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EXHIBIT 3.2
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AMENDED AND RESTATED BYLAWS
OF
DUKE ENERGY FIELD SERVICES CORPORATION
Dated as of ___, 2000
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TABLE OF CONTENTS
Page
ARTICLE I
OFFICES AND RECORDS
ARTICLE II
STOCKHOLDERS
Section 2.1. Annual Meeting.............................................1
Section 2.2. Special Meeting............................................1
Section 2.3. Place of Meeting...........................................1
Section 2.4. Notice of Meeting..........................................2
Section 2.5. Quorum and Adjournment; Voting.............................2
Section 2.6. Proxies....................................................2
Section 2.7. Notice of Stockholder Business and Nominations.............2
Section 2.8. Procedure for Election of Directors; Required Vote.........4
Section 2.9. Inspectors of Elections; Opening and Closing the Polls.....5
Section 2.10. Conduct of Meetings........................................5
ARTICLE III
THE BOARD
Section 3.1. General Powers.............................................5
Section 3.2. Number; Qualifications and Tenure..........................6
Section 3.3. Regular Meetings...........................................6
Section 3.4. Special Meetings...........................................6
Section 3.5. Notice.....................................................6
Section 3.6. Action by Consent of Board.................................6
Section 3.7. Conference Telephone Meetings..............................6
Section 3.8. Quorum.....................................................6
Section 3.9. Vacancies; Increases in the Number of Directors............7
Section 3.10. Executive and Other Committees.............................7
Section 3.11. Removal....................................................7
Section 3.12. Records....................................................7
ARTICLE IV
OFFICERS
Section 4.1. Elected Officers...........................................8
Section 4.2. Election and Term of Office................................8
Section 4.3. Chairman of the Board; Chief Executive Officer.............8
Section 4.4. President..................................................8
Section 4.5. Vice Presidents............................................8
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Section 4.6. Treasurer..................................................9
Section 4.7. Secretary..................................................9
Section 4.8. Removal....................................................9
Section 4.9. Vacancies..................................................9
ARTICLE V
STOCK CERTIFICATES AND TRANSFERS
Section 5.1. Stock Certificates and Transfers..........................10
Section 5.2. Lost, Stolen or Destroyed Certificates....................10
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1. Fiscal Year...............................................10
Section 6.2. Dividends.................................................10
Section 6.3. Seal......................................................10
Section 6.4. Waiver of Notice..........................................10
Section 6.5. Audits....................................................11
Section 6.6. Resignations..............................................11
ARTICLE VII
CONTRACTS, PROXIES, ETC.
Section 7.1. Contracts.................................................11
Section 7.2. Proxies...................................................11
ARTICLE VIII
AMENDMENTS
Annex A
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AMENDED AND RESTATED BYLAWS
OF
DUKE ENERGY FIELD SERVICES CORPORATION
The original Bylaws of Duke Energy Field Services Corporation
(formerly known as DEFS Holding Corp.) (the "Corporation") were adopted by the
board of directors of the Corporation (the "Board") on December 8, 1999.
These Amended and Restated Bylaws have been declared advisable
by the Board, duly adopted by the stockholders of the Corporation and duly
executed and acknowledged by the officers of the Corporation in accordance with
Section 109 of the General Corporation Law of the State of Delaware ("DGCL").
The text of the Bylaws of the Corporation is hereby amended
and restated to read in its entirety as follows:
ARTICLE I
OFFICES AND RECORDS
The Corporation shall maintain a registered office in Delaware
and may maintain such other offices and keep its books, documents and records at
such places within or without Delaware as may, from time to time, be designated
by the Board.
ARTICLE II
STOCKHOLDERS
Section 2.1. Annual Meeting. The annual meeting of the
stockholders of the Corporation shall be held on such date and at such time as
may be fixed by resolution of the Board.
Section 2.2. Special Meeting. Except as otherwise required by
law and subject to the rights of the holders of any class or series of stock
having a preference over the Common Stock, as defined in the Certificate of
Incorporation of the Corporation (the "Certificate of Incorporation"), as to
dividends or upon liquidation, special meetings of the stockholders of the
Corporation for any purpose or purposes may be called only by:
(a) the Board pursuant to a resolution stating the purpose or
purposes thereof approved by a majority of the Board, or
(b) the Chairman of the Board.
No business other than that stated in the notice shall be transacted at any
special meeting.
Section 2.3. Place of Meeting. The Board or the Chairman of
the Board, as the case may be, may designate the place of meeting for any annual
meeting or for any special meeting of the stockholders. If no designation is so
made, the place of meeting shall be the principal office of the Corporation.
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Section 2.4. Notice of Meeting. Written or printed notice,
stating the place, day and hour of the meeting and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, shall be
delivered by the Corporation not less than ten calendar days nor more than 60
calendar days before the date of the meeting, either personally or by mail, to
each stockholder of record entitled to vote at such meeting. Holders of
Preferred Stock, as defined in the Certificate of Incorporation, shall not be
entitled to receive notice of any meeting of stockholders at which they are not
entitled to vote. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail with postage thereon prepaid, addressed to
the stockholder at such person's address as it appears on the stock transfer
books of the Corporation. Only such business shall be conducted at a special
meeting of stockholders as shall have been included in the Corporation's notice
of meeting. Meetings may be held without notice if all stockholders entitled to
vote are present, or if notice is waived by those not present in accordance with
Section 6.4 of these Bylaws. Any previously scheduled meeting of the
stockholders may be postponed, and any special meeting of the stockholders may
be canceled, by resolution of the Board upon public notice given prior to the
date previously scheduled for such meeting of stockholders.
Section 2.5. Quorum and Adjournment; Voting. Except as
otherwise provided by law or by the Certificate of Incorporation, the holders of
a majority of the voting power of all outstanding shares of the Corporation
entitled to vote generally in the election of Directors (as hereinafter defined)
(the "Voting Stock"), represented in person or by proxy, shall constitute a
quorum at a meeting of stockholders, except that when specified business is to
be voted on by a class or series of stock voting as a class, the holders of a
majority of the shares of such class or series shall constitute a quorum of such
class or series for the transaction of such business. The chairman of the
meeting or a majority of the shares so represented may adjourn the meeting from
time to time, whether or not there is such a quorum. 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.
Section 2.6. Proxies. At all meetings of stockholders, a
stockholder may vote by proxy executed in writing (or in such other manner
permitted by the DGCL) by the stockholder or by such person's duly authorized
attorney-in-fact.
Section 2.7. Notice of Stockholder Business and Nominations.
(a) Annual Meetings of Stockholders.
(i) Nominations of persons for election to the Board
and the proposal of business to be considered by the stockholders may be made at
an annual meeting of stockholders (A) pursuant to the Corporation's notice of
meeting in accordance with Section 2.4 of these Bylaws, (B) by or at the
direction of the Board, or (C) by any stockholder of the Corporation who was a
stockholder of record at the time the notice provided for in this Bylaw was
delivered, who is entitled to vote at the meeting and who complies with the
notice procedures set forth in this Bylaw.
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(ii) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to clause (C) of
Section 2.7(a)(i) hereof, the stockholder must have given timely notice thereof
in writing to the Secretary of the Corporation 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 Corporation not later than the close of business on the
90th calendar day nor earlier than the close of business on the 120th calendar
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 calendar days before or more than 60 calendar days after such
anniversary date, notice by the stockholder to be timely must be so delivered
not earlier than the close of business on the 120th calendar day prior to such
annual meeting and not later than the close of business on the later of the 90th
calendar day prior to such annual meeting or the 10th calendar day following the
calendar day on which public announcement of the date of such meeting is first
made by the Corporation. 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 being named in the proxy statement as a nominee and to
serving as a member of the Board (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, (1) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (2) the class and number
of shares of the Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner.
(iii) Notwithstanding anything in the second sentence
of paragraph (a)(ii) of this Bylaw to the contrary, in the event that the number
of Directors to be elected to the Board is increased and there is no public
announcement by the Corporation naming all of the nominees for Director or
specifying the size of the increased Board at least 100 calendar days prior to
the first anniversary of the preceding year's annual meeting, a stockholder's
notice required by this Bylaw 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
Corporation not later than the close of business on the tenth calendar day
following the day on which such public announcement is first made by the
Corporation.
(b) Special Meetings of the Stockholders. Only such business
shall be conducted at a special meeting of stockholders as shall have been
brought before the meeting pursuant to the Corporation's notice of meeting under
Section 2.4 of these Bylaws. Nominations of persons for election to the Board
may be made at a special meeting of stockholders at which Directors are to be
elected pursuant to the Corporation's notice of meeting (i) by or at the
direction of the Board, (ii) provided that the Board has determined that
Directors shall be elected
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at such meeting, by any stockholder of the Corporation who is a stockholder of
record at the time of giving of notice provided for in this Bylaw, who shall be
entitled to vote at the meeting and who complies with the notice procedures set
forth in this Bylaw. In the event the Corporation calls a special meeting of
stockholders for the purpose of electing one or more Directors to the Board, any
stockholder may nominate a person or persons (as the case may be) for election
to such position(s) as specified in the Corporation's notice of meeting pursuant
to clause (ii) if the stockholder's notice required by paragraph (a)(ii) of this
Bylaw shall be delivered to the Secretary at the principal executive offices of
the Corporation not earlier than the close of business on the 120th calendar day
prior to such special meeting and not later than the close of business on the
later of the 90th calendar day prior to such special meeting or the tenth
calendar 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 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.
(c) General.
(i) Only such persons who are nominated in accordance
with the procedures set forth in this Bylaw 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 Bylaw. Except as otherwise provided by law, the Certificate of
Incorporation or these Bylaws, 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 Bylaw and, if any proposed
nomination or business in not in compliance with this Bylaw, to declare that
such defective proposal or nomination shall be disregarded.
(ii) For purposes of this Bylaw, "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 Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of
this Bylaw, 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 Bylaw. Nothing in this Bylaw shall be deemed to affect
any rights (A) of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(B) of the holders of any series of Preferred Stock to elect Directors under an
applicable Preferred Stock Designation (as defined in the Certificate of
Incorporation).
Section 2.8. Procedure for Election of Directors; Required
Vote. Election of Directors at all meetings of the stockholders at which
Directors are to be elected shall be by ballot, and, subject to the rights of
the holders of any series of Preferred Stock to elect Directors under an
applicable Preferred Stock Designation, a plurality of the votes cast thereat
shall elect Directors. Except as otherwise provided by law, the Certificate of
Incorporation, Preferred Stock Designation or these Bylaws, in all matters other
than the election of Directors, the affirmative
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vote of a majority of the voting power of the shares present in person or
represented by proxy at the meeting and entitled to vote on the matter shall be
the act of the stockholders.
Section 2.9. Inspectors of Elections; Opening and Closing the
Polls. The Board by resolution shall appoint, or shall authorize an officer of
the Corporation to appoint, one or more inspectors, which inspector or
inspectors may include individuals who serve the Corporation in other
capacities, including, without limitation, as officers, employees, agents or
representatives, to act at the meetings of stockholders and make a written
report thereof. One or more persons may be designated as alternate inspector(s)
to replace any inspector who fails to act. If no inspector or alternate has been
appointed to act or is able to act at a meeting of the stockholders, the
chairman of the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before discharging such person's duties, shall take and
sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of such person's ability. The
inspector(s) shall have the duties prescribed by law. The chairman of the
meeting shall fix and announce at the meeting the date and time of the opening
and the closing of the polls for each matter upon which the stockholders will
vote at a meeting.
Section 2.10. Conduct of Meetings. The Board may to the extent
not prohibited by law adopt such rules and regulations for the conduct of
meetings of stockholders as it shall deem appropriate. Except to the extent
inconsistent with such rules and regulations as adopted by the Board, the
chairman of any meeting of stockholders shall have the right and authority to
prescribe such rules, regulations and procedures and to do all such acts as, in
the judgment of such chairman, are appropriate for the proper conduct of the
meeting. Such rules, regulations or procedures, whether adopted by the Board or
prescribed by the chairman of the meeting, may to the extent not prohibited by
law include, without limitation, the following: (a) the establishment of an
agenda or order of business for the meeting; (b) rules and procedures for
maintaining order at the meeting and the safety of those present; (c)
limitations on attendance at or participation in the meeting to stockholders of
record of the Corporation, their duly authorized and constituted proxies or such
other persons as the chairman of the meeting shall determine; (d) restrictions
on entry to the meeting after the time fixed for the commencement thereof; and
(e) limitations on the time allotted to questions or comments by participants.
The date and time of the opening and closing of the polls for each matter upon
which the stockholders will vote at a meeting shall be announced at the meeting
by the person presiding over the meeting. Unless and to the extent determined by
the Board or the chairman of the meeting, meetings of stockholders shall not be
required to be held in accordance with the rules of parliamentary procedure.
ARTICLE III
THE BOARD
Section 3.1. General Powers. The business and affairs of the
Corporation shall be managed under the direction of the Board. In addition to
the powers and authorities expressly conferred upon the Board by these Bylaws,
the Board may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute, by the Certificate of Incorporation or by
these Bylaws required to be exercised or done by the stockholders. Except as
provided in the following sentence with respect to actions with respect to the
matters set forth in Annex A hereto, all decisions of the Board shall require
the affirmative vote of a majority of
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the Directors present at a meeting at which a quorum is present. So long as each
of Phillips Petroleum Company, a Delaware corporation ("Phillips"), and Duke
Energy corporation, a North Carolina corporation ("Duke"), owns, directly or
indirectly, at least 20% of the Common Stock, no action shall be taken by the
Board with respect to the matters set forth in Annex A hereto without the prior
approval of at least eight of the 11 Directors of the Board.
Section 3.2. Number; Qualifications and Tenure. The number of
the Directors shall be 11. A Director need not be a stockholder of the
Corporation.
Section 3.3. Regular Meetings. The Board shall meet at least
quarterly. The Board may, by resolution and notice to each of the Directors,
provide the time and place for the holding of additional regular meetings
without other notice than such resolution and notice to the Directors.
Section 3.4. Special Meetings. A special meeting of the Board
may be called at any time on two Business Days' prior notice at the request of
(a) the Chairman of the Board or (b) any four Directors. As used in these
Bylaws, the term "Business Day" shall mean any day on which banks are generally
open to conduct business in the State of New York. The place of any special
meeting shall be the corporate headquarters of the Corporation unless otherwise
agreed by a majority of the Directors.
Section 3.5. Notice. Written notice of all regular meetings of
the Board must be given to all Directors at least 15 days prior to the regular
meeting of the Board and two Business Days prior to any special meeting of the
Board. All notices and other communications to be given to Directors shall be
sufficiently given for all purposes hereunder if in writing and delivered by
hand, courier or overnight delivery service or three days after being mailed by
certified or registered mail, return receipt requested, with appropriate postage
prepaid, or when received in the form of a telegram or facsimile, and shall be
directed to the address or facsimile number as such Director shall designate by
notice to the Corporation. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Board need be specified in the
notice of such meeting, except for amendments to these Bylaws, as provided under
Article VIII. A meeting 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
accordance with Section 6.4.
Section 3.6. Action by Consent of Board. To the extent
permitted by applicable law, the Board and any committee thereof may act without
a meeting so long as all members of the Board or committee shall have executed a
written consent with respect to any Board action taken in lieu of a meeting.
Section 3.7. Conference Telephone Meetings. Members of the
Board or any committee thereof may participate in a meeting of the Board or such
committee by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and such participation in a meeting shall constitute presence in person at such
meeting.
Section 3.8. Quorum. At least six Directors, present in
person, participating in accordance with Section 3.7 or represented by proxy,
shall constitute a quorum for the
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transaction of business, but if at any meeting of the Board there shall be less
than a quorum present, a majority of the Directors present may adjourn the
meeting from time to time without further notice. Subject to the supermajority
voting provisions of Section 3.1, the act of the majority of the Directors
present at a meeting at which a quorum is present shall be the act of the Board.
The Directors present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough Directors
to leave less than a quorum.
Section 3.9. Vacancies; Increases in the Number of Directors.
Vacancies and newly created directorships resulting from any increase in the
authorized number of Directors may be filled by a majority of the Directors then
in office, although less than a quorum, or a sole remaining Director; and any
Director so chosen shall hold office until the next annual election and until
his successor shall be duly elected and shall qualify, unless sooner displaced.
Section 3.10. Executive and Other Committees. (a) The Board
may establish committees of the Board and, to the extent not inconsistent with
the supermajority voting provisions of Section 3.1, may delegate certain of its
responsibilities to such committees, provided that so long as each of Phillips
and Duke owns, directly or indirectly, at least 20% of the Common Stock, each
committee of the Board, other than the audit committee, shall include at least
one Director designated by Phillips who is not an Independent Director (as
hereinafter defined) and one Director designated by Duke who is not an
Independent Director.
(b) The Board shall have an audit committee comprised of three
Independent Directors, which audit committee shall establish a written audit
committee charter in accordance with the rules of the New York Stock Exchange,
Inc. (the "NYSE"), as amended from time to time. "Independent Director" shall
mean a Director meeting the independence and experience requirements, as set
forth by the NYSE as of __ , 2000 for membership on the audit committee of the
Board, with respect to each of Phillips, Duke and the Corporation.
(c) Unless the Board shall otherwise provide, a majority of
any committee may fix the time and place of its meetings and, subject to the
supermajority voting provisions of Section 3.1, may determine its action. Notice
of such meetings shall be given to each member of the committee in the manner
provided for in Section 3.5 of these Bylaws. Subject to Section 3.10(a), the
Board shall have power at any time to fill vacancies in, to change the
membership of, or to dissolve any such committee. Nothing herein shall be deemed
to prevent the Board from appointing one or more committees consisting in whole
or in part of persons who are not Directors; provided, however, that no such
committee shall have or may exercise any authority of the Board.
Section 3.11. Removal. Any Director or the entire Board may be
removed, with or without cause, by the holders of a majority of the Voting
Stock.
Section 3.12. Records. The Board shall cause to be kept a
record containing the minutes of the proceedings of the meetings of the Board
and of the stockholders, appropriate stock books and registers and such books of
records and accounts as may be necessary for the proper conduct of the business
of the Corporation.
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ARTICLE IV
OFFICERS
Section 4.1. Elected Officers. The executive officers of the
Corporation shall be selected by, and serve at the pleasure of, the Board. Such
officers shall have the authority and duties delegated to each of them,
respectively, by the Board from time to time. The elected officers of the
Corporation shall be a Chairman of the Board, a President, a Secretary, a
Treasurer, and such other officers (including, without limitation, Executive
Vice Presidents, Senior Vice Presidents and Vice Presidents) as the Board from
time to time may deem proper. The Chairman of the Board shall be chosen from
among the Directors. All officers elected by the Board shall each have such
powers and duties as generally pertain to their respective offices, subject to
the specific provisions of this Article IV. The Board or any committee thereof
may from time to time elect, or the Chairman of the Board may appoint, such
other officers (including one or more Vice Presidents, Controllers, Assistant
Secretaries and Assistant Treasurers), as may be necessary or desirable for the
conduct of the business of the Corporation. Such other officers and agents shall
have such duties and shall hold their offices for such terms as shall be
provided in these Bylaws or as may be prescribed by the Board or such committee
or by the Chairman of the Board, as the case may be.
Section 4.2. Election and Term of Office. The elected officers
of the Corporation shall be elected annually by the Board at the regular meeting
of the Board held after the annual meeting of the stockholders. If the election
of officers shall not be held at such meeting, such election shall be held as
soon thereafter as convenient. Each officer shall hold office until such
person's successor shall have been duly elected and shall have qualified or
until such person's death or until he shall resign or be removed pursuant to
Section 4.8.
Section 4.3. Chairman of the Board; Chief Executive Officer.
The Chairman of the Board shall preside at all meetings of the stockholders and
of the Board and shall be the Chief Executive Officer of the Corporation. The
Chairman of the Board shall be responsible for the general management of the
affairs of the Corporation and shall perform all duties incidental to such
person's office which may be required by law and all such other duties as are
properly required of him by the Board. He shall make reports to the Board and
the stockholders and shall see that all orders and resolutions of the Board and
of any committee thereof are carried into effect. The Chairman of the Board may
also serve as President, if so elected by the Board. The Directors also may
elect a vice-chairman to act in the place of the Chairman upon his or her
absence or inability to act.
Section 4.4. President. The President shall act in a general
executive capacity and shall assist the Chairman of the Board in the
administration and operation of the Corporation's business and general
supervision of its policies and affairs. The President, if he is also a
director, shall, in the absence of or because of the inability to act of the
Chairman of the Board, perform all duties of the Chairman of the Board and
preside at all meetings of stockholders and of the Board.
Section 4.5. Vice Presidents. Each Executive Vice President
and Senior Vice President and any Vice President shall have such powers and
shall perform such duties as shall be assigned to him by the Board or the
Chairman of the Board.
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Section 4.6. Treasurer. (a) The Treasurer shall exercise
general supervision over the receipt, custody and disbursement of corporate
funds. The Treasurer shall cause the funds of the Corporation to be deposited in
such banks as may be authorized by the Board, or in such banks as may be
designated as depositories in the manner provided by resolution of the Board.
The Treasurer shall, in general, perform all duties incident to the office of
the Treasurer and shall have such further powers and duties and shall be subject
to such directions as may be granted or imposed from time to time by the Board
or the Chairman of the Board.
Section 4.7. Secretary. (a) The Secretary shall keep or cause
to be kept, in one or more books provided for that purpose, the minutes of all
meetings of the Board, the committees of the Board and the stockholders. The
Secretary shall see that all notices are duly given in accordance with the
provisions of these Bylaws and as required by law; shall be custodian of the
records and the seal of the Corporation and affix and attest the seal to all
stock certificates of the Corporation (unless the seal of the Corporation on
such certificates shall be a facsimile, as hereinafter provided) and affix and
attest the seal to all other documents to be executed on behalf of the
Corporation under its seal; and shall see that the books, reports, statements,
certificates and other documents and records required by law to be kept and
filed are properly kept and filed; and in general, shall perform all the duties
incident to the office of Secretary and such other duties as from time to time
may be assigned to the Secretary by the Board or the Chairman of the Board.
(b) Assistant Secretaries shall have such of the authority and
perform such of the duties of the Secretary as may be provided in these Bylaws
or assigned to them by the Board, the Chairman of the Board or the Secretary.
Assistant Secretaries shall assist the Secretary in the performance of the
duties assigned to the Secretary, and in assisting the Secretary, each Assistant
Secretary shall for such purpose have the powers of the Secretary. During the
Secretary's absence or inability, the Secretary's authority and duties shall be
possessed by such Assistant Secretary or Assistant Secretaries as the Board or
the Chairman of the Board may designate.
Section 4.8. Removal. Any officer elected, or agent appointed,
by the Board may be removed by the affirmative vote of a majority of the Board
whenever, in its judgment, the best interests of the Corporation would be served
thereby. Any officer or agent appointed by the Chairman of the Board may be
removed by him whenever, in the judgment of the Chairman of the Board, the best
interests of the Corporation would be served thereby. No elected officer shall
have any contractual rights against the Corporation for compensation by virtue
of such election beyond the date of the election of such person's successor,
such person's death, such person's resignation or such person's removal,
whichever event shall first occur, except as otherwise provided in an employment
contract or under an employee deferred compensation plan.
Section 4.9. Vacancies. A newly created elected office and a
vacancy in any elected office because of death, resignation or removal may be
filled by the Board for the unexpired portion of the term at any meeting of the
Board. Any vacancy in an office appointed by the Chairman of the Board because
of death, resignation or removal may be filled by the Chairman of the Board.
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ARTICLE V
STOCK CERTIFICATES AND TRANSFERS
Section 5.1. Stock Certificates and Transfers. The interest of
each stockholder of the Corporation shall be evidenced by certificates for
shares of stock in such form as the appropriate officers of the Corporation may
from time to time prescribe. The shares of the stock of the Corporation shall be
transferred on the books of the Corporation by the holder thereof in person or
by such person's attorney, upon surrender for cancellation of certificates for
at least the same number of shares, with an assignment and power of transfer
endorsed thereon or attached thereto, duly executed, with such proof of the
authenticity of the signature as the Corporation or its agents may reasonably
require. The certificates of stock shall be signed, countersigned and registered
in such manner as the Board may by resolution prescribe, which resolution may
permit all or any of the signatures on such certificates to be in facsimile. In
case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate has ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if he were such officer, transfer
agent or registrar at the date of issue. Notwithstanding the foregoing
provisions regarding share certificates, the proper officers of the Corporation
may provide that some or all of any or all classes or series of the
Corporation's common or any preferred shares may be uncertificated shares.
Section 5.2. Lost, Stolen or Destroyed Certificates. No
certificate for shares of stock in the Corporation shall be issued in place of
any certificate alleged to have been lost, destroyed or stolen, except on
production of such evidence of such loss, destruction or theft and on delivery
to the Corporation of a bond of indemnity in such amount, upon such terms and
secured by such surety, as the Board or any financial officer may in its or such
person's discretion require.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1. Fiscal Year. The fiscal year of the Corporation
shall begin on the first day of January and end on the thirty-first day of
December of each year.
Section 6.2. Dividends. The Board may from time to time
declare, and the Corporation may pay, dividends on its outstanding shares in the
manner and upon the terms and conditions provided by law and the Certificate of
Incorporation.
Section 6.3. Seal. The corporate seal, if any, shall have
inscribed thereon the words "Corporate Seal," the year of incorporation and the
word "Delaware."
Section 6.4. Waiver of Notice. Whenever any notice is required
to be given to any stockholder or Director under the provisions of the DGCL or
these Bylaws, a waiver thereof in writing, signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to the giving of such notice. Neither the business to be
transacted at, nor the purpose of, any annual or special meeting of the
stockholders or the Board or committee thereof need be specified in any waiver
of notice of such meeting.
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Section 6.5. Audits. The accounts, books and records of the
Corporation shall be audited upon the conclusion of each fiscal year by an
independent certified public accountant selected by the Board, and it shall be
the duty of the Board to cause such audit to be done annually.
Section 6.6. Resignations. Any Director or any officer,
whether elected or appointed, may resign at any time by giving written notice of
such resignation to the Chairman of the Board or the Secretary, and such
resignation shall be deemed to be effective as of the close of business on the
date said notice is received by the Chairman of the Board of the Secretary, or
at such later time as is specified therein. No formal action shall be required
of the Board or the stockholders to make any such resignation effective.
ARTICLE VII
CONTRACTS, PROXIES, ETC.
Section 7.1. Contracts. Except as otherwise required by law,
the Certificate of Incorporation, a Preferred Stock Designation or these Bylaws,
any contracts or other instruments may be executed and delivered in the name and
on the behalf of the Corporation by such officer or officers of the Corporation
as the Board may from time to time direct. Such authority may be general or
confined to specific instances as the Board may determine. The Chairman of the
Board, the President or any Executive Vice President, Senior Vice President or
Vice President may execute bonds, contracts, deeds, leases and other instruments
to be made or executed for or on behalf of the Corporation. Subject to any
restrictions imposed by the Board, the Chairman of the Board, the President or
any Executive Vice President, Senior Vice President or Vice President of the
Corporation may delegate contractual powers to others under such person's
jurisdiction, it being understood, however, that any such delegation of power
shall not relieve such officer of responsibility with respect to the exercise of
such delegated power.
Section 7.2. Proxies. Unless otherwise provided by resolution
adopted by the Board, the Chairman of the Board, the President or any Executive
Vice President, Senior Vice President or Vice President may from time to time
appoint an attorney or attorneys or agent or agents of the Corporation, in the
name and on behalf of the Corporation, to cast the votes which the Corporation
may be entitled to cast as the holder of stock or other securities in any other
corporation, any of whose stock or other securities may be held by the
Corporation, at meetings of the holders of the stock or other securities of such
other corporation, or to consent in writing, in the name of the Corporation as
such holder, to any action by such other corporation, and may instruct the
person or persons so appointed as to the manner of casting such votes or giving
such consent, and may execute or cause to be executed in the name and on behalf
of the Corporation and under its corporate seal or otherwise, all such written
proxies or other instruments as he may deem necessary or proper in the premises.
ARTICLE VIII
AMENDMENTS
These Bylaws, including this Article VIII, may be altered,
amended or repealed and new Bylaws may be adopted (a) at any annual or special
meeting of stockholders by the affirmative vote of the holders of a majority of
the voting power of the stock issued and
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outstanding and entitled to vote thereat or (b) by the affirmative vote of a
majority of the Board; provided, however, that so long as each of Duke and
Phillips owns at least 20%, directly or indirectly, of the Common Stock, any
proposed alteration, amendment or repeal of, or the adoption of any Bylaw
inconsistent with Sections 3.1 through 3.11 or this Article VIII, by the
stockholders or the Board shall require the consent of both Duke and Phillips;
and provided, further, that, in the case of any such stockholder action at a
special meeting of stockholders, notice of the proposed alteration, amendment,
repeal or adoption of such Bylaws must be contained in the notice of such
special meeting.
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ANNEX A
SUPER-MAJORITY ITEMS
1. Compensation policies for employees of the Corporation, including
specific compensation and benefit plans and programs, to the extent
such policies are of the type that would customarily be considered by a
compensation committee of the board of directors of a comparably sized,
publicly-traded corporation; provided, however, that these policies
shall not include the hiring and firing and compensation of senior
officers and managers, evaluating their performance and planning for
their succession.
2. Entering a new line of business outside of the midstream gas gathering,
processing, marketing and transportation businesses (and directly
related activities) in the United States and Canada.
3. A change in auditors.
4. The following transactions:
a) Any merger, consolidation, recapitalization, acquisition,
divestiture, joint venture or alliance (or a related series of
such transactions) involving the acquisition or expenditure
(in the form of cash or otherwise) of in excess of
$200,000,000 in value to or from the Corporation;
b) Any shut-down of a facility having a fair market value in
excess of $100,000,000;
c) Entering into any sales contract or commitment that has a term
of 5 years or more and that involves annual revenues to the
Corporation in excess of 5% of the Corporation's total annual
sales revenues for the most recently completed fiscal year;
d) Liquidation or dissolution of the Corporation.
5. Any capital expenditure in excess of $200,000,000 (other than a capital
expenditure to effect any merger, consolidation, recapitalization,
acquisition, divestiture, joint venture or alliance).
6. Any borrowing in excess of $200,000,000.
7. The settlement of actions or claims against the Corporation involving
payment by the Corporation of in excess of $25,000,000, excluding
amounts covered or reimbursed by insurance.
8. Entering into transactions with either Duke or Phillips or Affiliates
of either on terms that are clearly less favorable than those terms
that are within the range of comparable transactions between
unaffiliated third parties.
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If a particular action that the Corporation proposes to take is reflected in an
operating or capital budget of the Corporation that has been approved by eight
or more directors, no further approval of such action is required before it may
be taken, notwithstanding the inclusion of such action in this Annex A.
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