may
nevertheless be adopted by the Corporation and be issued and delivered as though
the person or persons who signed such certificate or certificates or whose
facsimile signature or signatures have been used thereon had not ceased to be
such officer or officers of the Corporation, and any such issue and delivery
shall be regarded as an adoption by the Corporation of such certificate or
certificates. Certificates of stock shall be in such form as shall, in
conformity to law, be prescribed from time to time by the board of directors.
ARTICLE XXX
-----------
Transfer of Shares of Stock
---------------------------
Subject to applicable restrictions upon transfer, if any, title to a
certificate of stock and to the shares represented thereby shall be transferred
only by delivery of the certificate properly endorsed, or by delivery of the
certificate accompanied by a written assignment of the same, or a written power
of attorney to sell, assign or transfer the same or the shares represented
thereby, properly executed; but the person registered on the books of the
Corporation as the owner of shares shall have the exclusive right to receive
dividends thereon and, except as provided in Article VII with respect to stock
which has been pledged, to vote thereon as such owner or to give any consent
permitted by law, and
-29-
shall be held liable for such calls and assessments, if any, as may lawfully be
made thereon, and except only as may be required by law, may in all respects be
treated by the Corporation as the exclusive owner thereof. It shall be the duty
of each stockholder to notify the Corporation of his or her post office or
mailing address and to furnish to the Corporation such other information as the
Corporation may by law be required to obtain.
ARTICLE XXXI
------------
Transfer Books: Record Date
---------------------------
The board of directors shall have power to close the stock transfer books
of the Corporation for a period not exceeding sixty days preceding the date of
any meeting of stockholders or the date for payment of any dividend or the date
for the allotment of rights or the date when any change or conversion or
exchange of capital stock shall go into effect or for a period of not exceeding
sixty days in connection with obtaining the consent of stockholders for any
purpose; provided, however, that in lieu of closing the stock transfer books as
aforesaid, the board of directors may fix in advance a date, not exceeding sixty
days preceding the date of any meeting of stockholders, or any other of the
above-mentioned events, or a date in connection with obtaining such consent, as
a record date for the determination of the stockholders entitled to notice of,
and to vote at, any such meeting and any adjournment thereof, or entitled to
receive payment of any such dividend, or to any such allotment of rights, or to
exercise the rights in respect to any such change, conversion or exchange of
capital stock, or to give such consent, and in such case such stockholders and
only such stockholders as shall be stockholders of record on the date so fixed
shall be entitled to such notice of, and to vote at, such meeting and any
adjournment thereof, or to receive payment of such dividend, or to receive such
allotment
-30-
of rights, or to exercise such rights, or to give such consent, as the case may
be, notwithstanding any transfer of any stock on the books of the Corporation
after any such record date fixed as aforesaid.
ARTICLE XXXII
-------------
Loss of Certificates
--------------------
In the case of the alleged loss or destruction or the mutilation of a
certificate of stock, a duplicate certificate may be issued in place thereof
upon such terms in conformity with law as the board of directors may prescribe.
ARTICLE XXXIII
--------------
Seal
----
The corporate seal of the Corporation shall, subject to alteration by the
board of directors, consist of a flat-faced circular die with the word
"Delaware", together with the name of the Corporation and the year of its
organization, cut or engraved thereon. The corporate seal of the Corporation may
be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
ARTICLE XXXIV
-------------
Execution of Papers
-------------------
Unless the board of directors generally or in particular cases authorizes
the execution thereof in some other manner, all deeds, leases, transfers, sales
of securities, contracts, proxies, bonds, notes, checks, drafts and other
obligations, agreements and undertakings made, accepted or endorsed by the
Corporation, shall be signed by the chairman of the board, the president or by
one of the vice presidents, and, if such papers
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require a seal, the seal of the Corporation shall be affixed thereto and
attested by the secretary or an assistant secretary.
ARTICLE XXXV
------------
Fiscal Year
-----------
Except as from time to time otherwise provided by the board of directors,
the fiscal year of the Corporation shall commence on the first day of January of
each year, commencing January 1, 1991.
ARTICLE XXXVI
-------------
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, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the Certificate of Incorporation. 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 directors from time to time, in
their absolute discretion, think 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 such other purpose as the directors shall
think conducive to the interests of the Corporation, and the directors may
modify or abolish any such reserve in the manner in which it was created.
-32-
ARTICLE XXXVII
--------------
Respecting Certain Contracts
----------------------------
The directors of the Corporation are likely to be connected with other
corporations, partnerships, associations or firms with which from time to time
this Corporation may have business dealings. No contract or other transaction
between the Corporation and any other corporation, partnership, association or
firm and no act of the Corporation shall be affected by the fact that directors
of this Corporation are pecuniarily or otherwise interested in, or are
directors, members or officers of such other corporation, partnership,
association or firm. Any director individually, or any firm of which such
director may be a member, may be a party to or may be pecuniarily or otherwise
interested in any contract or transaction of the Corporation, provided that the
fact that he or she or such firm is so interested shall be disclosed or shall
have been known to the board of directors or a majority thereof that approves
such contract or transaction. Every contract, act or transaction which at any
annual meeting of the stockholders, or at any meeting of the stockholders called
for that purpose, among others, of considering such contract, act or
transaction, shall be authorized, approved or ratified by vote of the holders of
a majority of the shares in the capital stock of the Corporation present in
person or represented by proxy at such meeting (provided that a quorum of
stockholders be there present or represented by proxy) shall be as valid and
binding upon the Corporation and upon all its stockholders as though such a
contract, act or transaction had been expressly authorized, approved and
ratified by every stockholder of the Corporation.
-33-
ARTICLE XXXVIII
---------------
Indemnification of Directors, Officers and Employees
----------------------------------------------------
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(and whether or not by or in the right of the Corporation) by reason of the fact
that he is or was a director, officer, employee or agent of the Corporation, or
is or was serving at the request of the Corporation as a director, officer,
employee or agent of another company, partnership, joint venture, trust or other
enterprise or is or was serving as a fiduciary of any employee benefit plan,
fund or program sponsored by the Corporation or such other company, partnership,
joint venture, trust or other enterprise, against expenses (including attorney's
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, to the
extent and under the circumstances permitted by the General Corporation Law of
the State of Delaware as amended from time to time. Such indemnification
(unless ordered by a court) shall be made as authorized in a specific case upon
a determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because he has met the applicable standards of
conduct set forth in the General Corporation Law of the State of Delaware. Such
determination shall be made (1) by the board of directors by vote of a majority
of a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (2) if such quorum is not obtainable, or even if obtainable a
quorum of disinterested directors so directs by independent legal counsel in a
written opinion, or (3) by the stockholders. The foregoing right of
indemnification shall not be deemed
-34-
exclusive of any other rights to which those seeking indemnification may be
entitled under any by-law, agreement, vote of stockholders or disinterested
directors or otherwise, and shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
ARTICLE XXXIX
-------------
Amendments
----------
Except as provided in Article IX, these By-laws may be altered, amended or
repealed by (i) the affirmative vote of the holders of a majority of the voting
power of the issued and outstanding stock of the Corporation or (ii) the
affirmative vote of the majority of the directors then holding office at any
annual, regular or special stockholders or directors meeting, called for that
purpose, the notice of which shall specify the subject matter of the proposed
alteration, amendment or repeal and the articles to be affected thereby. Any
by-law, whether made, altered, amended or repealed by the stockholders or
directors, may be repealed, amended, further amended or reinstated, as the case
may be, by either the stockholders or the directors as aforesaid.
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